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TRUST INDENTURE
DATED AS OF DECEMBER 1, 2002
BETWEEN
UTAH TECH CENTER, LLC,
AS THE ISSUER
AND
SECURITY BANK OF KANSAS CITY,
AS THE TRUSTEE
$14,870,000
TAXABLE REVENUE BONDS
(OSHA TECHNICAL CENTER PROJECT)
SERIES 2002
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TRUST INDENTURE
TABLE OF CONTENTS
PAGE
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Parties......................................................1
Recitals.....................................................1
Granting Clauses.............................................1
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms...............................2
Section 102. Rules of Interpretation......................................9
ARTICLE II
THE BONDS
Section 201. Title and Amount of Bonds....................................9
Section 202. Denomination, Numbering and Dating of Bonds..................9
Section 203. Method and Place of Payment of Bonds.........................9
Section 204. Execution and Authentication of Bonds.......................10
Section 205. Registration, Transfer and Exchange of Bonds................10
Section 206. Persons Deemed Owners of Bonds..............................10
Section 207. Authorization of Series 2002 Bonds..........................10
Section 208. Authorization of Additional Bonds...........................11
Section 209. Temporary Bonds.............................................12
Section 210. Mutilated, Lost, Stolen or Destroyed Bonds..................13
Section 211. Cancellation and Destruction of Bonds Upon Payment..........13
Section 212. Book-Entry; Securities Depository...........................13
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds Generally...............................14
Section 302. Redemption of Series 2002 Bonds.............................14
Section 303. Selection of Bonds to be Redeemed...........................15
Section 304. Trustee's Duty to Redeem Bonds..............................15
Section 305. Notice and Effect of Call for Redemption....................15
Section 306. Effect of Call for Redemption...............................16
ARTICLE IV
FORM OF BONDS
Section 401. Form of Bonds Generally.....................................16
Section 402. Form of Series 2002 Bonds...................................16
ARTICLE V
CREATION OF PROJECT FUND; CUSTODY
AND APPLICATION OF BOND PROCEEDS
Section 501. Creation of Project Fund....................................16
(i)
Section 502. Deposits into the Project Fund..............................17
Section 503. Disbursements from the Project Fund.........................17
Section 504. Disposition Upon Completion of the Project..................17
Section 505. Deposits and Disbursements from the Series
2002 Liquidated Damages Reserve Account.....................29
Section 506. Disposition of the Series 2002 Liquidated
Damages Reserve Account Upon Completion
of the Project..............................................29
Section 507. Disposition Upon Acceleration...............................18
ARTICLE VI
REVENUES AND FUNDS
Section 601. Creation of Funds and Accounts..............................18
Section 602. Deposits Into and Application of Moneys
in the Revenue Fund.........................................18
Section 603. Deposits into the Debt Service Fund.........................19
Section 604. Application of Moneys in the Debt Service Fund..............19
Section 605. Deposits into and Application of Moneys
in the Project Replacement Fund.............................19
Section 606. Deposits into and Application of Moneys
in the Capitalized Interest Fund............................19
Section 607. Deposits Into and Application of Moneys
in the Tax and Insurance Fund...............................20
Section 608. Deposits Into and Application of Moneys in the
Project Operation and Maintenance Fund......................20
Section 609. Payments Due on Saturdays, Sundays and Holidays.............20
Section 610. Nonpresentment of Bonds.....................................20
Section 611. Additional Payments.........................................20
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 701. Moneys to be Held in Trust..................................21
Section 702. Investment of Moneys in Funds...............................21
Section 703. Record Keeping..............................................21
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of Principal of, Premium, if Any,
and Interest on the Bonds...................................21
Section 802. Authority to Execute Indenture and Issue Bonds..............21
Section 803. Performance of Covenants....................................21
Section 804. Instruments of Further Assurance............................21
Section 805. Insurance Provisions........................................21
Section 806. Impositions.................................................22
Section 807. Use of Project..............................................23
Section 808. Repairs and Maintenance.....................................23
Section 809. Environmental Matters.......................................23
Section 810. Utilities...................................................23
Section 811. Inspection of Project Books.................................23
Section 812. Enforcement of Rights Under the Lease.......................23
Section 813. Possession and Use of Project...............................23
Section 814. Financial Statements and Annual Budget......................24
Section 815. Project Covenants...........................................24
(ii)
Section 816. Removal of Machinery and Equipment;
Improvements to the Project.................................25
Section 817. Damage, Destruction and Condemnation........................27
Section 818. Assignment..................................................28
Section 819. Indemnification by the Issuer...............................28
Section 820. Additional Covenants of the Issuer..........................28
Section 821. Title Insurance.............................................45
ARTICLE IX
REMEDIES ON DEFAULT
Section 901. Acceleration of Maturity in Event of Default................29
Section 902. Exercise of Remedies by the Trustee.........................29
Section 903. Limitation on Exercise of Remedies by Owners................29
Section 904. Right of Owners to Direct Proceedings.......................29
Section 905. Remedies Cumulative.........................................29
Section 906. Waivers of Events of Default................................30
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts....................................30
Section 1002. Fees, Charges and Expenses of the Trustee...................31
Section 1003. Notice to Owners if Default Occurs..........................31
Section 1004. Intervention by the Trustee.................................31
Section 1005. Successor Trustee Upon Merger, Consolidation or Sale........31
Section 1006. Resignation of Trustee......................................31
Section 1007. Removal of Trustee..........................................31
Section 1008. Appointment of Successor Trustee............................31
Section 1009. Vesting of Trusts in Successor Trustee......................31
Section 1010. Right of Trustee to Pay Taxes and Other Charges.............31
Section 1011. Trust Estate May Be Vested in Co-trustee....................32
Section 1012. Annual Accounting...........................................32
Section 1013. Recordings and Filings......................................32
Section 1014. Performance of Duties under the Lease.......................32
Section 1015. Designation of Paying Agents................................32
Section 1016. Fees, Charges and Expenses of Paying Agents.................32
ARTICLE XI
SUPPLEMENTAL INDENTURES AND SUPPLEMENTAL MORTGAGES
Section 1101. Supplemental Indentures and Supplemental
Mortgages Not Requiring Consent of Owners...................32
Section 1102. Supplemental Indentures and Supplemental
Mortgages Requiring Consent of Owners.......................53
ARTICLE XII
LEASE AMENDMENTS
Section 1201. Lease Amendments............................................33
(iii)
ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture.....................33
Section 1302. Bonds Deemed to be Paid.....................................33
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners....................34
Section 1402. Interested Parties..........................................34
Section 1403. Notices.....................................................34
Section 1404. Suspension of Mail Service..................................35
Section 1405. Amendment...................................................35
Section 1406. Severability................................................35
Section 1407. Counterparts................................................35
Section 1408. Governing Law...............................................35
Signatures and Seals.......................................S-1
Schedule I - Property Subject to Lease
Appendix A-Form of Series 0000 Xxxxx
Xxxxxxxx B-Form of Certificate for Payment of Project Costs
(iv)
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of December 1, 2002, between UTAH TECH
CENTER, LLC, a limited liability company duly organized and existing under the
laws of the State of Missouri and qualified to do business in the State of Utah,
as Issuer, and SECURITY BANK OF KANSAS CITY, a banking corporation duly
organized and existing and authorized to accept and execute trusts of the
character herein set forth under the laws of the State of Kansas, with its
principal office located in the City of Kansas City, Kansas, as Trustee;
WITNESSETH:
WHEREAS, the Issuer is authorized by law and a resolution duly adopted by
its members (the "Resolution"), to issue under this Indenture a series of bonds
(described herein) in an aggregate principal amount of $14,870,000 (the "Series
2002 Bonds"), for the purpose of providing funds to (a) finance the acquisition,
construction, furnishing and equipping of an approximately 75,000 square foot
office building located at 0000 Xxxxx Xxxxxxx in Sandy, Utah (the "Project"),
(b) fund capitalized interest on the Series 2002 Bonds and (c) pay costs of
issuance of the Series 2002 Bonds; and
WHEREAS, concurrently with the issuance of the Series 2002 Bonds, the
Issuer will enter into a Deed of Trust, Mortgage and Security Agreement of even
date herewith (the "MORTGAGE") to the mortgage trustee for the benefit of the
Trustee to secure its obligations under this Indenture; and
WHEREAS, all things necessary to make the Bonds, when authenticated by the
Trustee and issued as provided in this Indenture, the valid and legally binding
obligations of the Issuer, and to constitute this Indenture a valid and legally
binding pledge and assignment of the Trust Estate herein made for the security
of the payment of the principal of, premium, if any, and interest on the Bonds
issued hereunder, have been done and performed, and the execution and delivery
of this Indenture and the execution and issuance of the Bonds, subject to the
terms hereof, have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
That the Issuer, in consideration of the premises, the acceptance by the
Trustee of the trusts hereby created, the purchase and acceptance of the Bonds
by the Owners thereof, and of other good and valuable consideration, the receipt
of which is hereby acknowledged, and in order to secure the payment of the
principal of, premium, if any, and interest on all of the Bonds issued and
Outstanding under this Indenture from time to time according to their tenor and
effect, and to secure the performance and observance by the Issuer of all the
covenants, agreements and conditions herein and in the Bonds contained, does
hereby pledge and assign unto the Trustee and its successors and assigns, the
following property (said property being herein referred to as the "Trust
Estate"):
(a) all right, title and interest of the Issuer in, to and under the
Lease, and all rents, revenues and receipts derived by the Issuer from the
Project including, without limitation, all payments derived by the Issuer under
and pursuant to and subject to the provisions of the Lease; provided that the
pledge and assignment hereby made shall not impair or diminish the obligations
of the Issuer under the provisions of the Lease; and
(b) all right, title and interest of the Issuer in, to and under the
Mortgaged Property mortgaged and pledged under the Mortgage and all financing
statements or other instruments or documents relating thereto; and
(c) all moneys and securities from time to time held by the Trustee under
the terms of this Indenture, and any and all other property of every kind and
nature from time to time hereafter, by delivery or by writing of any kind,
pledged, assigned or transferred as and for additional security hereunder by the
Issuer or by anyone in its behalf, or with its written consent, to the Trustee,
which 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 with all rights
and privileges hereby pledged and assigned, or agreed or intended so to be, to
the Trustee and its successors in trust and assigns;
IN TRUST NEVERTHELESS, upon the terms and subject to the conditions herein
set forth, for the equal and proportionate benefit, protection and security of
all Owners from time to time of the Bonds issued and Outstanding under this
Indenture, without preference, priority or distinction as to lien or otherwise
of any of the Bonds over any other of the Bonds except as expressly provided by
this Indenture;
PROVIDED, HOWEVER, that if the Issuer shall well and truly pay, or cause
to be paid, the principal of, premium, if any, and interest on all the Bonds, at
the times and in the manner mentioned in the Bonds according to the true intent
and meaning thereof, or shall provide for the payment thereof (as provided in
ARTICLE XIII hereof), and shall pay or cause to be paid to the Trustee all other
sums of money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture and the rights
hereby granted shall cease, determine and be void; otherwise, this Indenture
shall be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is hereby expressly declared,
covenanted and agreed by and between the parties hereto, that all Bonds issued
and secured hereunder are to be issued, authenticated and delivered and that all
the Trust Estate is to be held and applied under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the Issuer does hereby agree and covenant with the
Trustee and with the respective Owners from time to time of the Bonds, as
follows:
ARTICLE I
DEFINITIONS
SECTION 101. DEFINITIONS OF WORDS AND TERMS. In addition to the words and
terms defined elsewhere in this Indenture, the following words and terms as used
in this Indenture shall have the following meanings, unless some other meaning
is plainly intended:
"ADDITIONAL BONDS" means any Bonds issued in addition to and on a parity
with the Series 2002 Bonds and issued pursuant to SECTION 208 of this Indenture.
"ADDITIONAL PAYMENTS" means all fees, charges and expenses described in
SECTION 611 hereof.
"ANNUAL BUDGET" means the Annual Budget of the Project required by SECTION
814 hereof.
"AFFILIATE" means any person (including any corporation, partnership,
limited liability company or other entity (including without limitation, any
trust or estate or natural person) which, directly or through one or more
intermediaries, owns or controls, or is controlled by or which is under common
control with, the Issuer.
"AUTHORIZED ISSUER REPRESENTATIVE" means any member of the Issuer as is at
the time designated to act on behalf of the Issuer as evidenced by written
certificate furnished to the Trustee containing the specimen signature of such
person and signed on behalf of the Issuer by all its members. Such certificate
may designate an alternate or alternates, each of whom shall be entitled to
perform all duties of the Authorized Issuer Representative.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended.
"BOND" or "BONDS" means the fully registered Series 2002 Bonds and any
Additional Bonds.
"BOND REGISTER" means the books maintained by the Trustee for the
registration and transfer of the Bonds.
"BUSINESS DAY" means a day which is not (a) a Saturday or Sunday or (b)
any day on which banks in the State of Missouri are authorized or required to be
closed.
"CAPITALIZED INTEREST FUND" has the meaning set forth in SECTION 601 of
this Indenture.
"CEDE & CO." means Cede & Co., as nominee of The Depository Trust Company,
New York, New York.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss.9601, et seq.
"CERTIFICATE OF COMPLETION" means a written certificate signed by the
Authorized Issuer Representative and the Project Consultant stating that (a) the
Project has been completed in accordance with the Plans and Specifications, (b)
the Project has been completed in a good and workmanlike manner, (c) no
mechanic's or other similar liens have been filed, nor is there any basis for
the filing of such liens, with respect to the Project, (d) all Improvements
constituting a part of the Project are located or installed upon the Land, (e)
if required by ordinances duly adopted by the City of Sandy, Utah or by
applicable building codes, that an appropriate certificate of occupancy has been
issued with respect to the Project and (1) the Project has been accepted by the
Tenant pursuant to the terms of the Lease.
"CHANGE OF CIRCUMSTANCES" means the occurrence of any of the following
events:
(a) title to, or the temporary use of, all or any material part of
the Project shall be condemned by any authority exercising the power of
eminent domain;
(b) title to substantially all of the Project is found to be
deficient or nonexistent to the extent that the Project is untenantable or
the efficient utilization of the Project by the Issuer is substantially
impaired;
(c) substantially all of the Project is damaged or destroyed by fire
or other casualty; or
(d) as a result of (i) changes in the Constitution of the State,
(ii) any legislative or administrative action by the State or any
political subdivision thereof, or by the United States or (iii) any action
instituted in any court, the Lease shall become void or unenforceable, or
impossible to perform without unreasonable delay, or unreasonable burdens
or excessive liabilities are imposed upon the Issuer by reason of such
changes of circumstances.
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"COMPLETION DATE" means the date of completion of the acquisition,
purchase, construction and installation of the Project pursuant to this
Indenture.
"CONSTRUCTION PERIOD" means the period from the beginning of construction
of the Project to the Completion Date.
"COSTS OF ISSUANCE" means any and all expenses of whatever nature incurred
in connection with the issuance and sale of the Bonds, including but not limited
to underwriting fees and expenses, underwriting discount, bond and other
printing expenses, and legal fees and expenses of counsel.
"DEBT SERVICE FUND" has the meaning set forth in SECTION 601 of this
Indenture.
"DEBT SERVICE REQUIREMENTS" means, for any period of time for which
calculated, the aggregate of the payments to be made during such period in
respect of principal (whether at maturity or otherwise) and interest on the
Outstanding Bonds; provided that such payments are excluded from Debt Service
Requirements to the extent that cash or Defeasance Obligations are on deposit in
an irrevocable escrow or trust account in accordance with SECTION 1302 hereof
and such amounts (including, where appropriate, the earnings or other increment
to accrue thereon) are required to be applied to pay principal or interest and
are sufficient to pay such principal or interest.
"DEFAULT ADMINISTRATION COSTS" means the reasonable fees, charges and
expenses of the Trustee incurred in anticipation of an Event of Default, or
after the occurrence of an Event of Default, including, but not limited to,
counsel fees, litigation costs and expenses.
"DEFAULT RATE" means the highest rate on any Bonds plus 5% per annum.
"DEFEASANCE OBLIGATIONS" means Government Obligations which are not
subject to redemption prior to maturity.
"ENVIRONMENTAL ASSESSMENT" means an environmental assessment with respect
to the Project conducted by an independent consultant satisfactory to the
Trustee which reflects the results of such inspections, records reviews, soil
tests, groundwater tests and other tests requested, which assessment and results
shall be satisfactory in scope, form and substance to the Trustee.
"ENVIRONMENTAL LAW" means CERCLA, the Superfund Amendments and
Reauthorization Act of 1986, and any other federal, state or local environmental
statute, regulation or ordinance presently in effect or coming into effect
during the term of the Lease.
"EVENT OF BANKRUPTCY" means an event whereby the Issuer shall: (a) admit
in writing its inability to pay its debts as they become due; (b) file a
petition in bankruptcy or for reorganization or for the adoption of an
arrangement under the Bankruptcy Code as now or in the future amended, or file a
pleading asking for such relief, (c) make an assignment for the benefit of
creditors; (d) consent to the appointment of a trustee or receiver for all or a
major portion of its property; (e) be finally adjudicated as bankrupt or
insolvent under any federal or state law; (f) suffer the entry of a final and
nonappealable court order under any federal or state law appointing a receiver
or trustee for all or a major part of its property or ordering the winding-up or
liquidation of its affairs, or approving a petition filed against it under the
Bankruptcy Code, which order, if the Issuer has not consented thereto, shall not
be vacated, denied, set aside or stayed within 60 days after the day of entry;
or (g) suffer a writ or warrant of attachment or any similar process to be
issued by any court against all or any substantial portion of its property, and
such writ or warrant of attachment or any similar process is not contested,
stayed, or is not released within 60 days after the final entry, or levy or
after any contest is finally adjudicated or any stay is vacated or set aside.
"EVENT OF DEFAULT" under this Indenture means any of the following events:
(a) default in the due and punctual payment of any interest on any Bond;
(b) default in the due and punctual payment of the principal of or
premium, if any, on any Bond on the stated maturity or accelerated maturity date
thereof, or at the redemption date thereof,
(c) default under the Mortgage; or
(d) default in the performance or observance of any other of the
covenants, agreements or conditions on the part of the Issuer contained in this
Indenture or in the Bonds, and the continuance thereof for a period of 30 days
after written notice thereof shall have been given to the Issuer and the Tenant
by the Trustee or the Issuer and the Tenant by the Owners of not less than 25%
in aggregate principal amount of Bonds then Outstanding; provided, however, that
if any default shall be such that it cannot be corrected within such 30-day
period, it shall not constitute an Event of Default if corrective action is
instituted by the Issuer or the Tenant within such period and diligently pursued
until such default is corrected.
"FULL INSURABLE VALUE" means the full actual replacement cost of the
Project less physical depreciation as determined from time to time upon the
request of the Issuer or the Trustee (but not more frequently than once in every
24 months) by an architect, appraiser, appraisal company or one of the insurers,
selected and paid by the Issuer.
"GOVERNMENT OBLIGATIONS" means direct obligations of, or obligations the
payment of the principal of and interest on which are unconditionally guaranteed
by, the United States of America.
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"HAZARDOUS SUBSTANCES" shall mean "hazardous substances" as defined in
CERCLA.
"IMPOSITIONS" means all taxes and assessments, general and special, which
may be lawfully taxed, charged, levied, assessed or imposed upon or against or
payable for or in respect of the Project or any part thereof or the Issuer's
interest therein, including any new lawful taxes and assessments not of the kind
enumerated above to the extent that the same are lawfully made, levied or
assessed in lieu of or in addition to taxes or assessments now customarily
levied against real or personal property, and further including all water and
sewer charges, assessments and other governmental charges and impositions
whatsoever, foreseen or unforeseen.
"IMPROVEMENTS" means the buildings, structures, facilities, additions,
improvements, machinery, equipment and other property described in paragraph (b)
of SCHEDULE I attached hereto and made a part hereof.
"INDENTURE" means this Trust Indenture by and between the Issuer and the
Trustee, as from time to time amended and supplemented by Supplemental
Indentures in accordance with the provisions of ARTICLE XI of this Indenture.
"INTEREST PAYMENT DATE" means (a) with respect to the Series 2002 Bonds,
January 1 and July 1 of each year, commencing July 1, 2003, and terminating when
the principal of, premium if any, and interest on the Series 2002 Bonds have
been fully paid, and (b) with respect to any Additional Bonds, the dates
specified as interest payments dates in the Supplemental Indenture relating
thereto.
"INVESTMENT SECURITIES" means any of the following securities, to the
extent the same are at the time permitted for investment of funds held by the
Trustee pursuant to this Indenture:
(a) cash (insured at all times by the Federal Deposit Insurance
Corporation or otherwise collateralized with obligations described in
paragraph (b) below);
(b) direct obligations of (including obligations issued or held in
book entry form on the books of) the Department of the Treasury of the
United States of America;
(c) obligations of any of the following federal agencies, which
obligations represent the full faith and credit of the United States of
America:
- Export-Import Bank
- Farm Credit System Financial Assistance Corporation
- Rural Economic Community Development Administration (formerly
the Farmers Home Administration)
- General Services Administration
- U.S. Maritime Administration
- Small Business Administration
- Government National Mortgage Association (GNMA)
- U.S. Department of Housing & Urban Development (PHA's)
- Federal Housing Administration
- Federal Financing Bank;
(d) direct obligations of any of the following federal agencies,
which obligations are not fully guaranteed by the full faith and credit of
the United States of America:
- Senior debt obligations rated "Aaa" by Moody's and "AAA" by
S&P issued by the Federal National Mortgage Association (FNMA)
or Federal Home Loan Mortgage Corporation (FHLMC)
- Obligations of the Resolution Funding Corporation (REFCORP)
- Senior debt obligations of the Federal Home Loan Bank System
(e) U.S. dollar denominated deposit accounts, federal funds and
bankers' acceptances with domestic commercial banks (including the Trustee
and its affiliates) which have a rating on their short term certificates
of deposit on the date of purchase of "A-1" or "A-1+" by S&P and "P-l" by
Moody's and maturing no more than 360 days after the date of purchase
(provided that ratings on holding companies are not considered to be
ratings on the subsidiary banks);
(f) commercial paper which is rated at the time of purchase in the
single highest classification by S&P (presently "A-1+") and by Moody's
(presently "P-l") and which matures not more than 270 days after the date
of purchase;
(g) investments in a money market fund rated "AAAm" or "AAAm-G" or
better by S&P;
(h) "pre-refunded municipal obligations," which is defined as any
bonds or other obligations of any state of the United States of America or
of any agency, instrumentality or local governmental unit of any such
state which are not callable at the option of the obligor prior to
maturity or as to which irrevocable instructions have been given by the
obligor to call on the date specified in the notice; and
(i) which are rated based on an irrevocable escrow account or
fund (the "escrow"), in the highest rating category of S&P and
Moody's or any successors thereto; or
-4-
(ii) (A) which are fully secured as to principal, premium, if
any, and interest by an escrow consisting only of cash or
obligations described in paragraphs (a) and (b) above, which escrow
may be applied only to the payment of such principal of and interest
and redemption premium, if any, on such bonds or other obligations
on the maturity date or dates thereof or the specified redemption
date or dates pursuant to such irrevocable instructions, as
appropriate, and (B) which escrow is sufficient, as verified by a
nationally recognized independent certified public accountant, to
pay principal of and interest and premium, if any, on the bonds or
other obligations described in this paragraph on the maturity date
or dates specified in the irrevocable instructions referred to
above, as appropriate;
(i) general obligations of any state with a rating of at least
"A2/A" or higher by both Moody's and S&P; or
(j) investment agreements constituting an obligation of a bank, bank
holding company, savings and loan association, trust company, insurance
company or other financial institution whose outstanding unsecured
short-term debt is rated at the time of such agreement in the highest
rating category by a nationally recognized rating agency or whose
outstanding unsecured long-term debt is rated at the time of such
agreement in either of the two highest rating categories by a nationally
recognized rating agency.
"ISSUER" means Utah Tech Center, LLC, a limited liability company duly
organized and existing under the laws of the State of Missouri, and its
successors and assigns.
"LAND" means the real property on which the Project is located, as more
specifically described in paragraph (a) of SCHEDULE I attached hereto and made a
part hereof.
"LEASE" means the US Government Lease for Real Property, Lease No.
GS-08P-13736, executed on July 22, 2002, as supplemented, and any further
supplements and amendments thereto, whereby the Issuer leases the Project to the
Tenant.
"MAXIMUM ANNUAL DEBT SERVICE" means the maximum amount of Debt Service
Requirements for all series of the Bonds in any calendar year.
"MOODY'S" means Xxxxx'x Investors Service, a corporation organized and
existing under the laws of the State of Delaware, and 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 Issuer by notice to the Trustee.
"MORTGAGE" means the Deed of Trust (With Assignment of Rents) and Security
Agreement of even date herewith, from the Issuer to the mortgage trustee named
therein for the benefit of the Trustee as from time to time amended by
Supplemental Mortgages in accordance with the provisions of ARTICLE XI of this
Indenture.
"MORTGAGED PROPERTY" means the Land and Improvements and which is subject
to the lien and security interest of the Mortgage, but excluding therefrom any
Land or Improvements released from the lien of the Mortgage pursuant to the
provisions thereof.
"NET PROCEEDS" means, when used with respect to any insurance or
condemnation award with respect to the Project, the proceeds from the insurance
or condemnation award remaining after the payment of all expenses (including
attorneys' fees and any extraordinary expenses of the Trustee) incurred in the
collection of such proceeds.
"NOTICE ADDRESS" means:
(a) with respect to the Issuer:
Utah Tech Center, LLC
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Member
With a copy to: Xxxxxxxx, Xxxxxxxx & Xxxxxx
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
(b) with respect to the Trustee:
Security Bank of Kansas City
X.X. Xxx 000000
Xxxxxx Xxxx, Xxxxxx 00000
Attention: Corporate Trust Department
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(c) with respect to the Tenant:
General Services Administration
X.X. Xxx 00000
Xx. Xxxxx, Xxxxx 00000-0000
Attention: Finance Division (7BCPL)
(e) with respect to the Securities Depository at:
The Depository Trust Company
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
"OUTSTANDING" means, as of a particular date, all Bonds issued,
authenticated and delivered under this Indenture, except:
(a) Bonds cancelled by the Trustee or delivered to the Trustee for
cancellation pursuant to this Indenture;
(b) Bonds for which moneys or investments have been deposited in
trust with the Trustee for payment or redemption in accordance with the
provisions of the Indenture; and
(c) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered pursuant to this Indenture.
"OWNER" means the registered owner of any fully registered Bond.
"PARTICIPANTS" means those financial institutions from whom the Securities
Depository effects book-entry transfers and pledges of Bonds deposited with the
Securities Depository, as such listing exists at the time of such reference.
"PAYING AGENT" means the Trustee and any other commercial bank or trust
institution organized under the laws of any state of the United States of
America or any national banking association designated pursuant to this
Indenture or any Supplemental Indenture as paying agent for any series of Bonds
for the principal of, premium, if any, and interest on such Bonds.
"PAYMENT DATE" means any date on which the principal of or interest on any
Bonds is payable.
"PERMITTED ENCUMBRANCES" means, with respect to Project as of any
particular time, the following encumbrances:
(a) this Indenture, the Mortgage and any other encumbrance in favor
of the Trustee equally and ratably securing all Bonds and only Bonds on a
parity basis;
(b) liens for taxes, assessments, levies, fees, utility charges, and
other governmental and similar charges, and any construction liens or
vendors liens for work or services performed or materials furnished in
connection with the Project, that are not delinquent, or the amount or
validity of which are being contested in good faith by appropriate
proceedings, provided the Issuer shall have set aside on its books
adequate reserves therefor, and execution thereon is stayed or, with
respect to construction liens, have been due for less than 60 days;
(c) all right, title and interest of the State, municipalities and
the public in and to tunnels, bridges and passageways over, under or upon
a public way;
(d) zoning laws, ordinances or regulations and similar restrictions
which are not violated by the Issuer or the Project;
(e) rights reserved to or vested in any municipality or governmental
or other public authority by virtue of any franchise, grant, license,
permit or provision of law, affecting the Project, to (1) control or
regulate the Project or the Issuer's use of such Project in any manner,
(2) to purchase, or designate a purchaser of or order the sale of the
Project, (3) terminate such franchise, grant, license or permit, or (4)
purchase, condemn, appropriate or recapture, or designate a purchaser of,
the Project, which rights do not materially impair the use of the Project
for the purposes for which it is held by the Issuer;
(f) liens of or resulting from any judgment or award, the time for
the appeal or petition for rehearing of which shall not have expired, or
in respect of which the Issuer shall at any time in good faith be
prosecuting an appeal or proceeding for a review and in respect of which a
stay of execution pending such appeal or proceeding for review shall be in
existence;
(g) any lien resulting from any judgment or notice of pending
action, so long as such judgment or pending action is being contested and
execution thereon is stayed or while the period for responsive pleadings
has not lapsed;
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(h) utility, access and other easements, rights-of-ways, servitudes,
restrictions, encumbrances and minor defects and irregularities in the
title to the Project as normally exist with respect to properties similar
in character to the Project that do not materially interfere with or
impair the use of the Project or materially and adversely affect the value
thereof,
(i) any liens arising by reason of deposits with, or the giving of
any form of security to, any governmental agency or any body created or
approved by law or governmental regulation for any purpose at any time as
required by law or governmental regulation as a condition to the
transaction of any business or the exercise of any privilege or license,
or to enable the Issuer to maintain self-insurance or to participate in
any funds established to cover any insurance risks or in connection with
worker's compensation, unemployment insurance, pension or profit sharing
plans or other similar arrangements, or to share in the privileges or
benefits required for entities participating in such arrangements;
(j) liens arising by reason of good faith deposits with or by the
Issuer in connection with leases of real estate, bids or contracts (other
than contracts for the payment of money), deposits by the Issuer to secure
public or statutory obligations, or to secure, or in lieu of, surety, stay
or appeal bonds, and deposits as security for the payment of taxes or
assessments or other similar charges;
(k) rights of set-off and banker's liens with respect to funds on
deposit in a financial institution in the ordinary course of business;
(l) any encumbrance existing on the Project prior to the time of its
acquisition through purchase, lease, merger, consolidation or otherwise;
provided, however, that no such encumbrance may be increased, extended,
renewed or modified unless such encumbrance as so increased, extended,
renewed or modified otherwise qualifies as a Permitted Encumbrance; and
(m) leases of and purchase money security interests in or
installment purchase interests placed upon the Project in order to obtain
the use of the Project or to secure a portion of the purchase price
thereof, or lessee's interest in leases required to be capitalized in
accordance with generally accepted accounting principles.
"PLANS AND SPECIFICATIONS" means the plans and specifications prepared
with respect to the Project, as amended by the Issuer with the consent of the
Tenant from time to time prior to the Completion Date, the same being duly
certified by the Authorized Issuer Representative, which plans and
specifications have been approved by the Project Consultant and are on file at
the principal office of the Issuer in Kansas City, Missouri, and shall be
available for reasonable inspection by the Trustee and its duly appointed
representatives.
"PRINCIPAL PAYMENT DATE" means (a) with respect to the Series 2002 Bonds,
January 1, 2024, and (b) with respect to any Additional Bonds, the dates
specified as the principal payment dates in the Supplemental Indenture relating
thereto.
"PROJECT" means the Land and the Improvements, including an approximately
75,000 square foot office building located at 0000 Xxxxx Xxxxxxx in Sandy, Utah.
"PROJECT ADDITIONS" means any Improvements acquired, constructed or
installed from proceeds of any series of Additional Bonds authorized and issued
pursuant to this Indenture, and any alterations or additions made to the Project
to the extent provided in SECTION 817.
"PROJECT CONSULTANT" means the consultant appointed for the Project by the
Issuer and approved by the Trustee, which shall be an architect, engineer or
firm of architects or engineers who is not a full-time employee of the Tenant or
the Issuer.
"PROJECT CONTRACTS" has the meaning set forth in SECTION 816.
"PROJECT COSTS" means those costs incurred in connection with the Project,
including:
(a) all costs and expenses necessary or incident to the acquisition
of any Improvements that are acquired, constructed or in progress at the
date of the original issuance and delivery of the Series 2002 Bonds;
(b) fees and expenses of architects, appraisers, surveyors and
engineers for estimates, surveys, soil borings and soil tests and other
preliminary investigations and items necessary to the commencement of
construction, preparation of plans, drawings and specifications and
supervision of construction, as well as for the performance of all other
duties of architects, appraisers, surveyors and engineers in relation to
the construction, furnishing and equipping of the Project or the issuance
of the Bonds;
(c) all costs and expenses of acquiring, constructing or installing
any Improvements that are acquired, constructed or installed after the
date of the original issuance and delivery of the Series 2002 Bonds;
(d) the cost of the title insurance policies and the cost of any
insurance and performance and payment bonds maintained during the
Construction Period with respect to the Project in accordance with SECTION
805;
(e) interest accruing on the Bonds prior to the Completion Date, if
and to the extent proceeds of the Bonds set aside and deposited to the
credit of the Capitalized Interest Fund or any accounts contained therein
pursuant to SECTION 603 are insufficient for payment of such interest;
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(f) Costs of Issuance; and
(g) all other items of expense as may be necessary or incident to:
(i) the authorization, issuance and sale of the Bonds; (ii) the
acquisition, construction, equipping and furnishing of the Project; and
(iii) the financing thereof.
"PROJECT FUND" has the meaning set forth in SECTION 501 of this Indenture.
"PROJECT OPERATION AND MAINTENANCE FUND" has the meaning set forth in
SECTION 601 of this Indenture.
"PROJECT OPERATION AND MAINTENANCE FUND REQUIREMENT" means $100,000.
"PROJECT REPLACEMENT FUND" has the meaning set forth in SECTION 601 of
this Indenture.
"RECORD DATE" means the 15th day of the month immediately preceding each
Payment Date, or if such date is not a Business Day, the Business Day
immediately preceding such Payment Date.
"REPLACEMENT BONDS" means Bonds issued to the beneficial owners of the
Bonds in accordance with SECTION 212(B) of this Indenture.
"REVENUE FUND" has the meaning set forth in SECTION 601 of this Indenture.
"S&P" means Standard & Poor's Ratings Services, a Division of The
XxXxxx-Xxxx Companies, a corporation organized and existing under the laws of
the State of New York, and 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 Issuer by notice to the
Trustee.
"SECURITIES DEPOSITORY" means The Depository Trust Company, New York, New
York, and its successors and assigns.
"SERIES 2002 BONDS" means the Utah Tech Center, LLC Taxable Revenue Bonds
(OSHA Technical Center Project), Series 2002, dated the date of original
issuance and delivery thereof, in the aggregate principal amount of $14,870,000.
"SERIES 2002 CAPITALIZED INTEREST ACCOUNT" means the Series 2002
Capitalized Interest Account created within the Capitalized Interest Fund
pursuant to SECTION 601 of this Indenture.
"SERIES 2002 DEBT SERVICE ACCOUNT" means the Series 2002 Debt Service
Account created within the Debt Service Fund pursuant to SECTION 601 of this
Indenture.
"SERIES 2002 PROJECT ACCOUNT" means the Series 2002 Project Account
created within the Project Fund pursuant to SECTION 501 of this Indenture.
"SERIES 2002 PLACEMENT AGENT" means U.S. Bancorp Xxxxx Xxxxxxx, Inc.
"STATE" means the State of Utah.
"SUPPLEMENTAL INDENTURE" means any indenture supplemental or amendatory to
this Indenture entered into by the Issuer and the Trustee pursuant to ARTICLE XI
of this Indenture.
"SUPPLEMENTAL MORTGAGE" means any mortgage supplemental or amendatory to
the Mortgage entered into by the Issuer for the benefit of the Trustee.
"TAX AND INSURANCE FUND" has the meaning set forth in SECTION 601 of this
Indenture.
"TENANT" means the United States of America acting by and through the
General Services Administration for the benefit of the Department of Labor,
Occupational Safety and Health Administration, and its successors and assigns.
"TRUST ESTATE" has the meaning set forth in the Granting Clauses of this
Indenture.
"TRUSTEE" means Security Bank of Kansas City, in the City of Kansas City,
Kansas, in its capacity as bond registrar and trustee and its successor or
successors and any other corporation or association which at the time may be
substituted in its place pursuant to and at the time serving as Trustee under
this Indenture.
"VALUE" means:
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(a) as to investments for which the bid and asked prices are
published on a regular basis in The Wall Street Journal (or, if not in The
Wall Street Journal, then in The New York Times), the average of the most
recently published bid and asked prices for such investments at the time
of determination;
(b) as to investments the bid and asked prices of which are not
published on a regular basis in The Wall Street Journal or The New York
Times, the average bid price at the time of determination for such
investments by any two nationally recognized government securities dealers
(selected by the Trustee in its absolute discretion) making a market in
such investments at the time or the bid price published by a nationally
recognized pricing service;
(c) as to certificates of deposit and bankers acceptances, the face
amount thereof, plus accrued interest; and
(d) as to any investment not specified above, the value thereof
established by prior agreement between the Issuer and the Trustee.
SECTION 102. RULES OF INTERPRETATION.
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Unless the context shall
indicate otherwise, the words importing the singular number shall include the
plural and vice versa, and words importing persons shall include firms,
associations and corporations, including public bodies, as well as natural
persons.
(b) Wherever in this Indenture it is provided that either party shall or
will make any payment or perform or refrain from performing any act or
obligation, each such provision shall, even though not so expressed, be
construed as an express covenant to make such payment or to perform, or not to
perform, as the case may be, such act or obligation.
(c) All references in this instrument to designated "Articles," "Sections"
and other subdivisions are, unless otherwise specified, to the designated
Articles, Sections and subdivisions of this instrument as originally executed.
The words "herein," "hereof," "hereunder" and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or
subdivision.
(d) The Table of Contents and the Article and Section headings of this
Indenture shall not be treated as a part of this Indenture or as affecting the
true meaning of the provisions hereof.
ARTICLE II
THE BONDS
SECTION 201. TITLE AND AMOUNT OF BONDS. No Bonds may be issued under this
Indenture except in accordance with the provisions of this Article. The Bonds
authorized to be issued under this Indenture shall be issued in one or more
separate series, the first series of which shall be designated as "Utah Tech
Center, LLC Taxable Revenue Bonds (OSHA Technical Center Project), Series 2002,"
and any subsequent series of which may contain such other appropriate particular
designation added to or incorporated in such title as the Issuer may determine.
The total principal amount of Bonds that may be issued hereunder is hereby
expressly limited to the $14,870,000 principal amount of Series 2002 Bonds and
the permitted principal amount of any Additional Bonds issued hereunder as set
forth in the Supplemental Indenture related thereto.
SECTION 202. DENOMINATION, NUMBERING AND DATING OF BONDS.
(a) The Bonds shall be issuable in the form of fully registered Bonds in
the minimum denomination of $100,000 or any integral multiple of $5,000 in
excess thereof not exceeding the principal amount of the Bonds maturing on any
Principal Payment Date. The Bonds shall be substantially in the form set forth
in APPENDIX A to this Indenture. The Bonds of each series of Bonds shall be
numbered in such manner as the Trustee shall determine.
(b) The Bonds of each series of Bonds shall be dated as provided in this
Indenture or the Supplemental Indenture authorizing the issuance of such series
of Bonds. The Bonds shall bear interest from their effective date of
registration. The effective date of registration shall be set forth on each such
Bond, such effective date of registration to be as of the Interest Payment Date
next preceding the date of authentication thereof by the Trustee, unless such
date of authentication shall be an Interest Payment Date, in which case the
effective date of registration shall be as of such date of authentication, or
unless the date of authentication shall be prior to the first Interest Payment
Date for such series of Bonds, in which case the effective date of registration
shall be either the dated date of such series of Bonds or the date such series
of Bonds is issued and delivered, as provided in SECTION 207(D) of this
Indenture or the Supplemental Indenture authorizing such series of Bonds;
provided, however, that if payment of the interest on any Bonds of any series
shall be in default at the time of authentication of any fully registered Bonds
issued in lieu of Bonds surrendered for transfer or exchange, the effective date
of registration shall be as of the date to which interest has been paid in full
on the Bonds surrendered.
SECTION 203. METHOD AND PLACE OF PAYMENT OF BONDS. Payment of the
principal and premium, if any, on the Bonds shall be made (a) by check or draft
upon the presentation and surrender of such Bonds as the same respectively
become due and payable at the principal office of any Paying Agent named in the
Bonds or (b) upon written request to the Trustee of any Owner owning Bonds in an
aggregate principal amount of at least $500,000, by electronic transfer to a
bank for credit to the account number filed with the Trustee no later than the
Business Day immediately preceding the applicable Record Date (which request
shall be signed by the Owner and shall include the name of the bank, its
address, its ABA routing number and the name, phone number and contact name
related to the Owner's account at such bank to which the payment is to be
credited). Payment of the interest on each Bond shall be made by the Trustee on
each Interest Payment Date to the person appearing as the Owner thereof on the
Bond Register by check or draft mailed to such Owner at his address as it
appears on such Bond Register as of the applicable Record Date.
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SECTION 204. EXECUTION AND AUTHENTICATION OF BONDS.
(a) The Bonds shall be executed on behalf of the Issuer by the manual or
facsimile signature of all of its members. In case any member whose signature or
facsimile thereof appears on any Bonds shall cease to be a member before the
delivery of such Bonds, such signature or facsimile thereof shall nevertheless
be valid and sufficient for all purposes, the same as if such person had
remained as a member until delivery. Any Bond may be signed by such persons as
shall be the members to sign such Bond at the actual time of the execution of
such Bond although on the date of such Bond such persons may not have been a
member.
(b) The Bonds shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in ARTICLE IV hereof, which shall be
manually executed by the Trustee. No Bond shall be entitled to any security or
benefit under this Indenture or shall be valid or obligatory for any purpose
unless and until such Certificate of Authentication shall have been duly
executed by the Trustee. Such executed Certificate of Authentication upon any
Bond shall be conclusive evidence that such Bond has been duly authenticated and
delivered under this Indenture. The Certificate of Authentication on any Bond
shall be deemed to have been duly executed if signed by any authorized signatory
of the Trustee, but it shall not be necessary that the same signatory sign the
Certificate of Authentication on all of the Bonds that may be issued hereunder
at any one time.
SECTION 205. REGISTRATION, TRANSFER AND EXCHANGE OF BONDS.
(a) The Trustee shall keep books for the registration and transfer of
Bonds as provided in this Indenture.
(b) Any Bond may be transferred or exchanged only upon the books
maintained by Trustee for the registration and transfer of Bonds upon surrender
thereof to the Trustee duly endorsed for transfer or accompanied by an
assignment duly executed by the Owner or his attorney or legal representative in
such form as shall be satisfactory to the Trustee. Upon any such transfer or
exchange, the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange for such Bond a new fully registered Bond or Bonds,
registered in the name of the transferee, of any denomination or denominations
authorized by this Indenture in an aggregate principal amount equal to the
principal amount of such Bond, of the same series and maturity and bearing
interest at the same rate.
(c) The Bonds and any interest in the Bonds shall be transferable only to
a "qualified institutional buyer" as defined in Rule 144A promulgated by the
SEC.
(d) In all cases in which Bonds shall be exchanged or transferred
hereunder, the Issuer shall execute and the Trustee shall authenticate and
deliver at the earliest practicable time new Bonds in accordance with the
provisions of this Indenture. All Bonds surrendered in any such exchange or
transfer shall forthwith be cancelled by the Trustee. The Trustee may make a
charge for every such exchange or transfer of Bonds sufficient to reimburse it
for any tax, fee or other governmental charge required to be paid with respect
to such exchange or transfer, and such charge shall be paid by the Owner before
a new Bond shall be delivered. The fees and charges of the Trustee for making
any transfer or exchange hereunder and the expense of any bond printing
necessary to effect such transfer or exchange shall be paid by the Issuer. In
the event any Owner fails to provide a correct taxpayer identification number to
the Trustee, the Trustee may make a charge against such Owner sufficient to pay
any governmental charge required to paid as a result of such failure. In
compliance with Section 3406 of the Code, such amount may be deducted by the
Trustee from amounts otherwise payable to such Owner hereunder or under the
Bonds. Neither the Issuer nor the Trustee shall be required to make any exchange
or transfer of Bonds (i) on or after a Record Date and preceding the Payment
Date immediately subsequent to such Record Date or (ii) in the case of any
proposed redemption of Bonds, during the 15 days immediately preceding the
selection of Bonds for such redemption or after such Bonds or any portion
thereof has been selected for redemption.
SECTION 206. PERSONS DEEMED OWNERS OF BONDS. The person in whose name any
Bond shall be registered as shown on the registration books required to be
maintained by the Trustee by this Section shall be deemed and regarded as the
absolute owner thereof for all purposes. Payment of, or on account of the
principal of and premium, if any, and, interest on any such Bond shall be made
only to or upon the order of the Owner thereof or his legal representative. All
such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond, including the interest thereon, to the extent of the
sum or sums so paid.
SECTION 207. AUTHORIZATION OF SERIES 2002 BONDS.
(a) There shall be initially issued and secured pursuant to this Indenture
a series of Bonds in the aggregate principal amount of $14,870,000 for the
purpose of providing funds to pay Costs of Issuance and Project Costs, which
Bonds shall be designated as provided in SECTION 201 hereof.
The Series 2002 Bonds shall be dated December 15, 2002, shall become due
(subject to prior redemption as hereinafter provided in ARTICLE III) and shall
bear interest from the dated date or the Interest Payment Date to which interest
has been paid at the rates as follows:
TERM BONDS
$14,870,000 6.280% TERM BONDS MATURING JANUARY 1, 2024
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(b) Interest on the Series 2002 Bonds shall be payable to the Owners
thereof in accordance with the provisions of SECTION 203 hereof.
(c) The Trustee is hereby designated as the Issuer's Paying Agent for the
payment of the principal of, premium, if any, and interest on the Series 2002
Bonds.
(d) Upon the original issuance and delivery of the Series 2002 Bonds, the
effective date of registration of the Series 2002 Bonds shall be December 15,
2002.
(e) The Series 2002 Bonds shall be substantially in the form set forth in
APPENDIX A hereto and delivered to the Trustee for authentication, but prior to
or simultaneously with the authentication and delivery of the Series 2002 Bonds
by the Trustee, there shall be filed with the Trustee the following:
(i) an original or certified copy of the resolutions adopted by
Issuer's members authorizing the issuance of the Bonds and the execution
of this Indenture and the Lease;
(ii) an original executed counterpart of this Indenture;
(iii) an original executed counterpart of the Lease;
(iv) an original executed counterpart of the Mortgage;
(v) an opinion or opinions of Bond Counsel to the effect that the
Series 2002 Bonds constitute valid and legally binding obligations of the
Issuer;
(vi) a request and authorization to the Trustee on behalf of the
Issuer to authenticate the Bonds and to deliver the Bonds to the Series
2002 Placement Agent upon payment to the Trustee, for the account of the
Issuer, of the purchase price thereof (and the Trustee shall be entitled
to conclusively rely upon such request and authorization as to the amount
of such purchase price); and
(vii) such other certificates, statements, receipts and documents as
the Trustee or Bond Counsel shall reasonably require for the delivery of
the Series 2002 Bonds.
(f) When the documents specified in subsection (e) of this Section shall
have been filed with the Trustee, and when the Series 2002 Bonds shall have been
executed and authenticated as required by this Indenture, the Trustee shall
deliver the Series 2002 Bonds to or upon the order of the Series 2002 Placement
Agent, but only upon payment to the Trustee of the purchase price of the Series
2002 Bonds. The proceeds of the sale of the Series 2002 Bonds, including accrued
interest and premium thereon, if any, shall be immediately paid over to the
Trustee, and the Trustee shall deposit and apply such proceeds as provided in
ARTICLE V hereof.
SECTION 208. AUTHORIZATION OF ADDITIONAL BONDS.
(a) Additional Bonds may be issued under and equally and ratably secured
by this Indenture on a parity with the Series 2002 Bonds and any other
Additional Bonds Outstanding at any time and from time to time, upon compliance
with the conditions hereinafter provided in this Section, for any of the
following purposes:
(i) to provide funds to pay the costs of completing the construction
of the Project, the total of such costs to be evidenced by a certificate
signed by the Authorized Issuer Representative and the Project Consultant;
(ii) to provide funds to pay all or any part of the costs of
purchase, construction or installation of Project Additions as the Issuer
may deem necessary or desirable; or
(iii) to provide funds for refunding all or any part of the Bonds of
any series then Outstanding, including the payment of any premium thereon
and interest to accrue to the designated redemption date and any expenses
in connection with such refunding.
(b) Before any Additional Bonds shall be issued under the provisions of
this Section, (i) Moody's shall reaffirm the then current rating of the Series
2002 Bonds and shall issue an equivalent rating for the Additional Bonds;
provided, however, such rating shall not be required if the purpose of the
issuance of the Additional Bonds is to provide funds for refunding all of the
Bonds of any series then Outstanding, and (ii) the members of the Issuer shall
adopt a resolution (A) authorizing the issuance of such Additional Bonds, fixing
the amount and terms thereof and describing the purpose or purposes for which
such Additional Bonds are being issued or describing the Bonds to be refunded,
(B) authorizing the Issuer to enter into a Supplemental Indenture for the
purpose of providing for the issuance of and securing such Additional Bonds and,
(C) if required, authorizing the Issuer to enter into a supplemental lease with
the Tenant to provide for additional rental payments for completing the Project,
for the purchase, construction and installation of the Project Additions, and
for such other matters as are appropriate because of the issuance of the
Additional Bonds proposed to be issued so long as such matters, in the judgment
of the Issuer, are not to the prejudice of the Issuer or the Owners. If required
by the Series 2002 Placement Agent and the Owners of not less than a majority in
aggregate principal amount of Bonds then Outstanding, the Supplemental Indenture
providing for the issuance of and securing such Additional Bonds shall require
the establishment of a reserve fund to be fully funded at the time of issuance
of the Additional Bonds in an amount required by the Series 2002 Placement Agent
and the Owners of not less than a majority in aggregate principal amount of
Bonds then Outstanding.
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(c) Such Additional Bonds shall have the same designation as the Series
2002 Bonds, except for an identifying series letter or date and the addition of
the word "Refunding" when applicable, shall be dated, shall be stated to mature
on Payment Dates in a specified year or years, shall bear interest at a
specified rate or rates not exceeding the maximum rate then permitted by law,
and shall be redeemable at specified times and prices (subject to the provisions
of ARTICLE III of this Indenture), all as may be provided by the Supplemental
Indenture authorizing the issuance of such Additional Bonds. Except as to any
difference in the date, the maturity or maturities, the rate or rates of
interest or the provisions for redemption, such Additional Bonds shall be on a
parity with and shall be entitled to the same benefit and security of this
Indenture as the Series 2002 Bonds and any other Additional Bonds Outstanding at
the time of the issuance of such Additional Bonds.
(d) Such Additional Bonds shall be substantially in the form and executed
in the manner set forth in this Article and ARTICLE IV hereof and shall be
deposited with the Trustee for authentication, but prior to or simultaneously
with the authentication and delivery of such Additional Bonds by the Trustee,
there shall be filed with the Trustee the following:
(i) an original or certified copy of the resolutions adopted by the
members of the Issuer authorizing the issuance of such Additional Bonds
and the execution of such Supplemental Indenture and the appropriate
amendments or supplements to the Lease;
(ii) an original executed counterpart of the Supplemental Indenture
providing for the issuance of the Additional Bonds;
(iii) an original executed counterpart of the amendment or
supplement to the Lease, if required;
(iv) an original executed counterpart of the Supplemental Mortgage
accompanied by a title insurance endorsement confirming the first lien
priority of the Mortgage as supplemented by the Supplemental Mortgage;
(v) an opinion of Bond Counsel to the effect that the issuance of
such Additional Bonds are permitted under the Indenture and that the
Additional Bonds constitute valid and legally binding obligations of the
Issuer;
(vi) a request and authorization to the Trustee on behalf of the
Issuer to authenticate the Additional Bonds and to deliver such Additional
Bonds to the purchasers therein identified upon payment to the Trustee,
for account of the Issuer, of the purchase price thereof (and the Trustee
shall be entitled to conclusively rely upon such request and authorization
as to the names of the purchasers and the amount of such purchase price);
(vii) in the case of Additional Bonds being issued to refund
Outstanding Bonds, such additional documents as shall be reasonably
required by the Trustee to establish that provision has been duly made for
the payment of all of the Bonds to be refunded in accordance with the
provisions of ARTICLE XIII of this Indenture;
(viii) deposit of the amount of funds, if any, required by
subsection (b) of this Section in a reserve fund for such Additional
Bonds;
(ix) such other certificates, statements, receipts and documents as
the Trustee or Bond Counsel shall reasonably require for the delivery of
such Additional Bonds; and
(x) delivery of a rating letter from Moody's confirming the rating
on the Series 2002 Bonds.
(e) When the documents listed in subsection (d) of this Section shall have
been filed with the Trustee with respect to an issuance of Additional Bonds, and
when such Additional Bonds shall have been executed and authenticated as
required by this Indenture, the Trustee shall deliver such Additional Bonds to
or upon the order of the original purchasers thereof, but only upon payment to
the Trustee of the purchase price of such Additional Bonds. The proceeds of the
sale of such Additional Bonds (except Additional Bonds issued to refund
Outstanding Bonds), including accrued interest and premium thereon, if any,
shall be immediately paid over to the Trustee and shall be deposited and applied
by the Trustee as provided in ARTICLE V hereof and in the Supplemental Indenture
authorizing the issuance of such Additional Bonds. The proceeds (excluding
accrued interest and premium, if any, which shall be deposited in the applicable
account within the Debt Service Fund) of all Additional Bonds issued to refund
Outstanding Bonds shall be deposited by the Trustee, after payment or making
provision for payment of all expenses incident to such financing, to the credit
of a special trust fund, appropriately designated, to be held in trust for the
sole and exclusive purpose of paying the principal of, premium, if any, and
interest on the Bonds to be refunded, as provided in SECTION 1302 hereof and in
the Supplemental Indenture authorizing the issuance of such refunding Bonds.
(f) Except as provided in this Section, the Issuer will not otherwise
issue any obligations ratably secured and on a parity with the Series 2002
Bonds, but the Issuer may issue other obligations specifically subordinate and
junior to the Series 2002 Bonds with the express written consent of the Owners
of not less than a majority in aggregate principal amount of Bonds then
Outstanding.
SECTION 209. TEMPORARY BONDS.
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(a) Until definitive Bonds of any series are available for delivery, the
Issuer may execute, and upon request of the Issuer the Trustee shall
authenticate and deliver, in lieu of definitive Bonds, but subject to the same
limitations and conditions as definitive Bonds, temporary printed, engraved,
lithographed or typewritten Bonds, in the form of fully registered Bonds in
denominations of $100,000 or any integral multiple of $5,000 in excess thereof,
substantially of the tenor hereinabove set forth and with such appropriate
omissions, insertions and variations as may be required with respect to such
temporary Bonds.
(b) If temporary Bonds shall be issued, the Issuer shall cause the
definitive Bonds to be prepared and to be executed and delivered to the Trustee,
and the Trustee, upon presentation to it at its principal office of any
temporary Bond shall cancel the same and authenticate and deliver in exchange
therefor, without charge to the Owner thereof, a definitive Bond or Bonds of an
equal aggregate principal amount, of the same series and maturity and bearing
interest at the same rate as the temporary Bond surrendered. Until so exchanged
the temporary Bonds shall in all respects be entitled to the same benefit and
security of this Indenture as the definitive Bonds to be issued and
authenticated hereunder.
SECTION 210. MUTILATED, LOST, STOLEN OR DESTROYED BONDS. In the event any
Bond shall become mutilated, or be lost, stolen or destroyed, the Issuer shall
execute and the Trustee shall authenticate and deliver a new Bond of like
series, date and tenor as the Bond mutilated, lost, stolen or destroyed;
provided, however, that in the case of any mutilated Bond, such mutilated Bond
shall first be surrendered to the Trustee, and in the case of any lost, stolen
or destroyed Bond, there shall be first furnished to the Issuer and the Trustee
evidence of such loss, theft or destruction satisfactory to the Issuer and the
Trustee, together with indemnity satisfactory to them. In the event any such
Bond shall have matured, instead of issuing a substitute Bond the Issuer may pay
or authorize the payment of the same without surrender thereof. Upon the
issuance of any substitute Bond, the Issuer and the Trustee may require the
payment of an amount sufficient to reimburse the Issuer and the Trustee for any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable fees and expenses incurred in connection therewith.
SECTION 211. CANCELLATION AND DESTRUCTION OF BONDS UPON PAYMENT.
(a) All Bonds which have been paid or redeemed or which the Trustee has
purchased or which have otherwise been surrendered to the Trustee under this
Indenture, either at or before maturity, shall be cancelled by the Trustee
immediately upon the payment, redemption or purchase of such Bonds and the
surrender thereof to the Trustee.
(b) All cancelled Bonds held by the Trustee shall be destroyed and
disposed of by the Trustee in accordance with applicable record retention
requirements. The Trustee shall execute and deliver to the Issuer a certificate
describing the Bonds so cancelled.
SECTION 212. BOOK-ENTRY; SECURITIES DEPOSITORY.
(a) The Bonds shall initially be registered to Cede & Co., the nominee for
the Securities Depository, and no beneficial owner will receive certificates
representing their respective interests in the Bonds, except in the event the
Trustee issues Replacement Bonds as provided in subsection (b). It is
anticipated that during the term of the Bonds, the Securities Depository will
make book-entry transfers among its Participants and receive and transmit
payment of principal of, premium, if any, and interest on, the Bonds to the
Participants until and unless the Trustee authenticates and delivers Replacement
Bonds to the beneficial owners as described in subsection (b).
(b) (i) If the Issuer determines that (A) the Securities Depository is
unable to properly discharge its responsibilities, (B) the Securities Depository
is no longer qualified to act as a securities depository and registered clearing
agency under the Securities Exchange Act of 1934, as amended, or (C) the
continuation of a book-entry system to the exclusion of any Bonds being issued
to any Owner other than Cede & Co. is no longer in the best interests of the
beneficial owners of the Bonds, or (ii) if the Trustee receives written notice
from Participants having interests in not less than 50% of the Bonds
Outstanding, as shown on the records of the Securities Depository (and certified
to such effect by the Securities Depository), that the continuation of a
book-entry system to the exclusion of any Bonds being issued to any Owner other
than Cede & Co. is no longer in the best interests of the beneficial owners of
the Bonds, then the Trustee shall notify the Owner of such determination or such
notice and of the availability of certificates to beneficial owners requesting
the same, and the Trustee shall register in the name of and authenticate and
deliver Replacement Bonds to the beneficial owners or their nominees in
principal amounts representing the interest of each, making such adjustments as
it may find necessary or appropriate as to accrued interest and previous calls
for redemption; provided, however, that in the case of a determination under
(i)(A) or (i)(B) of this subsection, the Issuer, with the consent of the
Trustee, may select a successor securities depository in accordance with
subsection (c) to effect book-entry transfers. In the event Replacement Bonds
are issued, all references to the Securities Depository herein shall relate to
the period of time when the Securities Depository is the Owner of at least one
Bond. Upon the issuance of Replacement Bonds, all references herein to
obligations imposed upon or to be performed by the Securities Depository shall
be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Replacement Bonds. If the Securities Depository
resigns and the Issuer is unable to locate a qualified successor of the
Securities Depository in accordance with subsection (c), then the Trustee shall
authenticate and cause delivery of Replacement Bonds to the beneficial owners,
as provided in this Indenture. The Trustee may rely on information from the
Securities Depository and its Participants as to the names and addresses of, and
the principal amounts held by, the beneficial owners of the Bonds. The cost of
printing Replacement Bonds shall be paid for by the Issuer.
(c) In the event the Securities Depository resigns, or the Issuer
determines that the Securities Depository is unable to properly discharge its
responsibilities or is no longer qualified to act as a securities depository and
registered clearing agency under the Securities Exchange Act of 1934, as
amended, the Issuer may appoint a successor Securities Depository provided the
Trustee receives written evidence satisfactory to the Trustee with respect to
the ability of the successor Securities Depository to discharge its
responsibilities. Any such successor Securities Depository shall be a securities
depository which is a registered clearing agency under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation that operates
a securities depository upon reasonable and customary terms. The Trustee upon
its receipt of a Bond or Bonds for cancellation shall cause the delivery of
Bonds to the successor Securities Depository in appropriate denominations and
form as provided herein.
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ARTICLE III
REDEMPTION OF BONDS
SECTION 301. REDEMPTION OF BONDS GENERALLY. The Bonds shall be subject to
redemption prior to maturity in accordance with the terms and provisions of this
Article. Additional Bonds shall be subject to redemption prior to maturity in
accordance with the terms and provisions contained in this Article and as may be
specified in the Supplemental Indenture authorizing such Additional Bonds;
provided, however, that no provision shall be made with respect to the
redemption of any Additional Bonds which would result in, or constitute the
creation of, a preference or priority of such Additional Bonds over the Series
2002 Bonds.
SECTION 302. REDEMPTION OF SERIES 2002 BONDS. The Series 2002 Bonds shall
be subject to redemption as follows:
(a) Mandatory Redemption from Moneys Remaining in Project Fund. The Series
2002 Bonds are subject to mandatory redemption prior to the stated maturity
thereof, on any date, using any balance remaining in the Project Fund, including
any amounts transferred to the Project Fund from the Capitalized Interest Fund
pursuant to SECTION 606(C) hereof, which is transferred to the Debt Service Fund
upon completion of the Project and payment of all Project Costs as provided in
SECTION 504 of this Indenture. The Series 2002 Bonds redeemed using such funds
will be redeemed in inverse order of maturity, or in such other order of
maturity as selected by the Issuer, at a redemption price equal to 100% of the
principal amount thereof, plus accrued interest thereon to the redemption date,
without premium.
(b) Extraordinary Optional Redemption. In the event of a Change of
Circumstances, the Series 2002 Bonds shall be subject to redemption and payment
prior to the stated maturity thereof, at the option of the Issuer, at any time
at a redemption price equal to the principal amount thereof, plus accrued
interest thereon to the redemption date, without premium, provided all of the
Bonds are so redeemed and paid according to their terms.
(c) Mandatory Sinking Fund Redemption. The Series 2002 Bonds are subject
to mandatory redemption and payment prior to maturity pursuant to the mandatory
redemption requirements of this Section on January 1 in each of the years set
forth below, at a redemption price equal to the principal amount thereof plus
accrued interest thereon to the redemption date, without premium.
July 1, 2007 $65,000
January 1, 2008 65,000
July 1, 2008 70,000
January 1, 2009 70,000
July 1, 2009 90,000
January 1, 2010 95,000
July 1, 2010 205,000
January 1, 2011 210,000
July 1, 2011 235,000
January 1, 2012 245,000
July 1, 2012 290,000
January 1, 2013 295,000
July 1, 2013 340,000
January 1, 2014 355,000
July 1, 2014 365,000
January 1, 2015 375,000
July 1, 2015 385,000
January 1, 2016 400,000
July 1, 2016 485,000
January 1, 2017 500,000
July 1, 2017 515,000
January 1, 2018 530,000
July 1, 2018 550,000
January 1, 2019 565,000
July 1, 2019 655,000
January 1, 2020 675,000
July 1, 2020 700,000
January 1, 2021 720,000
July 1, 2021 745,000
January 1, 2022 765,000
July 1, 2022 790,000
January 1, 2023 815,000
July 1, 2023 840,000
January 1, 2024+ 865,000
--------------------------
+Maturity Date
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(d) Optional Redemption. The Series 2002 Bonds shall be subject to
redemption and payment prior to maturity on or after January 1, 2011, at the
option of the Issuer, as a whole or in part at any time, at the following
redemption prices (expressed as percentages of the principal amount thereof),
plus accrued interest to the redemption date:
Redemption Period Price
----------------- -----
January 1, 2011 through December 31, 2011 102%
January 1, 20l2 through December 3l, 2012 101%
January 1, 2013 and thereafter 100%
SECTION 303. SELECTION OF BONDS TO BE REDEEMED.
(a) Bonds shall be redeemed only in the principal amount of $5,000 or
integral multiples thereof. If less than all of the Outstanding Bonds of any
series are to be redeemed and paid prior to maturity, such Bonds shall be
redeemed from maturities selected by the Issuer, and by lot within maturities,
with Bonds of less than a full maturity to be selected by the Trustee in such
equitable manner as it may determine.
(b) In the case of a partial redemption of Bonds by lot when Bonds of
denominations greater than $5,000 are then Outstanding, then for all purposes in
connection with such redemption each $5,000 of face value shall be treated as
though it was a separate Bond of the denomination of $5,000. If it is determined
that one or more, but not all, of the $5,000 units of face value represented by
any fully registered Bond is selected for redemption, then the Owner of such
Bond or his attorney or legal representative shall forthwith present and
surrender such Bond to the Trustee (i) for payment of the redemption price
(including the premium, if any, and interest to the redemption date) of the
$5,000 unit or units of face value called for redemption, and (ii) for exchange,
without charge to the Owner thereof, for a new Bond or Bonds of the aggregate
principal amount of the unredeemed portion of the principal amount of such Bond.
If the Owner of any such Bond of a denomination greater than $5,000 shall fail
to present such Bond to the Trustee for payment and exchange as aforesaid, such
Bond shall, nevertheless, become due and payable on the redemption date to the
extent of the principal amount thereof called for redemption (and to that extent
only).
SECTION 304. TRUSTEE'S DUTY TO REDEEM BONDS. The Trustee shall call Bonds
for redemption and payment as herein provided and shall give notice of
redemption as provided in SECTION 305 hereof (a) with respect to mandatory
redemptions contemplated by SECTION 302(A), and SECTION 302(C) hereof, on its
own accord and without receiving a request by the Issuer therefor, and (b) with
respect to optional redemptions contemplated by SECTION 302(B) and SECTION
302(D) hereof, upon receipt by the Trustee of a written request of the Issuer at
least 45 days prior to the redemption date which request shall specify the
principal amount and the respective maturities of the Bonds to be called for
redemption, the applicable redemption price or prices and the provision or
provisions of this Indenture pursuant to which such Bonds are to be called for
redemption.
SECTION 305. NOTICE AND EFFECT OF CALL FOR REDEMPTION.
(a) Official notice of any redemption shall be given by the Trustee on
behalf of the Issuer by mailing a copy of an official redemption notice by first
class mail to each of the Owners of the Bonds to be redeemed at least 30 days
prior to the date fixed for redemption, unless such notice is waived by any such
Owner, at the address shown on the Bond Register for such Owner as of the date
of such notice.
(b) All official notices of redemption shall be dated and shall state:
(i) the complete official caption, including series, of the issue of
which the Bonds being redeemed are a part;
(ii) the date of mailing of the notice of redemption;
(iii) the date fixed for redemption;
(iv) the redemption price or prices;
(v) with respect to the redemption of the Bonds in part, the numbers
of the Bonds to be redeemed, by giving the individual certificate number
of each Bond to be redeemed (or stating that all Bonds between two stated
certificate numbers, both inclusive, are to be redeemed or that all of the
Bonds of one or more maturities have been called for redemption);
(vi) the CUSIP numbers of all Bonds being redeemed (which may be
accompanied by a disclaimer as to the accuracy of the CUSIP numbers);
(vii) in the case of a partial redemption of Bonds, the principal
amount and maturity date of each Bond being redeemed;
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(viii) the date of issue of the Bonds as originally issued;
(ix) the rate or rates of interest borne by each Bond being
redeemed;
(x) the maturity date of each Bond being redeemed; and
(xi) the place or places where amounts due upon such redemption will
be payable.
(c) Prior to any redemption date, funds shall be on deposit with the
Trustee which are sufficient to pay the redemption price of all the Bonds or
portions of Bonds that are to be redeemed on that date, in addition to any
amounts therein required for regularly scheduled payments of principal and
interest on the Bonds.
(d) Once official notice of redemption has been given as provided in this
Section, the Bonds or portions of Bonds to be so redeemed shall, on the
redemption date, become due and payable at the redemption price specified in
such notice, and from and after such date (unless the Issuer shall default in
the payment of the redemption price) such Bonds or portion of Bonds shall cease
to bear interest. Upon surrender of such Bonds for redemption in accordance with
such notice, such Bonds shall be paid by the Trustee at the redemption price.
Installments of interest due on or prior to the redemption date shall be payable
as herein provided for payment of interest. Upon surrender for any partial
redemption of any Bond, there shall be prepared for the Owner a new Bond or
Bonds of the same maturity in the amount of the unpaid principal. All Bonds
which have been redeemed shall be cancelled and destroyed by the Trustee and
shall not be reissued.
(e) In addition to the foregoing notice, the Trustee shall give such
additional notice and take such additional actions as are necessary to comply
with any mandatory or voluntary standards then in effect for processing
redemptions of municipal securities established by the Securities and Exchange
Commission.
(f) Upon the happening of the conditions set forth in this Section, and
notice having been given as provided in this Section, the Bonds or the portions
of the principal amount of Bonds thus called for redemption shall no longer be
entitled to the protection, benefit or security of this Indenture and shall not
be deemed to be Outstanding under the provisions of this Indenture.
(g) Any defect in any notice or the failure of any parties to receive any
notice of redemption shall not cause any Bond called for redemption to remain
Outstanding.
(h) For so long as the Securities Depository is effecting book-entry
transfers of the Bonds, the Trustee shall provide the notices specified in this
SECTION 305 to the Securities Depository. It is expected that the Securities
Depository shall, in turn, notify its Participants and that the Participants, in
turn, will notify or cause to be notified the beneficial owners of the Bonds.
Any failure on the part of the Securities Depository or a Participant, or
failure on the part of a nominee of a beneficial owner of a Bond (having been
mailed notice from the Trustee, a Participant or otherwise) to notify the
beneficial owner of the Bond so affected, shall not affect the validity of the
redemption of such Bond.
SECTION 306. EFFECT OF CALL FOR REDEMPTION. Prior to the date fixed for
redemption, funds or Government Obligations maturing on or before the date fixed
for redemption shall be deposited with the Trustee in amounts sufficient to
provide for payment of the Bonds called for redemption, accrued interest thereon
to the redemption date and the redemption premium, if any. After the deposit of
such funds or Government Obligations, and notice having been given as provided
in SECTION 305 hereof, the Bonds or the portions of the principal amount of
Bonds thus called for redemption shall cease to bear interest on the specified
redemption date, and shall no longer be entitled to the protection, benefit or
security of this Indenture and shall not be deemed to be Outstanding under the
provisions of this Indenture.
ARTICLE IV
FORM OF BONDS
SECTION 401. FORM OF BONDS GENERALLY. The Series 2002 Bonds, and the
Trustee's Certificate of Authentication to be endorsed thereon shall be,
respectively, in substantially the forms described in SECTION 402 hereof. Any
Additional Bonds, and the Trustee's Certificate of Authentication to be endorsed
thereon shall also be in substantially such forms, with such necessary or
appropriate variations, omissions and insertions as are permitted or required by
this Indenture or any Supplemental Indenture. The Bonds may have endorsed
thereon such legends or text as may be necessary or appropriate to conform to
any applicable rules and regulations of any governmental authority or any
custom, usage or requirement of law with respect thereto.
SECTION 402. FORM OF SERIES 2002 BONDS. The forms of the Series 2002 Bonds
and the Trustee's Certificate of Authentication to be endorsed thereon are
attached hereto as APPENDIX A.
ARTICLE V
CREATION OF PROJECT FUND;
CUSTODY AND APPLICATION OF BOND PROCEEDS
SECTION 501. CREATION OF PROJECT FUND. There is hereby created and ordered
to be established in the custody of the Trustee a special trust fund in the name
of the Issuer to be designated the "Utah Tech Center, LLC, Project Fund (OSHA
Technical Center Project)" (the "Project Fund"). The Trustee is authorized and
directed to (a) establish a separate account within the Project Fund with
respect to the Series 2002 Bonds, to be designated as the "Series 2002 Project
Account," (b) establish a separate account within the Project Fund with respect
to the Series 2002 Bonds, to be designated as the "Series 2002 Liquidated
Damages Reserve Account," and (c) establish a separate account within the
Project Fund with respect to each series of Additional Bonds as provided in the
applicable Supplemental Indenture.
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SECTION 502. DEPOSITS INTO THE PROJECT FUND. The following funds shall be
paid over to the Trustee, and the Trustee shall deposit such funds into the
applicable account within the Project Fund, as and when received:
(a) the proceeds from the sale of the Series 2002 Bonds, excluding such
amounts thereof required to be paid into the Series 2002 Debt Service Account
pursuant to SECTION 603 hereof and the Series 2002 Capitalized Interest Account
pursuant to SECTION 606 hereof,
(b) the proceeds from the sale of the Additional Bonds (except Additional
Bonds issued to refund Outstanding Bonds), excluding such amounts thereof
required to be paid into the applicable account within the Debt Service Fund
pursuant to SECTION 603 hereof, the applicable account within the Capitalized
Interest Fund pursuant to SECTION 606 hereof and any required reserve fund;
(c) the earnings accrued on the investment of moneys in the Project Fund
and required to be deposited into the Project Fund pursuant to SECTION 702
hereof,
(d) any and all payments from any contractors or other suppliers by way of
breach of contract, refunds or adjustments required to be deposited into the
Project Fund pursuant to SECTION 816 hereof,
(e) moneys required to be transferred to the Project Fund from the
Capitalized Interest Fund pursuant to SECTION 606 hereof, and
(f) except as otherwise provided herein, any other money received by or to
be paid to the Trustee from any other source for the purchase or construction of
the Project, when accompanied by directions by the Issuer that such moneys are
to be deposited into the Project Fund.
SECTION 503. DISBURSEMENTS FROM THE PROJECT FUND.
(a) Subject to the provisions of SECTION 805 hereof, the moneys in the
Project Fund and the accounts contained therein shall be disbursed by the
Trustee for the payment of Project Costs in accordance with the provisions of
this SECTION 503, and the Trustee hereby covenants and agrees to disburse such
moneys in accordance with such provisions.
(b) The Trustee shall disburse moneys to pay for the construction and
installation of the buildings, structures, facilities, additions and
improvements constituting a part of the Improvements and any machinery,
equipment and personal property constituting a part of the Improvements but
solely from the Project Fund and the accounts contained therein, from time to
time, upon receipt by the Trustee of a certificate signed by the Authorized
Issuer Representative and, except as otherwise provided in this subsection (b),
Xxxxxxxx Construction Co., Inc. and approved by the Project Consultant in the
form set forth in APPENDIX B hereto which is incorporated herein by reference.
The Issuer agrees that the maximum amount of funds to be disbursed from the
Project Fund for Costs of Issuance (excluding the Placement Agent Fee) is
$100,000 and the maximum amount for non-construction contract Project Costs
disbursements from the Project Fund is $3,201,500. Any Costs of Issuance or
non-construction contract project costs disbursement requests shall be made on
the form set forth in APPENDIX B signed by the Authorized Issuer Representative,
but shall not require signatures from Xxxxxxxx Construction Co., Inc. or the
Project Consultant. The Trustee may rely fully on any such directions and shall
not be required to make any investigation in connection therewith, except that
the Trustee shall investigate requests for reimbursements made directly to the
Issuer and shall require such supporting evidence as would be required by a
reasonable and prudent trustee.
(c) The Trustee shall keep and maintain adequate records pertaining to the
Project Fund, all accounts within the Project Fund, and all disbursements
therefrom, and after the Project has been completed and a certificate of payment
of all costs filed as provided in SECTION 504 hereof, the Trustee shall file a
statement of receipts and disbursements with respect thereto with the Issuer.
SECTION 504. DISPOSITION UPON COMPLETION OF THE PROJECT.
(a) The completion of the Project and payment of all costs and expenses
incident thereto shall be evidenced by the filing with the Trustee by the Issuer
of the Certificate of Completion described in subsection (b) of this Section. As
soon as practicable following receipt by the Trustee of such Certificate of
Completion, the Trustee shall then transfer without further authorization any
excess funds from the Series 2002 Project Account first to the Project Operation
and Maintenance Fund an amount sufficient to the fund the Project Operation and
Maintenance Fund Requirement, then any balance remaining in the Series 2002
Project Account shall without further authorization be deposited in the Series
2002 Debt Service Account and applied by the Trustee solely to the payment of
principal of the Series 2002 Bonds through the payment or redemption thereof on
any redemption date specified in SECTION 302(A) hereof or as otherwise
permissible in the opinion of Bond Counsel. Any balance remaining in any other
account of the Project Fund established with respect to a particular series of
Additional Bonds shall without further authorization be deposited in the account
within the Debt Service Fund established with respect to such series of
Additional Bonds and shall be applied by the Trustee solely to the payment of
principal of such series of Additional Bonds through the payment or redemption
thereof on any redemption date specified in SECTION 302(A) hereof or as
otherwise permissible in the opinion of Bond Counsel.
(b) Upon completion of the Project and acceptance of the Project by the
Tenant, the Issuer shall cause the Authorized Issuer Representative to deliver a
Certificate of Completion to the Trustee.
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SECTION 505. DEPOSITS AND DISBURSEMENTS FROM THE SERIES 2002 LIQUIDATED
DAMAGES RESERVE ACCOUNT.
(a) The Trustee shall deposit the sum of $150,000 into the Series 2002
Liquidated Damages Reserve Account from the proceeds of the sale of the Series
2002 Bonds.
(b) The moneys in the Series 2002 Liquidated Damages Reserve Account shall
be disbursed by the Trustee at the request of the Issuer for the payment of
liquidated damages in accordance with the provisions of the Lease, and the
Trustee hereby covenants and agrees to disburse such moneys in accordance with
such provisions.
SECTION 506. DISPOSITION OF THE SERIES 2002 LIQUIDATED DAMAGES RESERVE
ACCOUNT UPON COMPLETION OF THE PROJECT. As soon as practicable following receipt
by the Trustee of such Certificate of Completion, the Trustee shall then
transfer without further authorization any excess funds from the Series 2002
Liquidated Damages Reserve Account first to the Project Operation and
Maintenance Fund in an amount sufficient to the fund the Project Operation and
Maintenance Fund Requirement, then any balance remaining in the Series 2002
Liquidated Damages Reserve Account shall without further authorization be
deposited in the Series 2002 Debt Service Account and applied by the Trustee
solely to the payment of principal of the Series 2002 Bonds through the payment
or redemption thereof on any redemption date specified in SECTION 302(A) hereof
or as otherwise permissible in the opinion of Bond Counsel.
SECTION 507. DISPOSITION UPON ACCELERATION. If the principal of the Bonds
shall have become due and payable pursuant to SECTION 901 of this Indenture,
upon the date of payment by the Trustee of any moneys due as hereinafter
provided in ARTICLE IX hereof, any balance remaining in any account within the
Project Fund shall, without further authorization, be deposited in the
corresponding account within the Debt Service Fund by the Trustee.
ARTICLE VI
REVENUES AND FUNDS
SECTION 601. CREATION OF FUNDS AND ACCOUNTS. In addition to the Project
Fund created pursuant to SECTION 501 of this Indenture, there are hereby created
and ordered to be established in the custody of the Trustee the following
special trust funds in the name of the Issuer to be designated as follows:
(a) "Utah Tech Center, LLC, Debt Service Fund (OSHA Technical Center
Project)" (the "Debt Service Fund");
(b) "Utah Tech Center, LLC, Project Replacement Fund (OSHA Technical
Center Project)" (the "Project Replacement Fund");
(c) "Utah Tech Center, LLC, Capitalized Interest Fund (OSHA
Technical Center Project)" (the "Capitalized Interest Fund");
(d) "Utah Tech Center, LLC, Revenue Fund (OSHA Technical Center
Project)" (the "Revenue Fund");
(e) "Utah Tech Center, LLC, Tax and Insurance Fund (OSHA Technical
Center Project)" (the "Tax and Insurance Fund"); and
(f) "Utah Tech Center, LLC, Project Operation and Maintenance Fund
(OSHA Technical Center Project)" (the "Project Operation and Maintenance
Fund").
The Trustee is authorized and directed to (i) establish a separate account
within the funds set forth in subsections (a) and (c) above with respect to the
Series 2002 Bonds, to be designated as the "Series 2002 Debt Service Account"
and the "Series 2002 Capitalized Interest Account" respectively, and (ii)
establish a separate account within each such fund with respect to each series
of Additional Bonds as provided in the Supplemental Indenture relating thereto.
SECTION 602. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE REVENUE FUND
The Issuer shall cause all payments to be made by the Tenant under the Lease to
be paid directly to the Trustee for deposit into the Revenue Fund. If the Issuer
shall at any time receive all or any part of a payment made by the Tenant under
the Lease, the Issuer shall immediately deliver such funds to the Trustee for
deposit into the Revenue Fund. Moneys in the Revenue Fund shall be applied by
the Trustee no later than the 15th day of each month in the following order or
priority:
FIRST: To the Debt Service Fund, in the following order of priority,
(a) taking into consideration the amounts, if any, on deposit
in the Capitalized Interest Fund, an amount equal to 1/6th of
the interest owing on the Bonds on the next Payment Date, (b)
commencing June 15, 2003, an amount equal to 1/12th of the
principal coming due on the Bonds on the next Payment Date
(whether at stated maturity or by redemption), (c) an amount
sufficient to make up any deficiencies in the Debt Service
Fund related to any Bonds and (d) the amount of any redemption
premium to be due and payable on any date on which the Bonds
have been called, in whole or in part, for optional
redemption.
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SECOND: To the Tax and Insurance Fund in an amount equal to 1/12th of
the estimated annual real estate taxes and assessments and
insurance for the Project as set forth in the Annual Budget.
THIRD: To the Project Operation and Maintenance Fund an amount
sufficient to fund the Project Operation and Maintenance Fund
at the Project Operation and Maintenance Fund Requirement.
FOURTH: Paid to the Issuer.
Any balance remaining in the Revenue Fund after the Bonds have been paid
or payment thereof has been provided for shall be paid to the Issuer.
SECTION 603. DEPOSITS INTO THE DEBT SERVICE FUND. The Trustee shall
deposit into the applicable account within the Debt Service Fund, as and when
received, the following:
(a) all accrued interest on the Bonds paid by the Series 2002 Placement
Agent and any original purchaser of Additional Bonds;
(b) if required by a Supplemental Indenture authorizing the issuance of
Additional Bonds, an additional amount from the proceeds of such Additional
Bonds, such additional amount not to exceed the sum which, when added to the
accrued interest and premium, if any, received from the sale of such Additional
Bonds, will be sufficient to pay the interest accruing on such Additional Bonds
during the estimated period of construction of the Project Additions financed
through the issuance of such Additional Bonds;
(c) all funds transferred from the Revenue Fund;
(d) any amount in the Project Fund to be transferred to an account within
the Debt Service Fund pursuant to SECTION 504 hereof upon completion of
construction of the Project and any amount remaining in the Project Fund to be
transferred to any account within the Debt Service Fund pursuant to SECTION 505
hereof upon acceleration of the maturity of the Bonds;
(e) all interest and other income derived from investments of Debt Service
Fund moneys as provided in SECTION 702 hereof, and
(f) all other moneys received by the Trustee from the Issuer when
accompanied by directions from the person depositing such moneys that such
moneys are to be paid into the Debt Service Fund.
SECTION 604. APPLICATION OF MONEYS IN THE DEBT SERVICE FUND.
(a) Moneys in the Debt Service Fund and the accounts contained therein
shall be expended solely for the payment of the principal of, premium, if any,
and interest on the Bonds as the same mature and become due or upon the
redemption thereof prior to maturity.
(b) The Issuer hereby authorizes and directs the Trustee to withdraw
sufficient funds from the applicable account within the Debt Service Fund to pay
the principal of, premium, if any, and interest on each series of Bonds as the
same become due and payable and to make said funds so withdrawn available to the
Paying Agents for the purpose of paying said principal, premium, if any, and
interest.
(c) The Trustee, upon written direction of the Issuer, shall use any
moneys in the Debt Service Fund and the accounts contained therein to redeem all
or part of the Bonds Outstanding, and to pay interest to accrue thereon prior to
such redemption, in accordance with and to the extent permitted by ARTICLE III
hereof so long as the Issuer is not in default with respect to any payments
hereunder and to the extent said moneys are in excess of the amount required for
payment of Bonds theretofore matured or called for redemption and past due
interest in all cases when such Bonds have not been presented for payment. The
Issuer may cause such excess money in the accounts contained within the Debt
Service Fund or such part thereof or other moneys of the Issuer, as the Issuer
may direct, to be applied by the Trustee for the purchase of the applicable
series of Bonds in the open market for the purpose of cancellation at prices not
exceeding the principal amount thereof plus accrued interest thereon to the date
of delivery for cancellation.
(d) Any amount remaining in the Debt Service Fund and the accounts
contained therein after the principal of, premium, if any, and interest on the
Bonds shall have been paid in full or provision made therefor in accordance with
ARTICLE XIII hereof, shall be paid to the Issuer by the Trustee.
SECTION 605. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE PROJECT
REPLACEMENT FUND.
(a) The Trustee shall deposit into the Project Replacement Fund, as and
when received, any Net Proceeds received pursuant to SECTION 817 hereof.
(b) Moneys held in the Project Replacement Fund shall be used and applied
as provided in Section 817 hereof.
SECTION 606. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE CAPITALIZED
INTEREST FUND.
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(a) The Trustee shall deposit the sum of $1,329,131,08 into the Series
2002 Capitalized Interest Account from the proceeds of the sale of the Series
2002 Bonds. The Trustee shall deposit the sum specified in the applicable
Supplemental Indenture into the Capitalized Interest Fund from the proceeds of
the sale of any Additional Bonds.
(b) Until the moneys in the Capitalized Interest Fund are transferred in
accordance with SECTION 606(C) hereof, the Trustee shall, prior to making any
transfers from the Debt Service Fund as provided in SECTION 604 hereof, transfer
from the applicable account of the Capitalized Interest Fund to the applicable
account of the Debt Service Fund an amount sufficient to pay the interest
becoming due and payable on the applicable series of Bonds.
(c) Upon the earlier of (i) receipt by the Trustee of the Certificate of
Completion required by SECTION 504 hereof or (ii) July 1, 2004, the Trustee
shall determine, without regard to and prior to making any transfers from the
Capitalized Interest Fund, whether moneys in the Debt Service Fund, together
with rental payments due under the Lease prior to the next succeeding Payment
Date, are sufficient to pay the principal of and interest due and payable on the
Bonds on the next succeeding Payment Date. If the Trustee determines such moneys
will not be sufficient, the Trustee shall transfer moneys in the applicable
account of the Capitalized Interest Fund to the applicable account of Debt
Service Fund to the extent required to fund the payment of principal of and
interest becoming due and payable on the applicable series of Bonds on the next
succeeding Payment Date. The Trustee shall then transfer from the Capitalized
Interest Fund to the Project Operation and Maintenance Fund an amount sufficient
to the fund the Project Operation and Maintenance Fund Requirement. Any excess
funds in any account of the Capitalized Interest Fund after making any necessary
transfer to the Project Operation and Maintenance Fund shall be transferred to
the Revenue Fund.
SECTION 607. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE TAX AND
INSURANCE FUND. The Trustee shall deposit into the Tax and Insurance Fund the
funds transferred from the Revenue Fund pursuant to SECTION 602 hereof. Any
moneys deposited into the Tax and Insurance Fund shall be held by the Trustee
and disbursed by the Trustee upon the written request of the Issuer for the
payment of the real estate taxes and assessments and insurance with respect to
the Project when due.
SECTION 608. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE PROJECT
OPERATION AND MAINTENANCE FUND. The Trustee shall deposit into the Project
Operation and Maintenance Fund the funds transferred from the Capitalized
Interest Fund pursuant to SECTION 606(C) hereof, the Series 2002 Liquidated
Damages Reserve Account pursuant to SECTION 506, the Series 2002 Project Account
pursuant to SECTION 502 and the Revenue Fund pursuant to SECTION 602 hereof. Any
moneys deposited into the Project Operation and Maintenance Fund shall be held
by the Trustee and disbursed by the Trustee upon the written request of the
Issuer for the payment of operating, repair and capital replacement costs of the
Project. Moneys in the Project Operation and Maintenance Fund shall also be used
to pay the last Bonds becoming due unless such Bonds and all interest thereon be
otherwise paid, and thereafter any remaining balance in the Project Operation
and Maintenance Fund shall be paid to the Issuer.
SECTION 609. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. In any case
where the date of maturity of principal of, premium, if any, or interest on the
Bonds or the date fixed for redemption of any Bonds shall not be a Business Day,
then payment of principal, 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 redemption, and
no interest shall accrue for the period after such date.
SECTION 610. NONPRESENTMENT OF BONDS. In the event that any Bond shall not
be presented for payment when the principal thereof becomes due, either at
maturity or otherwise, or at the date fixed for redemption thereof, or the
Trustee is unable to locate the Owner for the payment of accrued interest or an
accrued interest check remains uncashed, if funds sufficient to pay such Bond
and accrued interest shall have been made available to the Trustee, all
liability of the Issuer to the Owner thereof for the payment of such Bond and
accrued interest, shall forthwith cease, determine and be completely discharged,
and thereupon it shall be the duty of the Trustee to hold such fund or funds,
without liability for interest thereon, for the benefit of the Owner of such
Bond, who shall thereafter be restricted exclusively to such fund or funds for
any claim of whatever nature on his part under this Indenture or on, or with
respect to, said Bond and accrued interest. If any Bond shall not be presented
for payment within four years following the date when such Bond becomes due,
whether by maturity or otherwise, or the accrued interest cannot be paid as set
out above, the Trustee upon the request of the Issuer shall repay to the Issuer
the funds theretofore held by it for payment of such Bond and accrued interest,
and such Bond and accrued interest shall, subject to the defense of any
applicable statute of limitation, thereafter be an unsecured obligation of the
Issuer, and the Owner thereof shall be entitled to look only to the Issuer for
payment, and then only to the extent of the amount so repaid, and the Issuer
shall not be liable for any interest thereon and shall not be regarded as a
trustee of such money.
SECTION 611. ADDITIONAL PAYMENTS. Within thirty (30) days after receipt of
written notice thereof, the Issuer shall pay to the Trustee, as Additional
Payments, the following amounts:
(a) all reasonable fees, charges and expenses, including agent and
counsel fees, of the Trustee and the Paying Agents incurred under this
Indenture or any other document entered into in connection with the Bonds;
(b) all reasonable costs incident to the payment of the principal
of, premium, if any, and interest on the Bonds as the same becomes due and
payable, including all costs and expenses in connection with the call,
redemption and payment of all Outstanding Bonds;
(c) all reasonable fees, charges and expenses, including agent and
counsel fees, reasonably incurred in connection with the enforcement of
any rights against the Issuer, the Tenant or the Project under this
Indenture by the Trustee or the Owners, provided, however, the Issuer
shall not be obligated to pay for such fees, charges and expenses as may
be incurred by the Trustee solely as a result of its own gross negligence
or wrongful misconduct;
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(d) all other payments of whatever nature which the Issuer has
agreed to pay or assume under the provisions of this Indenture or any
other document entered into in connection with the Bonds.
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
SECTION 701. MONEYS TO BE HELD IN TRUST. All moneys deposited with or paid
to the Trustee for the account of any fund or account under any provision of
this Indenture, and all moneys deposited with or paid to the Paying Agent under
any provision of this Indenture, shall be held by the Trustee or Paying Agent in
trust and shall be applied only in accordance with the provisions of this
Indenture and the Lease and, until used or applied as so provided, shall
constitute part of the Trust Estate and be subject to the lien hereof. Neither
the Trustee nor any Paying Agent shall be liable for interest on any moneys
received hereunder except interest earned on investments made pursuant to
SECTION 702 of this Indenture and such other interest as may be agreed upon.
SECTION 702. INVESTMENT OF MONEYS IN FUNDS. Moneys held in the funds and
accounts created pursuant to this Indenture shall be separately invested and
reinvested by the Trustee in Investment Securities which mature or are subject
to redemption by the owner prior to the date such funds will be needed;
provided, however, that such moneys shall not be invested in such manner as will
violate the provisions of SECTIONS 703 hereof. Any such Investment Securities
shall be held by or under the control of the Trustee and shall be deemed at all
times a part of the fund or account in which such moneys are originally held,
and except as otherwise specifically provided in this Indenture, the interest
accruing thereon and any profit realized from such Investment Securities shall
be credited to and accumulated in such fund or account, and any loss resulting
from such Investment Securities shall be charged to such fund or account. The
Trustee shall sell and reduce to cash a sufficient amount of such Investment
Securities whenever the cash balance in any fund or account is insufficient for
the purposes of such fund or account. The Trustee may make any and all
investments permitted by the provisions of this Section through its own bond
department or short-term investment department.
SECTION 703. RECORD KEEPING. The Trustee shall maintain records designed
to show compliance with the provisions of this Article and with the provisions
of ARTICLE VI for at least six years after the payment of all of the Outstanding
Bonds.
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
SECTION 801. PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE
BONDS. The Issuer covenants and agrees that it will promptly pay or cause to be
paid the principal of, premium, if any, and interest on the Bonds as the same
become due and payable at the place, on the dates and in the manner provided
herein and in the Bonds according to the true intent and meaning thereof, and to
this end the Issuer covenants and agrees that it will use its best efforts to
cause the Project to be continuously leased as a revenue and income producing
undertaking, and that, should there be a default under the Lease with the result
that the right of possession of the Project is returned to the Issuer, the
Issuer shall fully cooperate with the Trustee and the Owners to fully protect
the rights and security of the Owners hereunder and shall diligently proceed in
good faith and use its best efforts to secure another tenant for the Project to
the end that at all times sufficient rents, revenues and receipts will be
derived by Issuer from the Project to provide for payment of the principal of,
premium, if any, and interest on the Bonds as the same become due and payable.
If the Issuer is unable to procure a new tenant who will enter into such a
lease, the Issuer may take such good faith action as shall be in the best
interests of the Owners, which may include the sale of the Project, and if the
Project is sold, after deducting all costs of the sale, any moneys derived from
such sale shall be used for the purpose of paying the principal of, premium, if
any, and interest on the Bonds.
SECTION 802. AUTHORITY TO EXECUTE INDENTURE AND ISSUE BONDS. The Issuer
covenants that it is duly authorized under the Constitution and laws of the
State of Missouri to execute this Indenture, to issue the Bonds and to pledge
and assign the Trust Estate in the manner and to the extent set forth herein
that all action on its part for the execution and delivery of this Indenture and
the issuance of the Bonds has been duly and effectively taken and that the Bonds
in the hands of the Owners thereof are and will be valid and enforceable
obligations of the Issuer according to the import thereof.
SECTION 803. PERFORMANCE OF COVENANTS. The Issuer covenants that it will
faithfully perform at all times any and all covenants, undertakings,
stipulations and provisions contained in this Indenture, in the Bonds and in all
proceedings of its governing body pertaining thereto. Upon an Event of Default
under the Lease or this Indenture, the Issuer shall fully cooperate with the
Trustee and the Owners in order to fully protect the rights and security of the
Owners hereunder.
SECTION 804. INSTRUMENTS OF FURTHER ASSURANCE. The Issuer covenants that
it will do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such Supplemental Indentures and such further acts,
instruments, financing statements and other documents as the Trustee may
reasonably require for the better pledging and assigning unto the Trustee the
property and revenues herein described to secure the payment of the principal
of, premium, if any, and interest on the Bonds. The Issuer covenants and agrees
that, except as provided herein, it will not sell, convey, mortgage, encumber or
otherwise dispose of any part of the Project or the rents, revenues and receipts
derived therefrom or from the Lease, or of its rights under the Lease.
SECTION 805. INSURANCE PROVISIONS.
(a) Insurance as a Condition to Disbursement. As a condition precedent to
disbursement of funds from the Project Fund and the accounts contained therein,
the following policies of insurance shall be in full force and effect:
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(i) at all times that the Bonds are Outstanding, the Issuer shall
maintain at its sole cost and expense general accident and public
liability insurance covering the Issuer's operations in or upon the
Project (including coverage for all losses whatsoever arising from the
ownership, maintenance, use or operation of any automobile, truck or other
vehicle in or upon the Project) under which the Issuer shall be named as
the insured and the Trustee shall be additional named insured, in an
amount not less than $1,000,000 per occurrence, which policy shall provide
that such insurance may not be cancelled by the issuer thereof without at
least 30 days' advance written notice to the Issuer and the Trustee;
(ii) at all times that the Bond are Outstanding, the Issuer shall
maintain at its sole cost and expense, in connection with the Project, the
workers' compensation insurance required by the laws of the State; and
(iii) at all times during the Construction Period, the Issuer shall,
at its sole cost and expense, maintain or cause the contractor under its
construction contract with respect to the Project to maintain, in full
force and effect a policy or policies of Builder's Risk-Completed Value
Form Insurance insuring the Project against fire, lightning and all other
risks covered by the broadest form extended coverage endorsement then and
from time to time thereafter in use in the State to the Full Insurable
Value of the Project (subject to reasonable loss deductible clauses not to
exceed $25,000). Such insurance coverage shall name the Issuer as insured
and the Trustee as additional named insured, and all Net Proceeds received
under such policy or policies by the Issuer shall be paid over to the
Trustee and be applied as set forth in SECTION 818 hereof.
(b) Insurance After Completion. The Issuer shall, prior to or
simultaneously with the expiration of the insurance provided for in clause (iii)
of subsection (a) of this Section and while any Bonds are Outstanding, at its
sole cost and expense, (a) keep the Project constantly insured against loss or
damage by fire, lightning and all other risks covered by the broadest form
extended coverage insurance endorsement then in use in the State in an amount
equal to the Full Insurable Value thereof (subject to reasonable loss deductible
provisions), (b) maintain general accident and public liability insurance
pursuant to the requirements set forth in clause (i) of subsection (a) of this
Section and (c) business interruption insurance in an amount equal to the actual
loss of rents sustained.
(c) General Insurance Provisions.
(i) Copies of the insurance policies required under this Section, or
originals or certificates or acceptable binders thereof, each bearing
notations evidencing payment of the premiums or other evidence of such
payment satisfactory to the Issuer, shall be delivered by the Issuer to
the Trustee within ten (10) days following the execution hereof and at
least thirty (30) days prior to the expiration dates of any expiring
policies. All policies of such insurance and all renewals thereof shall
name the Issuer as the insured and the Trustee as additional named
insured, shall contain a provision that such insurance may not be
cancelled or amended by the issuer thereof without at least thirty (30)
days' written notice to the Issuer and the Trustee and shall be payable to
the Issuer and Trustee as their respective interests appear. The Issuer
hereby agrees to do anything necessary, be it the endorsement of checks or
otherwise, to cause any such payment to be made to the Trustee, as long as
such payment is required by this Indenture to be made to the Trustee. Any
charges made by the Trustee for its services shall be paid by the Issuer.
(ii) Each policy of insurance hereinabove referred to shall be
issued by a nationally recognized responsible insurance company qualified
under the laws of the State to assume the risks covered therein except
that the Issuer may be self-insured as to any required insurance coverages
with the consent of the Trustee, which consent will not be unreasonably
withheld.
(iii) Certificates of insurance evidencing the insurance coverages
herein required shall be filed with the Trustee continuously as long as
any Bonds are Outstanding.
(iv) Each policy of insurance hereinabove referred to may be subject
to a reasonable deductible in an amount approved by the Trustee.
(v) Each policy of insurance required herein may be provided through
blanket policies of insurance maintained by the Issuer.
(c) Title Insurance. On or prior to the date of issuance and delivery of
the Bonds by the Issuer, the Issuer shall purchase a policy of or an endorsement
to owner's title insurance, insuring fee simple title to the Project in the
Issuer, subject to Permitted Encumbrances, deleting the survey exception and the
coinsurance provisions of the policy, in an amount equal to the maximum
insurable value thereof for title insurance purposes. The Issuer shall deliver a
copy of such policy to the Trustee on or before the date of issuance of the
Bonds. The Issuer agrees that any and all proceeds received therefrom while any
Bonds are Outstanding (a) if received before the completion of the Project,
shall be paid into and become a part of the Project Fund, (b) if received
thereafter but before the Bonds and interest thereon have been paid in full,
shall be paid into and become a part of the Debt Service Fund, and (c) if
received after the Bonds, premium, if any, and interest thereon have been paid
in full, shall belong and be paid to the Issuer.
SECTION 806. IMPOSITIONS.
(a) As long as any Bonds are Outstanding, the Issuer shall bear, pay and
discharge, before the delinquency thereof, any and all Impositions. In the event
any Impositions may be lawfully paid in installments, the Issuer shall be
required to pay only such installments thereof as become due and payable as and
when the same become due and payable.
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(b) Unless the Issuer exercises its right to contest any Impositions in
accordance with subsection (c) of this Section, the Issuer shall, within thirty
(30) days after the last day for payment (without penalty or interest) of an
Imposition which the Issuer is required to bear, pay and discharge such
Imposition pursuant to the terms hereof and deliver to the Trustee a photostatic
or other suitable copy of the statement issued therefor duly receipted to show
the payment thereof.
(c) The Issuer shall have the right to contest the validity or amount of
any Imposition by appropriate legal proceedings instituted at least ten (10)
days before the Imposition complained of becomes delinquent if, and provided,
that the Issuer (a) before instituting any such contest, shall give the Trustee
written notice of its intention to do so and, if requested in writing by the
Trustee, shall deposit with the Trustee a surety bond of a surety company
acceptable to the Trustee as surety, in favor of the Trustee, or cash, in a sum
of at least the amount of the Imposition so contested, assuring the payment of
such contested Impositions together with all interest and penalties to accrue
thereon and court costs, (b) diligently prosecutes any such contest and at all
times effectively stays or prevents any official or judicial sale therefor,
under execution or otherwise, and (c) promptly pays any final judgment enforcing
the Imposition so contested and thereafter promptly procures record release or
satisfaction thereof. The Issuer shall indemnify and hold harmless the Trustee
from any costs and expenses the Trustee may incur related to any such contest.
(d) Unless the Issuer exercises its right to contest any Impositions in
accordance with subsection (c) of this Section, the Issuer shall, within thirty
(30) days after the last day for payment (without penalty or interest) of an
Imposition which the Issuer is required to bear, pay and discharge such
Imposition pursuant to the terms hereof and deliver to the Trustee a photostatic
or other suitable copy of the statement issued therefor duly receipted to show
the payment thereof.
SECTION 807. USE OF PROJECT. Subject to the provisions of this Indenture,
the Issuer shall have the right to use the Project for any and all purposes
allowed by law. The Issuer shall comply with all statutes, laws, ordinances,
orders, judgments, decrees, regulations, directions and requirements of all
federal, state, local and other governments or governmental authorities, now or
hereafter applicable to the Project or to any adjoining public ways, as to the
manner of use or the condition of the Project or of adjoining public ways. The
Issuer shall comply with the mandatory requirements, rules and regulations of
all insurers under the policies required to be carried under the provisions of
this Indenture. The Issuer shall pay all reasonable costs, expenses, claims,
fines, penalties and damages that may in any manner arise out of, or be imposed
as a result of, the failure of the Issuer to comply with the provisions of this
Section.
SECTION 808. REPAIRS AND MAINTENANCE. The Issuer covenants and agrees that
it will, while any Bonds are Outstanding, keep and maintain the Project and all
parts thereof in good condition and repair, including but not limited to the
furnishing of all parts, mechanisms and devices required to keep the machinery,
equipment and personal property constituting a part of the Project in good
mechanical and working order, and that during said period of time it will keep
the Project and all parts thereof free from filth, nuisance or conditions
unreasonably increasing the danger of fire.
SECTION 809. ENVIRONMENTAL MATTERS. The Issuer is solely responsible for
maintaining the Project in compliance with all Environmental Laws. In the event
that the Issuer does not expeditiously proceed with any compliance action with
respect to the Project lawfully required by any local, state or federal
authority under applicable Environmental Law, the Trustee, immediately after
notice to the Issuer, may elect (but may not be required) to undertake such
compliance. Any moneys expended by the Trustee in efforts to comply with any
applicable Environmental Law (including the cost of hiring consultants,
undertaking sampling and testing, performing any cleanup necessary or useful in
the compliance process and attorneys' fees) shall be due and payable as
Additional Payments hereunder with interest thereon at the average rate of
interest per annum on the Bonds, plus two (2) percentage points, from the date
such cost is incurred. There shall be unlimited recourse to the Issuer to the
extent of any liability incurred by the Trustee with respect to any breaches of
the provisions of this Section.
The Issuer shall indemnify the Trustee and the Owners and shall defend and
hold them harmless from and against all loss, cost, damage and expense
(including, without limitation, attorneys' fees and costs associated incurred in
the investigation, defense and settlement of claims) that they may incur,
directly or indirectly, as a result of or in connection with the assertion
against them or any of them of any claim relating to the presence on, escape or
removal from the Project of any hazardous substance or other material regulated
by any applicable Environmental Law, or compliance with any applicable
Environmental Law, whether or not the Bonds shall be Oustanding, including
claims relating to personal injury or damage to property.
SECTION 810. UTILITIES. Pursuant to the Lease, all utilities and utility
services to be provided by the Issuer in, on or about the Project shall be
contracted for by the Issuer in the Issuer's own name and paid for by the
Issuer, and the Issuer shall, at its sole cost and expense, procure any and all
permits, licenses or authorizations necessary in connection therewith.
SECTION 811. INSPECTION OF PROJECT BOOKS. The Issuer covenants and agrees
that all books and documents in its possession relating to the Project and the
rents, revenues and receipts derived from the Project shall at all times be open
to inspection by such accountants or other agencies as the Trustee may from time
to time designate.
SECTION 812. ENFORCEMENT OF RIGHTS UNDER THE LEASE. The Issuer covenants
and agrees that it shall enforce all of its rights and all of the obligations of
the Tenant under the Lease to the extent necessary to preserve the Project in
good order and repair, and to protect the rights of the Trustee and the Owners
hereunder with respect to the pledge and assignment of the rents, revenues and
receipts coming due under the Lease. The Issuer agrees that the Trustee as
assignee of the Lease in its name or in the name of the Issuer may enforce all
rights of the Issuer and all obligations of the Tenant under and pursuant to the
Lease for and on behalf of the Owners, whether or not the Issuer is in default
hereunder.
SECTION 813. POSSESSION AND USE OF PROJECT. So long as not otherwise
provided in this Indenture, the Issuer shall be suffered and permitted to
possess, use and enjoy the Project and appurtenances so as to carry out its
obligations under the Lease.
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SECTION 814. FINANCIAL STATEMENTS AND ANNUAL BUDGET.
(a) So long as any Bonds are Outstanding and unpaid, the Issuer shall
furnish or cause to be furnished to the Trustee and the Series 2002 Placement
Agent, as soon as practicable after the end of each fiscal year and in any event
within one hundred and eighty (180) days thereafter, duplicate copies of the
financial statements of the Issuer prepared by a certified public accountant or
a firm of certified public accountants, which accountant or accountants shall be
of recognized standing selected by the Issuer. Such financial statements shall
set forth in comparative form the figures for the previous fiscal year and such
financial statements shall be prepared in accordance with generally accepted
accounting principles consistently applied (except for any change in accounting
principles with which such public accountants concur) and the examination of
such accountants in connection with such financial statements shall be made in
accordance with generally accepted auditing standards, and accordingly include
such tests of the accounting records and such other auditing procedures as
considered necessary in the circumstances.
(b) No later than 30 days prior to the end of each calendar year, the
Issuer shall submit to the Trustee and the Series 2002 Placement Agent the
Annual Budget for the following calendar year shown on a monthly basis. The
Annual Budget shall be certified by the manager of the Issuer as true and
correct and shall include the estimated revenues and expenses of the Project by
category for the following year. In addition, the Annual Budget shall include
the monthly amounts to be deposited into the Tax and Insurance Fund.
(c) Such financial information and Annual Budget shall be provided to any
Owner upon request and at the expense of such Owner.
SECTION 815. PROJECT COVENANTS.
(a) Acquisition, Purchase, Construction and Installation of the Project.
The Issuer will acquire, purchase, construct and install the Project in
accordance with the Plans and Specifications. The Issuer may make minor changes
in and to the Plans and Specifications, but major changes shall only be made
with the prior written approval of the Trustee. The Issuer agrees that it will
use its best efforts to cause the acquisition, purchase, construction and
installation of the Project to be completed as soon as practicable with all
reasonable dispatch.
(b) Project Contracts; Project Documents.
(i) It is recognized by the parties hereto that prior to the
execution hereof the Issuer has entered into a contract or contracts with
respect to the acquisition and/or construction of the Improvements (the
"PROJECT CONTRACTS"). Prior to the execution hereof, certain work has been
or may have been performed on the Project pursuant to said Project
Contracts or otherwise. The Issuer hereby conveys, transfers and assigns
to the Trustee all of the Issuer's interest in the Project Contracts. The
Issuer shall cause the Project Contracts to be fully performed by the
contractor(s) thereunder in accordance with the terms thereof, and the
Issuer covenants to cause the Improvements to be acquired, constructed
and/or completed in accordance with the Project Contracts. The Issuer
warrants that the construction and/or acquisition of the Improvements in
accordance with said Project Contracts will result in the Project being
suitable for use by the Issuer for its purposes. Any and all amounts
received by the Issuer or the Trustee from any of the contractors or other
suppliers by way of breach of contract, refunds or adjustments shall
become a part of and be deposited in the Project Fund or the accounts
contained therein.
(ii) The Issuer, at its own cost and expense, will deliver to the
Trustee copies of the following documents (which shall be collectively
referred to herein as the "PROJECT DOCUMENTS") concurrently with the
initial issuance and delivery of the Series 2002 Bonds or at such time as
such documents become available and in any event by such time as work is
commenced on the portion of the Project to which they relate:
(A) Plans and Specifications. All Plans and Specifications.
(B) Construction Contracts. The guaranteed maximum price
general contractor's contract for the Project.
(C) Performance and Payment Bonds. Performance and payment
bonds in amounts equal to one-hundred percent of the Project Costs
insuring the Issuer and the Trustee, as their respective interests
may appear against all delays in completion of all construction
contracts, against failure timely to complete the Project in
accordance with the Plans and Specifications, and against claims for
payment to cover labor and material used or reasonably required for
use in the performance of the construction contracts.
(D) Survey. Survey of the Land, prepared by a surveyor
licensed in the State in accordance with the standard detail
requirements for land title surveys adopted by ALTA and AC SM, as
revised and in effect on the date of such survey, and certified to
the Trustee not more than 90 days prior to the date of original
issuance of the Series 2002 Bonds, indicating location of any
existing facilities on the real property, or such surveys to be in
such other form as may be acceptable to the Trustee.
(D) Environmental Audit. A phase I environmental audit of the
Project.
(E) Insurance. Certificate(s) of insurance demonstrating
compliance with the provisions of SECTION 805 hereof.
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(F) Assignment of Construction Documents and General
Contractor Consent. An assignment of the construction documents from
the Issuer to the Trustee and a consent to such assignment from the
general contractor employed for the Project and the agreement of
such general contractor, to the effect that upon an Event of Default
by the Issuer hereunder, said general contractor will, at the
request of the Trustee, continue performance under its contract with
the Issuer in accordance with the terms thereof, provided it is
reimbursed in accordance with said contract for all services, work,
labor and materials rendered under such contract.
(G) Assignment of Architectural and Engineering Documents and
Architect Consent. An assignment of the architectural and
engineering documents from the Issuer to the Trustee and a consent
to such assignment from the architect employed for the Project and
the agreement of the architect, to the effect that upon an Event of
Default by the Issuer hereunder, said architect will, at the request
of the Trustee, continue performance under its contract with the
Issuer in accordance with the terms thereof, provided it is
reimbursed in accordance with said contract for all services
rendered under such contract.
The Issuer covenants and agrees to obtain and thereafter promptly to
deliver to the Trustee all remaining construction contracts, purchase orders,
approvals, licenses and permits required or necessary for the Project.
(c) Payment of Project Costs for Buildings, Structures, Facilities,
Additions and Improvements. The Issuer hereby agrees to pay for the construction
and installation of the buildings, structures, facilities, additions and
improvements constituting a part of the Improvements and for the purchase and
acquisition of any machinery, equipment and personal property constituting a
part of the Improvements.
(d) Completion of Project. The Issuer covenants and agrees to proceed
diligently to complete the Project on or before the Completion Date.
(e) Deficiency of Project Fund. If the Project Fund and the accounts
contained therein shall be insufficient to pay fully all Project Costs and to
fully complete the Project, lien free, the Issuer covenants to pay the full
amount of any such deficiency by making payments directly to the contractors and
to the suppliers of materials, machinery, equipment, property and services as
the same shall become due.
(f) Surplus in Project Fund. In the event funds are remaining in the
Project Fund or any of the accounts contained therein on the date the
Certificate of Completion is furnished to Trustee or on the Completion Date,
whichever shall first occur, such remaining funds shall be transferred by the
Trustee to the applicable account within the Debt Service Fund on the Completion
Date and shall be applied in accordance with the provisions of SECTION 504.
(g) Enforcement of Contracts and Surety Bonds. In the event of a material
default of any contractor or subcontractor under any construction contract or
any other contract made in connection with the Project, or in the event of a
material breach of warranty with respect to any materials, workmanship or
performance, the Issuer will promptly proceed, either separately or in
conjunction with others, to pursue diligently the remedies of the Issuer against
the contractor or subcontractor in default and against any surety on a bond
securing the performance of such contract. Any amounts recovered by way of
damages, refunds, adjustments or otherwise in connection with the foregoing,
after deduction of expenses incurred in such recovery and after reimbursement to
the Issuer of any amounts theretofore paid by the Issuer and not previously
reimbursed to the Issuer for correcting or remedying of the default which gave
rise to the proceedings against the contractor, subcontractor or surety, shall
be paid into the Project Fund if received before the date of completion of the
Project, and otherwise shall be deposited into the Debt Service Fund and applied
as provided in SECTION 604.
(h) Granting of Easements. If no Event of Default under this Indenture
shall have occurred and be continuing, the Issuer may, at any time or times, (a)
grant easements, licenses and other rights or privileges in the nature of
easements with respect to any property included in the Project, free from any
rights of the Owners, or (b) release existing easements, licenses, rights-of-way
and other rights or privileges, all with or without consideration and upon such
terms and conditions as the Issuer shall determine; provided, however, that the
Issuer shall provide to the Trustee a certificate executed by the Authorized
Issuer Representative stating that (A) such grant or release is not detrimental
to the proper conduct of the business of the Issuer, and (B) such grant or
release will not impair the effective use or interfere with the efficient and
economical operation of the Project and will not materially adversely affect the
security of the Owners. If no Event of Default shall have happened and be
continuing, any payments or other consideration received by the Issuer for any
such grant or with respect to or under any such agreement or other arrangement
shall be and remain the property of the Issuer.
SECTION 816. REMOVAL OF MACHINERY AND EQUIPMENT; IMPROVEMENTS TO THE
PROJECT.
(a) Removal, Disposition and Substitution of Machinery and Equipment. The
Issuer shall have the right, provided no Event of Default shall have happened
and be continuing, to remove and sell or otherwise dispose of (any such removal,
sale or disposition referred to in this Section as a "Removal") any machinery
and equipment which constitutes a part of the Project and which is no longer
used by the Issuer or, in the opinion of the Issuer, is no longer suitable for
use by the Issuer in its operations (whether by reason of changed processes,
changed techniques, obsolescence, depreciation or otherwise), subject, however,
to the following conditions:
(i) With respect only to such items of machinery and equipment that
originally cost $25,000 or more:
(A) Prior to any Removal, the Issuer shall deliver to the
Trustee a certificate signed by the Authorized Issuer Representative
(1) containing a complete description, including the make, model and
serial numbers, if any, of any machinery and equipment constituting
a part of the Project which it proposes to so remove, (2) stating
the reason for such Removal, (3) stating what disposition, if any,
of the machinery and equipment is to be made by the Issuer after
such Removal and the names of the party or parties to whom such
disposition is to be made and the consideration to be received by
the Issuer therefor, if any, and (4) setting forth the original cost
and the current fair market value of such machinery and equipment;
provided, however, that in no event shall the current fair market
value of such machinery and equipment be less than the consideration
to be received by the Issuer upon the disposition thereof be less
than the current fair market value.
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(B) Prior to any such Removal, the Issuer shall pay the
current fair market value of such machinery and equipment as set
forth in said certificate to the Trustee and the Trustee shall
deposit such amount in the Debt Service Fund.
(C) The Issuer may remove any machinery and equipment
constituting a part of the Project without first complying with the
provisions of subparagraph (B) above so long as the Issuer promptly
replaces any such machinery and equipment so removed with machinery
and equipment of the same or a different kind but which are capable
of performing the same function, efficiently, as the machinery and
equipment so removed, and the machinery and equipment so acquired by
the Issuer to replace such machinery and equipment shall be deemed a
part of the Project. Within thirty (30) days after any such
replacement by the Issuer, the Issuer shall deliver to the Trustee a
certificate of the Authorized Issuer Representative setting forth a
complete description, including make, model and serial numbers, if
any, of the machinery and equipment which the Issuer has acquired to
replace the machinery and equipment so removed by the Issuer, the
cost thereof and a statement that said machinery and equipment have
been installed.
(ii) With respect to items of machinery and equipment that
originally cost less than $25,000, the Issuer shall deliver to the Trustee
a certificate setting forth the facts provided for in subparagraph (1)(A)
above. In no event shall the Issuer annually remove items of machinery and
equipment having an aggregate original cost of more than $100,000 pursuant
to this subsection (ii).
All machinery and equipment constituting a part of the Project that is
removed by the Issuer pursuant to this Section may be sold or otherwise disposed
of by the Issuer without accounting to the Trustee with respect thereto. In all
cases, the Issuer shall pay all the costs and expenses of any such Removal and
shall immediately repair at its expense all damage to the Project caused
thereby. The Issuer's rights under this Article to remove machinery and
equipment constituting a part of the Project is intended only to permit the
Issuer to maintain an efficient operation by the Removal of such machinery and
equipment no longer suitable to the Issuer's use for any of the reasons set
forth in this paragraph and such right is not to be construed to permit a
Removal under any other circumstances and shall not be construed to permit the
wholesale Removal of such machinery and equipment by the Issuer.
(b) Additions, Improvements, Modifications and Alterations to the Project.
The Issuer shall have and is hereby given the right, at its sole cost and
expense, to make such additions, improvements, modifications, and alterations in
and to any part of the Project as the Issuer from time to time may deem
necessary or advisable; provided, however, the Issuer shall not make any
additions, improvements, modifications or alterations which will adversely
affect the operation of the Project or substantially reduce its value. All
additions, improvements, modifications and alterations made by the Issuer
pursuant to the authority of this Section shall (i) be made in a workmanlike
manner and in strict compliance with all laws and ordinances applicable thereto,
(ii) when commenced, be prosecuted to completion with due diligence, and (iii)
when completed, shall be deemed a part of the Project; provided, however, that
additions of machinery, equipment or personal property of the Issuer, not
purchased or acquired from funds deposited with the Trustee hereunder and not
constituting a part of the Project shall remain the separate property of the
Issuer and may be removed by the Issuer.
(c) Additional Improvements on the Land. The Issuer shall have and is
hereby given the right, at its sole cost and expense, to construct on the Land
or within areas occupied by the Improvements, or in airspace above the Project,
such additional buildings and improvements as the Issuer may from time to time
deem necessary or advisable. All additional buildings and improvements
constructed by the Issuer pursuant to the authority of this Section shall, while
any Bonds remain Outstanding, remain the property of the Issuer and may be added
to, altered or razed and removed by the Issuer at any time . The Issuer
covenants and agrees (a) to make all repairs and restorations, if any, required
to be made to the Project because of the construction of, addition to,
alteration or removal of, said additional buildings or improvements, (b) to keep
and maintain said additional buildings and improvements in good condition and
repair, ordinary wear and tear excepted and (c) to promptly and with due
diligence either raze and remove from the Land, in a good, workmanlike manner,
or repair, replace or restore such of said additional buildings or improvements
as may from time to time be damaged by fire or other casualty.
(d) Permits and Authorizations. The Issuer shall not do or permit others
under its control to do any work in or in connection with the Project or related
to any repair, rebuilding, restoration, replacement, alteration of or addition
to the Project, or any part thereof, unless all requisite municipal and other
governmental permits and authorizations shall have first been procured and paid
for. All such work shall be done in a good and workmanlike manner and in
compliance with all applicable building, zoning and other laws, ordinances,
governmental regulations and requirements and in accordance with the
requirements, rules and regulations of all insurers under the policies required
to be carried under the provisions of this Indenture.
(e) Mechanics' Liens.
(i) The Issuer shall not do or permit anything to be done whereby
the Project, or any part thereof, may be encumbered by any mechanics' or
other similar lien and if, whenever and so often as any mechanics' or
other similar lien is filed against the Project, or any part thereof, the
Issuer shall discharge the same of record within thirty (30) days after
the date of filing. Notice is hereby given that the Trustee does not
authorize or consent to and shall not be liable for any labor or materials
furnished to the Issuer or anyone claiming by, through or under the Issuer
upon credit, and that no mechanics' or similar lien for any such labor,
services or materials shall attach to or affect the reversionary or other
estate of the Issuer in and to the Project, or any part thereof.
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(ii) Notwithstanding subsection (a) above, the Issuer shall have the
right to contest any such mechanics' or other similar lien if within said
30 day period stated above the Issuer (A) notifies the Trustee in writing
of its intention so to do, and if requested by the Trustee, deposits with
the Trustee a surety bond issued by a surety company acceptable to the
Trustee as surety, in favor of the Trustee or cash, in the amount of the
lien claim so contested, indemnifying and protecting the Trustee from and
against any liability, loss, damage, cost and expense of whatever kind or
nature growing out of or in any way connected with said asserted lien and
the contest thereof, (B) diligently prosecutes such contest, at all times
effectively staying or preventing any official or judicial sale of the
Project or any part thereof or interest therein, under execution or
otherwise, and (C) promptly pays or otherwise satisfies any final judgment
adjudging or enforcing such contested lien claim and thereafter promptly
procures record release or satisfaction thereof. The Issuer shall
indemnify and hold harmless the Trustee from any loss, costs or expenses
the Trustee may incur in relation to any such contest.
SECTION 817. DAMAGE, DESTRUCTION AND CONDEMNATION.
(a) Damage and Destruction.
(i) If the Project is damaged or destroyed, in whole or in part, by
fire or other casualty, the Issuer shall promptly notify the Trustee in
writing as to the nature and extent of such damage or loss and whether it
is practicable and desirable to rebuild, repair, restore or replace such
damage or loss.
(ii) If the Issuer shall determine that such rebuilding, repairing,
restoring or replacing is practicable and desirable, the Issuer shall
forthwith proceed with and complete with reasonable dispatch such
rebuilding, repairing, restoring or replacing of the property damaged or
destroyed so as to place the Project in substantially the same condition
as existed prior to the event causing such damage or destruction, with
such changes, alterations and modifications (including the substitution
and addition of other property) as may be desired by the Issuer and as
will not impair the operating unity or productive capacity of the Project.
In such case, any Net Proceeds of casualty insurance required by this
Indenture and received with respect to any such damage or loss to the
Project shall be paid to the Trustee and shall be deposited in the Project
Replacement Fund and shall be used and applied for the purpose of paying
the cost of such rebuilding, repairing, restoring or replacing such damage
or loss. Any amount remaining in the Project Replacement Fund after such
rebuilding, repairing, restoring or replacing shall be deposited into the
Debt Service Fund.
(iii) If the Issuer shall determine that rebuilding, repairing,
restoring or replacing the Project is not practicable and desirable, any
Net Proceeds of casualty insurance required by this Indenture and received
with respect to any such damage or loss to the Project shall be paid into
the Debt Service Fund and shall be used to redeem Bonds on the earliest
possible redemption date pursuant to ARTICLE III. The Issuer agrees that
it shall be reasonable in exercising its judgment pursuant to this
subsection (iii).
(iv) The Issuer shall not, by reason of its inability to use all or
any part of the Project during any period in which the Project is damaged
or destroyed, or is being repaired, rebuilt, restored or replaced or by
reason of the payment of the costs of such rebuilding, repairing,
restoring or replacing, be entitled to any reimbursement or any abatement
or diminution of the amounts payable by the Issuer hereunder or of any
other obligations of the Issuer under this Indenture except as expressly
provided in this Section.
(v) Anything in this Section to the contrary notwithstanding, the
Trustee shall have the right at any time and from time to time to withhold
payment of all or any part of the Net Proceeds attributable to damage or
destruction of the Project to the Issuer or any third party from the
Project Replacement Fund if an Event of Default has occurred and is
continuing, or the Trustee has given notice to the Issuer of any default
which, with the passage of time, will become an Event of Default. In the
event the Issuer shall cure any defaults specified herein, the Trustee may
make payments from the Net Proceeds to the Issuer in accordance with the
provisions of this Section.
(b) Condemnation.
(i) If title to, or the temporary use of, all or any part of the
Project shall be condemned by any authority exercising the power of
eminent domain, the Issuer shall, within ninety (90) days after the date
of entry of a final order in any eminent domain proceedings granting
condemnation, notify the Trustee in writing as to the nature and extent of
such condemnation and whether it is practicable and desirable to acquire
or construct substitute improvements.
(ii) If the Issuer shall determine that such substitution is
practicable and desirable, the Issuer shall forthwith proceed with and
complete with reasonable dispatch the acquisition or construction of such
substitute improvements, so as to place the Project in substantially the
same condition as existed prior to the exercise of such power of eminent
domain, including the acquisition or construction of other improvements
suitable for the Issuer's operations of the Project. In such case, any Net
Proceeds received from any award or awards with respect to the Project or
any part thereof made in such condemnation or eminent domain proceeds
shall be paid to the Trustee and shall be deposited in the Project
Replacement Fund and shall be used and applied for the purpose of paying
the cost of such substitution. Any amount remaining in the Project
Replacement Fund after such acquisition or construction shall be deposited
into the Debt Service Fund. If such Net Proceeds are not sufficient to pay
in full the costs of such substitution, the Issuer shall nonetheless
complete the work thereof and shall pay that portion of the costs thereof
in excess of the amount of such Net Proceeds.
(iii) If the Issuer shall determine that it is not practicable and
desirable to acquire or construct substitute improvements, any Net
Proceeds of condemnation awards received by the Issuer shall be paid into
the Debt Service Fund and shall be used to redeem Bonds on the earliest
possible redemption date pursuant to ARTICLE III. The Issuer agrees that
it shall be reasonable in exercising its judgment pursuant to this
subsection (iii).
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(iv) The Issuer shall not, by reason of its inability to use all or
any part of the Project during any such period of restoration or
acquisition nor by reason of the payment of the costs of such restoration
or acquisition, be entitled to any reimbursement or any abatement or
diminution of the amounts payable by the Issuer hereunder nor of any other
obligations hereunder except as expressly provided in this Section.
SECTION 818. ASSIGNMENT. The Issuer shall have the right to assign or
transfer this Indenture or any interest therein or part thereof, with the
written consent of the Trustee, for any lawful purpose; provided, however, the
prior written consent of the Trustee shall not be required if such assignee or
transferee is an Affiliate. With respect to any assignment (including any
assignment to an Affiliate), the Issuer shall comply with the following
conditions:
(1) Such assignment shall be in writing, duly executed and
acknowledged by the assignor and in proper form for recording;
(2) A duplicate original of such assignment shall be delivered to
the Trustee not later than thirty (30) days prior to the proposed
effective date, together with an assumption agreement, duly executed and
acknowledged by the assignee in proper form for recording, by which the
assignee shall assume all of the terms, covenants and conditions of this
Indenture on the part of the Issuer to be performed and observed;
(3) At the time of any such assignment there shall be no damage or
destruction to the Project which has not been repaired, restored and
replaced in accordance with the provisions of this Indenture, unless any
funds then held by the Issuer for the purposes of such repair, restoration
and replacement are simultaneously transferred to the assignee;
(4) The Tenant shall have delivered to the Trustee in forms
satisfactory to the Trustee (i) its written consent to such assignment,
transfer or disposition and (ii) an estoppel certificate with respect to
there being no defaults or events of default under the Lease;
(5) Moody's shall reaffirm the then current rating on the Bonds; and
(6) There shall be delivered to the Trustee an opinion of counsel
that all conditions precedent to such assignment have been satisfied.
Upon the satisfaction of the conditions set forth herein, the assignor
shall be relieved of all further liability occurring on and after the effective
date of such assignment, provided, however, such assignment shall not relieve
the assignor of its obligations pursuant to SECTION 819.
SECTION 819. INDEMNIFICATION BY THE ISSUER. The Issuer shall and hereby
covenants and agrees to indemnify, protect, defend and hold harmless the Trustee
from and against any and all claims, demands, liabilities and costs, including
reasonable attorneys' fees, except those claims, demands, liabilities or costs
which have arisen from the bad faith, willful misconduct or gross negligence of
the Trustee, arising from damage or injury, actual or claimed, of whatsoever
kind or character, to property or persons, occurring in, on or about the Project
while any of the Bonds are Outstanding, and upon timely written notice from the
Trustee, the Issuer shall defend the Trustee in any action or proceeding brought
thereon; provided, however, that nothing contained in this Section shall be
construed as requiring the Issuer to indemnify the Trustee for any claim
resulting from any act or omission of the Trustee, or its agents and employees.
SECTION 820. ADDITIONAL COVENANTS OF THE ISSUER.
(a) The Issuer shall construct and operate the Project in accordance with
all applicable federal, state and local laws, ordinances, rules and regulations
and all agreements and instruments to which it is a party or by which it is
bound.
(b) The Issuer shall not sell, transfer, convey, encumber or otherwise
dispose of the Project or any part thereof while any Bonds are Outstanding
except as provided in this Indenture, and the Issuer hereby further agrees that
any sale, transfer or other disposition of the Project in violation hereof or
thereof shall be null, void and without effect, shall cause a reversion of title
to the Issuer and shall be ineffective to relieve the Issuer of its obligations
under this Indenture.
(c) The Issuer shall not demolish any part of the Project except in
accordance with the Plans and Specifications or substantially remove from the
Project any real or personal property.
(d) The Issuer shall not execute any other agreement with provisions
contradictory to, or in opposition to, the provisions hereof, and in any event,
the requirements of this Indenture are paramount and controlling as to the
rights and obligations herein set forth and supersede any other requirements in
conflict herewith.
(e) the Issuer shall cause all payments to be made by Tenant under the
Lease to be paid directly to the Trustee for deposit into the Revenue Fund. If
Issuer shall at any time receive all or any part of a payment made by Tenant
under the Lease, the Issuer shall immediately deliver such funds to the Trustee
for deposit into the Revenue Fund.
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SECTION 821. TITLE INSURANCE. The Issuer shall provide to the Trustee a
standard 1970 ALTA mortgage loan policy or policies of title insurance,
including mechanic's lien coverage, showing the Trustee as the insured party,
with respect to the Mortgaged Property, together with an endorsement equivalent
to ALTA 100 and an appropriate ALTA zoning endorsement, in an aggregate amount
not less than the principal amount of the Series 2002 Bonds, which policy or
policies shall insure that the Trustee has a first lien pursuant to the Mortgage
on the Mortgaged Property, subject only to Permitted Encumbrances.
ARTICLE IX
REMEDIES ON DEFAULT
SECTION 901. ACCELERATION OF MATURITY IN EVENT OF DEFAULT.
(a) If an Event of Default shall have occurred and be continuing after the
expiration of any applicable cure period, the Trustee may, and shall, upon the
written request of the Owners of not less than 25% in aggregate principal amount
of Bonds then Outstanding, declare the principal of all Bonds then Outstanding
and the interest accrued thereon to be immediately due and payable by notice in
writing delivered to the Issuer, and such principal and interest shall thereupon
become and be immediately due and payable.
(b) If, at any time after such declaration, but before the Bonds shall
have matured by their terms, all overdue installments of principal and interest
on the Bonds, together with the reasonable and proper expenses of the Trustee,
and all other sums then payable by the Issuer under this Indenture shall either
be paid or provision satisfactory to the Trustee shall be made for such payment,
then and in every such case the Trustee shall, but only with the approval of the
Owners of not less than 50% in aggregate principal amount of the Bonds
Outstanding, rescind such declaration and annul such default in its entirety.
(c) In case of any rescission of a default, then and in every such case
the Issuer, the Trustee and the Owners shall be restored to their former
position and rights hereunder respectively, but no such rescission shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 902. EXERCISE OF REMEDIES BY THE TRUSTEE.
(a) If an Event of Default shall have occurred and be continuing, the
Trustee may pursue and exercise any available remedy at law or in equity by
suit, action, mandamus or other proceeding (including foreclosure under the
Mortgage) or exercise one or more of the rights and powers conferred by this
Article or the Mortgage in such manner as the Trustee, being advised by counsel,
shall deem most expedient in the interests of the Owners to enforce the payment
of the principal of, premium, if any, and interest on the Bonds then
Outstanding, and to enforce and compel the performance of the duties and
obligations of the Issuer as herein set forth.
(b) All rights of action under this Indenture or under any of the Bonds
may be enforced by the Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceedings relating thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its name
as Trustee without necessity of joining as plaintiffs or defendants any Owners,
and any recovery of judgment shall, be for the equal benefit of all the Owners
of the Outstanding Bonds.
SECTION 903. LIMITATION ON EXERCISE OF REMEDIES BY OWNERS. No Owner of any
Bond shall have any right to institute any suit, action or proceeding in equity
or at law for the enforcement of this Indenture or for the execution of any
trust hereunder or for the appointment of a receiver or any other remedy
hereunder, unless (a) a default hereunder has occurred of which the Trustee has
knowledge, (b) such default shall have become an Event of Default, (c) the
Owners of not less than 25% in aggregate principal amount of Bonds then
Outstanding shall have made, written request to the Trustee and shall have
offered the Trustee reasonable opportunity either to proceed to exercise the
powers hereinbefore granted or to institute such action, suit or proceeding in
its own name, and (d) the Trustee shall thereafter fail or refuse to exercise
the powers hereinbefore granted or institute such action, suit or proceeding in
its own name. Such knowledge and request 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 shall have any right in any manner whatsoever to affect, disturb or
prejudice this Indenture by its, his or 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 benefit of the Owners of all Bonds then Outstanding.
Nothing in this Indenture contained shall, however, affect or impair the right
of any Owner to payment of the principal of and interest on any Bond 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 Bonds issued hereunder to the
respective Owners thereof at the time, place, from the source and in the manner
expressed herein and in the Bonds.
SECTION 904. RIGHT OF OWNERS TO DIRECT PROCEEDINGS. Anything in this
Indenture to the contrary notwithstanding, the Owners of a majority in aggregate
principal amount of Bonds then Outstanding, shall have the right, at any time,
by an instrument or instruments in writing executed and delivered to the
Trustee, to direct the time, method and place of conducting all proceedings to
be taken in connection with the enforcement of the terms and conditions of this
Indenture, or for the appointment of a receiver or any other proceedings
hereunder; provided, however, that such direction shall be in accordance with
the provisions of law and of this Indenture.
SECTION 905. REMEDIES CUMULATIVE. No remedy by the terms of this Indenture
conferred upon or reserved to the Trustee or the Owners 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
the Owners hereunder or now or hereafter existing at law or in equity. No delay
or omission to exercise any right, power or remedy accruing upon any Event of
Default shall impair any such right, power or remedy or shall be construed to be
a waiver of any such Event of Default or acquiescence therein and every such
right, power or remedy may be exercised from time to time and as often as may be
deemed expedient. No waiver of any Event of Default hereunder, whether by the
Trustee or the Owners, shall extend to or affect any subsequent Event of Default
or shall impair any rights or remedies consequent thereon.
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SECTION 906. WAIVERS OF EVENTS OF DEFAULT. The Trustee may in its
discretion waive any Event of Default hereunder and its consequences and rescind
any declaration of maturity of principal of and interest on the Bonds, and shall
do so upon the written request of the Owners of at least 51% in aggregate
principal amount of all the Bonds then Outstanding. In case of any such waiver
or rescission, or in case any proceedings taken by the Trustee under this
Indenture on account of any such Event of Default 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 shall be restored to
their former positions, rights and obligations hereunder, respectively, but no
such waiver or rescission shall extend to any subsequent or other Event of
Default, or impair any rights or remedies consequent thereon, and all rights,
remedies and powers of the Trustee shall continue as if no such proceedings had
been taken.
ARTICLE X
THE TRUSTEE
SECTION 1001. ACCEPTANCE OF THE TRUSTS. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform said trusts in
the manner in which a corporate trustee ordinarily would perform said trusts
under a corporate indenture. The Trustee shall exercise such of the rights and
powers vested in it by this Indenture and shall use the same degree of care and
skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs, and upon and subject to the
following express terms and conditions:
(a) The Trustee's duties and responsibilities shall include those
expressly set forth in this Indenture and shall further include those rights,
duties, responsibilities, and obligations which are expressly reserved to or
imposed upon the Issuer under this Indenture and the Lease, excepting only such
of those rights, duties, responsibilities, and obligations as may only be
properly and lawfully exercised by or imposed upon the Issuer. No implied
covenants or obligations shall be read into this Indenture against the Trustee.
(b) Upon the occurrence of an Event of Default, the Trustee shall be and
is hereby authorized to bring appropriate action for judgment or such other
relief as may be appropriate and such action may be in the name of the Trustee
or in the name of the Issuer and Trustee jointly. In addition, the Trustee may
file such proof of claim and such other documents as may be necessary or
advisable in order to have the claims of the Trustee and the Owners relative to
the Bonds or the obligations relating thereto allowed in any judicial
proceeding.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents, attorneys or
receivers. The Trustee shall be entitled to rely upon the opinion or advice of
counsel, who may be counsel to the Trustee, the Issuer or the Tenant, concerning
all matters of trust hereof and the duties hereunder, and may in all cases pay
such reasonable compensation to all such agents, attorneys and receivers as may
reasonably be employed in connection with the trusts hereof.
(d) The Trustee, in its individual or any other capacity, may become the
owner or pledgee of Bonds with the same rights which it would have if it were
not Trustee.
(e) The Trustee may rely and shall be protected in acting or refraining
from acting upon any ordinance, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, affidavit, letter, telegram
or other paper or document provided for under this Indenture believed by it to
be genuine and correct and to have been signed, presented 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
Bond, shall be conclusive and binding upon all future Owners of the same Bond
and upon Bonds issued in exchange therefor or upon transfer or in substitution
thereof.
(f) As to the existence or nonexistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, or whenever in
the administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee shall be entitled to rely upon a certificate
signed by the Authorized Issuer Representative as sufficient evidence of the
facts therein contained, and the Trustee shall also be at liberty to accept a
similar certificate to the effect that any particular dealing, transaction or
action is necessary or expedient; provided, however, that the Trustee may at its
discretion secure such further evidence as it deems necessary or advisable, but
in no case shall the Trustee be bound to secure the same.
(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 misconduct.
(h) At any and all reasonable times the Trustee and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives shall
have the right to inspect any and all of the Project and all books, papers and
records of the Issuer pertaining to the Project and the Bonds, and to make such
notes and copies as may be desired.
(i) The Trustee shall not be required to give any bond or surety with
respect to the execution of its trusts and powers hereunder or otherwise with
respect to the Project.
(j) The Trustee shall have the right, but shall not be required, to
demand, with respect to the authentication of any Bonds, the withdrawal of any
cash, the release of any property, or any action whatsoever within the purpose
of this Indenture, any showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof, in addition to that by the
terms hereof required, as a condition of such action by the Trustee deemed
desirable for the purpose of establishing the right of the Issuer to the
authentication of any Bonds, the withdrawal of any cash, or the taking of any
other action by the Trustee.
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SECTION 1002. FEES, CHARGES AND EXPENSES OF THE TRUSTEE. The Trustee shall
be entitled to payment of or reimbursement for reasonable fees for its ordinary
services rendered hereunder and all advances, agent and counsel fees and other
ordinary expenses reasonably and necessarily made or incurred by the Trustee in
connection with such ordinary services and, in the event that it should become
necessary that the Trustee perform extraordinary services, it shall be entitled
to reasonable compensation therefor and to reimbursement for reasonable and
necessary extraordinary expenses in connection therewith; provided, however,
that if such extraordinary services or extraordinary expenses are occasioned by
the neglect or misconduct of the Trustee it shall not be entitled to
compensation or reimbursement therefor. The Trustee shall be entitled to payment
and reimbursement for the reasonable fees and charges of the Trustee as Paying
Agent for the Bonds. Upon the occurrence of an Event of Default and during its
continuance, the Trustee shall have a lien with right of payment prior to
payment of principal of, premium, if any, or interest on any Bond, upon all
moneys in its possession under any provisions hereof for the foregoing advances,
fees, costs and expenses incurred and for Default Administration Costs.
SECTION 1003. NOTICE TO OWNERS IF DEFAULT OCCURS. If an Event of Default
occurs the Trustee shall give written notice thereof to the Owners of all Bonds
then Outstanding, as shown by the Bond Register required to be maintained by the
Trustee and kept at the principal office of the Trustee.
SECTION 1004. INTERVENTION by THE TRUSTEE. In any judicial proceeding to
which the Issuer is a party and which, in the opinion of the Trustee and its
counsel, has a substantial bearing on the interests of the Owners, the Trustee
may intervene on behalf of the Owners and shall do so if requested in writing by
the Owners of at least 25% of the aggregate principal amount of Bonds then
Outstanding.
SECTION 1005. SUCCESSOR TRUSTEE UPON MERGER, CONSOLIDATION OR SALE. Any
corporation or association into which the Trustee may be merged or converted or
with or into which it may be consolidated, or to which it may sell or transfer
its corporate trust business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any merger, conversion, sale,
consolidation or transfer to which it is a party, shall be and become successor
Trustee hereunder without the execution or filing of any instrument or any
further act on the part of any of the parties hereto.
SECTION 1006. RESIGNATION OF TRUSTEE. The Trustee may resign by an
instrument in writing delivered by registered or certified mail to the Issuer,
to take effect not sooner than 90 days after its delivery.
SECTION 1007. REMOVAL OF TRUSTEE. Provided no Event of Default has
occurred and is then continuing, the Trustee may be removed at any time by an
instrument or concurrent instruments in writing delivered to the Trustee,
executed by the Issuer. The Trustee shall be removed by the Issuer by written
notice to the Trustee in the event of a breach of trust set forth in this
Indenture.
SECTION 1008. APPOINTMENT OF SUCCESSOR TRUSTEE. In case the Trustee
hereunder shall resign or be removed, or shall 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 Trustee
may be appointed, by the Owners of a majority in aggregate principal amount of
Bonds then Outstanding, by an instrument or concurrent instruments in writing
delivered to the Issuer; provided, however, that in case of such vacancy and so
long as no Event of Default hereunder shall have occurred and be continuing, the
Issuer, by an instrument executed and signed by its members, may appoint a
temporary Trustee to fill such vacancy until a successor Trustee shall be
appointed by the Owners in the manner above provided; and any such temporary
Trustee so appointed by the Issuer shall immediately and without further act be
superseded by the successor Trustee so appointed by such Owners. The Trustee and
every successor Trustee appointed hereunder shall be a trust institution or
commercial bank, shall be in good standing and qualified to accept such trusts,
shall be subject to examination by a federal or state bank regulatory authority,
and shall have a reported capital and surplus of not less than $50,000,000. If
such institution publishes reports of conditions at least annually pursuant to
law or regulation, then for the purposes of this Section the capital and surplus
of such institution shall be deemed to be its capital and surplus as set forth
in its most recent report of condition so published. Notwithstanding any other
provision of this Indenture, no removal, resignation or termination of the
Trustee shall take effect until a successor, shall be appointed and has accepted
such appointment.
SECTION 1009. VESTING OF TRUSTS IN SUCCESSOR TRUSTEE. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to its
predecessor and the Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor shall, without any further act, deed or
conveyance, become fully vested with all the trusts, powers, rights,
obligations, duties, remedies, immunities and privileges of its predecessor;
provided, however, that such predecessor shall, nevertheless, on the written
request of the Issuer, execute and deliver an instrument transferring to such
successor Trustee all the trusts, powers, rights, obligations, duties, remedies,
immunities and privileges 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 trusts, powers, rights, obligations, duties, remedies, immunities and
privileges hereby vested in the predecessor, any and all such instruments in
writing shall, on request, be executed, acknowledged and delivered by the
Issuer.
SECTION 1010. RIGHT OF TRUSTEE TO PAY TAXES AND OTHER CHARGES. In case any
tax, assessment or governmental or other charge upon, or insurance premium with
respect to, any part of the Project is not paid as required herein, the Trustee
may pay such tax, assessment or governmental charge or insurance premium,
without prejudice to any rights of the Trustee or the Owners hereunder arising
in consequence of such failure; provided, however, that the Trustee shall be
under no obligation to make any such payment unless it shall have been requested
to do so by the Owners of at least 25% of the aggregate principal amount of
Bonds then Outstanding and shall have been provided adequate funds for the
purpose of such payment. Any amount at any time so paid under this Section, with
interest thereon from the date of payment at a rate per annum equal to the
Trustee's published prime rate in effect at the time, shall become an additional
obligation secured by this Indenture, and the same shall be given a preference
in payment over any payment of principal of, premium, if any, or interest on the
Bonds, and shall be paid out of the proceeds of rents, revenues and receipts
collected from the Project, if not otherwise caused to be paid.
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SECTION 1011. TRUST ESTATE MAY BE VESTED IN CO-TRUSTEE.
(a) It is the purpose of this Indenture that there shall be no violation
of any law of any jurisdiction (including particularly 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 Lease, and in particular in case of the
enforcement of either 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 granted to the Trustee, or take any other
action which may be desirable or necessary in connection therewith, it may be
necessary or desirable that the Trustee appoint an additional individual or
institution as a co-trustee or separate trustee, and the Trustee is hereby
authorized to appoint such co-trustee or separate trustee.
(b) In the event that the Trustee appoints an additional individual or
institution as a co-trustee or separate trustee, each and every remedy, power,
right, claim, demand, cause of action, immunity, title, interest and lien
expressed or intended by this Indenture to be exercised by the Trustee with
respect thereto shall be exercisable by such co-trustee or separate trustee but
only to the extent necessary to enable such co-trustee or separate trustee to
exercise such powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such co-trustee or separate trustee shall
run to and be enforceable by either of them.
(c) Should any deed, conveyance or instrument in writing from the Issuer
be required by the co-trustee or separate 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, then any and all
such deeds, conveyances and instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer.
(d) In case any co-trustee or separate trustee shall die, become incapable
of acting, resign or be removed, all the properties, rights, powers, trusts,
duties and obligations of such co-trustee or separate trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a successor to such co-trustee or separate trustee.
SECTION 1012. ANNUAL ACCOUNTING. The Trustee shall render an annual
accounting to the Issuer and to any Owner requesting the same in writing and
remitting the Trustee's reasonable charges for preparing such copies, showing in
reasonable detail all financial transactions relating to the Trust Estate during
the accounting period, all calculations related to the determination of
rebatable arbitrage during such accounting period, and the balance in any Funds
or Accounts created by this Indenture as of the beginning and close of such
accounting period.
SECTION 1013. RECORDINGS AND FILINGS. The Trustee shall cause this
Indenture and all Supplemental Indentures, the Lease and all amendments to the
Lease or appropriate memoranda thereof and all appropriate financing and
continuation statements and other security instruments to be recorded and filed
in such manner and in such places as may be required by law in order to fully
preserve and protect the security of the Owners and the rights of the Trustee
hereunder.
SECTION 1014. PERFORMANCE OF DUTIES UNDER THE LEASE. The Trustee hereby
accepts and agrees to perform all duties and obligations assigned to it under
the Lease.
SECTION 1015. DESIGNATION OF PAYING AGENTS. The Trustee is hereby
designated and agrees to act as principal Paying Agent for and in respect to the
Bonds. The Issuer may cause the necessary arrangements to be made through the
Trustee and to be thereafter continued for the designation of alternate Paying
Agents, if any, and for the making available of funds hereunder for the payment
of the principal of, premium, if any, and interest on the Bonds, or at the
principal corporate trust office of such alternate Paying Agents. In the event
of a change in the office of Trustee, the predecessor Trustee which has resigned
or been removed shall cease to be trustee of any funds provided hereunder and
Paying Agent for principal of, premium, if any, and interest on the Bonds, and
the successor Trustee shall become such Trustee and Paying Agent unless a
separate Paying Agent or Agents are appointed by the Issuer in connection with
the appointment of any successor Trustee.
SECTION 1016. FEES, CHARGES AND EXPENSES OF PAYING AGENTS. The Paying
Agents shall be entitled to payment of or reimbursement for reasonable fees for
their services rendered hereunder and all advances, agent and counsel fees and
other expenses reasonably and necessarily made or incurred by them in connection
with such services.
ARTICLE XI
SUPPLEMENTAL INDENTURES AND SUPPLEMENTAL MORTGAGES
SECTION 1101. SUPPLEMENTAL INDENTURES AND SUPPLEMENTAL MORTGAGES NOT
REQUIRING CONSENT OF OWNERS. The Issuer and the Trustee may from time to time,
without the consent of or notice to any of the Owners enter into such
Supplemental Indentures and Supplemental Mortgages as shall not be inconsistent
with the terms and provisions hereof, for any one or more of the following
purposes:
(a) To cure any ambiguity or formal defect or omission in this Indenture
or the Mortgage or to make any other change not prejudicial to the Owners;
(b) To grant to or confer upon the Trustee for the benefit of the Owners
any additional rights, remedies, powers or authority that may lawfully be
granted to or conferred upon the Owners or the Trustee or either of them;
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(c) To more precisely identify the Project or to substitute or add
additional property thereto;
(d) To subject additional revenues, properties or collateral to this
Indenture or the Mortgage;
(e) To issue Additional Bonds as provided in SECTION 208 hereof; and
(f) To release portions of the Land as provided in the Mortgage.
SECTION 1102. SUPPLEMENTAL INDENTURES AND SUPPLEMENTAL MORTGAGES REQUIRING
CONSENT OF OWNERS.
(a) Exclusive of Supplemental Indentures and Supplemental Mortgages
described in SECTION 1101 hereof and subject to the terms and provisions
contained in this Section and not otherwise, the Owners of not less than a
majority in aggregate principal amount of the Bonds then Outstanding shall have
the right, from time to time, anything contained in this Indenture or the
Mortgage to the contrary notwithstanding, to consent to and approve the
execution by the Issuer and the Trustee of such other Supplemental Indentures or
Supplemental Mortgages as shall be deemed necessary and desirable by the Issuer
for the purpose of modifying, amending, adding to or rescinding, in any
particular, any of the terms or provisions contained in this Indenture, the
Mortgage or in any Supplemental Indenture or Supplemental Mortgage; provided,
however, that nothing contained in this Section shall permit or be construed as
permitting without the consent of the Owners of 100% of the Bonds then
Outstanding (i) an extension of the maturity of the principal of or the interest
on any Bond issued hereunder, (ii) a reduction in the principal amount of any
Bond or the rate of interest thereon, (iii) a privilege or priority of any Bond
or Bonds over any other Bond or Bonds, or (iv) a reduction in the aggregate
principal amount of Bonds the Owners of which are required for consent to any
such Supplemental Indenture or Supplemental Mortgage.
(b) If at any time the Issuer shall request the Trustee to enter into any
such Supplemental Indenture or Supplemental Mortgage for any of the purposes of
this Section, the Trustee shall cause notice of the proposed execution of such
Supplemental Indenture or Supplemental Mortgage to be mailed to each Owner as
shown on the Bond Register. Such notice shall briefly set forth the nature of
the proposed Supplemental Indenture or Supplemental Mortgage and shall state
that copies thereof are on file at the principal office of the Trustee for
inspection by all Owners. If within 60 days or such longer period as may be
prescribed by the Issuer following the mailing of such notice, the Owners of not
less than 51% in aggregate principal amount of the Bonds then Outstanding at the
time of the execution of any such Supplemental Indenture or Supplemental
Mortgage shall have consented to and approved the execution thereof as herein
provided, no Owner of any Bond 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.
ARTICLE XII
LEASE AMENDMENTS
SECTION 1201. LEASE AMENDMENTS The Lease may be amended only with the
prior written consent of the Trustee and the Trustee's receipt of a confirmation
of the then current rating on the Bonds from Moody's.
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 1301. SATISFACTION AND DISCHARGE OF INDENTURE.
(a) When the principal of, premium, if any, and interest on all the Bonds
shall have been paid in accordance with their terms or provision has been made
for such payment, as provided in Section 1302 hereof, and provision shall also
have been made for paying all other sums payable hereunder, including the fees
and expenses of the Trustee and the Paying Agents to the date of retirement of
the Bonds, then the right, title and interest of the Trustee under this
Indenture shall thereupon cease, determine and be void, and thereupon the
Trustee shall cancel, discharge and release this Indenture and shall execute,
acknowledge and deliver to the Issuer such instruments of satisfaction and
discharge or release as shall be requisite to evidence such release and the
satisfaction and discharge of this Indenture, and shall assign and deliver to
the Issuer any property at the time subject to this Indenture which may then be
in its possession, except amounts in the Debt Service Fund and any accounts
contained therein required to be paid to the Issuer pursuant to SECTION 604(D)
hereof.
(b) The Issuer is hereby authorized to accept a certificate by the Trustee
that the principal of, premium, if any, and interest due and payable upon all of
the Bonds then Outstanding and all amounts required to be paid to the United
States have been paid or such payment provided for in accordance with SECTION
1302 hereof as evidence of satisfaction of this Indenture, and upon receipt
thereof shall cancel and erase the inscription of this Indenture from its
records.
SECTION 1302. BONDS DEEMED TO BE PAID.
(a) Bonds shall be deemed to be paid, discharged and defeased within the
meaning of this Indenture and shall cease to be Outstanding under this Indenture
when payment of the principal of and the applicable premium, if any, on such
Bonds, plus interest thereon to the due date thereof (whether such due date be
by reason of maturity or upon redemption as provided in this Indenture, or
otherwise), either (i) shall have been made or caused to be made in accordance
with the terms thereof, or (ii) shall have been provided for by depositing with
the Trustee or other Paying Agent, in trust and irrevocably set aside
exclusively for such payment, moneys and Defeasance Obligations in an amount,
together with the income or increment to accrue thereon, without consideration
of any reinvestment thereof, sufficient to make such payment. At such time as a
Bond shall be deemed to be paid hereunder, as aforesaid, it shall no longer be
secured by or entitled to the benefits of this Indenture, except for the
purposes of any such payment from such moneys or Defeasance Obligations.
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(b) Notwithstanding the foregoing, in the case of the redemption of Bonds
which by their terms may be redeemed prior to the stated maturities thereof, no
deposit under clause (ii) of the immediately preceding paragraph shall be deemed
a payment of such Bonds as aforesaid until proper notice of such redemption
shall have been given in accordance with Article III of this Indenture or
irrevocable instructions shall have been given to the Trustee to give such
notice.
(c) Notwithstanding anything to the contrary contained in this Indenture,
all moneys or Government Obligations set aside and held in trust pursuant to the
provisions of this Section for the payment of Bonds (including premium thereon,
if any) and interest thereon shall be applied to and used solely for the payment
of the particular Bonds (including premium thereon, if any) and interest thereon
with respect to which such moneys and Defeasance Obligations have been so set
aside in trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 1401. CONSENTS AND OTHER INSTRUMENTS BY OWNERS.
(a) Any consent, request, direction, approval, objection or other
instrument required by this Indenture to be signed and executed by the Owners
may be in any number of concurrent writings of similar tenor and may be signed
or executed by such Owners in person or by agent appointed in writing. Proof of
the execution of any such instrument or of the writing appointing any such agent
and of the ownership of Bonds, if made in the following manner, 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, suffered or omitted under
any such instrument, namely:
(i) the fact and date of the execution by any person of any such
instrument may be proved by the certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within such
jurisdiction that the person signing such instrument acknowledged before
him the execution thereof, or by affidavit of any witness to such
execution; and
(ii) the fact of ownership of the Bonds and the amount or amounts,
number and other identification of such Bonds, and the date of holding the
same shall be proved by the Bond Register.
(b) In determining whether the Owners of the requisite principal amount of
Bonds Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver under this Indenture, Bonds owned by the Issuer or any
affiliate of the Issuer shall be disregarded and deemed not to be Outstanding
under this Indenture, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Bonds which the Trustee knows to be so owned
shall be so disregarded. For purposes of this paragraph, the word "affiliate"
means any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer and for the purposes of this
definition, "control" means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. Notwithstanding the foregoing, Bonds so
owned which have been pledged in good faith shall not be disregarded as
aforesaid if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Bonds and that the pledgee is not
the Issuer or any affiliate of the Issuer.
SECTION 1402. INTERESTED PARTIES.
(a) Third Party Beneficiaries. To the extent that this Indenture confers
upon or gives or grants to the Owners any right, remedy or claim under or by
reason of this Indenture, the Owners are hereby explicitly recognized as being
third-party beneficiaries hereunder and may enforce any such right, remedy or
claim conferred, given or granted hereunder.
(b) Parties Interested Herein. Nothing expressed or implied in this
Indenture is intended or shall be construed to confer upon, or to give or grant
to, any person or entity, other than the Issuer, the Trustee and the Owners, any
right, remedy or claim under or by reason of this Indenture or any covenant,
condition or stipulation hereof, and all covenants, stipulations, promises and
agreements in this Indenture contained by and on behalf of the Issuer shall be
for the sole and exclusive benefit of the Issuer, the Trustee and the Owners as
herein provided.
SECTION 1403. NOTICES. Any notice, request, complaint, demand or other
communication required or desired to be given or filed under this Indenture
shall be in writing and shall be deemed duly given or filed if the same shall be
duly mailed by registered or certified mail, postage prepaid, to the appropriate
Notice Address. All notices so given shall be deemed duly given as of the date
they are so mailed. The Issuer and the Trustee may from time to time designate,
by notice given hereunder to the others, such other address to which subsequent
notices, certificates or other communications shall be sent.
The Trustee shall give notice to any rating agency then maintaining a
rating on the Bonds (i) if the Trustee resigns or is removed, or a new Trustee
or co-trustee is appointed, (ii) if there is a call for the redemption of all
Series 2002 Bonds, (iii) if all of the Series 2002 Bonds are defeased in
accordance with ARTICLE XIII, (iv) if an Event of Default occurs (of which the
Trustee has knowledge) or the Trustee waives any Event of Default pursuant to
SECTION 906, or (v) at least 15 days prior to any amendment is made to this
Indenture or the Lease. The Issuer shall provide copies of all documents related
to the amendment of this Indenture or the Lease to any rating agency then
maintaining a rating on the Series 2002 Bonds.
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SECTION 1404. SUSPENSION OF MAIL SERVICE. If, because of the temporary or
permanent suspension of regular mail service or for any other reason, it is
impossible or impractical to mail any notice in the manner herein provided, then
such publication in lieu thereof or other form of notice as shall be made with
the approval of the Trustee shall constitute a sufficient notice.
SECTION 1405. AMENDMENT. Any provision of this Indenture or the Bonds may
be amended with the written consent of the Owners of 100% of the Bonds then
Outstanding, the Issuer, the Trustee and, to the extent the rights or
obligations of the Tenant under the Lease are affected, the Tenant.
SECTION 1406. SEVERABILITY. If any provision of this Indenture shall be
held or deemed to be invalid, inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions or in all jurisdictions, or
in all cases because it conflicts with any other provision or provisions hereof
or any constitution or statute or rule of public policy, or for any other
reason, such circumstances shall not have the effect of rendering the provision
in question inoperative or unenforceable in any other case or circumstance, or
of rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever.
SECTION 1407. 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.
SECTION 1408. GOVERNING LAW. This Indenture shall be governed exclusively
by and construed in accordance with the applicable laws of the State of
Missouri.
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IN WITNESS WHEREOF, Issuer has caused this Indenture to be signed in its
name and behalf by its members, and to evidence its acceptance of the trusts
hereby created, Trustee has caused this Indenture to be signed in its name and
behalf and its official seal to be hereunto affixed and attested by its duly
authorized officers, all as of the date first above written.
UTAH TECH CENTER, LLC, as Issuer
By: /s/ Xxx Xxxx
------------------------------------
Name: Xxx Xxxx
Title: Member
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Member
SECURITY BANK OF KANSAS CITY, as Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and
Trust Officer
(Seal)
ATTEST:
By: /s/ Xxxx X. XxXxxxxxxx
------------------------------------
Name: Xxxx X. XxXxxxxxxx
Title: Vice President
Trust Indenture
OSHA Tech Center- 2002
S-1
