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EXHIBIT 10.15
INDENTURE OF TRUST
THIS INDENTURE OF TRUST is dated as of November 1, 1983, between the
ECONOMIC DEVELOPMENT CORPORATION OF THE CITY OF PLAINWELL (the "Issuer"), a
political subdivision and body corporate and politic of the State of Michigan
(the "State"), and FIRST & MERCHANTS NATIONAL BANK, a national banking
association organized and existing under the laws of the United States with its
principal corporate trust office located at Richmond, Virginia (the "Trustee"),
as Trustee.
W I T N E S S E T H:
WHEREAS, Issuer has been created under the provisions of and is empowered
pursuant to Xxx 000, Public Acts of Michigan, 1974, as amended (the "Act"), to
issue its revenue obligations to finance costs of providing certain facilities
including pollution control facilities; and
WHEREAS, Plainwell Paper Co., Inc., a Michigan corporation (the
"Company"), is pursuing the acquisition, construction and installation of
facilities and equipment described in Exhibit A to the Loan Agreement (as
hereinafter defined) (the "Project"),
WHEREAS, on April 26, 1983, the Board of Directors of the Issuer adopted
an initial resolution stating the intention of the Issuer to issue revenue bonds
in an aggregate amount of not to exceed $4,000,000 to finance costs of that
acquisition, construction and installation;
WHEREAS, in furtherance of the purposes of the Act, the Issuer proposes to
issue its Variable Rate Demand Notes (Plainwell Paper Co., Inc. Project) (the
"Notes"), pursuant to this Indenture to finance the costs of acquiring,
constructing and installing the Project, to sell the Notes to a purchaser
provided by the Company and to loan the proceeds from the sale thereof to the
Company pursuant to a Loan Agreement (the "Agreement") of even date herewith
between the Issuer and the Company; and
WHEREAS, all things necessary to make the Notes when authenticated by the
Trustee and issued as in this Indenture provided, the valid, binding and legal
obligations of the Issuer according to the import thereof, and to constitute
this Indenture a valid assignment and pledge of the payments under the Agreement
(except for amounts payable to the Issuer under Sections 4.2(b), and 8.4 of the
Agreement) for payment of the principal of, premium, if any, and interest on the
Notes, and to constitute this Indenture a valid assignment of the rights of the
Issuer under the Agreement except as otherwise stated herein, have been done and
performed, and the creation, execution and delivery of this Indenture, and the
issuance of the Notes, subject to the terms hereof, have in all respects been
duly authorized.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
That the Issuer, in consideration of the premises and the acceptance by
the Trustee of the trusts hereby created and of the purchase and acceptance of
the Notes by the Owners thereof, and of the sum of one dollar, lawful money of
the United States of America, to it duly paid by the Trustee at or before the
execution and delivery of these presents, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, in order to secure
the payment of the principal of, premium, if any, and interest on the Notes
according to their tenor and effect and to secure the performance and observance
by the Issuer of all the covenants expressed or implied herein and in the Notes,
does hereby assign and grant a security interest in the following to the
Trustee, and its successors in trust and assigns forever, for the securing of
the performance of the obligations of the Issuer hereinafter set forth:
GRANTING CLAUSE FIRST
The Agreement, including all extensions and renewals of the term thereof,
if any, together with all right, title and interest of the Issuer in and to the
Agreement, including, but not limited to, the present and continuing right to
make claim for, collect, receive and receipt for any of the sums, amounts,
income, revenues, issues and profits and any other sums of money payable or
receivable under the Agreement (except for amounts payable to the Issuer under
Sections 4.2(b), and 8.4 thereof), to bring actions and proceedings thereunder
or for the enforcement thereof, and to do any and all things which the Issuer is
or may become entitled to do under the Agreement.
GRANTING CLAUSE SECOND
All moneys and securities from time to time held by the Trustee under the
terms of this Indenture.
GRANTING CLAUSE THIRD
Any and all other property rights and interests of every kind and nature
from time to time hereafter by delivery or by writing of any kind granted,
bargained, sold, alienated, demised, released, conveyed, assigned, transferred,
mortgaged, pledged, hypothecated or otherwise subjected hereto, as and for
additional security herewith, by the Company or any other person on its behalf
or with its written consent or by the Issuer or any other person on its behalf
or with its written consent, and the Trustee is hereby authorized to receive any
and all such property at any and all times and to hold and apply the same
subject to the terms hereof.
TO HAVE AND TO HOLD all and singular the Trust Estate, whether now owned
or hereafter acquired, unto the Trustee and its respective successors in said
trust and assigns forever;
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IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the
equal and proportionate benefit, security and protection of all present and
future Owners of the Notes, from time to time, issued under and secured by this
Indenture without privilege, priority or distinction as to the lien or otherwise
of any of the Notes over any of the other Notes except in the case of funds held
hereunder for the benefit of particular Owners of Notes, and for the benefit of
the Bank to the extent provided herein;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid, the principal of, premium, if any, and
interest on the Notes due or to become due thereon, at the times and in the
manner set forth in the Notes according to the true intent and meaning thereof,
and shall cause the payments to be made on the Notes as required under Article
IV hereof, or shall provide, as permitted hereby, for the payment thereof by
depositing with the Trustee the entire amount due or to become due thereon, and
shall well and truly cause to be kept, performed and observed all of its
covenants and conditions pursuant to the terms of this Indenture, and shall pay
or cause to be paid to the Trustee all sums of money due or to become due to it
in accordance with the terms and provisions hereof, then upon the final payment
thereof this Indenture and the rights hereby granted shall cease, determine and
be void, except to the extent specifically provided in Article VII hereof;
otherwise this Indenture shall remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all
Notes issued and secured hereunder are to be issued, authenticated and delivered
and all said property, rights and interests, including, without limitation, the
amounts payable under the Agreement and any other amounts hereby assigned and
pledged are to be dealt with and disposed of under, upon and subject to the
terms, conditions, stipulations, covenants, agreements, trusts, uses and
purposes as herein expressed, and the Issuer has agreed and covenanted, and does
hereby agree and covenant with the Trustee and with the respective Owners of the
Notes as follows:
ARTICLE I
DEFINITIONS
All capitalized, undefined terms used herein shall have the same meaning
as used in Article I of the Agreement. In addition, the following words and
phrases shall have the following meanings:
"Act" means Act 338, Public Acts of Michigan, 1974, as amended.
"Act of Bankruptcy" means the filing of a petition in bankruptcy (or the
other commencement of a bankruptcy or similar proceeding) by or against the
Company or the Issuer under any applicable bankruptcy, insolvency,
reorganization or similar law, now or hereafter in effect.
"Agreement" means the Loan Agreement dated as of this date between the
Issuer and the Company, and any amendments and supplements thereto.
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"Authenticating Agent" means any agent or agents of the Trustee which at
the time shall be appointed and acting pursuant to Section 917 hereof.
"Available Moneys" means (a) with respect to any payment date occurring
during the term of the Letter of Credit, (i) moneys drawn under the Letter of
Credit, or (ii) moneys deposited into the Note Fund pursuant to Section 503(a)
hereof or moneys deposited by Company with the Trustee, in either such case,
which moneys have been on deposit with the Trustee for at least 123 days during
and prior to which no Act of Bankruptcy shall have occurred, or (iii) the
proceeds of the sale of refunding obligations, if, in the opinion of nationally
recognized counsel experienced in bankruptcy matters, the application of such
moneys will not constitute a voidable preference in the event of the occurrence
of an Act of Bankruptcy, or (iv) the proceeds from investment of moneys
qualifying as Available Moneys under clause (i), (ii) or (iii) above, and (b)
with respect to any payment date not occurring during the term of the Letter of
Credit, any moneys held by the Trustee and the proceeds from the investment
thereof. Notwithstanding the foregoing, when used with respect to payment of any
amounts due in respect of any Bank Notes, the term "Available Moneys" shall mean
any moneys held by the Trustee and the proceeds from the investment thereof,
except for moneys drawn under the Letter of Credit.
"Bank" means (i) First Interstate Bank of California, a banking
corporation organized and existing under the laws of the State of California, in
its capacity as issuer of the Letter of Credit, (ii) any Substitute Bank, and
(iii) any successors and assigns in such capacity.
"Bank Notes" means any and all Notes purchased by the Trustee pursuant to
Section 306 hereof with moneys drawn under the Letter of Credit and delivered to
the Bank pursuant to Section 312 hereof, while and so long as the Bank shall
hold such Notes prior to the Conversion Date.
"Bank Rate" means the interest rate in effect on the Bank Notes, as said
rate is determined in accordance with Section 202(B) hereof.
"Bankers Trust Business Day" means a day on which Bankers Trust Company,
New York, New York, is open for the purpose of conducting a commercial banking
business.
"Business Day" means a day on which the Bank, the Trustee and the agent of
the Trustee appointed pursuant to Section 314 hereof are each open for the
purpose of conducting a commercial banking business.
"Code" means the Internal Revenue Code of 1954, as amended from time to
time.
"Company" means (i) Plainwell Paper Co., Inc., a Michigan corporation, and
(ii) any surviving, resulting, or transferee entity as provided in Section
2.2(d) of the Agreement.
"Company Representative" means the Person or Persons at the time
designated to act on behalf of Company by written certificate furnished to the
Issuer and the Trustee containing the
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specimen signatures of such Person or Persons and signed on behalf of the
Company by its President or any Vice President. Such certificate may designate
an alternate or alternates.
"Construction Period" means the period of time from the original issuance
of the Notes to the receipt by the Trustee of the certificate of the Company
referred to in Section 509 hereof.
"Conversion Date" means that date on or after May 1, 1984, which shall be
a Business Day, from and after which the interest rate on the Notes is converted
from the Floating Rate to the Fixed Rate as a result of the exercise by the
Company of the Conversion Option.
"Conversion Option" means the option granted to the Company in Section 303
hereof pursuant to which the interest rate on the Notes is converted from the
Floating Rate to the Fixed Rate as of the Conversion Date.
"Credit Agreement" means (i) the Letter of Credit Agreement dated as of
this date between the Company and First Interstate Bank of California, and any
amendments and supplements thereto and (ii) the letter of credit agreement or
reimbursement agreement between the Company and any Substitute Bank, and any
amendments and supplements thereto.
"Default" means any Default under this Indenture as specified in and
defined by Section 901 hereof.
"Demand Purchase Option" means the option granted to Owners of Notes to
require that Notes be purchased prior to the Conversion Date pursuant to Section
306 hereof.
"First Optional Redemption Date" means the November 1 occurring in the
year which is a number of years after the Conversion Date equal to the number of
years between the November 1 immediately following the Conversion Date (unless
the Conversion Date is an November 1, in which case from such November 1) and
November 1, 2007, multiplied by 1/2 and rounded up to the nearest whole number.
"Fixed Rate" means the interest rate in effect on the Notes from and after
the Conversion Date, as said rate is determined in accordance with Section
202(C) hereof.
"Floating Rate" means the interest rate in effect on the Notes (other than
Bank Notes) from the date of issuance of the Notes until (but not including) the
Conversion Date, as said rate is determined in accordance with Section 202(A)
hereof.
"Governmental Obligations" means any of the following which are
noncallable:
(a) direct general obligations of, or obligations the payment of the
principal of and interest on which are unconditionally guaranteed by, the
United States of America; and
(b) bonds, debentures or notes issued by the Federal National
Mortgage Association, the Government National Mortgage Association, the
Federal Financing
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Bank, the Federal Farm Credit Banks, the Federal Land Banks, the Federal
Home Loan Banks, the Farmers Home Administration, the Federal Home Loan
Mortgage Association or any other comparable federal agency hereafter
created to the extent that said obligations are unconditionally guaranteed
by the United States of America.
"Guarantor" means (i) Xxxxxx Xxxxxx Incorporated, a Virginia corporation,
and (ii) any surviving, resulting or transferee entity as provided in the
Guaranty.
"Guaranty" means the Guaranty Agreement dated as of the date hereof
between the Guarantor and the Trustee, and any amendments or supplements
thereto.
"Indenture" means this Indenture of Trust, pursuant to which the Notes are
authorized to be issued, and any amendments and supplements hereto.
"Independent Counsel" means an attorney duly admitted to practice law
before the highest court of any state and who is not a full-time employee,
director, officer, or partner of the Issuer, the Company or the Guarantor.
"Issuer" means the Economic Development Corporation of the City of
Plainwell, a political subdivision and body corporate and politic of the State,
and its successors and assigns.
"Issuer Representative" means the Person or Persons at the time designated
to act on behalf of the Issuer by written certificate furnished to the Company
and the Trustee containing the specimen signatures of such Person or Persons and
signed on behalf of the Issuer by its duly authorized agent. Such certificate
may designate an alternate or alternates.
"Late Payment Rate" means with respect to any Note the rate of interest on
such Note, and for all other purposes means thirteen percent (13%) per annum.
"Letter of Credit" means (i) that certain Letter of Credit dated the date
of the original issuance of the Notes issued by First Interstate Bank of
California and (ii) any Substitute Letter of Credit, as further described in
Section 4.4 of the Agreement.
"Letter of Credit Termination Date" means the later of (i) that date upon
which the Letter of Credit shall expire or terminate pursuant to its terms or
the terms of the Credit Agreement, or (ii) that date to which the expiration or
termination of the Letter of Credit may be extended, from time to time, either
by extension or renewal of the existing Letter of Credit or the issuance of a
Substitute Letter of Credit.
"Moody's" means Xxxxx'x Investors Service, Inc., a corporation organized
and existing under the laws of the State of Delaware, its successors and
assigns, and, if such corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Company, by notice to the Trustee.
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"Mandatory Tender Date" means the interest payment date immediately
preceding the Letter of Credit Termination Date.
"Note Fund" means the fund created in Section 502 hereof.
"Note Registrar" and "Co-Note Registrar" means the Trustee and any Co-Note
Registrar appointed and serving in such capacity pursuant to this Indenture.
"Principal Office" of the Note Registrar or any Co-Note Registrar means, with
respect to the Trustee, the Principal Office of the Trustee, and with respect to
any Co-Note Registrar appointed and serving in such capacity pursuant to this
Indenture, the office of such Person designated in writing to the Issuer, the
Company, the Trustee, the Bank, the Paying Agent, any Co-Paying Agent and the
Remarketing Agent.
"Notes" means the $3,500,000 aggregate principal amount of the Issuer's
Variable Rate Demand Notes (Plainwell Paper Co., Inc. Project) issued by the
Issuer pursuant to this Indenture.
"Officer's Certificate" means a certificate of the Issuer signed by the
President or Secretary or by any other Person designated by resolution of the
Issuer to act for either of those officers, either generally or with respect to
the execution of any particular document or other specific matter, a certified
copy of which resolution shall be filed with the Trustee.
"Outstanding" or "Notes Outstanding" mean all Notes which have been
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes canceled after purchase in the open market or because of
payment at or redemption prior to maturity;
(b) Notes paid or deemed to be paid pursuant to Article VII hereof;
(c) Notes in lieu of which others have been authenticated under
Section 207 or Section 208 hereof; and
(d) Notes in lieu of which others have been issued pursuant to
Section 204(b) hereof.
"Owner" means the person or persons in whose name or names a Note shall be
registered on the books of the Issuer kept for that purpose in accordance with
provisions of this Indenture.
"Paying Agent" and "Co-Paying Agent" means the Trustee and any Co-Paying
Agent appointed and serving in such capacity pursuant to this Indenture.
"Principal Office" of the Paying Agent or any Co-Paying Agent means, with
respect to the Trustee, the Principal Office of the Trustee, and with respect to
any Co-Paying Agent appointed and serving in such capacity pursuant to this
Indenture, the office of such Person designated in writing to the Issuer, the
Company, the Trustee, the Bank, the Note Registrar, any Co-Note Registrar and
the Remarketing Agent.
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"Person" means natural persons, firms, associations, corporations and
public bodies.
"Project" means the project described in Exhibit A to the Agreement.
"Project Fund" means the fund created by Section 506 hereof.
"Purchase Price" means an amount equal to 100% of the principal amount of
any Note tendered or deemed tendered pursuant to Section 303, 304 or 306 hereof,
plus, in the case of purchase pursuant to Section 306 hereof, accrued and unpaid
interest thereon to the date of purchase.
"Record Date" means that day which is fifteen (15) days prior to any
interest payment date.
"Remarketing Agent" means the Remarketing Agent acting as such under the
Remarketing Agreement. "Principal Office of the Remarketing Agent" means the
principal office of the Remarketing Agent designated in the Remarketing
Agreement.
"Remarketing Agreement" means the Remarketing Agreement dated as of the
date hereof between Bankers Trust Company and the Company, and any amendments
and supplements thereto.
"State" means the State of Michigan.
"S&P" means Standard & Poor's Corporation, a corporation organized and
existing under the laws of the State of New York, its successors and assigns,
and, if such corporation shall be dissolved or liquidated or shall no longer
perform the functions of a securities rating agency, "S&P" shall be deemed to
refer to any other nationally recognized securities rating agency designated by
the Company, by notice to the Trustee.
"Substitute Bank" means a commercial bank or savings and loan association
which has issued a Substitute Letter of Credit.
"Substitute Letter of Credit" means a letter of credit delivered to the
Trustee in accordance with Section 4.4 of the Agreement (i) issued by the Bank
or the Substitute Bank, (ii) replacing any existing Letter of Credit, (iii)
dated as of a date prior to the expiration date of the Letter of Credit for
which the same is to be substituted, (iv) which shall expire on a date which is
15 days after an interest payment date for the Notes and (v) issued on
substantially identical terms and conditions as the then existing Letter of
Credit, except that the stated amount of the Substitute Letter of Credit shall
equal the sum of (A) the aggregate principal amount of Notes at the time
Outstanding, plus (B) an amount equal to at least 120 days' interest (computed
at the maximum interest rate applicable to the Notes) on all Notes at the time
Outstanding.
"Trustee" means First & Merchants National Bank, a national banking
association organized and existing under the laws of the United States, and its
successors and any corporation resulting from or surviving any consolidation or
merger to which it or its successors
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may be a party and any successor Trustee at the time serving as successor
trustee hereunder. "Principal Office of the Trustee" means the address specified
in Section 1204 hereof or such other address as may be designated in writing to
the Issuer, the Remarketing Agent and the Company.
"Trust Estate" means the property conveyed to the Trustee pursuant to the
Granting Clauses hereof.
"Written Request" with reference to the Issuer shall mean a request in
writing signed by the President or Secretary or any other officer or officers of
the Issuer satisfactory to the Trustee.
ARTICLE II
THE NOTES
Section 201. Authorized Amount of Notes. No Notes may be issued under the
provisions of this Indenture except in accordance with this Article. The total
aggregate principal amount of Notes that may be issued is hereby expressly
limited to $3,500,000, except as provided in Sections 207, 208, 210 and 310
hereof.
Section 202. Issuance of Notes. The Notes shall be designated "Variable
Rate Demand Notes (Plainwell Paper Co., Inc. Project)". Prior to the Conversion
Date, the Notes shall be issuable as fully registered notes without coupons in
the denomination of $100,000 or any integral multiple of $5,000 in excess
thereof; provided that the Notes may be issued in the denomination of $5,000 or
any integral multiple thereof if necessary to evidence the unredeemed portion of
any Note. From and after the Conversion Date, the Notes shall be issuable as
fully registered notes without coupons in the denomination of $5,000 or any
integral multiple thereof. Unless the Issuer shall otherwise direct, the Notes
shall be lettered "R" and shall be numbered consecutively from 1 upward.
Each Note shall be dated the date of its authentication and shall bear
interest, payable so long as the Notes bear interest at the Floating Rate (or in
the case of Bank Notes at the Bank Rate) on February 1, May 1, August 1 and
November 1 of each year and on the Conversion Date, commencing February 1, 1984,
and payable from and after the Conversion Date on May 1 and November 1 of each
year, commencing on the May 1 or November 1 next following the Conversion Date,
in each case from the interest payment xxxx next preceding the date thereof,
unless the date thereof is a date to which interest has been paid or duly
provided for, in which case from the date thereof, or unless no interest has
been paid or duly provided for on the Notes, in which case from the date of
first authentication and delivery of the Notes, until payment of the principal
thereof has been made or duly provided for. Notwithstanding the foregoing, any
Note dated after any Record Date and before the following interest payment date
shall bear interest from such interest payment date, provided, however, that if
the Issuer shall default in the payment of interest due on such interest payment
date, then such Note shall bear interest from the next preceding interest
payment date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for on the Notes, from the date of first
authentication and delivery of the Notes.
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The Notes shall mature on November 1, 2007. The Notes shall bear interest
as follows:
(A) Prior to the Conversion Date, the Notes (other than Bank Notes) shall
bear interest at the Floating Rate. The Floating Rate shall be a variable rate
of interest equal to "TENR" (hereinafter defined) plus an amount (as adjusted
from time to time as hereinafter provided, the "TENR Amount") initially equal to
one-quarter percent (1/4%), provided that:
(i) if the Trustee and the Remarketing Agent shall have received a
notice requiring the purchase of any Notes in accordance with Section 306
hereof and if the Remarketing Agent shall remarket all or a portion of
such Notes pursuant to the Remarketing Agreement, the TENR Amount for all
Notes shall be the TENR Amount required for the Remarketing Agent to
remarket such Notes at par, which adjusted TENR Amount shall become
effective as of the day next following the next announcement of TENR. In
connection with any such remarketing, the Remarketing Agent shall
determine what increments of 1/8th of 1% per annum will, when added to or
subtracted from the TENR Amount at the time applicable to the Notes,
produce the minimum interest rate per annum necessary to enable the
Remarketing Agent to remarket such Notes at par; provided, that the TENR
Amount shall not be more than two and one-quarter percent (2-1/4%);
(ii) if the TENR Amount is adjusted pursuant to the preceding clause
(i), such adjusted TENR Amount shall remain in effect until the next
succeeding interest payment date or until a further adjustment to the TENR
Amount is made pursuant to such clause (i) or until the interest rate
hereunder is otherwise determined as provided for in this Indenture;
(iii) beginning on each interest payment date, the TENR Amount
applicable to all Notes (other than Bank Notes) shall again be one-quarter
percent (1/4%) until such time as the TENR Amount may again be adjusted
pursuant to the preceding clause (i) or until the interest rate hereunder
is otherwise determined as provided for in this Indenture;
(iv) if TENR shall not be announced in any week, the Notes shall
bear interest at TENR for the immediately preceding week plus the then
applicable TENR Amount, and if TENR shall not be announced for a second
successive week, the Notes shall bear interest at the lower of (a) TENR
which has been most recently announced plus the then applicable TENR
Amount and (b) an alternative interest rate ("AIR") equal to 65% of the
interest rate applicable to direct obligations of the United States with a
maturity of thirteen weeks ("91-day Treasury Bills") determined on the
basis of the weighted average per annum discount rate at which such 91-day
Treasury Bills were sold at the weekly Treasury auction for any week with
respect to which such rate applies to the Notes, as published by the Board
of Governors of the Federal Reserve System, or (if not so published) as
reported by the Department of the Treasury. If no auction shall have been
conducted (or no rate published or reported) during any such week, AIR for
that week shall be the same as the most recent AIR. Any change in AIR
shall take effect on the Thursday immediately following the Treasury
auction, and the interest rate on the Notes shall continue to be AIR (if
AIR then is the lower rate) until the day after a change in
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TENR is announced. The Company shall inform the Issuer, the Trustee and
the Remarketing Agent of AIR, if applicable; and
(v) notwithstanding the foregoing, no adjustment shall be made to
the Floating Rate during the period of five Business Days prior to an
interest payment date.
"TENR" means the rate announced by Bankers Trust Company, New York, New
York at its principal office as the annual rate of interest which is indicative
of current bid-side yields on high-quality, short-term, tax-exempt obligations,
which rate shall be announced by Bankers Trust Company as of the close of
business on Wednesday in each calendar week until the earlier of the Conversion
Date or payment in full of the Notes or, if Wednesday in any calendar week shall
not be a Bankers Trust Business Day, on the next succeeding Bankers Trust
Business Day. TENR shall be effective during the period from and including the
day next succeeding the day on which Bankers Trust Company announces TENR to and
including the day on which Bankers Trust Company next announces TENR. TENR shall
be communicated by Bankers Trust Company to the Trustee and the Remarketing
Agent on the same day that TENR is announced. The Remarketing Agent shall inform
the Trustee and the Bank in writing of any adjustments to the TENR Amount
required by clause (i) above. The Trustee shall inform the Issuer and the
Company of TENR and of any such adjustments to the TENR Amount. TENR is a
Service Xxxx of Bankers Trust Company, New York, New York.
Anything herein to the contrary notwithstanding, the Floating Rate shall
in no event exceed 1'% per annum.
The announcement of TENR or any adjustments to the TENR Amount or the
determination of AIR as contemplated by the foregoing paragraphs shall be
conclusive and binding upon the Trustee, the Issuer, the Company and the Owners
of the Notes.
(B) Prior to the Conversion Date the Bank Notes shall bear interest at the
Bank Rate. The Bank Rate shall be a variable rate of interest equal to
sixty-five percent (65%) of the Bank Prime Rate. "Bank Prime Rate" means the
rate announced by the Bank from time to time at its principal office as its
prime rate, the Bank Prime Rate to change as such prime rate changes.
The announcement of the Bank Prime Rate as contemplated by the foregoing
paragraph shall be conclusive and binding upon the Trustee, the Issuer, the
Paying Agent, any Co-Paying Agent, the Company and the Bank.
(C) From and after the Conversion Date, until the maturity of the Notes,
the Notes shall bear interest at the Fixed Rate. The Fixed Rate shall be a fixed
annual interest rate on the Notes established by the Remarketing Agent as the
rate of interest for which the Remarketing Agent has received commitments on or
prior to the 20th day preceding the Conversion Date to purchase all the
Outstanding Notes on the Conversion Date at a price of par without discount or
at a premium not to exceed the then customary underwriting discount (but in no
event may the premium exceed 3 percent).
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(D) Interest on Notes which bear interest at the Floating Rate and on the
Bank Notes shall be computed on the basis of a 360-day year, actual number of
days elapsed. Interest on Notes which bear interest at the Fixed Rate shall be
computed on the basis of a 360-day year of twelve 30-day months. The principal
of and premium, if any, on the Notes shall be payable in lawful money of the
United States of America at the Principal Office of the Trustee, or of its
successor in trust. Payment of interest on the Notes shall be made to the Owner
thereof on the applicable Record Date by check mailed to such Owner at his
address as it appears on the registration books of the Issuer or at such other
address as is furnished to the Trustee in writing by such Owner, or in such
other manner as may be mutually acceptable to the Trustee and the Owner of any
Note.
Section 203. Execution; Limited Obligation. The Notes shall be executed on
behalf of Issuer with the manual or facsimile signature of its President and
shall have impressed or imprinted thereon the official seal of the Issuer and be
attested with the manual or facsimile signature of the Secretary of the Issuer.
All authorized facsimile signatures shall have the same force and effect as if
manually signed. In case any officer whose signature or facsimile of whose
signature appears on the Notes shall cease to hold that office before the
delivery of the Notes, the signature or facsimile shall nevertheless be valid
and sufficient for all purposes, the same as if the officer had remained in
office until delivery. The Notes shall not be general obligations of the Issuer
but limited and special obligations payable solely from the amounts payable
under the Agreement and other amounts specifically pledged therefor under this
Indenture, and shall be a valid claim of the respective Owners thereof only
against the Note Fund and other moneys held by the Trustee and the amounts
payable under the Agreement or otherwise pledged therefor, which amounts are
hereby pledged, assigned and otherwise secured for the equal and ratable payment
of the Notes and shall be used for no other purpose than to pay the principal
of, premium, if any, and interest on the Notes except as may be otherwise
expressly authorized in this Indenture.
Section 204. Authentication.
(a) No Note shall be valid or obligatory for any purpose or entitled to
any security or benefit under this Indenture unless and until a certificate of
authentication on such Note substantially in the form set forth on Exhibits A, B
and C attached hereto shall have been duly executed by the Trustee, and such
executed certificate of the Trustee upon any such Note shall be conclusive
evidence that such Note has been authenticated and delivered under this
Indenture. The Trustee's certificate of authentication on any Note shall be
deemed to have been executed by it if signed by an authorized signatory of the
Trustee, but it shall not be necessary that the same signatory execute the
certificate of authentication on all of the Notes.
(b) In the event any Note is deemed tendered to the Trustee as provided in
Section 303 or 304 hereof but is not physically so tendered, the Issuer shall
execute and the Trustee shall authenticate a new Note of like denomination as
that deemed tendered.
Section 205. Form of Notes. The Notes which bear interest at the Floating
Rate prior to the Conversion Date and all Bank Notes and the Trustee's
certificate of authentication to be endorsed thereon are to be in substantially
the form set forth on Exhibit A attached hereto, with
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appropriate variations, omissions and insertions as permitted or required by
this Indenture. The Notes which bear interest at the Floating Rate from and
after the Mandatory Tender Date and the Trustee's certificate of authentication
to be endorsed thereon are to be in substantially the form set forth on Exhibit
B attached hereto, with appropriate variations, omissions and insertions as
permitted or required by this Indenture. The Notes which bear interest at the
Fixed Rate and the Trustee's certificate of authentication to be endorsed
thereon are to be in substantially the form set forth on Exhibit C attached
hereto, with appropriate variations, omissions and insertions as permitted or
required by this Indenture.
Section 206. Delivery of Notes. Upon the execution and delivery of this
Indenture, the Issuer shall execute and deliver to the Trustee Notes in the
aggregate principal amount of $3,500,000 and the Trustee shall authenticate the
Notes and deliver them as directed by the Issuer as hereinafter in this Section
provided.
Prior to the delivery by the Trustee of the Notes there shall be filed
with the Trustee:
1, A copy, certified by the Secretary of the Issuer, of the resolution
adopted by the Issuer authorizing the execution and delivery of the Agreement
and this Indenture and the issuance of the Notes.
2. An original, executed copy of the Agreement.
3. An original, executed counterpart of the Guaranty.
4. The Letter of Credit.
5. The approving opinion of bond counsel.
6. A Written Request of the Issuer to the Trustee requesting the Trustee
to authenticate and deliver the Notes to the purchaser and for the purchase
price therein identified.
Upon payment of the proceeds to the Trustee, the Trustee shall deposit the
proceeds in the Project Fund pursuant to Article V hereof.
Section 207. Mutilated Lost Stolen or Destroyed Notes. In the event any
Note is mutilated lost, stolen or destroyed; the Issuer shall execute and the
Trustee shall authenticate a new Note of like date and denomination as that
mutilated, lost, stolen or destroyed, provided that, in the case of any
mutilated Note, such mutilated Note shall first be surrendered to the Issuer or
the Trustee, and in the case of any lost, stolen or destroyed Note, there first
shall be furnished to the Issuer and the Trustee evidence of such loss, theft or
destruction satisfactory to the Issuer and the Trustee, together with an
indemnity satisfactory to them. In the event any such Note shall have matured,
the Trustee, instead of issuing a duplicate Note, may pay the same without
surrender thereof, making such requirements as it deems fit for its protection,
including a lost instrument bond. The Issuer and the Trustee may charge the
Owner of such Note with their reasonable fees and expenses for such service. In
executing a new Note, the Issuer may rely
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conclusively upon a representation by the Trustee that the Trustee is satisfied
with the adequacy of the evidence presented concerning the mutilation, loss,
theft or destruction of any Note.
Section 208. Transfer of Notes; Persons Treated as Owners. The Issuer
shall cause to be kept books for the transfer of the Notes as provided in this
Indenture, and the Trustee is hereby constituted and appointed and agrees to act
as the Note Registrar of the Issuer for and in respect of the Notes. Upon
surrender for transfer of any Note at the Principal Office of the Trustee, duly
endorsed for transfer or accompanied by an assignment duly executed by the Owner
or his attorney duly authorized in writing, the Issuer shall execute and the
Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Note or Notes in authorized denominations for a like aggregate
principal amount. In each case, the Trustee may require the payment by the Owner
of the Note requesting exchange or transfer of any tax or other governmental
charge required to be paid with respect to such exchange or transfer.
The Trustee shall not be required to exchange or register a transfer of
(a) any Notes during the 15-day period next preceding the selection of Notes to
be redeemed and thereafter until the date of the mailing of a notice of
redemption of Notes selected for redemption, or (b) any Notes selected, called
or being called for redemption in whole or in part except, in the case of any
Notes to be redeemed in part, the portion thereof not so to be redeemed;
provided that the foregoing shall not apply to the registration of transfer of
any Note which has been tendered to the Trustee pursuant to Section 306 hereof,
and in any such case, for purposes of selection for redemption, the Note so
tendered and the Note issued to the transferee thereof pursuant to Section
312(b) hereof shall be deemed and treated as the same Note.
The Trustee, the Issuer, the Company and any agent of the Trustee, the
Issuer and the Company may treat the person in whose name a Note is registered
as the absolute Owner thereof for all purposes, and neither the Issuer, the
Trustee, the Company nor any agent of the Trustee, the Issuer or the Company
shall be bound by any notice or knowledge to the contrary, but such registration
may be changed as hereinabove provided. All payments made to the Owner shall be
valid and effectual to satisfy and discharge the liability upon such Note to the
extent of the sum or sums so paid.
Section 209. Destruction of Notes. Whenever any Outstanding Note shall be
delivered to the Trustee for cancellation pursuant to this Indenture, or for
replacement pursuant to Section 207 hereof, such Note shall be promptly canceled
and cremated or otherwise destroyed by the Trustee, and counterparts of a
certificate of destruction evidencing such cremation or other destruction shall
be furnished by the Trustee to the Issuer and the Company.
Section 210. Temporary Notes. Until Notes in definitive form are ready for
delivery, the Issuer may execute, and upon the request of the Issuer, the
Trustee shall authenticate and deliver, subject to the provisions, limitations
and conditions set forth above, one or more Notes in temporary form, whether
printed, typewritten, lithographed or otherwise produced, substantially in the
form of the definitive Notes, with appropriate omissions, variations and
insertions, and in authorized denominations. Until exchanged for Notes in
definitive form, such Notes in temporary form shall be entitled to the lien and
benefits of this Indenture. Upon the presentation and surrender of any Note or
Notes in temporary form, the Issuer shall, at the
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request of the Trustee, execute and deliver to the Trustee, and the Trustee
shall authenticate and deliver, in exchange therefor, a Note or Notes in
definitive form. Such exchange shall be made by the Trustee without making any
charge therefor to the Owner of such Note in temporary form. Notwithstanding the
foregoing, Notes in definitive form may be issued hereunder in typewritten form.
ARTICLE III
REDEMPTION OF NOTES BEFORE MATURITY;
CONVERSION OF INTEREST RATE; MANDATORY TENDER
OF NOTES; PURCHASE OF NOTES
Section 301. Extraordinary Redemption. The Notes are callable for
redemption in the event (1) the Company shall be obligated to cause the Notes to
be redeemed as provided in Article X of the Agreement, or (2) the Company shall
exercise its option to cause the Notes to be redeemed as provided in Section 9.2
of the Agreement. If called for redemption at any time pursuant to (1) or (2)
above, the Notes shall be subject to redemption in whole by the Issuer prior to
maturity on 60 days' prior notice, at a redemption price equal to 100% of the
principal amount thereof plus accrued interest to the redemption date.
Section 302. Optional Redemption by the Company. On or prior to the
Conversion Date, the Notes are subject to redemption by the Issuer, at the
option of the Company, at any time on or after May 1, 1984, in whole or in part,
less than all of such Notes to be selected in such manner as the Trustee shall
determine (except as otherwise provided in Section 310 hereof), at the
redemption price of 100% of the principal amount thereof plus accrued interest
to the redemption date.
After the Conversion Date, the Notes are subject to redemption by the
Issuer, at the option of the Company, on or after the First Optional Redemption
Date, in whole at any time or in part on any interest payment date, less than
all of such Notes to be selected in such manner as the Trustee shall determine
(except as otherwise provided in Section 310 hereof), at the redemption prices
(expressed as percentages of principal amount) set forth in the following table
plus accrued interest to the redemption date:
Redemption Dates Prices
---------------- ------
First Optional Redemption Date through the following 103%
October 31
First Anniversary of the First Optional Redemption Date 102%
through the following October 31
Second Anniversary of the First Optional Redemption Date 101%
through the following October 31
Third Anniversary of the First Optional Redemption Date 100%
and thereafter
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Section 303. Conversion of Interest Rate on Conversion Date. The interest
rate on the Notes shall be converted from the Floating Rate to the Fixed Rate
upon the exercise by the Company of the Conversion Option, and the Notes shall
be subject to mandatory tender by the Owners thereof on the Conversion Date. To
exercise the Conversion Option, the Company shall instruct the Trustee to
deliver or mail by first class mail a notice at least twenty (20) days but not
more than sixty (60) days prior to the Conversion Date to the Owner of each Note
at the address shown on the registration books. Any notice given as provided in
this Section shall be conclusively presumed to have been duly given, whether or
not the Owner receives the notice. Said notice shall state in substance the
following:
1. The Conversion Date.
2. The Fixed Rate which will take effect on the Conversion Date.
3. That from and after the Conversion Date the Demand Purchase
Option will not be available to Owners of Notes.
4. That all Owners of Notes who have not given notice of their
desire to retain Notes as provided in this Section shall be deemed to have
tendered their Notes for purchase on the Conversion Date.
5. That, if then in effect, the Letter of Credit will expire fifteen
(15) days after the Conversion Date.
Any Owner of Notes desiring to retain Notes after the Conversion Date must
notify the Company and the Trustee in writing which notice must be received no
later than fifteen (15) days prior to the Conversion Date. Said notice shall
state in substance the following:
(a) The numbers and principal amounts of the Notes which the Owner
thereof wishes to retain after the Conversion Date;
(b) That the Owner thereof recognizes that the events set forth in 1
through 5 above will occur;
(c) If the Letter of Credit is then in effect but will expire
fifteen (15) days after the Conversion Date, that the Owner thereof
recognizes that the rating, if any, assigned to the Notes based on the
Letter of Credit will no longer apply to the Notes; and
(d) That the Owner thereof wishes to continue to own said Notes
specified in (a) above after the Conversion Date.
Owners of Notes not providing the Trustee and the Company with the notice
described above shall be required to tender their Notes to the Trustee for
purchase at the Purchase Price; provided, however, if the Principal Office of
the Trustee is not in The City of New York, delivery of any Note may be made to
an agent of the Trustee in The City of New York in accordance with the
provisions of Section 314 hereof. Any Notes not so tendered on the
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Conversion Date ("Untendered Notes"), for which there has been irrevocably
deposited in trust with the Trustee from the sources described in Section 311 an
amount of moneys sufficient to pay the Purchase Price of the Untendered Notes,
shall be deemed to have been purchased pursuant to this Section 303. IN THE
EVENT OF A FAILURE BY AN OWNER OF NOTES (OTHER THAN AN OWNER OF NOTES WHO HAS
GIVEN NOTICE AS PROVIDED ABOVE) TO TENDER ITS NOTES ON OR PRIOR TO THE
CONVERSION DATE, SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT ( INCLUDING ANY
INTEREST TO ACCRUE SUBSEQUENT TO THE CONVERSION DATE) OTHER THAN THE PURCHASE
PRICE FOR SUCH UNTENDERED NOTES, AND ANY UNTENDERED NOTES SHALL NO LONGER BE
ENTITLED TO THE BENEFITS OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF
THE PURCHASE PRICE THEREFOR.
At any time prior to the first interest payment date following the
Conversion Date, an Owner of Notes who has given notice of its desire to
continue to hold Notes as provided above may deliver said Notes to the Trustee,
and upon such delivery, the Trustee shall exchange said Notes for replacement
Notes in the form of Exhibit C hereto, as applicable. Such exchange shall be
made by the Trustee without making any charge therefor to the Owner of such
Note.
As a condition to the giving of notice as provided in this Section 303,
the Company shall provide the Trustee with an opinion of nationally recognized
bond counsel to the effect that the proposed conversion of the interest rate on
the Notes will not adversely affect the exemption of the interest on the Notes
from federal income taxation.
Section 304. The Mandatory Tender of Notes on Mandatory Tender Date. The
Notes shall be subject to mandatory by the Owners thereof on the Mandatory
Tender Date. The Company shall deliver or mail by first class mail a notice at
least twenty (20) days but not more than sixty (60) days prior to the Mandatory
Tender Date to the Owner of each Note at the address shown on the registration
books. Any notice given as provided in this Section shall be conclusively
presumed to have been duly given, whether or not the Owner receives the notice.
Said notice shall state in substance the following:
1. The Mandatory Tender Date.
2. That the Floating Rate will continue to be in effect after the
Mandatory Tender Date.
3. That all Owners of Notes who have not given notice of their
desire to retain Notes as provided in this Section shall be deemed to have
tendered their Notes for purchase on the Mandatory Tender Date.
4. That the Letter of Credit will expire fifteen (15) days after the
Mandatory Tender Date.
Any Owner of Notes desiring to retain Notes after the Mandatory Tender
Date must notify the Company and the Trustee in writing which notice must be
received no later than
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fifteen (15) days prior to the Mandatory Tender Date. Said notice shall state in
substance the following:
(a) The numbers and principal amounts of the Notes which the Owner
thereof wishes to retain after the Mandatory Tender Date;
(b) That the Owner thereof recognizes that the events set forth in 1
through 4 above will occur;
(c) That the Owner thereof recognizes that the rating, if any,
assigned to the Notes based on the Letter of Credit will no longer apply
to the Notes; and
(d) That the Owner thereof wishes to continue to own said Notes
specified in (a) above after the Mandatory Tender Date.
Owners of Notes not providing the Trustee and the Company with the notice
described above shall be required to tender their Notes to the Trustee for
purchase at the Purchase Price; provided, however, if the Principal Office of
the Trustee is not in The City of New York, delivery of any Note may be made to
an agent of the Trustee in The City of New York in accordance with the
provisions of Section 314 hereof. Any Notes not so tendered on the Mandatory
Tender Date ("Untendered Notes"), for which there has been irrevocably deposited
in trust with the Trustee from the sources described in Section 311 an amount of
moneys sufficient to pay the Purchase Price of the Untendered Notes, shall be
deemed to have been purchased pursuant to this Section 304. IN THE EVENT OF A
FAILURE BY AN OWNER OF NOTES (OTHER THAN AN OWNER OF NOTES WHO HAS GIVEN NOTICE
AS PROVIDED ABOVE) TO TENDER ITS NOTES ON OR PRIOR TO THE MANDATORY TENDER DATE,
SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO
ACCRUE SUBSEQUENT TO THE MANDATORY TENDER DATE) OTHER THAN THE PURCHASE PRICE
FOR SUCH UNTENDERED NOTES, AND ANY UNTENDERED NOTES SHALL NO LONGER BE ENTITLED
TO THE BENEFITS OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE
PURCHASE PRICE THEREFOR.
At any time prior to the first interest payment date following the
Mandatory Tender Date, an Owner of Notes who has given notice of its desire to
continue to hold Notes as provided above may deliver said Notes to the Trustee,
and upon such delivery, the Trustee shall exchange said Notes for replacement
Notes in the form of Exhibit B hereto. Such exchange shall be made by the
Trustee without making any charge therefor to the Owner of such Note.
At the option of the Company the Conversion Date may coincide with the
Mandatory Tender Date, in which case the notices of the Company required
pursuant to Section 303 and Section 304 hereof may be appropriately combined
into a single notice, and the notices of Owners of Notes desiring to retain
Notes after such Conversion Date and Mandatory Tender Date required pursuant to
Section 303 and Section 304 hereof may be appropriately combined into a single
notice.
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Section 305. Notices to the Bank and Rating Agencies. In addition to the
notices required in Section 303 and Section 304 hereof, the Company shall
provide the Bank and Xxxxx'x or S&P, as appropriate, if the Notes shall then be
rated by Xxxxx'x or S&P, with prompt written notice of the conversion pursuant
to Section 303 hereof or the mandatory tender pursuant to Section 304 hereof.
Further, the Company shall provide Xxxxx'x or S&P, as appropriate, if the Notes
shall then be rated by Xxxxx'x or S&P, with prompt written notice following the
effective date of such event of (i) any change of the Trustee, (ii) any change
of the Bank, (iii) any material amendments to this Indenture or the Agreement,
or (iv) the redemption in whole of the Notes.
Section 306. Demand Purchase Option. On or prior to the Conversion Date,
the Trustee shall be required to purchase at the Purchase Price any Note from
the Owner thereof upon:
(i) delivery to the Trustee at its Principal Office and to the
Remarketing Agent at its Principal Office of a notice (said notice to be
irrevocable and effective upon receipt) which (1) states the aggregate
principal amount of the Notes to be purchased; and (2) states the date on
which such Notes are to be purchased, which date shall be a Business Day
not prior to the seventh (7th) day next succeeding the date of delivery of
such notice and which date shall be prior to the Conversion Date; and
(ii) delivery to the Trustee at its Principal Office at or prior to
10:00 A.M., New York City time, on the date designated for purchase in the
notice described in (i) above of such Notes to be purchased, with an
appropriate endorsement for transfer or accompanied by a blank bond power,
and if such Notes are to be purchased prior to the next succeeding
interest payment date and after the Record Date in respect thereof, a
due-xxxx-check, in form satisfactory to Trustee, for interest due on such
interest payment date; provided, however, if the Principal Office of the
Trustee is not in The City of New York, delivery of any Note, any blank
bond power, any due-xxxx-check or any funds for the purchase of Notes may
be made to an agent of the Trustee in The City of New York in accordance
with the provisions of Section 314 hereof.
Section 307. Notice of Redemption. Notice of the call for redemption,
identifying the Notes or portions thereof to be redeemed, shall be given by the
Trustee by mailing a copy of the redemption notice by registered or certified
mail at least fifteen (15) days but not more than sixty (60) days prior to the
date fixed for redemption to the Owner of each Note to be redeemed in whole or
in part at the address shown on the registration books. Any notice mailed as
provided in this Section shall be conclusively presumed to have been duly given,
whether or not the Owner receives the notice.
Section 308. Redemption Payments. On or prior to any date fixed for
redemption, Available Moneys shall be on deposit with the Trustee to pay, and
the Trustee is hereby authorized and directed to apply such funds to the payment
of, the principal of the Notes or portions thereof called, together with accrued
interest thereon to the redemption date and any required premium. Upon the
giving of notice and the deposit of Available Moneys for redemption at the
required times prior to the date fixed for redemption, as provided in this
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Article, interest on the Notes or portions thereof thus called shall no longer
accrue after the date fixed for redemption.
Section 309. Cancellation. All Notes which have been redeemed shall not be
reissued but shall be canceled and cremated or otherwise destroyed by the
Trustee in accordance with Section 209 hereof.
Section 310. Partial Redemption of Notes. (a) Upon surrender of any Note
for redemption in part only, the Issuer shall execute and the Trustee shall
authenticate and deliver to the Owner thereof a new Note or Notes of authorized
denominations, in an aggregate principal amount equal to the unredeemed portion
of the Note surrendered.
(b) In case a Note is of a denomination larger than $5,000, a
portion of such Note ($5,000 or any integral multiple thereof) may be
redeemed, but Notes shall be redeemed only in the principal amount of
$5,000 or any integral multiple thereof; provided that prior to the
Conversion Date the references in this paragraph to $5,000 shall be deemed
to be references to $100,000.
(c) Notwithstanding anything to the contrary contained in this
Indenture, whenever the Notes are to be redeemed in part, Notes which are
Bank Notes at the time of selection of Notes for redemption shall be
selected for redemption prior to the selection of any other Notes. If the
aggregate principal amount of Notes to be redeemed exceeds the aggregate
principal amount of Bank Notes at the time of selection, the Trustee may
select for redemption Notes in an aggregate principal amount equal to such
excess in such manner as the Trustee may determine.
Section 311. Funds for Purchase of Notes Delivered to the Trustee. On the
date Notes are to be purchased pursuant to 303, 304 or 306 hereof, such Notes
shall be purchased at the Purchase Price only from the funds listed below.
Subject to the provisions of Section 513(b) funds for the payment of the
Purchase Price shall be derived from the following sources in the order of
priority indicated:
(i) moneys deposited into the Note Fund pursuant to Section 503(a)
hereof which constitute Available Moneys;
(ii) the proceeds of the sale of such Notes which have been
remarketed by the Remarketing Agent to any entity other than the Company
or the Issuer;
(iii) moneys drawn by the Trustee under the Letter of Credit; and
(iv) any other moneys furnished to the Trustee and available for
such purpose.
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Section 312. Delivery of Notes.
(a) Notes purchased with moneys described in Section 311(i) hereof
shall be delivered to the Trustee for cancellation.
(b) Notes purchased with moneys described in Section 311(ii) hereof
shall be delivered by the Trustee to or upon the order of the purchasers
thereof.
(c) Notes purchased with moneys described in Section 311(iii) hereof
shall be delivered by the Trustee to the Bank pursuant to the Credit
Agreement.
(d) Notes purchased with moneys described in Section 311(iv) shall,
at the direction of the Company, be (A) delivered as instructed by the
Company, (B) delivered to the Trustee for cancellation or (C) delivered to
the Company; provided, however, that any Notes so purchased after the
selection thereof by the Trustee for redemption shall be delivered to the
Trustee for cancellation.
(e) The Trustee shall deliver to the person to whom the Trustee is
to deliver such Notes the due-xxxx-checks, if any, delivered to the
Trustee with such Notes in accordance with Section 306 hereof.
Notes delivered as provided in this Section shall be registered in the
manner directed by the recipient thereof.
Section 313. Delivery of Proceeds of Sale of Notes. The proceeds of the
sale of any Notes delivered to the Trustee pursuant to Section 303, 304 or 306
hereof, to the extent not required to pay the Purchase Price thereof in
accordance with Section 311 hereof, shall be paid to or upon the order of the
Company.
Section 314. Trustee's Agent. Anything contained in this Article III to
the contrary notwithstanding, if at any time the Principal Office of the Trustee
is not located in The City of New York, any Note to be purchased, any blank bond
powers, if any, any due-xxxx-check, if any, and any moneys for the purchase of
such Notes shall be delivered to the Principal Office of an agent of the Trustee
appointed by the Trustee pursuant to this Section 314, and such delivery will
constitute delivery to the Trustee for the purposes of Section 303, Section 304
and Section 306 hereof. The Trustee agrees that it will at all times prior to
the Conversion Date maintain its Principal Office in The City of New York or
appoint an agent with its Principal Office in the City of New York for purposes
of this Section 314. Such agent shall be a corporation or a banking association
authorized to conduct a commercial banking business in The City of New York. The
Trustee agrees that it will promptly notify, in writing, the Issuer, the
Company, the Bank, the Guarantor, the Remarketing Agent, the Paying Agent, any
Co-Paying Agent, the Co-Note Registrar, and any Note Registrar, of the
appointment of and the address of the Principal Office of any agent appointed
pursuant to this Section 314. All actions to be taken by the Trustee under this
Indenture may be taken by an agent of the Trustee and the Trustee shall have no
liability with respect to acts or omissions of its agents unless the Trustee has
actual knowledge of the agents gross negligence or willful misconduct. When
acting in accordance
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with the terms of this Indenture as provided in this Section 314, the Trustee's
agent shall be subject to the terms and conditions set forth in Article IX
hereof with respect to actions taken by the Trustee.
Section 315. Notice With Respect to Substitute Letter of Credit. The
Company, at least twenty (20) days but not more than sixty (60) days prior to
the date of delivery to the Trustee of a Substitute Letter of Credit pursuant to
Section 4.4 of the Agreement, shall instruct the Trustee to deliver or mail by
first class mail to the Owner of each Note at the address shown on the
registration books the notice described below. Any notice given as provided in
this Section shall be conclusively presumed to have been duly given, whether or
not the Owner receives the notice. Said notice shall state in substance the
following:
1. The proposed date of delivery to the Trustee of the Substitute
Letter of Credit.
2. The date of the Substitute Letter of Credit.
3. The expiration date of the existing Letter of Credit for which
the Substitute Letter of Credit is to be substituted.
4. The name of the commercial bank or savings and loan association
which is issuing the Substitute Letter of Credit, and a brief description
thereof.
5. If the Notes are then rated by Xxxxx'x or S&P, either (a) that
any ratings of the Notes by Xxxxx'x or S&P may be withdrawn or reduced
from such ratings then prevailing, or (b) such ratings of the Notes by
Xxxxx'x or S&P as shall have been based on such Substitute Letter of
Credit.
6. That any Owner of Notes may exercise the Demand Option Purchase
pursuant to Section 306 of the Indenture.
ARTICLE IV
GENERAL COVENANTS
Section 401. Payment of Principal, Premium, if any, and Interest. The
Issuer covenants that it will promptly pay or cause to be paid the principal of,
premium, if any, and interest on every Note issued under this Indenture at the
place, on the dates, and in the manner provided herein and the said Notes
according to the true intent and meaning thereof, but solely from the amounts
pledged therefor which are from time to time held by the Trustee in the Note
Fund. The principal of, premium, if any, and interest on the Notes are payable
from the amounts to be paid under the Agreement and otherwise as provided herein
and in the Agreement, which amounts are hereby specifically pledged to the
payment thereof in the manner and to the extent herein specified, and nothing in
the Notes or in this Indenture shall be construed as pledging any other funds or
assets of the Issuer.
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Section 402. Performance of Covenants; Issuer. The Issuer covenants that
it will faithfully perform at all times any and all covenants, undertakings,
stipulations and provisions contained in this Indenture and in the Agreement, in
any and every Note executed, authenticated and delivered hereunder and in all of
its proceedings pertaining hereto. The Issuer covenants that it is duly
authorized under the Constitution and laws of the State, including particularly
and without limitation the Act, to issue the Notes authorized hereby and to
execute this Indenture, to assign the Agreement, and to pledge the amounts to be
paid under the Agreement and other amounts hereby pledged in the manner and to
the extent herein set forth, that all action on its part for the issuance of the
Notes and the execution and delivery of this Indenture has been duly and
effectively taken, and that the Notes in the hands of the Owners thereof are and
will be valid and enforceable obligations of the Issuer according to the terms
thereof and hereof.
Section 403. Instruments of Further Assurance. The Issuer will do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged and
delivered, such indentures supplemental hereto and such further acts,
instruments and transfers as the Trustee may reasonably require for the better
assuring, transferring, conveying, pledging, assigning and confirming unto the
Trustee all and singular the amounts pledged hereby to the payment of the
principal of, premium, if any, and interest on the Notes. The Issuer, except as
herein provided, will not convey, encumber or otherwise dispose of the amounts,
revenues and receipts payable under the Agreement or its rights under the
Agreement.
Section 404. Recording and Filing. The Company has agreed pursuant to the
Agreement that it will cause all financing statements related to this Indenture
and all supplements thereto and the Agreement and all supplements thereto, as
well as such other security agreements, financing statements and all supplements
thereto and other instruments as may be required from time to time to be kept,
to be recorded and filed in such manner and in such places as may from time to
time be required by law in order to preserve and protect fully the security of
the Owners of the Notes and the rights of the Trustee hereunder, and to take or
cause to be taken any and all other action necessary to perfect the security
interest created by this Indenture.
Section 405. List of Owners of Note. The Trustee will keep on file a list
of names and addresses of the Owners of all Notes as from time to time
registered on the registration books maintained by the Trustee as Note
Registrar, together with-the principal amount and numbers of such Notes. At
reasonable times and under reasonable regulations established by the Trustee,
said list may be inspected and copied for any purpose by the Company or by
Owners (or a designated representative thereof) of twenty-five percent (25%) or
more in aggregate principal amount of Outstanding Notes, such ownership and the
authority of such designated representative to be evidenced to the satisfaction
of the Trustee.
Section 406. Rights Under Agreement. The Agreement, a duly executed
counterpart of which has been filed with the Trustee, sets forth the covenants
and obligations of the Issuer and the Company, and reference is hereby made to
the Agreement for a detailed statement of said covenants and obligations of the
Company thereunder, and the Issuer agrees that the Trustee in its name or in the
name of the Issuer may enforce all rights of the Issuer and all obligations of
the
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Company under and pursuant to the Agreement for and on behalf of the Owners of
Notes, whether or not the Issuer is in Default hereunder.
ARTICLE V
REVENUES AND FUNDS
Section 501. Source of Payment of Notes. The Notes herein authorized and
all payments by the Issuer hereunder are not general obligations of the Issuer
but are limited obligations payable from the amounts to be paid under the
Agreement and otherwise as provided herein and in the Agreement. The payments
provided in Section 4.2(a) and (d) of the Agreement are to be remitted directly
to the Trustee for the account of the Issuer and deposited in the Note Fund.
Such payments, sufficient in amount to insure the prompt payment of the
principal and Purchase Price of, premium, if any, and interest on the Notes, are
pledged to such payment.
Section 502. Creation of Note Fund. There is hereby created by the Issuer
and ordered established with the Trustee a trust fund to be designated "Note
Fund", which shall be used to pay when due the principal and Purchase Price of,
premium, if any, and interest on the Notes.
Section 503. Payments into Note Fund. There shall be deposited into the
Note Fund from time to time the following:
(a) any amount in the Project Fund directed to be paid into the Note
Fund in accordance with the provisions of Section 3.4 of the Agreement or
Section 508 hereof;
(b) all payments specified in Section 4.2(a) and (d) of the
Agreement;
(c) any moneys drawn under the Letter of Credit which moneys shall
be deposited in a subaccount of the Note Fund and shall not be commingled
with any other moneys held by the Trustee,
(d) amounts deposited into the Note Fund pursuant to Section 918(b)
hereof; and
(e) all other moneys received by the Trustee under and pursuant to
any of the provisions of the Agreement or the Guaranty which are required
to be or which are accompanied by directions that such moneys are to be
paid into the Note Fund.
Section 504. Use of Moneys in Note Fund. Except as provided in Sections
311, 512 and 918 hereof, moneys in the Note Fund shall be used solely for the
payment of the principal of, premium, if any, and interest on the Notes and for
the redemption of the Notes prior to maturity. Subject to the provisions of
Section 513 hereof, funds for such payments of the principal and Purchase Price
of and premium, if any, and interest on the Notes shall be derived from the
following sources in the order of priority indicated:
(i) amounts deposited into the Note Fund pursuant to Section 503(a)
hereof which constitute Available Moneys;
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(ii) moneys drawn by the Trustee under the Letter of Credit; and
(iii) any other moneys furnished to Trustee and available for such
purpose.
Notwithstanding the foregoing, amounts deposited into the Note Fund in
accordance with Section 3.4 of the Agreement shall be applied only to the
payment of the principal of, or the portion of the Purchase Price corresponding
to the principal of, the Notes.
[NOTE: TEXT OF PAGE 28 MISSING IN ORIGINAL DOCUMENT]
thereof, or otherwise, if Available Moneys sufficient to pay any such Note
shall have been made available to the Trustee for the benefit of the Owner
thereof, all liability of the Issuer to the Owner thereof for the payment of
such Note shall forthwith cease, determine and be completely discharged, and
thereupon it shall be the duty of the Trustee to hold such funds, without
liability for interest thereon, for the benefit of the Owner of such Note who
shall thereafter be restricted exclusively to such funds, for any claim of
whatever nature on his part under this Indenture or on, or with respect to, such
Note.
Any moneys so deposited with and held by the Trustee not so applied to the
payment of Notes within five (5) years after the date on which the same shall
have become due shall be repaid by the Trustee to the Company upon direction of
the Company Representative, and thereafter Owners of Notes shall be entitled to
look only to the Company for payment, and then only to the extent of the amount
so repaid, and all liability of the Trustee with respect to such money shall
thereupon cease, and the Company shall not be liable for any interest thereon
and shall not be regarded as a trustee of such money.
Section 511. Moneys to be Held in Trust. All moneys required to be
deposited with or paid to the Trustee for the account of any fund referred to in
any provision of this Indenture or the Agreement shall be held by the Trustee in
trust, and shall, while held by the Trustee, constitute part of the Trust Estate
and be subject to the lien and security interest created hereby.
Section 512. Repayment to the Bank and the Company from Note Fund or the
Project Fund. Any amounts remaining in the Note Fund, the Project Fund, or any
other fund created hereunder after payment in full of the principal and Purchase
Price of, premium, if any, and interest on the Notes, the fees, charges and
expenses of the Trustee, the Paying Agent, any Co-Paying Agent, the Note
Registrar and any Co-Note Registrar and all other amounts required to be paid
hereunder shall be paid immediately to the Bank to the extent of any
indebtedness of the Company to the Bank under the Credit Agreement, and, after
repayment of all such indebtedness, to the Company.
Section 513. Letter of Credit.
(a) During the term of the Letter of Credit, the Trustee shall draw moneys
under the Letter of Credit in accordance with the terms thereof (x) to the
extent moneys described in Section 504(i) hereof are not available therefor, to
pay principal and Purchase Price of, premium,
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if any, and interest on the Notes, and (y) to the extent moneys described in
Section 311(i) and (ii) hereof are not available therefor, to pay the Purchase
Price of Notes.
(b) Notwithstanding any provision to the contrary which may be contained
in this Indenture, including, without limitation, Section 513(a), (i) in
computing the amount to be drawn under the Letter of Credit on account of the
payment of principal or Purchase Price of, or premium, if any, or interest on
the Notes, the Trustee shall exclude any such amounts in respect of any Notes
which are Bank Notes on the date such payment is due, and (ii) amounts drawn by
the Trustee under the Letter of Credit shall not be applied to the payment of
the principal or Purchase Price of, or premium, if any, or interest on, any
Notes which are Bank Notes on the date such payment is due.
ARTICLE VI
INVESTMENT OF MONEYS
Any moneys held as part of the Note Fund, the Project Fund, or any other
fund shall be invested and reinvested by the Trustee in any of the following
qualified investments:
(i) obligations of the United States of America, or (ii) obligations
the principal and interest of which are guaranteed by the United States of
America, or (iii) obligations of any agency of the United States of
America, or (iv) certificates of deposit or bankers acceptances issued by,
or time deposits with, any bank, trust company or national banking
association (including the Trustee, any affiliate of the Trustee, the
Paying Agent or any Co-Paying Agent) having a combined capital and surplus
of at least $5,000,000, or (v) contracts for the purchase and sale of
obligations of the type specified in (i) above or (vi) commercial paper
which has been classified for rating purposes by Xxxxx'x as Prime-1 or by
S & P as A-1 (other than commercial paper of the Company, the Guarantor or
any subsidiary of either).
Any such investments shall be held by or under the control of the Trustee.
The Trustee may make any and all such investments through its own bond or
investment department or the bond or investment department of any bank or trust
company under common control with the Trustee. All such investments shall at all
times be a part of the fund (the Project Fund or the Note Fund, as the case may
be) from which the moneys used to acquire such investments shall have come, and
all income and profits on such investments shall be credited to, and losses
thereon shall be charged against, such funds. Such investments in the Project
Fund shall be made in accordance with Section 3.6 of the Agreement and shall be
made so as to mature or be subject to redemption at the option of the owner
thereof on or prior to the date or dates that the Company anticipates that
moneys therefrom will be required. The Trustee shall sell and reduce to cash a
sufficient amount of such investments whenever the cash balance in the Project
Fund is insufficient to pay a requisition when presented, or whenever the cash
balance in the Note Fund is insufficient to pay the principal or Purchase Price
of, premium, if any, and interest on the Notes when due. The Issuer covenants
and certifies to and for the benefit of the Owners of the Notes from time to
time Outstanding that so long as any of the Notes remain Outstanding, the Issuer
shall not direct that moneys on deposit in any fund or account in connection
with the Notes (whether or not such moneys were derived from the proceeds of the
sale of the Notes or
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from any other sources), be used in a manner which will cause the Notes to be
classified as "arbitrage bonds" within the meaning of Section 103(c)(2) of the
Code. The Trustee shall have no liability with respect to losses on investments
made pursuant to Company direction made in accordance with this Article VI.
ARTICLE VII
DISCHARGE OF LIEN
If the Issuer shall pay or cause to be paid, in accordance with the
provisions of this Indenture, to the Owners of the Notes, the principal of,
premium, if any, and interest due or to become due thereon at the times and in
the manner stipulated therein, and if the Issuer shall not then be in Default in
any of the other covenants and promises in the Notes and in this Indenture
expressed as to be kept, performed and observed by it or on its part, and if the
Issuer shall pay or cause to be paid to the Trustee all sums of money due or to
become due according to the provisions hereof then, these presents and the
estate and rights hereby granted shall cease, determine and be void, whereupon
the Trustee shall cancel and discharge the lien of this Indenture, and execute
and deliver to the Issuer such instruments in writing as shall be requisite to
release the lien hereof, and reconvey, release, assign and deliver unto the
Issuer any and all of the estate, right, title and interest in and to any and
all rights or property conveyed, assigned or pledged to the Trustee or otherwise
subject to the lien of this Indenture, except amounts in the Note Fund or
Project Fund required to be paid to the Bank and the Company under Section 512
hereof and except cash held by the Trustee for the payment of the principal or
Purchase Price of, premium, if any, or interest on particular Notes.
Notwithstanding the foregoing, if upon the payment of all Notes (other than Bank
Notes) in accordance with the provisions of this Indenture, the Bank shall
notify the Trustee that the Bank has not been paid in full all amounts payable
to the Bank under the Credit Agreement, then the Trustee shall execute and
deliver to the Bank such instruments in writing as shall be requisite to convey,
assign and deliver unto the Bank any and all of the estate, right, title and
interest of the Trustee in and to the Trust Estate, except for cash held by the
Trustee for the payment of the principal or Purchase Price of, premium, if any,
or interest on particular Notes.
The following provisions of this Article shall apply only from and after
the later of the Conversion Date and the Letter of Credit Termination Date:
Any Note shall be deemed to be paid within the meaning of this Article and
for all purposes of this Indenture when (a) payment of the principal of and
premium, if any, on such Note, plus interest thereon to the due date thereof
(whether such due date is by reason of maturity or upon redemption as provided
herein) either (i) shall have been made or caused to be made with Available
Moneys in accordance with the terms thereof, or (ii) shall have been provided by
irrevocably depositing with the Trustee, in trust and irrevocably set aside
exclusively for such payment, (1) Available Moneys sufficient to make such
payment or (2) Governmental Obligations purchased with Available Moneys maturing
as to principal and interest in such amount and at such time as will insure the
availability of sufficient moneys to make such payment, and (b) all necessary
and proper fees, compensation and expenses of the Trustee and the Issuer
pertaining to the Notes with respect to which such deposit is made shall have
been paid or the payment thereof provided for to the satisfaction of the
Trustee. At such
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times as a Note shall be deemed to be paid hereunder, as aforesaid, such Note
shall no longer be secured by or entitled to the benefits of this Indenture,
except for the purposes of any such payment from such Available Moneys or
Governmental Obligations.
Notwithstanding the foregoing, no deposit under clause (a)(ii) of the
immediately preceding paragraph shall be deemed a payment of such Notes as
aforesaid until (a) proper notice of redemption of such Notes shall have been
previously given in accordance with Article III of this Indenture, or in the
event said Notes are not by their terms subject to redemption within the next
succeeding sixty (60) days, until the Company shall have given the Trustee on
behalf of the Issuer, in form satisfactory to the Trustee, irrevocable
instructions to notify, as soon as practicable, the Owners of the Notes, in
accordance with Article III hereof, that the deposit required by (a)(ii) above
has been made with the Trustee and that said Notes are deemed to have been paid
in accordance with this Article and stating the maturity or redemption date upon
which moneys are to be available for the payment of the principal of and the
applicable redemption premium, if any, on said Notes, plus interest thereon to
the due date thereof; or (b) the maturity of such Notes.
All moneys so deposited with the Trustee as provided in this Article may
also be invested and reinvested, at the direction of the Company, in
Governmental Obligations, maturing in the amounts and times as hereinbefore set
forth, and all income from all Governmental Obligations in the hands of the
Trustee pursuant to this Article which is not required for the payment of the
Notes and interest and premium, if any, thereon with respect to which such
moneys shall have been so deposited shall be deposited in the Note Fund as and
when realized and collected for use and application as are other moneys
deposited in the Note Fund.
The Issuer hereby covenants that no deposit will knowingly be made which
would cause the Notes to be treated as arbitrage bonds within the meaning of
Section 103(c)(2) of the Code.
Notwithstanding any provision of any other Article of this Indenture which
may be contrary to the provisions of this Article, all moneys or Governmental
Obligations set aside and held in trust pursuant to the provisions of this
Article for the payment of Notes (including interest and premium thereon, if
any) shall be applied to and used solely for the payment of the particular Notes
"including the Purchase Price thereof and interest and premium thereon, if any)
with respect to which such moneys or Governmental Obligations have been so set
aside in trust.
Anything in Article XI hereof to the contrary notwithstanding, if moneys
or Governmental Obligations have been deposited or set aside with the Trustee
pursuant to this Article for the payment of Notes and such Notes shall not have
in fact been actually paid in full, no amendment to the provisions of this
Article shall be made without the consent of the Owner of each Note affected
thereby.
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ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES OF THE TRUSTEE
AND OWNERS OF NOTES
Section 801. Defaults. If any of the following events occur, it is hereby
declared to constitute a "Default":
(a) Default in the due and punctual payment of interest on any Note;
(b) Default in the due and punctual payment of the principal of or
premium, if any, on any Note, whether at the stated maturity thereof, or
upon proceedings for redemption thereof, or upon the maturity thereof by
declaration;
(c) Default in the due and punctual payment of the Purchase Price of
any Note at the time required by Section 303, 304 or 306 hereof;
(d) At any time prior to the Letter of Credit Termination Date,
receipt by the Trustee, following a drawing under the Letter of Credit to
pay interest or the portion of the Purchase Price corresponding to
interest on the Notes, of notice from the Bank that the Letter of Credit
will not be reinstated (in respect of interest) to an amount equal to at
least 120 days' interest on all Outstanding Notes;
(e) Receipt by the Trustee of notice from the Bank that an "Event of
Default" has occurred under the Credit Agreement;
(f) At any time after the Letter of Credit Termination Date, the
occurrence of a Default under the Agreement or the Guaranty; or
(g) At any time after the Letter of Credit Termination Date, default
in the performance or observance of any other of the covenants, agreements
or conditions on the part of the Issuer in this Indenture or in the Notes
contained and failure to remedy the same after notice thereof pursuant to
Section 812 hereof.
Section 802. Acceleration. Upon the occurrence of (i) any Default under
subsection (a), (b), (c), (f) or (g) of Section 801, the Trustee may, and at the
written request of the Owners of not less than twenty-five percent (25%) in
aggregate principal amount of Outstanding Notes shall, or (ii) any Default under
subsection (d) or (e) of Section 801, the Trustee shall, by notice in writing
delivered to the Issuer, the Company and the Guarantor, declare the principal of
all Notes and the interest accrued thereon to the date of such acceleration
immediately due and payable. Upon any declaration of acceleration hereunder, the
Trustee shall immediately declare the payments required to be made by the
Company under Section 4.2 of the Agreement to be immediately due and payable
and, prior to the Letter of Credit Termination Date, shall draw moneys under the
Letter of Credit to pay the principal of all Outstanding Notes and the accrued
interest thereon to the date of acceleration to the extent required by Section
504 hereof.
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The provisions of this Section 802 are subject to the conditions that (i)
with respect to a Default under subsection (e) of Section 801, any waiver of any
Event of Default under the Credit Agreement and rescission and annulment of its
consequences and (ii) with respect to a Default under subsection (d) of Section
801, receipt by the Trustee of written notice from the Bank that the Letter of
Credit has been reinstated (in respect of interest) to an amount equal to at
least 120 days' interest on all Outstanding Notes, shall constitute a waiver of
the corresponding Default under this Indenture and a rescission and annulment of
the consequences thereof. No such waiver, rescission and annulment shall extend
to or affect any subsequent Default or impair any right or remedy consequent
thereon.
Notwithstanding the foregoing, no waiver, rescission or annulment of a
Default hereunder shall be made if the Bank shall theretofore have honored in
full a drawing under the Letter of Credit in respect of such Default.
Section 803. Other Remedies Rights of Owners of Notes. Subject to the
provisions of Section 802 hereof, upon the occurrence of a Default, the Trustee
may pursue any available remedy at law or in equity to enforce the payment of
the principal of, premium, if any, and interest on the Outstanding Notes.
Subject to the provisions of Section 802 hereof, if a Default shall have
occurred and be continuing and if requested so to do by the Owners of
twenty-five percent (25%) in aggregate principal amount of Outstanding Notes and
provided the Trustee is indemnified as provided in Section 901(k) hereof, the
Trustee shall be obligated to exercise such one or more of the rights and powers
conferred by this Section and by Section 802 hereof, as the Trustee, being
advised by counsel, shall deem most expedient in the interests of the Owners of
Notes.
Subject to the provisions of Section 802 hereof, no remedy by the terms of
this Indenture conferred upon or reserved to the Trustee (or to the Owners of
Notes) is intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and shall be in addition to any other remedy given to
the Trustee or to the Owners of Notes hereunder or now or hereafter existing at
law or in equity.
No delay or omission to exercise any right or power accruing upon any
Default shall impair any such right or power or shall be construed to be a
waiver of any such Default or acquiescence therein; such right or power may be
exercised from time to time as often as may be deemed expedient.
No waiver of any Default hereunder, whether by the Trustee or by the
Owners of Notes, shall extend to or shall affect any subsequent Default or shall
impair any rights or remedies consequent thereon.
Section 804. Right of Owners of Notes to Direct Proceedings. Subject to
the provisions of Section 802 hereof, anything in this Indenture to the contrary
notwithstanding, the Owners of a majority in aggregate principal amount of the
Outstanding Notes shall have the right, at any time, by an instrument or
instruments in writing executed and delivered to the Trustee, to direct the
method and place of conducting all proceedings to be taken in connection with
the
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enforcement of the terms and conditions of this Indenture, or for the
appointment of a receiver or any other proceedings hereunder, provided that such
direction shall not be otherwise than in accordance with the provisions of law
and of this Indenture.
Section 805. Appointment of Receivers. Upon the occurrence of a Default
and upon the filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Trustee and of the Owners of Notes under this
Indenture, the Trustee shall be entitled, as a matter of right, to the
appointment of a receiver or receivers of the Trust Estate and of the revenues,
earnings, income, products and profits thereof, pending such proceedings, with
such powers as the court making such appointment shall confer.
Section 806. Waiver. Upon the occurrence of a Default, to the extent that
such rights may then lawfully be waived, neither the Issuer, nor anyone claiming
through or under it, shall set up, claim or seek to take advantage of any
appraisement, valuation, stay, extension or redemption laws of any jurisdiction
now or hereafter in force, in order to prevent or hinder the enforcement of this
Indenture, and the Issuer, for itself and all who may claim through or under it,
hereby waives, to the extent that it lawfully may do so, the benefit of all such
laws.
Section 807. Application of Moneys. All moneys received by the Trustee
pursuant to any right given or action taken under the provisions of this Article
shall, after payment of the costs and expenses of the proceedings resulting in
the collection of such moneys and of the expenses, liabilities and advances
incurred or made by the Trustee, be deposited in the Note Fund and applied as
follows:
(a) Unless the principal of all the Notes shall have become or shall
have been declared due and payable, all such moneys shall be applied:
FIRST - To the payment to the Persons entitled thereto of all
installments of interest then due on the Notes, in the order of the
maturity of the installments of such interest (with interest on
overdue installments of such interest, to the extent permitted by
law, at the Late Payment Rate) and, if the amount available shall
not be sufficient to pay in full any particular installment, then to
the payment ratably, according to the amounts due on such
installment, to the persons entitled thereto, without any
discrimination or privilege; and
SECOND - To the payment to the Persons entitled thereto of the
unpaid principal of and premium, if any, on any of the Notes which
shall have become due (other than Notes matured or called for
redemption for the payment of which moneys are held pursuant to the
provisions of this Indenture), (with interest on overdue
installments of principal and premium, if any, to the extent
permitted by law, at the Late Payment Rate) and, if the amount
available shall not be sufficient to pay in full Notes due on any
particular date, then to the payment ratably, according to the
amount of principal due on such date, to the persons entitled
thereto without any discrimination or privilege; and
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THIRD - To be held for the payment to the Persons entitled
thereto as the same shall become due of the principal of and
premium, if any, and interest on the Notes which may thereafter
become due either at maturity or upon call for redemption prior to
maturity and, if the amount available shall not be sufficient to pay
in full Notes due on any particular date, together with interest and
premium, if any, then due and owing thereon, payment shall be made
ratably according to the amount of interest, principal and premium,
if any, due on such date to the Persons entitled thereto without any
discrimination or privilege.
(b) If the principal of all the Notes shall have become due or shall
have been declared due and payable, all such moneys shall be applied to
the payment of the principal and interest then due and unpaid upon the
Notes, without preference or priority of principal over interest or of
interest over principal, or of any installment of interest over any other
installment of interest, or of any Note over any other Note, ratably,
according to the amounts due, respectively, for principal and interest, to
the Persons entitled thereto without any discrimination or privilege, with
interest on overdue installments of interest or principal, to the extent
permitted by law, at the Late Payment Rate.
(c) If the principal of all the Notes shall have been declared due
and payable and if such declaration shall thereafter have been rescinded
and annulled under the provisions of this Article, then, subject to the
provisions of Section 807(b) hereof, in the event that the principal of
all the Notes shall later become due or be declared due and payable, the
moneys shall be applied in accordance with the provisions of Section
807(a) hereof.
Whenever moneys are to be applied pursuant to the provisions of this
Section, such moneys shall be applied at such times, and from time to time, as
the Trustee shall determine, having due regard to the amount of such moneys
available for application and the likelihood of additional moneys becoming
available for such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date (which shall be an interest payment date
unless it shall deem another date more suitable) upon which such application is
to be made and upon such date interest on the amounts of principal to be paid on
such dates shall cease to accrue. The Trustee shall give such notice as it may
deem appropriate of the deposit with it of any such moneys and of the fixing of
any such date, and shall not be required to make payment to the Owner of any
Note until such Note shall be presented to the Trustee for appropriate
endorsement or for cancellation if fully paid.
Whenever the principal of, premium, if any, and interest on all Notes have
been paid under the provisions of this Section and all expenses and charges of
the Trustee have been paid, any balance remaining in the Note Fund shall be paid
to the Company or the Bank as provided in Section 512 hereof. Notwithstanding
anything to the contrary herein or otherwise, moneys drawn under the Letter of
Credit shall be applied only to the payment of principal or Purchase Price of,
premium, if any, and accrued interest on the Notes.
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Section 808. Remedies Vested in Trustee. All rights of action (including
the right to file proof of claims) under this Indenture or under any of the
Notes may be enforced by the Trustee without the possession of any of the Notes
or the production thereof in any trial or other proceeding relating thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
name as Trustee without the necessity of joining as plaintiffs or defendants any
Owners of the Notes, and any recovery of judgment shall be for the equal and
ratable benefit of the Owners of the Outstanding Notes.
Section 809. Rights and Remedies of Owners of Notes. No Owner of any Note
shall have any right to institute any suit, action or proceeding at law or in
equity for the enforcement of this Indenture or for the execution of any trust
hereof or for the appointment of a receiver or any other remedy hereunder,
unless (subject to the provisions of Section 802 hereof) (i) a Default has
occurred of which the Trustee has been notified as provided in Section 1001(h)
hereof, or of which by said subsection it is deemed to have notice, (ii) the
Owners of twenty-five percent (25%) in aggregate principal amount of Outstanding
Notes shall have made written request to the Trustee and shall have offered tit
reasonable opportunity either to proceed to exercise the powers hereinbefore
granted or to institute such action, suit or proceeding in their own name or
names and they have offered to the Trustee indemnity as provided in Section
901(k), and (iii) the Trustee shall thereafter fail or refuse to exercise the
powers hereinbefore granted, or to institute such action, suit or proceeding in
its own name. Such notification, request and offer of indemnity are hereby
declared in every case at the option of the Trustee to be conditions precedent
to the execution of the powers and trusts of this Indenture, and to any action
or cause of action for the enforcement of this Indenture, or for the appointment
of a receiver or for any other remedy hereunder; it being understood and
intended that no one or more Owners of the Notes shall have any right in any
manner whatsoever to affect, disturb or prejudice the lien of this Indenture by
their action or to enforce any right hereunder except in the manner herein
provided, and that all proceedings at law or in equity shall be instituted, had
and maintained in the manner herein provided and for the equal and ratable
benefit of the Owners of all Outstanding Notes. However, nothing contained in
this Indenture shall affect or impair the right of any Owner of Notes to enforce
the payment of the principal of, premium, if any, and interest on any Note at
and after the maturity thereof, or the obligation of the Issuer to pay the
principal of, premium, if any, and interest on each of the Notes issued
hereunder to the respective Owners thereof at the time and place, from the
source and in the manner in the Notes expressed. No Owner of any Note shall have
any right to institute any suit, action or proceeding in equity or at law to
enforce a drawing under the Letter of Credit.
Section 810. Termination of Proceedings. In case the Trustee shall have
proceeded to enforce any right under this Indenture by the appointment of a
receiver or otherwise, and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely, then and in
every such case, the Issuer, the Trustee and the Owners of Notes shall be
restored to their former positions and rights hereunder, respectively, with
regard to the property subject to this Indenture, and all rights, remedies and
powers of the Trustee shall continue as if no such proceedings had been taken.
Section 811. Waivers of Default. Subject to the provisions of the last
paragraph of Section 802 hereof, the Trustee may in its discretion waive any
Default hereunder and its
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consequences and rescind any declaration of acceleration of principal, and shall
do so upon the written request of the Bank and the Owners of (1) more than
two-thirds (2/3) in aggregate principal amount of all Outstanding Notes in
respect of which Default in the payment of principal or interest, or both,
exists or (2) more than two-thirds (2/3) in aggregate principal amount of all
Outstanding Notes in the case of any other Default; provided, however, that any
Default under subsection (e) of Section 801 hereof may only be waived upon the
written request of the Bank (and in such case the consent of the Owners of the
Notes shall not be required); and provided further that there shall not be
waived any Default in the payment of the principal of or interest on any
Outstanding Notes unless prior to such waiver or rescission, all arrears of
principal and interest (other than principal of or interest on the Notes which
became due and payable by declaration of acceleration), with interest at the
Late Payment Rate on overdue installments, to the extent permitted by law, and
all expenses of the Trustee in connection with such Default shall have been paid
or provided for. In case of any waiver or rescission described above, or in case
any proceeding taken by the Trustee on account of any such Default shall have
been discontinued or abandoned or determined adversely, then and in every such
case the Issuer, the Trustee and the Owners of Notes shall be restored to their
former positions and rights hereunder, respectively, but no such waiver or
rescission shall extend to any subsequent or other Default, or impair any right
consequent thereon.
Section 812. Notice of Defaults under Section 801(g); Opportunity to Cure
Such Defaults. Anything herein to the contrary notwithstanding, no Default under
Section 801(g) hereof shall be deemed a Default until notice of such Default
shall be given to the Issuer, the Guarantor and the Company by the Trustee or by
the Owners of not less than twenty-five percent (25%) in aggregate principal
amount of all Outstanding Notes, and the Issuer, the Guarantor and the Company
shall have had thirty (30) days after receipt of such notice to correct said
Default or to cause said Default to be corrected and shall not have corrected
said Default or caused said Default to be corrected within the applicable
period; provided, however, if said Default be such that it cannot be corrected
within the applicable period, it shall not constitute a Default if corrective
action is instituted by the Issuer, the Guarantor or the Company within the
applicable period and diligently pursued until the Default is corrected.
With regard to any Default concerning which notice is given to the Issuer,
the Guarantor and the Company under the provisions of this Section, the Issuer
hereby grants the Guarantor and the Company full authority for account of the
Issuer to perform any covenant or obligation alleged in said notice to
constitute a Default, in the name and stead of the Issuer with full power to do
any and all things and acts to the same extent that the Issuer could do and
perform any such things and acts and with power of substitution.
Section 813. Cooperation of Issuer. In the event of a Default hereunder,
the Issuer shall cooperate with the Trustee and use its best efforts to protect
the Owners of Notes.
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ARTICLE IX
THE TRUSTEE; PAYING AGENT AND CO-PAYING AGENT;
NOTE REGISTRAR AND CO-NOTE REGISTRAR; AND
AUTHENTICATING AGENT
Section 901. Acceptance of The Trusts. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform said trusts, but
only upon and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of a Default and after the
curing of all Defaults which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture. In case a Default has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in the
exercise of such rights and powers as an ordinary, prudent man would
exercise or use in the conduct of his own affairs.
(b) The Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers or
employees, but shall be answerable for the conduct of the same in
accordance with the standard specified above, and shall be entitled to
advice of counsel concerning its duties hereunder, and may in all cases
pay such reasonable compensation to all such attorneys, agents, receivers
and employees as may reasonably be employed in connection with the trusts
hereof. The Trustee may act upon the opinion or advice of any attorney
(who may be the attorney or attorneys for the Issuer, the Company or the
Guarantor) selected by the Trustee in the exercise of reasonable care. The
Trustee shall not be responsible for any loss or damage resulting from any
action or inaction taken or not taken, as the case may be, in good faith
in reliance upon such opinion or advice.
(c) The Trustee shall not be responsible for any recital herein or
in the Notes (except with respect to the certificate of the Trustee
endorsed on the Notes) or for the validity of the execution by the Issuer
of this Indenture or of any supplements hereto or instruments of further
assurance, or for the sufficiency of the security for the Notes issued
hereunder or intended to be secured hereby, and the Trustee shall not be
bound to ascertain or inquire as to the performance or observance of any
covenants, conditions or agreements on the part of the Company under the
Agreement or the part of the Guarantor under the Guaranty Agreement except
as hereinafter set forth; but the Trustee may require of the Issuer and
the Company full information and advice as to the performance of the
covenants, conditions and agreements aforesaid and as to the condition of
the property herein conveyed. The Trustee shall have no obligation to
perform any of the duties of the Issuer under the Agreement.
(d) The Trustee, the Paying Agent, any Co-Paying Agent, the Note
Registrar and any Co-Note Registrar, in its individual capacity, may in
good faith buy, sell, own, hold or deal in any of the Notes issued
hereunder, and may join in any action which any
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Owner of Notes may be entitled to take with like effect as if it did not
act in any such capacity hereunder.
(e) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or other
paper or document believed to be genuine and correct and to have been
signed or sent by the proper person or persons. Any action taken by the
Trustee pursuant to this Indenture upon the request or authority or
consent of any person who at the time of making such request or giving
such authority or consent is the Owner of any Note shall be conclusive and
binding upon all future Owners of the same Note and upon Notes issued in
exchange therefor or in place thereof.
(f) As to the existence or nonexistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the
Trustee shall be entitled to rely upon an Officer's Certificate of the
Issuer or a certificate signed by the Company Representative as sufficient
evidence of the facts therein contained and prior to the occurrence of a
Default of which the Trustee has been notified as provided in Section
901(h) hereof, or of which by said subsection it is deemed to have notice,
shall also be at liberty to accept a similar certificate to the effect
that any particular dealing, transaction or action is necessary or
expedient, but may at its discretion secure such further evidence deemed
by it to be necessary or advisable, but shall in no case be bound to
secure the same. The Trustee may accept a certificate of such officials of
the Issuer who executed the Notes (or their successors in office) under
the seal of the Issuer to the effect that a resolution in the form therein
set forth has been adopted by the Issuer as conclusive evidence that such
resolution has been duly adopted and is in full force and effect.
(g) The permissive right of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty, and the Trustee shall not
be answerable for other than its negligence or willful default.
(h) The Trustee shall not be required to take notice or be deemed to
have notice of any Default hereunder except for Defaults specified in
subsections (a), (b), (c), (d)- or (e) of Section 801 hereof, unless the
Trustee shall be specifically notified in writing of such Default by the
Issuer, the Bank or by the Owners of at least twenty-five percent (25%) in
aggregate principal amount of Outstanding Notes, and all notices or other
instruments required by this Indenture to be delivered to the Trustee,
must, in order to be effective, be delivered at the Principal Office of
the Trustee, and in the absence of such notice so delivered the Trustee
may conclusively assume there is no Default except as aforesaid.
(i) The Trustee shall not be required to give any bonds or surety in
respect of the execution of the said trusts and powers or otherwise in
respect of the premises.
(j) Notwithstanding anything elsewhere in this Indenture with
respect to the authentication of any Notes, the withdrawal of any cash,
the release of any property or any action whatsoever within the purview of
this Indenture, the Trustee shall have the right, but shall not be
required, to demand any showings, certificates, opinions, appraisals
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or other information, or corporate action or evidence thereof, in addition
to that by the terms hereof required as a condition of such action, deemed
desirable by the Trustee for the purpose of establishing the right of the
Issuer to the authentication of any Notes, the withdrawal of any cash or
the taking of any other action by the Trustee.
(k) Before taking any action under this Indenture or under the
Agreement, the Trustee may require that a satisfactory indemnity bond be
furnished for the reimbursement of all expenses to which it may be put and
to protect it against all liability, except liability which is adjudicated
to have resulted from its negligence or willful default in connection with
any such action.
(l) All moneys received by the Trustee, the Paying Agent or any
Co-Paying Agent shall, until used or applied or invested as herein
provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent otherwise
required herein or required by law.
Section 902. Fees, Charges and Expenses of the Trustee. The Trustee shall
be entitled to payment and reimbursement for reasonable fees for its services
rendered hereunder and all advances, counsel fees and other expenses reasonably
made or incurred by the Trustee in connection with such services. Upon a
Default, but only upon a Default, the Trustee shall have a first lien with right
of payment prior to payment on account of principal of, premium, if any, and
interest on any Note upon the Trust Estate (exclusive of the proceeds of any
drawing under the Letter of Credit) for the foregoing fees, charges and expenses
incurred by the Trustee. When the Trustee incurs expenses or renders services
after the occurrence of a Default hereunder caused by the occurrence of a
"Default" specified in Section 8.1(c) of the Agreement, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any federal or state bankruptcy, insolvency, arrangement,
moratorium, reorganization or other debtor relief law. Issuer shall have no
liability to pay any fees, charges or other expenses of the Trustee hereinabove
mentioned except from the amounts pledged under this Indenture.
Section 903. Notice to Owners of Notes if Default Occurs. If a Default
occurs of which the Trustee has been notified as provided in Section 901(h)
hereof, or of which by said subsection it is deemed to have notice, then the
Trustee shall promptly give notice thereof to the Guarantor, the Bank, and the
Owner of each Note.
Section 904. Intervention by the Trustee. In any judicial proceeding which
in the opinion of the Trustee and its counsel has a substantial bearing on the
interests of Owners of the Notes, the Trustee may intervene on behalf of Owners
of Notes and shall do so if requested in writing by the Bank or the Owners of at
least twenty-five percent (25%) of the aggregate principal amount of Outstanding
Notes.
Section 905. Successor Trustee. Any corporation or association into which
the Trustee may be converted or merged, or with which it may be consolidated, or
to which it may sell or transfer its trust business and assets as a whole or
substantially as a whole, or any corporation or association resulting from any
such conversion, sale, merger, consolidation or transfer to which it is a party,
shall be and become successor Trustee hereunder and vested with all of the title
to
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the Trust Estate and all the trusts, powers, discretions, immunities, privileges
and all other matters as was its predecessor, without the execution or filing of
any instrument or any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 906. Resignation by the Trustee. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created by giving thirty
(30) days' notice to the Issuer, the Guarantor, the Bank, the Company, and to
the Owner of each Note. Such resignation shall not take effect until the
appointment of a successor Trustee or temporary Trustee by the Owners of Notes
or by the Issuer.
Section 907. Removal of the Trustee. The Trustee may be removed at any
time by an instrument or concurrent instruments in writing delivered to the
Trustee and to the Issuer, the Company, the Guarantor, any Co-Paying Agent, any
Co-Note Registrar and the Bank and signed by the Owners of a majority in
aggregate principal amount of Outstanding Notes.
Section 908. Appointment of Successor Trustee by Owners of Notes. In case
the Trustee hereunder shall resign or be removed, or be dissolved, or shall be
in the course of dissolution or liquidation, or otherwise become incapable of
acting hereunder, or in case it shall be taken under the control of any public
officer or officers, or of a receiver appointed by a court, a successor may be
appointed by the Owners of a majority in aggregate principal amount of
Outstanding Notes by an instrument or concurrent instruments in writing signed
by such Owners, or by their attorneys in fact duly authorized, a copy of which
shall be delivered personally or sent by registered mail to the Guarantor, the
Issuer, the Company, any Co-Paying Agent, any Co-Note Registrar and the Bank. In
case of any such vacancy, the Issuer, by an instrument executed, attested and
sealed by those of its officials who executed and attested the Notes or their
successors in office, may appoint a temporary successor Trustee to fill such
vacancy until a successor Trustee shall be appointed by the Owners of Notes in
the manner above provided; and such temporary successor Trustee so appointed by
the Issuer shall immediately and without further act be superseded by the
Trustee appointed by the Owners of Notes. If no successor Trustee has accepted
appointment in the manner provided in Section 1009 hereof within ninety (90)
days after the Trustee has given notice of resignation to the Issuer and the
Owner of each Note, the Trustee may petition any court of competent jurisdiction
for the appointment of a temporary successor Trustee; provided that any Trustee
so appointed shall immediately and without further act be superseded by a
Trustee appointed by the Issuer or the Owners of Notes as provided above. Every
successor Trustee appointed pursuant to the provisions of this Section shall be,
if there be such an institution willing, qualified and able to accept the trust
upon customary terms, a bank or trust company within or without the State, in
good standing and having a reported capital and surplus of not less than
$10,000,000.
Section 909. Acceptance by Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its or his
predecessor and also to the Issuer and the Company an instrument in writing
accepting such appointment hereunder, and thereupon such successor, without any
further act, deed or conveyance, shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of its predecessor;
but such predecessor shall, nevertheless, on the written request of the Issuer,
or of its successor,
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execute and deliver an instrument transferring to such successor all the
estates, properties, rights, powers and trusts of such predecessor hereunder;
and every predecessor Trustee shall deliver all securities and moneys held by it
as Trustee hereunder to its successor. Should any instrument in writing from the
Issuer be required by any successor Trustee for more fully and certainly vesting
in such successor the estate, rights, powers and duties hereby vested or
intended to be vested in the predecessor, any and all such instruments in
writing shall, on request, be executed, acknowledged and delivered by the
Issuer. The resignation of any Trustee and the instrument or instruments
removing any Trustee and appointing a successor hereunder, together with all
other instruments provided for in this Article, shall be filed or recorded by
the successor Trustee in each recording office where the Indenture shall have
been filed or recorded.
Section 910. Appointment of Co-Trustee. It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction
(including particularly the law of the State) denying or restricting the right
of banking corporations or associations to transact business as Trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture
or the Agreement and in particular in case of the enforcement thereof on
Default, or in case the Trustee deems that by reason of any present or future
law of any jurisdiction it may not exercise any of the powers, rights or
remedies herein or therein granted to the Trustee or hold title to the Trust
Estate, as herein granted, or take any other action which may be desirable or
necessary in connection therewith, the Trustee may appoint an additional
individual or institution as a separate or Co-Trustee, in which event each and
every remedy, power, right, claim, demand, cause of action, immunity, estate,
title, interest and lien expressed or intended by this Indenture or the
Agreement to be exercised by or vested in or conveyed to the Trustee with
respect thereto shall be exercisable by and vest in such separate or Co-Trustee,
but only to the extent necessary to enable such separate or Co-Trustee to
exercise such powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such separate or Co-Trustee shall run to
and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from the Issuer be
required by the separate or Co-Trustee so appointed by the Trustee for more
fully and certainly vesting in and confirming to him or it such properties,
rights, powers, trusts, duties and obligations, any and all such deeds,
conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. In case any separate or Co-Trustee, or
a successor to either, shall die, become incapable of acting, resign or be
removed, all the estates, properties, rights, powers, trusts, duties and
obligations of such separate or Co-Trustee, so far as permitted by law, shall
vest in and be exercised by the Trustee until the appointment of a new Trustee
or successor to such separate or Co-Trustee. Any Co-Trustee appointed by the
Trustee pursuant to this Section may be removed by the Trustee, in which case
all powers, rights and remedies vested in a Co-Trustee shall again vest in the
Trustee as if no such appointment of a Co-Trustee had been made.
Section 911. Trustee Protected in Relying Upon Resolution, etc. The
resolutions, opinions, certificates and other instruments provided for herein
may be accepted by the Trustee as conclusive evidence of the facts and
conclusions stated therein and shall be full warrant, protection and authority
to the Trustee for the release of property and the withdrawal of moneys
hereunder.
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Section 912. Paying Agent; Co-Paying Agent. The Trustee is hereby
appointed Paying Agent for the Notes. The Issuer may, with the approval of the
Company, appoint one or more Co-Paying Agents for the Notes, subject to the
conditions set forth in Section 913 hereof. Each Co-Paying Agent shall designate
to the Trustee its Principal Office and signify its acceptance of the duties and
obligations imposed upon it hereunder by a written instrument of acceptance
delivered to the Issuer, the Company, the Guarantor, the Trustee and the Bank
under which each such Co-Paying Agent will agree, particularly:
(a) to hold all sums held by it for the payment of the principal or
Purchase Price of, premium, if any, or interest on Notes in trust for the
benefit of the Owners of Notes -until such sums shall be paid to such
Owners of Notes or otherwise disposed of as herein provided;
(b) to keep such books and records as shall be consistent with
prudent industry practice, to make such books and records available for
inspection by the Issuer, the Trustee, the Company and the Guarantor at
all reasonable times and, upon the request of the Paying Agent, to
promptly furnish copies of such books and records to the Paying Agent; and
(c) upon the request of the Paying Agent, to forthwith deliver to
the Paying Agent all sums so held in trust by such Co-Paying Agent.
The Issuer shall cooperate with the Trustee and the Company to cause the
necessary arrangements to be made and to be thereafter continued whereby funds
derived from the sources specified in Section 504 will be made available for
payment when due of the Notes as presented at the Principal Offices of the
Paying Agent and any Co-Paying Agent.
Section 913. Qualifications of Paying Agent and Co-Paying Agents;
Resignation, Removal. The Paying Agent and any Co-Paying Agent shall be
corporations duly organized under the laws of the United States of America or
any state or territory thereof, having a combined capital stock, surplus and
undivided profits of at least $10,000,000 and authorized by law to perform all
the duties imposed upon it by this Indenture. The Paying Agent and any Co-Paying
Agent may at any time resign or be discharged of the duties and obligations
created by the Indenture by giving at least sixty (60) days notice to the
Issuer, the Company, the Guarantor and the Trustee. The Paying Agent and any
Co-Paying Agent may be removed at any time, at the direction of the Company, by
an instrument signed by the Issuer and the Company and filed with the Paying
Agent or such Co-Paying Agent, as the case may be, and with the Trustee, the
Note Registrar, any Co-Note Registrar, the Remarketing Agent and the Bank.
In the event of the resignation or removal of the Paying Agent or any
Co-Paying Agent, the Paying Agent or such Co-Paying Agent, as the case may be,
shall pay over, assign and deliver any moneys held by it in such capacity to its
successor or, if there be no successor, to the Trustee.
In the event that the Paying Agent shall resign or be removed, or be
dissolved, or if the property or affairs of the Paying Agent shall be taken
under the control of any state or federal
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court or administrative body because of bankruptcy or insolvency, or for any
other reason, and the Issuer shall not have appointed its successor as Paying
Agent, the Trustee shall ipso facto be deemed to be the Paying Agent for all
purposes of this Indenture until the appointment by the Issuer of the Paying
Agent or successor Paying Agent, as the case may be.
Section 914. Note Registrar; Co-Note Registrar. The Trustee is hereby
appointed Note Registrar for the Notes. The Issuer may, with the approval of the
Note Registrar and the Company, appoint a Co-Note Registrar to perform one or
more functions of the Note Registrar under this Indenture, subject to the
conditions set forth in Section 915 hereof. Any such Co-Note Registrar shall
designate to the Trustee its Principal Office and signify its acceptance of the
duties imposed upon it hereunder by a written instrument of acceptance delivered
to the Issuer, the Company, the Guarantor and the Trustee under which such
Co-Note Registrar will agree, particularly, to keep such books and record as
shall be consistent with prudent industry practice and to make such books and
records available for inspection by the Issuer, the Company, the Guarantor and
the Trustee at all reasonable times.
The Issuer shall cooperate with the Trustee and the Company to cause the
necessary arrangements to be made and to be thereafter continued whereby Notes,
executed by the Issuer and authenticated by the Trustee, shall be made available
for exchange, registration and registration of transfer at the Principal Office
of the Note Registrar. The Issuer shall cooperate with the Trustee, the Note
Registrar and the Company to cause the necessary arrangements to be made and
thereafter continued whereby the Paying Agent, any Co-Paying Agent and the
Remarketing Agent shall be furnished such records and other information, at such
times, as shall be required to enable the Paying Agent, any Co-Paying Agent and
the Remarketing Agent to perform the duties and obligations imposed upon them
hereunder.
Section 915. Qualifications of Note Registrar and Co-Note Registrar;
Resignation; Removal. The Note Registrar and any Co-Note Registrar shall be a
corporation organized under the laws of the United States of America or any
state or territory thereof, having a combined capital stock, surplus and
undivided profits of at least $10,000,000 and authorized by law to perform all
the duties imposed upon it by this Indenture. The Note Registrar and any Co-Note
Registrar may at any time resign and be discharged of the duties and obligations
created by this Indenture by giving at least sixty (60) days notice to the
Issuer, the Company, the Guarantor and the Trustee. The Note Registrar and any
Co-Note Registrar may be removed at any time, at the direction of the Company,
by an instrument signed by the Issuer and the Company and filed with the Note
Registrar or such Co-Note Registrar, as the case may be, and with the Trustee,
the Paying Agent, any Co-Paying Agent, the Remarketing Agent and the Bank.
In the event that the Note Registrar shall resign or be removed, or be
dissolved, or if the property or affairs of the Note Registrar shall be taken
under the control of any state or federal court or administrative body because
of bankruptcy or insolvency, or for any other reasons, and the issuer shall not
have appointed its successor as Note Registrar, the Trustee shall ipso facto be
deemed to be the Note Registrar for all purposes of this Indenture until the
appointment by the Issuer of the Note Registrar or successor Note Registrar, as
the case may be.
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Section 916. Several Capacities. Anything in this Indenture to the
contrary notwithstanding, the same entity may serve hereunder as the Trustee,
the Paying Agent or a Co-Paying Agent and the Note Registrar or a Co-Note
Registrar and may serve as the Remarketing Agent, the agent appointed by the
Trustee pursuant to Section 314, the Bank or any agent appointed by the Bank and
any other combination of such capacities, to the extent permitted by law.
Section 917. Authenticating Agent. The Trustee may (and at the request of
the Issuer with the consent of the Company shall) appoint one or more
Authenticating Agents with power to act on its behalf and subject to its
direction in the authentication and delivery of Notes pursuant to Sections 203,
204, 206, 207, 208, 210 and 310 as fully to all intents and purposes as though
any such Authenticating Agent had been expressly authorized by said Sections to
authenticate and deliver Notes. One such Authenticating Agent shall at all times
be a corporation having its principal office in The City of New York, organized
under the laws of the United States or of any state or territory thereof
authorized under such laws to act as Authenticating Agent, having a combined
capital stock, surplus and undivided profits of at least $10,000,000.
Wherever reference is made in this Indenture to the authentication and
delivery of Notes by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by its Authenticating Agent appointed hereunder and a certificate
of authentication executed on behalf of the Trustee by its Authenticating Agent
appointed hereunder.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent, shall be the successor of such Authenticating Agent
hereunder, if such successor corporation is otherwise eligible under this
Section 917, without the execution or filing of any paper or any further act on
the part of the parties hereto or such Authenticating Agent or such successor
corporation.
Any Authenticating Agent may at any time resign as Authenticating Agent by
giving written notice of resignation to the Trustee, the Company and the Issuer.
The Trustee may at any time terminate the agency of any Authenticating Agent by
giving written notice of termination to such Authenticating Agent and to the
Issuer, the Company, the Guarantor, the Paying Agent, any Co-Paying Agent, the
Note Registrar, any Co-Note Registrar and the Remarketing Agent. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible under this Section 917, the
Trustee may, and upon the request of the Issuer with the consent of the Company
shall, promptly appoint a successor Authenticating Agent eligible under this
Section 917, shall give written notice of such appointment to the Issuer, the
Company, the Guarantor, the Paying Agent, any Co-Paying Agent, the Note
Registrar, any Co-Note Registrar and the Remarketing Agent and shall mail notice
of such appointment to all Owners of Notes as their names and addresses appear
on the registration books. Any successor Authenticating Agent upon acceptance of
its appointment hereunder shall
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become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent herein.
The Trustee agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services, and the Trustee shall be entitled to
be reimbursed for such payments, subject to Section 1002 hereof. The provisions
of Sections 208 and 901 hereof shall be applicable to any Authenticating Agent.
If an appointment is made pursuant to this Section 917, the Notes shall
have endorsed thereon in lieu of the certificate of authentication set forth in
Exhibits A, B and C hereto, an alternate certificate of authentication in the
following form:
"This Note is one of the Notes of the issue described in the
within-mentioned Indenture of Trust.
FIRST & MERCHANTS NATIONAL BANK,
As Trustee
By ________________________________
Authenticating Agent
By ________________________________
Authenticating Officer
Section 918. Purchase of Notes by the Trustee. The Trustee hereby agrees,
and, where applicable, will cause each of its agents to agree, that it will:
(a) hold all Notes delivered to it pursuant to Sections 303, 304 or
306 hereof in trust for the benefit of the respective Owners of Notes
which shall have so delivered such Notes until moneys representing the
Purchase Price of such Notes shall have been delivered to or for the
account of or to the order of such Owners of Notes,
(b) hold all moneys delivered to it hereunder for the purchase of
Notes in a separate subaccount within the Note Fund, in trust for the
benefit of the Person or entity which shall have so delivered such moneys
until the Notes purchased with such moneys shall have been delivered to or
for the account of such Person or entity;
(c) deliver to the Company, the Guarantor and the Bank a copy of
each notice delivered to it in accordance with Section 306 hereof and,
immediately upon the delivery to it of Notes in accordance with said
Section 306, give telephonic or telegraphic notice to the Company and the
Bank specifying the principal amount of the Notes so delivered; and
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(d) draw moneys under the Letter of Credit in accordance with the
terms thereof to the extent required by Sections 311 and 513 hereof to
provide for timely payment of the Purchase Price of Notes.
ARTICLE X
SUPPLEMENTAL INDENTURES
Section 1001. Supplemental Indentures Not Requiring Consent of Owners of
Notes. The Issuer and the Trustee may and without consent of, or notice to, any
of the Owners of Notes or the Bank, enter into an indenture or indentures
supplemental to this Indenture for any one or more of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this
Indenture;
(b) To grant to or confer upon the Trustee for the benefit of the
Owners of Notes any additional rights, remedies, powers or authorities
that may lawfully be granted to or conferred upon the Owners of Notes or
the Trustee;
(c) To subject to this Indenture additional revenues, properties or
collateral;
(d) To modify, amend or supplement this Indenture or any indenture
supplemental hereto in such manner as to permit the qualification hereof
and thereof under the Trust Indenture Act of 1939, as amended, or any
similar federal statute hereafter in effect or to permit the qualification
of the Notes for sale under the securities laws of any of the states of
the United States of America;
(e) To evidence the appointment of a separate or Co-Trustee or the
succession of a new Trustee hereunder; or
(f) To effect any other change herein which, in the judgment of the
Trustee, is not to the prejudice of the Trustee, the Bank or the Owners of
Notes.
Section 1002. Supplemental Indentures Requiring Consent of Owners of
Notes. Exclusive of supplemental indentures permitted by Section 1001 hereof and
subject to the terms and provisions contained in this Section, and not
otherwise, the Bank and the Owners of not less than two-thirds (2/3) in
aggregate principal amount of the Outstanding Notes shall have the right, from
time to time, anything contained in this Indenture to the contrary
notwithstanding, to consent to and approve the execution by the Issuer and the
Trustee of such other indenture or indentures supplemental hereto as shall be
deemed necessary and desirable by the Issuer for the purpose of modifying,
altering, amending, adding to or rescinding, in any particular, any of the terms
or provisions contained in this Indenture or in any supplemental indenture;
provided, however, that nothing in this Section or in Section 1001 hereof
contained shall permit, or be construed as permitting, without the consent of
the Bank and the Owners of all Notes Outstanding, (a) an extension of the
maturity of the principal of, or the interest on, any Note issued hereunder, or
(b) a reduction in the principal amount or Purchase Price of, or redemption
premium on, any Note or the rate of interest thereon, or (c) a privilege or
priority of any Note or
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Notes over any other Note or Notes, or (d) a reduction in the aggregate
principal amount of the Notes required for consent to such supplemental
indentures or any modifications or waivers of the provisions of this Indenture,
or the Agreement, or (e) the creation of any lien ranking prior to or on a
parity with the lien of this Indenture on the Trust Estate or any part thereof,
except as hereinbefore expressly permitted, or (f) the deprivation of the Owner
of any Outstanding Note of the lien hereby created on the Trust Estate.
If at any time the Issuer shall request the Trustee to enter into any such
supplemental indenture for any of the purposes of this Section, the Trustee
shall, upon being satisfactorily indemnified with respect to expenses, cause
notice of the proposed execution of such supplemental indenture to be given to
the Bank, the Guarantor and to the Owners of the Notes as provided in Section
307 hereof. Such notice shall briefly set forth the nature of the proposed
supplemental indenture and shall state that copies thereof are on file at the
Principal Office of the Trustee for inspection by all Owners of Notes. If,
within sixty (60) days or such longer period as shall be prescribed by the
Issuer following such notice, the Bank and the Owners of not less than
two-thirds (2/3) in aggregate principal amount of the Notes Outstanding at the
time of the execution of any such supplemental indenture shall have consented to
and approved the execution thereof as herein provided, no Owner of any Note
shall have any right to object to any of the terms and provisions contained
therein, or the operation thereof, or in any manner to question the propriety of
the execution thereof, or to enjoin or restrain the Trustee or the Issuer from
executing the same or from taking any action pursuant to the provisions thereof.
Upon the execution of any such supplemental indenture as in this Section
permitted and provided, this Indenture shall be and be deemed to be modified and
amended in accordance therewith.
Anything herein to the contrary notwithstanding, a supplemental indenture
under this Article shall not become effective unless and until the Company and
the Guarantor shall have consented to the execution and delivery of such
supplemental indenture. In this regard, the Trustee shall cause notice of the
proposed execution of any such supplemental indenture together with a copy of
the proposed supplemental indenture to be mailed to the Company at least fifteen
(15) Business Days prior to the proposed date of execution and delivery of any
such supplemental indenture. The Company shall be deemed to have consented to
the execution and delivery of any such supplemental indenture if the Trustee
does not receive a letter of protest or objection thereto signed by or on behalf
of the Company or the Guarantor on or before the fifteenth (15th) Business Day
after the mailing of said notice.
ARTICLE XI
AMENDMENT OF AGREEMENT OR GUARANTY
Section 1101. Amendments to Agreement or Guaranty Not Requiring Consent of
Owners of Notes. The Issuer and the Trustee may, and without the consent of or
notice to the Owners of Notes or the Bank, consent to any amendment, change or
modification of the Agreement or the Guaranty as may be required (i) by the
provisions of the Agreement, the Guaranty or this Indenture, (ii) for the
purpose of curing any ambiguity or formal defect or omission in the Agreement or
the Guaranty, (iii) so as to more precisely identify the Project, or to
substitute or add additional improvements or equipment to the Project, or
additional rights or interests in property acquired in accordance with the
provisions of the Agreement, (iv) to enter
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into an indenture or indentures supplemental hereto as provided in Section 1101
hereof, or (v) in connection with any other change therein which, in the
judgment of the Trustee, is not to the prejudice of the Trustee, the Bank or the
Owners of Notes.
Section 1102. Amendments to Agreement or Guaranty Requiring Consent of
Owners of Notes. Except for the amendments, changes or modifications as provided
in Section 1101 hereof, neither the Issuer nor the Trustee shall consent to any
other amendment, change or modification of the Agreement or the Guaranty without
mailing of notice and the written approval or consent of the Bank and the Owners
of not less than two-thirds (2/3) in aggregate principal amount of the
Outstanding Notes given as in this Section provided, provided that the consent
of the Bank and the Owners of all Notes Outstanding is required for any
amendment, change or modification of the Agreement or the Guaranty that would
permit the termination or cancellation of the Agreement or the Guaranty or a
reduction in or postponement of the payments under the Agreement or the Guaranty
or any change in the provisions relating to payment thereunder. If at any time
the Issuer and the Company shall request the consent of the Trustee to any such
proposed amendment, change or modification of the Agreement or the Guaranty, the
Trustee shall, upon being satisfactorily indemnified with respect to expenses,
cause notice of such proposed amendment, change or modification to be given in
the same manner as provided by Section 1002 hereof with respect to supplemental
indentures. Such notice shall briefly set forth the nature of such proposed
amendment, change or modification and shall state that copies of the instrument
embodying the same are on file at the Principal Office of Trustee for inspection
by all Owners of Notes.
ARTICLE XII
MISCELLANEOUS
Section 1201. Consents of Owners of Notes. Any consent, request,
direction, approval, objection or other instrument required by this Indenture to
be signed and executed by the Owners of Notes may be in any number of concurrent
documents and may be executed by such Owners of Notes in person or by agent
appointed in writing. Proof of the execution of any such consent, request,
direction, approval, objection or other instrument or of the written appointment
of any such agent or of the ownership of Notes, if made in the manner provided
in this Section, shall be sufficient for any of the purposes of this Indenture,
and shall be conclusive in favor of the Trustee with regard to any action taken
by it under such request or other instrument. The fact of ownership of Notes and
the amount or amounts, numbers and other identification of such Notes, and the
date of owning the same shall be proved by the registration books of the Issuer
maintained by the Trustee pursuant to Section 208 hereof.
The fact and date of the execution by any such person of any instrument
may be proved by the certificate of any notary public or other officer of any
jurisdiction within the United States of America authorized to take
acknowledgments of deeds to be recorded in such jurisdiction that the person
executing such instrument acknowledged to him the execution thereof, or by an
affidavit of a witness to such execution sworn to before any such notary or
other such officer or by a certificate of any officer of any trust company,
bank, banker or recognized securities dealer or broker, satisfactory to the
Trustee, who witnessed such execution, or in any other manner satisfactory to
the Trustee. If such execution is by an officer of a corporation, association or
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trust, trustee of a trust or a member of a partnership on behalf of such
corporation, association, trust or partnership, such certificate or affidavit
shall also constitute sufficient proof of his authority.
Section 1202. Limitation of Rights. With the exception of any rights
herein expressly conferred, nothing expressed or mentioned in or to be implied
from this Indenture or the Notes is intended or shall be construed to give to
any person or company other than the parties hereto the Bank and the Owners of
the Notes, any legal or equitable right, remedy or claim under or with respect
to this Indenture or any covenants, conditions and provisions herein contained;
this Indenture and all of the covenants, conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto, the Bank and the Owners of the Notes as herein provided.
Section 1203. Severability. If any provision of this Indenture shall be
held or deemed to be or shall, in fact, be illegal, inoperative or
unenforceable, the same shall not affect any other provision or provisions
herein contained or render the same invalid, inoperative or unenforceable to any
extent whatever.
Section 1204. Notice. Any notice, request, complaint, demand,
communication or other paper shall be sufficiently given and shall be deemed
given when delivered or mailed by registered or certified mail, postage prepaid,
or sent by telegram, addressed as follows: if to the Issuer, to Economic
Development Corporation of the City of Plainwell, 000 Xxxxx Xxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000, Attention: President; if to the Trustee, to First &
Merchants National Bank, F&M Center, 00xx xxx Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Department. A duplicate copy of each notice
required to be given hereunder by the Trustee to either the Issuer or the
Company shall also be given to the other, to the Bank and the Guarantor. The
Issuer, the Company, the Trustee, the Guarantor, and the Bank may designate any
further or different addresses to which subsequent notices, certificates or
other communications shall be sent.
Section 1205. Payments Due on Saturdays, Sundays and Holidays. In any case
where the date of maturity of interest on or principal of the Notes or the date
fixed for purchase or redemption of any Notes shall not be a Business Day, then
payment of principal, Purchase Price, premium, if any, or interest need not be
made on such date but may be made on the next succeeding Business Day with the
same force and effect as if made on the date of maturity or the date fixed for
purchase or redemption, and no interest shall accrue for the period after such
date.
Section 1206. Certain References Ineffective After Letter of Credit
Termination Date. From and after the Letter of Credit Termination Date, upon
receipt by the Trustee of a certificate from the Bank stating that all amounts
payable to the Bank under the Credit Agreement have been paid in full, all
references to the Bank, the Credit Agreement, or the Letter of Credit in the
Agreement, this Indenture, the Guaranty, and the Notes shall be ineffective.
Section 1207. Counterparts. This Indenture may be simultaneously executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
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Section 1208. Applicable Provisions of Law. This Indenture shall be
governed by and construed in accordance with the laws of the State; provided,
however, that the rights and obligations of the Trustee shall be governed in
accordance with the laws of the State of New York.
Section 1209. Rules of Interpretation. Unless expressly indicated
otherwise, references to Sections or Articles are to be construed as references
to Sections or Articles of this instrument as originally executed. Use of the
words "herein," "hereby," "hereunder," "hereof," "hereinbefore," "hereinafter"
and other equivalent words refer to this Indenture and not solely to the
particular portion in which any such word is used.
Section 1210. Captions. The captions and headings in this Indenture are
for convenience only and in no way define, limit or describe the scope or intent
of any provisions or Sections of this Indenture.
IN WITNESS WHEREOF, the Issuer has caused these presents to be executed in
its corporate name and with its official seal hereunto affixed and attested by
its duly authorized official; and to evidence its acceptance of the trusts
hereby created, the Trustee has caused these presents to be executed in its
corporate name and with its corporate seal hereunto affixed and attested by its
duly authorized officer, as of the date first above written.
[SEAL] ECONOMIC DEVELOPMENT
CORPORATION OF THE CITY OF
PLAINWELL
Attest:______________________ By:___________________________
Secretary President
[SEAL] FIRST & MERCHANTS NATIONAL
BANK, as Trustee
Attest:______________________ By:___________________________
Authorized Officer Authorized Officer
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EXHIBIT A
(FORM OF PRE-CONVERSION, PRE-MANDATORY TENDER
NOTE)
UNITED STATES OF AMERICA
ECONOMIC DEVELOPMENT CORPORATION OF THE CITY
OF PLAINWELL
VARIABLE RATE DEMAND NOTE
(PLAINWELL PAPER CO., INC. PROJECT)
THIS NOTE IS SUBJECT TO MANDATORY TENDER AT THE TIMES AND IN THE MANNER
HEREINAFTER DESCRIBED, AND MUST BE SO TENDERED OR WILL BE DEEMED TO HAVE BEEN SO
TENDERED UNDER CERTAIN CIRCUMSTANCES DESCRIBED HEREIN.
KNOW ALL MEN BY THESE PRESENTS that the Economic Development Corporation
of the City of Plainwell (the "Issuer"), a political subdivision and body
corporate and politic of the State of Michigan, for value received, promises to
pay from the source and as hereinafter provided, to
or registered assigns, on November 1, 2007, upon surrender hereof, the principal
sum of ____________________ Dollars, and in like manner to pay interest on said
sum at the rate described below on February 1, May 1, August 1, and November 1
of each year and on the Conversion Date (hereinafter defined), commencing
February 1, 1984, from the interest payment date next preceding the date hereof,
unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date hereof, or unless no interest has been
paid or duly provided for on the Notes (as hereinafter defined), in which case
from the date of the first authentication and delivery of the Notes, until
payment of the principal hereof has been made or duly provided for.
Notwithstanding the foregoing, if this Note is dated after any date which is
fifteen days prior to any interest payment date (a "Record Date") and before the
following interest payment date, this Note shall bear interest from such
interest payment date, provided, however, that if the Issuer shall default in
the payment of interest due on such interest payment date, then this Note shall
bear interest from the next preceding interest payment date to which interest
has been paid or duly provided for, or, if no interest has been paid or duly
provided for on the Notes from the date of the first authentication and delivery
of the Notes. The principal of premium, if any, and interest on this Note are
payable in lawful money of the United States of America at the principal
corporate trust office of First & Merchants National Bank in Richmond, Virginia,
as trustee together with its successors in trust, (the "Trustee") or at the duly
designated office of any successor Trustee under the Indenture of Trust dated as
of November 1, 1983, between the Issuer and the Trustee (which Indenture, as
from time to time amended and supplemented, is hereinafter referred to as the
"Indenture"). Payment of interest on this Note shall be made on each interest
payment date to the registered owner thereof as of the applicable
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Record Date and shall be paid by check mailed to the registered owner at his
address as it appears on the registration books of the Issuer or at such other
address as is furnished to the Trustee in writing by such registered owner, or
in such other manner as may be mutually acceptable to the Trustee and the
registered owner of this Note.
This Note shall bear interest as follows:
(A) Prior to the Conversion Date (hereinafter defined), this Note (so long
as this Note shall not be a "Bank Note" as hereinafter defined) shall bear
interest at the "Floating Rate." The "Floating Rate" shall be a variable rate of
interest equal to "TENR" (hereinafter defined) plus an amount (as adjusted from
time to time as hereinafter provided, the "TENR amount") initially equal to
one-quarter percent (1/4%), provided that:
(i) if the Trustee and the Remarketing Agent under the Remarketing
Agreement (hereinafter defined) shall have received a notice requiring the
purchase of any Note pursuant to the exercise of the Demand Purchase
Option (hereinafter defined) and if the Remarketing Agent shall remarket
all or a portion of such Notes pursuant to the Remarketing Agreement dated
as of November 1, 1983 between Plainwell Paper Co., Inc., a Michigan
corporation (the "Company"), and Bankers Trust Company as Remarketing
Agent (which remarketing agreement, as from time to time amended and
supplemented, is hereinafter referred to as the "Remarketing Agreement"),
the TENR Amount for all Notes shall be the TENR Amount required for the
Remarketing Agent to remarket such Notes at par, which adjusted TENR
Amount shall become effective as of the day next following the next
announcement of TENR. In connection with any such remarketing, the
Remarketing Agent shall determine what increments of 1/8th of 1% per annum
will, when added to or subtracted from the TENR Amount at the time
applicable to the Notes, produce the minimum interest rate per annum
necessary to enable the Remarketing Agent to remarket such Notes at par;
provided, that the TENR Amount shall not be more than two and one-quarter
percent (2-1/4%);
(ii) if the TENR Amount is adjusted pursuant to the preceding clause
(i), such adjusted TENR Amount shall remain in effect until the next
succeeding interest payment date or until a further adjustment to the TENR
Amount is made pursuant to such clause (i) or until the interest rate
hereunder is otherwise determined as provided for in the Indenture;
(iii) beginning on each interest payment date, the TENR Amount
applicable to the Notes shall again be one-quarter percent (1/4%) until
such time as the TENR Amount may again be adjusted pursuant to the
preceding clause (i) or until the interest rate hereunder is otherwise
determined as provided for in the Indenture;
(iv) if TENR shall not be announced in any week, the Notes shall
bear interest at TENR for the immediately preceding week plus the then
applicable TENR Amount, and if TENR shall not be announced for a second
successive week, the Notes shall bear interest at the lower of (a) TENR
which has been most recently announced plus the term applicable TENR
Amount and (b) an alternative interest rate ("AIR") equal to 65% of the
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interest rate applicable to direct obligations of the United States with a
maturity of thirteen weeks ("91-day Treasury Bills") determined on the
basis of the weighted average per annum discount rate at which such 91-day
Treasury Bills were sold at the weekly Treasury auction for any week with
respect to which such rate applies to the Notes as published by the Board
of Governors of the Federal Reserve System, or (if not so published) as
reported by the Department of the Treasury. If no auction shall have been
conducted (or no rate published or reported) during any such week, AIR for
that week shall be the same as the most recent AIR. Any change in AIR
shall take effect on the Thursday immediately following the Treasury
auction, and the interest rate on the Notes shall continue to be AIR (if
AIR then is the lower rate) until the day after a change in TENR is
announced; and
(v) notwithstanding the foregoing, no adjustment shall be made to
the Floating Rate during the period of five Business Days (as defined in
the Indenture) prior to an interest payment date.
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