MOVIEPLEX REALTY LEASING, L.L.C.
and
FIRST UNION NATIONAL BANK
as Trustee
INDENTURE OF TRUST
Dated as of November 1, 1997
Movieplex Realty Leasing, L.L.C.
Adjustable Rate Tender Securities
(Carmike Cinemas, Inc.)
1997 Series A and Series B
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INDENTURE OF TRUST
THIS INDENTURE OF TRUST is dated as of November 1, 1997, by and between
MOVIEPLEX REALTY LEASING, L.L.C., a New Jersey limited liability company (the
"Issuer"), and First Union National Bank, a national banking institution duly
organized, validly existing and authorized to accept and execute trusts of the
character herein set out with a corporate trust office located at 000 Xxxxxxxxx
Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, as Trustee (the "Trustee").
RECITALS
A. The Issuer has agreed to issue the Bonds and apply the proceeds of
the Bonds (1) to finance a portion of the Costs of the Projects; and (2) to pay
certain Financing Costs in connection with of the Bonds.
B. Pursuant to the Lease, the Issuer shall lease the Leased Property to
the Company and the Company shall pay Rent to the Issuer.
C. The Bonds shall be special, limited obligations of the Issuer,
payable solely from the Trust Estate or from the liquidation of collateral
pledged by the Issuer as security for its performance hereunder.
D. The Issuer and the Trustee have agreed to enter into this Indenture
of Trust, pursuant to which the Bonds shall be issued.
E. All things necessary to make the Bonds, when authenticated by the
Trustee and issued as in this Indenture provided, the valid, binding and legal
obligations of the Issuer according to the import thereof, and to constitute
this Indenture a valid assignment and pledge of the amounts assigned and pledged
to the payment of the principal of and interest on the Bonds have been done and
performed, and the creation, execution and delivery of this Indenture, and the
creation, execution and issuance of the Bonds, subject to the terms hereof, have
in all respects been duly authorized.
GRANTING CLAUSES
NOW, THEREFORE, THIS INDENTURE OF TRUST WITNESSETH;
That the Issuer, in consideration of the premises and the acceptance by
the Trustee of the trusts hereby created and of the purchase and acceptance of
the Bonds by the Holders thereof, and of the issuance by the LC Issuers of the
Letters of Credit, and of the sum of one dollar, lawful money of the United
States of America, to it duly paid by the Trustee at or before the execution and
delivery of these presents, and for other good and valuable consideration, the
receipt of which is hereby acknowledged, (A) in order to secure the payment of
the principal of and premium, if any, and interest on and the purchase price of
the Bonds according to their tenor and effect, and to secure the performance and
observance by the Issuer of all the covenants expressed herein and in the Bonds,
does hereby assign and grant a security interest in and to (i) the Letters of
Credit and the proceeds of all drawings made thereunder and (ii) the Bond Fund
and the various accounts therein (other than the Excess Bond Proceeds Account)
and all amounts on deposit from time to time therein, (collectively, the "Bond
Trust Estate") to the Trustee and its successors in trust and assigns forever,
and (B) in order to secure the payment of all amounts payable by the Issuer
pursuant to the Reimbursement Agreement, and to secure the performance and
observance by the Issuer of all the covenants expressed in the Reimbursement
Agreement, does hereby assign and grant a security interest in and to the Excess
Bond Proceeds Account within the Bond Fund, and the Project Fund and all of the
Accounts therein, and all amounts on deposit from time to time therein (the
"Letters of Credit Trust Estate" and, together with the Bond Trust Estate, the
"Trust Estate").
EXPRESSLY RESERVING, however, to the Issuer the Reserved Rights.
TO HAVE AND TO HOLD all and singular the Trust Estate whether now owned
or hereafter acquired, unto the Trustee and its respective successors in said
trust and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for
the equal and proportionate benefit, security and protection of (A) as to the
Bond Trust Estate, all present and future Holders of the Bonds from time to time
issued under and secured by this Indenture without privilege, priority or
distinction as to the lien or otherwise of any of the Bonds over any of the
other Bonds except in the case of funds held hereunder for the benefit of
particular Holders of Bonds and (B) as to the Letters of Credit Trust Estate,
the Agent for the benefit of the Letters of Credit Issuers;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid the obligations of the Issuer under the
Reimbursement Agreement and the principal of, premium, if any, and interest on
the Bonds due or to become due thereon (upon redemption or otherwise), at the
times and in the manner set forth in the Bonds according to the true intent and
meaning thereof, and shall cause the payments to be made on the Bonds as
required hereunder, or shall provide, as permitted hereby, for the payment
thereof by depositing with the Trustee the entire amount due or to become due
thereon, and shall well and truly cause to be kept, performed and observed all
of its covenants and conditions pursuant to the terms of this Indenture, and
shall pay or cause to be paid to the Trustee all sums of money due or to become
due to it in accordance with the terms and provisions hereof and all obligations
of the Company under the Lease have been paid, then upon the final payment
thereof this Indenture and the rights hereby granted shall cease, determine and
be void, except to the extent specifically provided in Article X hereof;
otherwise this Indenture shall remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
all Bonds issued and secured hereunder are to be issued, authenticated and
delivered and all said property, rights and interests, including, without
limitation, the amounts payable under the Lease and any other amounts hereby
assigned and pledged are to be dealt with and disposed of under, upon and
subject to the terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes as herein expressed, and the Issuer has agreed and covenanted,
and does hereby agree and covenant with the Trustee and with the respective
Holders of the Bonds as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used but not defined in
this Indenture shall have the meanings given to them in the Lease or the
Reimbursement Agreement, as the case may be. In addition, the following terms
shall have the meanings specified in this Article, unless the context otherwise
requires:
"Act of Bankruptcy of an LC Issuer" occurs when an LC Issuer, as issuer
of a Letter of Credit, becomes insolvent or fails to pay its debts generally as
such debts become due or admits in writing its inability to pay any of its
indebtedness or consents to or petitions for or applies to any authority for the
appointment of a receiver, liquidator, trustee or similar official for itself or
for all or any substantial part of its properties or assets or any such trustee,
receiver, liquidator or similar official is otherwise appointed or when
insolvency, reorganization, arrangement or liquidation proceedings (or similar
proceedings) are instituted by or against such LC Issuer.
"Additional Bonds" means any Series of Additional Bonds issued pursuant
to Section 2.05A hereof.
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agency and Development Agreement" means the Agency and Development
Agreement dated the Closing Date between the Issuer and the Company, pursuant to
which, among other things, the Company agrees to act as development agent for
the Issuer for the purpose of selecting the Individual Properties and
constructing the Applicable Projects.
"Agent" means, (i) initially, Wachovia Bank, N.A., and its successors
and assigns in that capacity as agent for the LC Issuers issuing the Letters of
Credit, and (ii) thereafter, either (A) in the event that only one Alternate
Letter of Credit is outstanding, the LC Issuers issuing such Alternate Letter of
Credit or (B) in the event that there are no Letters of Credit or Alternate
Letters of Credit outstanding, the Trustee.
"Agent Consent Period" means any period during which (i) the Letters of
Credit are in effect, (ii) no LC Issuer shall have wrongfully failed to honor a
drawing, and (iii) there shall not have occurred an Act of Bankruptcy of an LC
Issuer.
"Alternate Letters of Credit" means, collectively, any and all
irrevocable, direct-pay letters of credit issued in confirmation of, or in
replacement or substitution for, any Letters of Credit or Alternate Letters of
Credit, which (i) authorize drawings thereunder by the Trustee, (ii) are issued
by one or more national banking associations, banks, trust companies or other
financial institutions which are Eligible Lenders and (iii) satisfy the
requirements of Section 5.08.
"Annual Payment Date" means the first (1st) Monday of each December
commencing on the first (1st) Monday of December, 1998 of each calendar year,
provided, however, that if such day is not a Business Day, then such Annual
Payment Date shall be the next succeeding Business Day.
"Applicable Acquisition Agreement" means, with respect to each
Individual Property, the agreement between the Issuer, as purchaser or ground
lessee, as the case may be, and the seller of such Individual Property, as
seller or ground lessor, as the case may be, pursuant to which the Issuer has
agreed or will agree to purchase or ground lease such Individual Property.
"Applicable Approvals" means, with respect to each Individual Property,
all permits, approvals and authorizations, including without limitation site
plan approval or similar land development approvals, which are required under
Legal Requirements or by Governmental Authorities in connection with the
acquisition or lease of such Individual Property, the construction of the
Improvements and the Off-Site Improvements and the other activities constituting
part of the Applicable Project.
"Applicable Assignment of Rents" means, with respect to each Individual
Property, the assignment of rents pursuant to which the Issuer assigns to the
Agent all of the Issuer's right, title and interest in and to all leases
affecting or relating to such Individual Property.
"Applicable Completion Date" means, with respect to each Individual
Property, the date as of which the Improvements thereon are substantially
completed, as such date shall be evidenced by a final certificate of occupancy
issued by the applicable Governmental Authority and certified by the Company to
the Issuer and the Agent pursuant to Section 7(e) of the Agency and Development
Agreement.
"Applicable Construction Agreement" means, with respect to each
Individual Property, the agreement or agreements between the Issuer and any
Contractor(s) with respect to the construction of the Improvements on or at such
Individual Property.
"Applicable Mortgage" means, with respect to each Individual Property,
the fee or leasehold mortgage and security agreement, deed of trust or similar
document pursuant to which the Issuer grants to the Agent a first lien on and
security interest in and to its interest in such Individual Property.
"Applicable Plans and Specifications" means, with respect to each
Individual Property, the architectural and engineering drawings and
specifications describing the construction of the Improvements thereon which
have been prepared for and accepted by the Company and which are approved by the
Issuer and the Agent prior to the commencement of any construction with respect
to the Applicable Project.
"Applicable Project" means, with respect to each Individual Property,
the acquisition or lease, construction, renovation or installation of such
Individual Property, the Improvements thereon and the Off-Site Improvements
relating thereto, including any expansion of, or additional equipment installed
in, any Individual Property, which is funded in whole or in part by the proceeds
of the issuance of the Bonds, for use by the Company pursuant to the Lease or
any Supplemental Lease.
"Applicable State" means, with respect to each Individual Property, the
state or commonwealth within which such Individual Property, or any portion
thereof, is located.
"Assignments of Rents" means, collectively, all of the Applicable
Assignments of Rents from time to time.
"Authorized Officer" or "Authorized Representative" means, (1) with
respect to the Issuer: any manager of the Issuer; (2) with respect to the
Company: the President, any Executive Vice President or any Vice President or
such other person at the time and from time to time designated by written
certificate furnished to the Issuer and the Trustee containing the specimen
signatures of such person and signed on behalf of the Company by the Secretary
or Assistant Secretary of the Company; (3) with respect to the Trustee: any
officer of the Trustee authorized by the Trustee to act or execute documents on
behalf of the Trustee; and (4) with respect to the Agent: any officer.
"Available Moneys" means (i) proceeds of a drawing under the Letters of
Credit and (ii) any moneys paid to the Trustee which have been on deposit with
the Trustee in the Bond Fund for at least 91 days during and prior to which no
Event of Bankruptcy shall have occurred, and the proceeds of investments of such
moneys, and with respect to which the Trustee has received an opinion of
nationally recognized counsel experienced in bankruptcy matters and acceptable
to the Trustee and the Rating Agencies to the effect that the use of such moneys
to pay principal of, premium (if any) on or interest on the Bonds, as
applicable, will not constitute an avoidable transfer under Section 547 of the
United States Bankruptcy Code in the event of a bankruptcy case under the United
States Bankruptcy Code by the Issuer or by or against the Company or any
Affiliate, as debtor; provided that when used with respect to payment of amounts
due in respect of any Pledged Bonds or Company Bonds, "Available Moneys" means
any moneys held by the Trustee and available for such payment pursuant to the
terms of this Indenture except for moneys drawn under the Letters of Credit.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
ss. 101-1330), as amended from time to time.
"Basic Rent" means the rent required to be paid pursuant to the
provisions of Section 3.5 of the Lease.
"Basic Rent Payment" means the payment of Basic Rent.
"Bond" or "Bonds" means, any one or more of the Series A Bonds or the
Series B Bonds or of any Series of Additional Bonds or Refunding Bonds or any
Bonds which are hereafter authenticated and delivered in lieu of or in
substitution for such Bonds pursuant to the Indenture.
"Bond Fund" means the fund so designated and established pursuant to
Section 5.04.
"Bond Purchase Agreement" means, collectively, the bond purchase
agreements dated the Closing Date among the Issuer and the Bond Purchaser
relating to the issuance and sale of the Bonds, as the same may be amended or
supplemented from time to time.
"Bond Purchaser" means, collectively, The Xxxxxxx Xxxxxx Family of
Funds on behalf of Schwab Money Market Fund, Xxxxxx Value Advantage Money Fund,
Schwab Institutional Advantage Money Fund and Schwab Retirement Money Fund.
"Bondholder Tender Notice" means a written notice meeting the
requirements of Section 4.01.
"Book-Entry Bonds" means any Series of Bonds which are authorized to be
issued in book entry form.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York, New York and Georgia are authorized by law
to close.
"Capitalized Interest Account" means the account so designated and
established in the Project Fund pursuant to Section 5.02A.
"Capitalized Interest Reserve Account" means the account so designated
and established in the Project Fund pursuant to Section 5.02B.
"Closing Date" means November 20, 1997, being the date on which the
Transaction Documents shall be executed and delivered by the respective parties
thereto and the date on which the Trustee shall authenticate and deliver the
Bonds.
"Company" means Carmike Cinemas, Inc., a Delaware corporation, and its
successors and assigns.
"Company Bonds" means any Bonds of which ownership is registered in the
name of the Company or any Affiliate, other than Pledged Bonds.
"Contractor" means, with respect to each Applicable Project, any
contractor selected by the Company, with the approval of the Issuer and the
Agent, to construct, renovate and install such Applicable Project.
"Conversion" means the conversion of the interest rate on the Bonds
from the Weekly Mode to the Term Mode as provided in Section 2.05.
"Conversion Date" means any Interest Payment Date on which the Rate
Mode of the Bonds is converted from the Weekly Mode to the Term Mode pursuant to
Section 2.05.
"Conversion Option" means the option of the Issuer (to be exercised at
the direction of the Company) to convert the interest rate on the Bonds from the
Weekly Mode to the Term Mode as provided in, and subject to, Section 2.05.
"Costs" or "Costs of the Projects" means (i) all Hard and Soft Costs,
plus (ii) all Financing Costs, plus (iii) all Capitalized Interest Costs, minus
(iv) all interest earned prior to the Final Project Completion Date on all
amounts held in the Funds and Accounts under the Indenture.
"Debt Service" means, for any period or payable at any time, the
principal of, premium, if any, on and interest on the Bonds for that period or
payable at that time whether due at maturity or upon acceleration or redemption.
"Defeasance Obligations" means (a) Government Obligations, and (b) any
Qualified Investments that are rated by either Rating Agencies in any of its
highest long-term debt rating categories (without regard to pluses or minuses)
which obligations are not subject to redemption prior to maturity other than at
the option of the holder or which have been called for redemption at a stated
future date.
"DTC" means The Depository Trust Company, New York, New York, a limited
purpose trust company organized under the laws of the State of New York, and
its successors and assigns.
"Equity Investment Account" means the account so designated and
established in the Project Fund pursuant to Section 5.02E.
"Event of Bankruptcy" means a petition by or against the Issuer or any
"Affiliate" (as defined in the Bankruptcy Code) of the Issuer under the
Bankruptcy Code or any other bankruptcy act or any similar act which may be
enacted which shall have been filed, unless such petition shall have been
dismissed and such dismissal shall be final and not subject to appeal.
"Event of Default" means any of the events described as an Event of
Default in Section 7.01.
"Excess Bond Proceeds Account" means the account so designated and
established in the Bond Fund pursuant to Section 5.04.
"Expiration Date" means the stated expiration date of the Letters of
Credit, as such date may be extended from time to time by the Agent and the
Lenders.
"Extraordinary Services" and "Extraordinary Expenses" mean all services
rendered and all reasonable expenses properly incurred by the Trustee or any of
its agents under this Indenture, other than Ordinary Services and Ordinary
Expenses.
"Federal Funds Rate" shall have the meaning given to such term in the
Reimbursement Agreement.
"Final Project Completion Date" means the date which is twenty-four
(24) months after the Series Issue Date.
"Financial Advisor" means RealVest Capital Corporation, a New Jersey
corporation.
"Financing Costs" means and includes all fees and expenses necessary to
issue, offer and sell the Bonds and to arrange for the Landlord's Equity Amount,
including without limitation (i) the fees and reimbursable expenses of the
Financial Advisor, the Placement Agent, the Agent and the Lenders, (ii) the fees
and reimbursable expenses of the attorneys for the Landlord, the Tenant, the
Agent and the Lenders and (iii) all other costs relating to the issuance and
sale of the Bonds, including Rating Agency fees, printing expenses, Trustee
setup fees and Trustee's counsel fees.
"Financing Costs Account" means the account so designated and
established in the Project Fund pursuant to Section 5.02C.
"Fund" means any of the funds established under the Indenture.
"Fund Account Security Agreement" shall have the meaning given to such
term in the Reimbursement Agreement.
"Government Obligations" means direct obligations of, or obligations
the principal of and interest on which are unconditionally guaranteed by, the
United States of America, including obligations issued or held in book-entry
form on the books of the Department of the Treasury of the United States of
America and including a receipt, certificate or any other evidence of an
ownership interest in such obligations or in specified portions thereof (which
may consist of specified portions of interest thereon).
"Hard and Soft Costs" means and shall be deemed to include, together
with any other proper item of cost which is not specifically mentioned in the
Lease, whether incurred prior to or after the date of the Lease, (a) the cost of
the acquisition or the ground leasing of the Leased Property, fees and expenses
related thereto; (b) the costs and expenses of the Issuer which are incurred for
labor and materials and payments to Contractors, builders and materialmen in
connection with the acquisition or leasing, construction, renovation and
installation of any Individual Property; (c) the cost of contract bonds and of
insurance of any kind that may be required or that may be necessary during the
course of acquisition, construction, renovation and installation of any
Individual Property which is not paid by the Contractor or Contractors; (d) the
costs and expenses of the Issuer for test borings, surveys, estimates, plans and
specifications and preliminary investigations therefor, and for supervising
construction, as well as for the performance of all other duties which are
required by or which are consequent to the proper construction, acquisition,
renovation and installation of any Individual Property; (e) [Intentionally
Omitted]; (f) all other costs which the Issuer shall be required to pay under
the terms of any Applicable Acquisition Agreement or Applicable Construction
Agreement for the acquisition, construction, renovation or installation of any
Individual Property; (g) any sums which are required to reimburse the Issuer for
any advances which are made by it for any of the above items, or for any other
costs which are incurred and for work which has been done by it, provided that
same is properly chargeable to any Individual Property; and (h) such other
expenses which are not specified in the Lease or the Agency and Development
Agreement and which may be necessary or incidental to the construction,
acquisition, renovation and installation of any Individual Property, the
financing thereof and the placing of the same in use and operation. "Hard and
Soft Costs" shall also include the costs and expenses incurred by any agent of
the Issuer or any other Person for any of the above-mentioned items.
"Holder" or "Bondholder" means the Person in whose name a Bond is
registered on the Register.
"Improvements" means (i) with respect to each Individual Property, all
buildings, structures and other improvements (and additions thereto or
substitutions or modifications thereof) presently existing thereon, and all
buildings, structures and other improvements (and additions thereto or
substitutions or modifications thereof) to be constructed thereon as part of the
Applicable Project in accordance with the Applicable Construction Agreement, the
Applicable Approvals and the Applicable Plans and Specifications, and (ii) with
respect to the Leased Property, all Improvements constructed or to be
constructed, collectively, on all of the Individual Properties; provided,
however, that the Improvements shall not include any Equipment.
"Indenture" means this Indenture of Trust, as amended or supplemented
from time to time.
"Indexing Agent" means, initially, RealVest Securities Corporation and
any Person meeting the qualifications of, and designated from time to time to
act as Indexing Agent under, Section 8.17. "Principal Office of the Indexing
Agent" means the principal office of the Indexing Agent at the address of the
Indexing Agent set forth in Section 11.03, or any other office so designated in
writing by the Indexing Agent to the Issuer, the Trustee, the Company, the
Remarketing Agent and the Agent.
"Individual Property" means, individually, (i) each Supplemental
Property and (ii) each Substitute Property which is substituted for an
Individual Property pursuant to Section 4.4 of the Lease.
"Interest Payment Date" means the first Monday of each calendar month
(or, if such date is not a Business Day, the next succeeding Business Day),
commencing on January 5, 1998.
"Issuer" means Movieplex Realty Leasing, L.L.C., a New Jersey limited
liability company, and its successors and assigns.
"LC Issuers" shall have the meaning given to such term in the
Reimbursement Agreement.
"LC Participants" shall have the meaning given to such term in the
Reimbursement Agreement.
"Lease" means that certain Master Lease between the Issuer and the
Company dated the Closing Date as the same may be amended or supplemented.
"Leased Property" means, collectively, all of the Individual Properties
now or from time to time hereafter leased by the Issuer to the Company pursuant
to the Lease or any Supplemental Lease hereafter entered into between the Issuer
and the Company.
"Lenders" shall have the meaning given to such term in the
Reimbursement Agreement.
"Letters of Credit" means, collectively, the irrevocable, direct-pay
letters of credit issued by the LC Issuers to the Trustee on the date of
execution and delivery of the Indenture and any Alternate Letters of Credit,
under which the Trustee is authorized, subject to the terms and conditions
thereof, to draw, in the aggregate, up to (a) an amount equal to the principal
amount of the Outstanding Bonds (i) to enable the Trustee to pay the principal
amount of the Bonds when due, at maturity, upon redemption or upon acceleration
and (ii) to enable the Trustee to pay the portion of the purchase price of Bonds
tendered to it and not remarketed corresponding to the principal amount of such
Bonds, plus (b) an amount equal to interest to accrue at the Maximum Rate on the
Outstanding Bonds for 43 days (i) to enable the Trustee to pay interest on the
Bonds when due and (ii) to enable the Trustee to pay the portion of the purchase
price of Bonds tendered to it and not remarketed corresponding to the accrued
interest on such Bonds, as the same may be amended, transferred, reissued or
extended in accordance with the Indenture.
"Letter of Credit Debt Service Account" means the account so designated
and established in the Bond Fund pursuant to Section 5.04.
"Letter of Credit Purchase Account" means the special trust account so
designated and established in the Bond Fund pursuant to Section 4.04.
"Lease Payments" means the Rent payments required to be made by the
Company pursuant to Article 3 of the Lease.
"Master Assignment" means the Master Assignment of Contracts and
Agreements, dated the Closing Date from the Issuer, as assignor, to the Agent,
as assignee, and executed by the Company and the Trustee.
"Maximum Rate" means, initially, 10% per annum, and thereafter, such
higher rate specified by the Issuer at the request of the LC Issuers which does
not exceed 12% per annum or any higher rate which may be approved hereunder by
resolution of the Issuer; provided, however, that the LC Issuers shall deliver a
written amendment or replacement of the Letters of Credit increasing the
Interest Component (as defined in the Letters of Credit) to 43 days interest at
the new Maximum Rate specified by the LC Issuers. The consent of the Bondholders
shall not be required for any such increase in the Maximum Rate.
"Money Market Equivalent Yield" means the unweighted daily average of
the discounted 30-day Commercial Paper Rate (AA-Financial Composite), converted
to a money market equivalent yield (i.e., actual/360 days), for all Business
Days within the preceding Weekly Rate Period, as reported in the Board of
Governors of the Federal Reserve Board Statistical Release (or another
recognized reporting source approved by the Issuer and the Agent.) [Regarding
the computation of interest for a Weekly Rate Period, see Section 2.03.]
"Mortgages" means, collectively, all of the Applicable Mortgages from
time to time.
"Net Proceeds" means any insurance proceeds or condemnation award paid
with respect to any Individual Property remaining after payment therefrom of all
expenses incurred in the collection thereof.
"Off-Site Improvements" means (i) with respect to each Individual
Property, those improvements required to be constructed or installed pursuant to
the Applicable Approvals on land other than such Individual Property, and (ii)
with respect to the Leased Property, all Off-Site Improvements constructed or to
be constructed, collectively, on all of the Individual Properties.
"Ordinary Services" and "Ordinary Expenses" mean those services
normally rendered, and those expenses normally incurred, by a trustee under
instruments similar to this Indenture.
"Outstanding Bonds", "Bonds Outstanding" or "Outstanding" or
"outstanding" as applied to Bonds mean, as of the applicable date, all Bonds
which have been authenticated and delivered, or which are being delivered by the
Trustee under this Indenture, including Pledged Bonds and Company Bonds, except:
(a) Bonds cancelled or required to be cancelled upon
surrender, exchange or transfer, or cancelled or
required to be cancelled because of payment or
redemption on or prior to that date pursuant to
Section 2.11;
(b) On or after any purchase date for Bonds to be
purchased pursuant to Article IV, all Undelivered
Bonds (or portions of Bonds) which are purchased on
such date, provided that funds sufficient for such
purchase are on deposit with the Trustee;
(c) Bonds which are deemed paid in accordance with Article X;
and
(d) Bonds in substitution for which others have been
authenticated and delivered under Section 2.10.
For purposes of approval or consent by the Holders, "Outstanding Bonds," "Bonds
outstanding" or "outstanding" as applied to Bonds shall not include Bonds owned
by or on behalf of the Issuer, the Company or an Affiliate (unless all of the
outstanding Bonds are so owned), or the Agent (unless all of the outstanding
Bonds are so owned).
"Person" means any individual, corporation, company, limited liability
company, voluntary association, partnership, limited liability partnership,
joint venture, trust, unincorporated organization or government (or any agency,
instrumentality or political subdivision thereof).
"Payment Direction Agreement" shall have the meaning given to such term
in the Lease.
"Placement Agent" means RealVest Securities Corporation, a New York
corporation.
"Placement, Indexing and Remarketing Agreement" means the Placement,
Indexing and Remarketing Agreement dated as of the date hereof between the
Issuer and RealVest Securities Corporation, as Placement, Indexing and
Remarketing Agent.
"Pledged Bonds" shall have the meaning assigned to such term in Section
4.05.
"Project Costs Account" means the account so designated and established
in the Project Fund pursuant to Section 5.02D.
"Project Fund" means the fund so designated and established pursuant to
Section 5.01A.
"Purchase Date" means (a) with respect to any optional tender for
purchase pursuant to Section 4.01 of Bonds in the Weekly Mode, any Business Day
designated as the date of such purchase pursuant to such Section and (b) with
respect to any mandatory purchase pursuant to Section 4.02, (1) in the case of
Bonds which are to be purchased upon conversion from one Rate Mode to another
Rate Mode, the Conversion Date, or if such Conversion Date is not a Business
Day, the first Business Day succeeding such Conversion Date, (2) in the case of
Bonds to be purchased in anticipation of the expiration of the Letters of
Credit, the Interest Payment Date next preceding the Expiration Date of the
Letters of Credit, and (3) in the case of Bonds to be purchased at the direction
of the Agent, the purchase date stipulated by the Agent pursuant to Section
7.03.
"Qualified Investments" means, (i) to the extent such investments are
legal investments of funds of the Issuer, and (ii) with respect to moneys from
time to time held in the Project Fund, the Capitalized Interest Account and the
Capitalized Interest Reserve Account, to the extent the Agent's security
interest in such investments is fully perfected as a first priority security
interest at all times:
(a) Direct obligations of, or obligations the principal
of and interest on which are unconditionally
guaranteed by, the United States of America and
certificates that evidence ownership of the right to
payments of principal or interest on such
obligations, provided that the obligations evidenced
by such certificates shall be held in trust by a bank
or trust company or a national banking association;
(b) Obligations the timely payment of principal and
interest on which is fully guaranteed by any agency
or instrumentality of the United States of America,
which obligations shall be rated in one of the two
(2) highest long-term credit rating categories
(without regard to pluses and minuses) by any Rating
Agency;
(c) Mortgage-backed securities and senior debt
obligations issued by any of the following agencies
or such other like governmental or
government-sponsored agencies which may be hereafter
created (so long as such agencies continue to be
governmentally owned or sponsored): (i) the Federal
National Mortgage Association; (ii) the Government
National Mortgage Association; and (iii) the
Resolution Funding Corporation;
(d) Interests in a unit investment trust consisting of
obligations described in (c), which interests (or
obligations) are insured by a bond or financial
guarantee insurance policy and are rated in the
highest long-term credit rating categories by any
Rating Agency;
(e) Open market commercial paper maturing not later than
270 days from the date of creation thereof of
corporations that are organized under the laws of the
United States of America or any state thereof, and
having the rating of P-1 or A-1 or such other
comparable rating by a Rating Agency.
(f) Obligations of municipalities or corporations
organized under the laws of the United States of
America or any state thereof maturing not later than
one year from the date of acquisition thereof by the
Borrower or any Restricted Subsidiary, and having the
rating of AA or Aa or such other comparable rating by
a Rating Agency.
(g) Investment agreements, investment contracts or
general corporate obligations which by their terms
are not subordinate to any other obligations and
which constitute general obligations of the Issuer,
issued or guaranteed by (i) any bank or trust company
organized under the laws of any state of the United
States of America or any national banking association
(including the Trustee), or a branch of a foreign
bank duly licensed under the laws of the United
States of America or any state or territory thereof,
or (ii) any property and casualty insurance company
or insurance holding company, in each case having a
combined capital stock, surplus and undivided profits
of at least $1,000,000,000, and in either case of (i)
or (ii) whose senior debt is rated (or in the absence
of such debt, which has issued a letter of credit,
insurance policy or other credit enhancement device
in support of a third party's debt which is rated) in
one of the two (2) highest long-term credit rating
categories (without regard to pluses and minuses) by
any Rating Agency;
(h) Negotiable or non-negotiable certificates of deposit,
time deposits, repurchase agreements, investment
agreements or other similar banking arrangements,
including bankers' acceptances, issued by any bank or
trust company (including the Trustee) the deposits of
which are insured by the Federal Deposit Insurance
Corporation, such securities to be secured to the
extent not so insured, as to principal and interest
or as to principal only by the securities listed in
clauses (a), (b), (c) or (d) above and in a manner
satisfactory to the Trustee and the Issuer, except
that repurchase agreements shall be secured as to
principal or principal and interest (as applicable)
solely by direct obligations of, or obligations the
principal and interest on which are unconditionally
guaranteed by, the United States of America which are
in the possession of the Trustee or a third party
acting solely as agent for the Trustee and in which
the Trustee has a perfected first security interest;
and
(i) Time deposits (which may be represented by
certificates of deposit) and interest-bearing demand
deposits in any bank, trust company, or financial
institution (including the Trustee) which is a member
of the Federal Deposit Insurance Corporation provided
that such time or demand deposits, to the extent not
fully and continuously insured by the FDIC, are fully
secured by direct obligations of the United States.
"Rate Mode" means the Weekly Mode or the Term Mode.
"Rating Agencies" means Xxxxx'x Investor Service, Inc., if the Bonds
are rated by such Person at the time, Standard & Poor's Ratings Group, if the
Bonds are rated by such Person at the time, and Fitch Investors Service, if the
Bonds are rated by such Person at the time, and their respective successors and
assigns, or if any shall be dissolved or no longer assigning credit ratings to
long term debt, then any other nationally recognized Person assigning credit
ratings to long term debt designated by the Issuer.
"Refunding Bonds" means all Bonds, whether issued in one or more
Series, authenticated and delivered on original issuance pursuant to Section
2.05B hereof, and any Bonds thereafter authenticated and delivered in lieu of or
in substitution for such Bonds.
"Register" means the books kept and maintained by the Trustee for
registration and transfer of Bonds pursuant to Section 2.08.
"Regular Record Date" means, while the Bonds are in the Weekly Mode,
the last Business Day preceding an Interest Payment Date and, while the Bonds
are in the Term Mode, the fifteenth day of the calendar month next preceding an
Interest Payment Date.
"Reimbursement Agreement" means, initially, the reimbursement agreement
dated the Closing Date among the Agent, as agent for the Lenders, the Lenders
and the Issuer, as the same may be amended or supplemented from time to time in
accordance with the provisions thereof, and means, with respect to any Alternate
Letters of Credit, the reimbursement agreement, if any, relating to the issuance
of such Alternate Letters of Credit, as the same may be amended or supplemented
from time to time in accordance with the provisions thereof.
"Reimbursement Notes" shall have the meaning given to such term in the
Reimbursement Agreement.
"Remarketing Agent" means, initially, RealVest Securities Corporation
and any Person meeting the qualifications of, and designated from time to time
to act as Remarketing Agent under, Section 8.14. "Principal Office" of the
Remarketing Agent means the principal office of the Remarketing Agent at the
address of the Remarketing Agent set forth in Section 11.03, or any other office
so designated in writing by the Remarketing Agent to the Issuer, the Trustee,
the Company and the Agent.
"Remarketing Proceeds Purchase Account" means the special trust account
so designated and established in the Bond Fund pursuant to Section 4.03.
"Rent" means, collectively, Basic Rent and Supplemental Rent.
"Rent Payments" means the payments of Rent.
"Representation Letter" shall mean the representation letter from the
Issuer and the Trustee to DTC dated the Series Issue Date in the form typically
required by DTC.
"Requisition" means a standard requisition for disbursements from the
Project Fund, in the form attached as an exhibit to the Agency and Development
Agreement, duly executed by Authorized Representatives of the Issuer, the
Company and the Agent.
"Reserved Rights" means (i) the Issuer's right to receive Supplemental
Rent under the Lease (other than Supplemental Rent which is payable to or for
the account of the Agent), (ii) the Issuer's rights of reimbursement and
indemnity hereunder or under any Transaction Document, (iii) [Intentionally
Omitted], (iv) any rights of the Issuer to be released from liabilities and
obligations hereunder or under the Transaction Documents and to indemnity
contained in the Lease or the Transaction Documents and (v) the concurrent right
of the Issuer to receive any and all notices, reports, surveys, certificates,
financial statements and evidences of performance which the Company may be
required to furnish pursuant to the terms of the Lease.
"Revenues" means all (a) the Rent Payments, (b) other moneys received
or to be received by the Issuer or the Trustee in respect of Rent Payments,
including without limitation, all moneys and investments in the Bond Fund, (c)
the proceeds of all drawings on the Letters of Credit, (d) any proceeds of Bonds
originally deposited with the Trustee for the payment of interest accrued on the
Bonds or otherwise paid to the Trustee by or on behalf of the Company or the
Issuer for deposit in the Bond Fund or any excess moneys remaining in the
Project Fund following Final Project Completion Date, and (e) investment income
with respect to any moneys held by the Trustee under the Indenture.
"Security Documents" means, collectively, the Mortgages, the
Assignments of Rents and the Master Assignment.
"Series" shall mean all of the Bonds authenticated and delivered on
original issuance and identified pursuant to the Indenture or the Supplemental
Indenture authorizing such Bonds as a separate Series of Bonds, and any Bonds
thereafter authenticated and delivered in lieu of or in substitution for such
Bonds pursuant to the Indenture, regardless of variations in maturity, interest
rate, principal installments or other provisions.
"Series A Bonds" means the Issuer's Adjustable Rate Tender Securities
(Carmike Cinemas, Inc.) 1997 Series A in the aggregate principal amount of
$59,775,000, to be issued by the Issuer pursuant to the Indenture, consisting of
Series A-1 Bonds in the aggregate principal amount of $35,125,000, Series A-2
Bonds in the aggregate principal amount of $12,325,000 and A-3 Bonds in the
aggregate principal amount of $12,325,000.
"Series B Bonds" means the Issuer's Adjustable Rate Tender Securities
(Carmike Cinemas, Inc.) 1997 Series B in the aggregate principal amount of
$12,975,000, to be issued by the Issuer pursuant to the Indenture, consisting of
Series B-1 Bonds in the aggregate principal amount of $7,625,000, Series B-2
Bonds in the aggregate principal amount of $2,675,000 and B-3 Bonds in the
aggregate principal amount of $2,675,000.
"Series Issue Date" means the date of original issuance and first
authentication and delivery of a series of Bonds to the initial purchaser
thereof against payment therefor.
"Special Adjustment Factor" means the amount determined by the Indexing
Agent that is not in excess of 0.25%.
"Special Record Date" means, with respect to any Bond, the date
established by the Trustee in connection with the payment of overdue interest on
that Bond pursuant to Section 2.08.
"Special Redemption" means a redemption of Bonds pursuant to any of
Sections 3.01(c) through and including 3.01(h).
"Special Redemption Account" means the account so designed and
established in the Bond Fund pursuant to Section 5.04.
"Supplemental Indenture" means any indenture supplemental to this
Indenture entered into between the Issuer and the Trustee in accordance with
Article IX.
"Supplemental Rent" shall have the meaning assigned to such term in
Section 3.8 of the Lease.
"Supplemental Rent Payments" means all payments of Supplemental Rent.
"Term Mode" means, with respect to the Bonds, the mode of accruing
interest thereon at the Term Rate.
"Term Rate" means the fixed rate of interest borne by the Bonds for the
Term Rate Period determined pursuant to Section 2.04.
"Term Rate Calculation Date" means a Business Day not more than 15 days
and not less than one day prior to the first day of the Term Rate Period.
"Term Rate Period" means the period from and after the Conversion Date
until the Bonds have been paid in full or are deemed paid pursuant to Article X.
"Trustee" means First Union National Bank until a successor Trustee
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter, "Trustee" shall mean the successor Trustee. "Principal Office of
the Trustee" means the corporate trust office or other office of the Trustee at
the address of the Trustee set forth in Section 11.03, or any other corporate
trust office so designated in writing by the Trustee to the Issuer, the
Remarketing Agent, the Indexing Agent, the Company and the Agent. "Delivery
Office of the Trustee" means the office, in addition to its Principal Office, at
which Bondholder Tender Notices may be delivered and where Xxxxx surrendered for
purchase may be delivered to the Trustee, which office may be the office of an
agent of the Trustee for such purpose and shall be designated in Section 11.03
or in a separate writing by the Trustee to the Issuer, the Remarketing Agent,
the Indexing Agent, the Company and the Agent. For purposes of this Indenture,
the Trustee is also acting as tender agent for the Bonds in connection with any
tender or purchase of Bonds pursuant to Article IV.
"Trust Estate" shall have the meaning assigned to such term in the
foregoing habendum clause of this Indenture.
"Undelivered Bonds" means any Bonds subject to purchase pursuant to
Section 4.01 or 4.02 which the Holder thereof has failed to deliver as described
in such Sections.
"Weekly Mode" means, with respect to the Bonds, the mode of bearing
interest thereon at a Weekly Rate.
"Weekly Rate" means a floating weekly interest rate on the Bonds
established and adjusted in accordance with Section 2.03.
"Weekly Rate Calculation Date" means Monday in each calendar week or,
if any Monday is not a Business Day, the first Business Day preceding such
Monday.
"Weekly Rate Period" means the seven-day period commencing on the first
Monday following the corresponding Weekly Rate Calculation Date and running
through Sunday of the following calendar week; except that (i) the first Weekly
Rate Period shall commence on the Series Issue Date and end on and include the
first Sunday occurring after the Series Issue Date and (ii) the last Weekly Rate
Period prior to a conversion from the Weekly Mode to the Term Mode shall end on
and include the last day immediately preceding the Conversion Date.
SECTION 1.02. Interpretation; Time of Day
(a) Unless the context indicates otherwise, words importing
the singular number include the plural number, and vice versa. The terms
"hereof", "hereby", "herein", "hereto", "hereunder", "hereinafter" and similar
terms refer to this Indenture; and the term "hereafter" means after, and the
term "heretofore" means before, the Series Issue Date. Words of any gender
include the correlative words of the other genders, unless the context indicates
otherwise.
(b) In this Indenture, unless otherwise indicated, all
references to particular Articles, Sections or Subsections are references to the
Articles, Sections or Subsections of this Indenture.
(c) In this Indenture, all references to any time of the day
shall refer to Eastern standard time or Eastern daylight saving time, as in
effect in New York, New York on such day.
Section 1.03. Captions, Headings and Table of Contents. The captions,
headings and table of contents in this Indenture are solely for convenience of
reference and in no way define, limit or describe the scope of any Articles,
Sections, Subsections, paragraphs, subparagraphs or clauses hereof.
(End of Article I)
ARTICLE II
AUTHORIZATION AND TERMS OF BONDS
SECTION 2.01. Amount, Form and Issuance of Bonds
(a) The Bonds shall, except as provided in Section 2.05A, be
limited to $59,775,000 in aggregate principal amount of Series A Bonds and
$12,975,000 in aggregate principal amount of Series B Bonds, and shall contain
substantially the terms recited in the form of Bonds set forth in Exhibit A to
this Indenture. All Bonds shall provide that Debt Service in respect thereof
shall be payable only out of the Revenues. Pursuant to recommendations
promulgated by the Committee on Uniform Security Identification Procedures,
"CUSIP" numbers may be printed on the Bonds. The Bonds may bear such endorsement
or legend satisfactory to the Trustee as may be required to conform to usage or
law with respect thereto.
(b) Upon the execution and delivery hereof, the Issuer shall
execute the Bonds and deliver them to the Trustee for authentication. The
Trustee shall authenticate the Bonds and deliver them to, or on the order of,
the Issue upon receipt of a written request and authorization to the Trustee on
behalf of the Issuer; this Indenture shall constitute such order.
SECTION 2.02. Designation, Denominations, Maturity, Dated Dates,
Interest Accrual and Tender
(a) The Series A Bonds and the Series B Bonds shall be
designated "Adjustable Rate Tender Securities (Carmike Cinemas, Inc.) 1997
Series A" and "Adjustable Rate Tender Securities (Carmike Cinemas, Inc.) 1997
Series B", respectively, and shall be substantially in the form attached hereto
as Exhibit A.
(b) Prior to the Conversion Date, the Bonds shall be issuable
in denominations of $100,000 or any whole multiple thereof. From and after the
Conversion Date, the Bonds shall be issuable in denominations of $5,000 or any
whole multiple thereof.
(c) The Bonds shall mature, subject to prior redemption as
provided in the form thereof recited in this Indenture, on September 1, 2015.
(d) The Series Issue Date shall be set forth on the face side
of all Bonds authenticated by the Trustee. Each Bond shall bear the date of its
authentication.
(e) The Bonds shall bear interest from the Interest Payment
Date to which interest has been paid next preceding the date of authentication,
unless the date of authentication (i) is an Interest Payment Date to which
interest has been paid, in which event the Bonds shall bear interest from the
date of authentication, or (ii) is prior to the first Interest Payment Date for
the Bonds, in which event such Bonds shall bear interest from the Series Issue
Date. Interest on the Bonds shall be paid on each Interest Payment Date. Each
Bond shall bear interest on overdue principal at the rates borne by the Bonds
during the period such principal is overdue. So long as the Bonds bear interest
at a Weekly Rate, interest on the Bonds shall be computed on the basis of a year
of 360 days for the number of days actually elapsed. Interest accruing on the
Bonds at a Term Rate shall be computed on the basis of a 360-day year of twelve
30-day months.
(f) Bonds authenticated and delivered while bearing interest
in the Weekly Mode shall set forth on the face side thereof, in the place
provided for designating the interest rate, the words "Weekly Rate".
(g) Bonds authenticated and delivered while bearing interest
in the Term Mode shall set forth on the face side thereof, in the place provided
for designating the interest rate, the words "__% Term Rate".
(h) All Bonds shall initially bear interest at a Weekly Rate
from the Series Issue Date determined in accordance with Section 2.03. The Bonds
may be converted from one Rate Mode to another Rate Mode as provided in Section
2.05.
(i) The Bonds shall be subject to optional and mandatory
tender for purchase as provided in Article IV.
SECTION 2.03. Weekly Rate
(a) A Weekly Rate shall be determined for each Weekly Rate
Period as described below. For each Weekly Rate Period and so long as the Bonds
are in the Weekly Mode, the interest rate on the Bonds shall be the current
market rate determined by the Indexing Agent on the immediately preceding Weekly
Rate Calculation Date, in accordance with this Section. On each Weekly Rate
Calculation Date, the Indexing Agent shall determine the Weekly Rate for the
next succeeding Weekly Rate Period. The Weekly Rate shall be a percentage per
annum equal to the Money Market Equivalent Yield, plus or minus the Special
Adjustment Factor, if any, determined by the Indexing Agent. The Special
Adjustment Factor will be the amount, if any, which when added to or subtracted
from the Money Market Equivalent Yield, would result in a Weekly Rate for the
applicable Weekly Rate Period, sufficient, in the opinion of the Indexing Agent,
to enable the Remarketing Agent to remarket the Bonds at 100% of the principal
amount thereof. In determining the Special Adjustment Factor on the Bonds, the
Indexing Agent is to have due regard for general financial and credit market
conditions and such other factors, including the credit rating and financial
condition of the Lenders and applicable tender provisions, which, in the
judgment of the Indexing Agent may have a bearing on the interest rate on the
Bonds. Notice of such Weekly Rate shall be given by the Indexing Agent to the
Trustee and the Remarketing Agent by the close of business on the Weekly Rate
Calculation Date. No notice of Weekly Rates will be given to the Issuer, the
Company, the Agent or the Holders; however, the Issuer, the Company, the Agent
and the Holders may obtain Weekly Rates from the Trustee or the Indexing Agent
upon request therefor.
(b) Anything herein to the contrary notwithstanding, in no
event shall the Weekly Rate borne by the Bonds exceed the Maximum Rate.
(c) At the direction of the Issuer (which direction shall be
given by the Issuer upon the request of the Agent), the Maximum Rate shall be
increased to a rate per annum specified by the Agent which does not exceed the
maximum non-usurious rate allowed by applicable law; provided that, if the Bonds
are then rated by a Rating Agency, the Trustee shall receive a written notice
from each Rating Agency then maintaining a rating on the Bonds stating that the
proposed increase of the Maximum Rate will not cause the rating then assigned to
the Bonds to be lowered or withdrawn as a result of any increase in the Maximum
Rate. The consent of the Bondholders shall not be required for any such increase
in the Maximum Rate. The Trustee shall not be responsible for determining such
Maximum Rate or obtaining such Rating Agency notices.
(d) If for any reason the Indexing Agent does not determine a
Weekly Rate for any Weekly Rate Period as aforesaid, or if a court holds a rate
for any Weekly Rate Period to be invalid or unenforceable, the Weekly Rate for
that Weekly Rate Period shall be equal to the Weekly Rate in effect for the
immediately preceding Weekly Rate Period. The Weekly Rate for any consecutive
succeeding Weekly Rate Period for which the Indexing Agent does not determine a
Weekly Rate, or a court holds a rate to be invalid or unenforceable, shall be
the sum of (i) the daily unweighted average of the Federal Funds Rate, for each
Business Day of the preceding week plus (ii) .125%.
(e) The determination of the Weekly Rate by the Indexing Agent
pursuant to this Indenture shall be conclusive and binding upon the Issuer, the
Trustee, the Remarketing Agent, the Company, the Indexing Agent, the Agent and
the Holders of the Bonds.
Section 2.04. Term Rate. The Term Rate shall be determined as described
below. The Term Rate shall be determined by the Remarketing Agent, on the Term
Rate Calculation Date, as the lowest rate of interest that, in the judgment of
the Remarketing Agent, taking into account prevailing financial market
conditions, would be necessary to enable the Remarketing Agent to arrange for
the sale of the Bonds in the Term Mode in a secondary market sale at a price
equal to the principal amount thereof, without premium plus accrued interest, on
the first Business Day of the respective Term Rate Period; provided that (1) if
the Remarketing Agent fails for any reason to determine the Term Rate for any
Term Rate Period, such Term Rate shall be equal to 125% of the average annual
bond equivalent yield calculations at par as of the first day of the
corresponding Term Rate Period or, if such day is not a Business Day, the next
preceding Business Day, of United States Treasury obligations having a term to
maturity similar to such Term Rate Period, and (2) no Term Rate shall exceed the
lesser of (i) the maximum interest rate at which the Letters of Credit then in
effect provides coverage for at least Forty Three (43) days interest and (ii)
10% per annum. In determining a Term Rate pursuant to this Section, prevailing
financial market conditions which the Remarketing Agent shall take into account
shall include (i) existing long-term market rates and indexes of such long-term
rates, (ii) the existing market supply and demand for long-term securities,
(iii) existing yield curves for long-term securities for obligations of credit
quality comparable to the Bonds, (iv) general economic conditions, (v) industry,
economic and financial conditions that may affect or be relevant to the Bonds,
and (vi) such other facts, circumstances and conditions as the Remarketing
Agent, in its sole discretion, shall determine to be relevant. Notice of each
Term Rate shall promptly be given by telephone (promptly confirmed in writing)
by the Remarketing Agent to the Trustee, the Issuer, the Company and the Agent.
Determinations of Term Rates pursuant to this Section shall be conclusive and
binding upon the Issuer, the Company, the Trustee, the Agent and the Holders.
Section 2.05. Conversion at Option of Company. The Issuer shall have
the option (to be exercised at the direction of the Company) to convert the
interest rate on the Bonds from the Weekly Mode to the Term Mode as herein
provided on any Conversion Date the Company shall select, provided that the
Conversion Date shall be an Interest Payment Date. The Issuer shall exercise
such option by giving written notice from an Authorized Representative of the
Issuer to the Trustee, the Remarketing Agent, the Indexing Agent and the Agent,
stating its election to convert the Rate Mode of the Bonds to the Term Mode and
stating the Conversion Date therefor, not less than 45 days (or such shorter
period as shall be acceptable to the Trustee) prior to such Conversion Date.
Upon receipt of such notice by the Trustee, the Trustee may conclusively assume
that the Issuer, the Remarketing Agent, the Indexing Agent and the Agent also
received a copy of such notice and that such condition has been complied with.
Notice of the exercise of the option to convert shall not be effective unless,
within 10 days (or such greater period as shall be acceptable to the Trustee) of
the delivery of such notice, there shall have been delivered to the Trustee (i)
an opinion of counsel to the Issuer addressed to the Trustee, the Issuer, the
Company, the Agent, the Indexing Agent and the Remarketing Agent to the effect
that such conversion is authorized or permitted by this Indenture, and (ii) if
(A) the Letters of Credit are to remain in effect from and after the Conversion
Date, or (B) any portion of the purchase price for the Bonds is to be paid from
drawings under the Letters of Credit, the written consent of the LC Issuers to
such conversion. The Trustee shall give notice by first class mail (postage
prepaid) to the Holders not less than 30 days prior to the proposed Conversion
Date (i) stating that the interest rate on the Bonds is scheduled to be
converted to the Term Rate, (ii) stating the proposed Conversion Date, (iii)
stating the method of computation of the Term Rate which will take effect on the
Conversion Date, (iv) stating that from and after the Conversion Date, the Bonds
will no longer be subject to purchase on demand of the Holder, (v) if the Bonds
will be secured by Letters of Credit after the Conversion Date, so stating and
stating the identity of the LC Issuers issuing such Letters of Credit or, if the
Bonds will not be secured by Letters of Credit after the Conversion Date, so
stating, (vi) if the Bonds will be subject to optional redemption after the
Conversion Date, stating the applicable provisions therefor, or, if the Bonds
will not be subject to optional redemption after the Conversion Date, so
stating, (vii) stating that the Company, on or before the tenth day prior to the
proposed Conversion Date, may determine not to convert the Bonds in which case
the Trustee shall notify the Holders in writing to such effect, (viii) stating
that all outstanding Bonds will be subject to a mandatory purchase on the
Conversion Date, or if such Conversion Date is not a Business Day, the first
Business Day following such Conversion Date at a price of par plus accrued
interest, if any, and (ix) stating that if the Remarketing Agent shall not have
received, at least one Business Day prior to the proposed Conversion Date, firm
orders for the purchase of all of the Bonds Outstanding to bear interest at the
Term Rate, the exercise of the Conversion Option shall be rescinded and the
Bonds shall continue to bear interest at the Weekly Rate and shall not be
subject to mandatory purchase on the proposed Conversion Date. Notwithstanding
any other provision contained herein or in the Bonds, if the Remarketing Agent
shall not have received, at least one Business Day prior to the proposed
Conversion Date, firm orders for the purchase of all of the Bonds Outstanding to
bear interest at the Term Rate, the exercise of the Conversion Option shall be
rescinded and the Bonds shall continue to bear interest at the Weekly Rate and
shall not be subject to mandatory purchase on the proposed Conversion Date.
Section 2.05A. Additional Bonds. After authentication and delivery of
the Bonds, and so long as no Event of Default shall have occurred and shall then
be continuing, one or more Series of Additional Bonds may be authenticated and
delivered upon original issuance at any time or from time to time for the
purpose of financing Costs of the Projects or providing additional funds to
complete payment of the Costs of the Projects. The proceeds, including accrued
interest, of the Additional Bonds of each Series shall be applied simultaneously
with the delivery of such Bonds as shall be provided in the Supplemental
Indenture authorizing such Series of Additional Bonds.
SECTION 2.05B. Refunding Bonds
(a) One or more Series of Refunding Bonds may be issued at any
time to refund Outstanding Bonds of one or more Series or one or more maturities
within a Series or any Bonds of one or more maturities within one or more
Series. Refunding Bonds shall be issued in a principal amount sufficient,
together with other moneys available therefor, to accomplish such refunding and
to make the deposits in the funds and accounts under the Indenture required by
the provisions of the Supplemental Indenture authorizing such Bonds.
(b) Refunding Bonds of each Series shall be authenticated and
delivered by the Trustee only upon receipt by the Trustee of:
(1) Irrevocable written instructions to the Trustee,
satisfactory to it, to give due notice of redemption, if applicable, of
all of the Bonds to be refunded on a redemption date or dates specified
in such instructions, subject to the provisions of Section 10.02
hereof;
(2) If the Bonds to be refunded are not by their terms subject
to redemption or will not be redeemed within the next succeeding 60
days, irrevocable written instructions to the Trustee, satisfactory to
it, to mail the notice provided for in Section 10.02 to the Holders of
the Bonds being refunded; and
(3) Either (i) moneys in an amount sufficient to effect
payment at the applicable redemption price of the Bonds to be refunded,
together with accrued interest on such Bonds to the redemption date,
shall be held by the Trustee or any one or more of the paying agents in
a separate account irrevocably in trust for and assigned to the
respective Holders of the Bonds to be refunded, or (ii) Defeasance
Obligations in such principal amounts, of such maturities, bearing such
interest, and otherwise having such terms and qualifications and any
moneys, as shall be necessary to comply with the provisions of Article
X hereof, which Defeasance Obligations and moneys shall be held in
trust and used only as provided in said Article.
(4) Such further documents and moneys as are required by the
provisions of the Supplemental Indenture authorizing said Series of
Refunding Bonds.
(c) The proceeds, including accrued interest, of the Refunding
Bonds of each Series shall be applied simultaneously with the delivery of such
Bonds as shall be provided by the Supplemental Indenture authorizing such Series
of Refunding Bonds.
SECTION 2.06. Execution and Authentication of Bonds
(a) The Bonds shall be executed by the manual or facsimile
signature of an Authorized Representative and attested by the manual or
facsimile signature of an Authorized Representative of the Issuer. In case any
Authorized Representative whose signature or a facsimile of whose signature
shall appear on any Bond shall cease to be that Authorized Representative before
the authentication of the Bond, the signature of such Authorized Representative
or the facsimile thereof nevertheless shall be valid and sufficient for all
purposes, the same as if that Authorized Representative had remained in office
until that time. Any Xxxx may be executed on behalf of the Issuer by an
Authorized Representative who, on the date of execution is the proper Authorized
Representative, although on the date of authentication of the Bond that person
was not the proper Authorized Representative.
(b) No Bond shall be valid or become obligatory for any
purpose or shall be entitled to any security or benefit under this Indenture
unless and until a certificate of authentication, substantially in the form set
forth in Exhibit A to this Indenture, has been signed by the Trustee. The
authentication by the Trustee upon any Bond shall be conclusive evidence that
the Bond so authenticated has been duly authenticated and delivered hereunder
and is entitled to the security and benefit of this Indenture. The certificate
of the Trustee may be executed by any person authorized by the Trustee, and it
shall not be necessary that the same authorized person sign the certificates of
authentication on all of the Bonds.
(c) The Bonds, initially shall be authenticated and delivered
pursuant to Section 2.01(b).
Section 2.07. Source of Payment of Bonds; Limited Obligations. The
Bonds Outstanding from time to time are limited and special obligations of the
Issuer, the principal of, and premium, if any, and interest on which are payable
solely from drawings under the Letters of Credit and otherwise as provided
herein, which amounts are hereby specifically pledged to the payment thereof in
the manner and to the extent herein specified, and the Bonds shall not be deemed
to constitute a general obligation or liability of the Issuer, its managers,
members or employees. The Bonds are limited obligations of the Issuer and do not
constitute a charge against the general credit of the Issuer.
SECTION 2.08. Payment and Ownership of Bonds
(a) Debt Service shall be payable in lawful money of the
United States of America without deduction for the services of the Trustee.
Subject to the provisions of Sections 2.08(b), 2.12 and 2.13, (i) the principal
of and any premium on any Bond shall be payable when due to a Holder upon
presentation and surrender of such Bond at the Principal Office of the Trustee,
and (ii) interest on any Bond shall be paid on each Interest Payment Date by
check or draft which the Trustee shall cause to be mailed on that date to the
Person in whose name the Bond is registered at the close of business on the
Regular Record Date applicable to that Interest Payment Date on the Register at
the address appearing therein. If and to the extent, however, that the Issuer
shall fail to make payment or provision for payment of interest on any Bond on
any Interest Payment Date, that interest shall cease to be payable to the Person
who was the Holder of that Xxxx as of the applicable Regular Record Date. When
moneys become available for payment of that interest, (x) the Trustee shall,
pursuant to Subsection 7.06(d), establish a Special Record Date for the payment
of that interest which shall be not more than 15 nor fewer than 10 days prior to
the date of the proposed payment, and (y) the Trustee shall cause notice of the
proposed payment and of the Special Record Date to be mailed by first class
mail, postage prepaid, to each Holder at its address as it appears on the
Register not fewer than 10 days prior to the Special Record Date and,
thereafter, that interest shall be payable to the Persons who are the Holders of
the Bonds at the close of business on the Special Record Date.
(b) The interest and the principal or redemption price and
purchase price becoming due with respect to the Bonds shall, at the written
request of the Holder of at least $1,000,000 aggregate principal amount of such
Bonds received by the Trustee at least two Business Days before the
corresponding Regular Record Date or maturity, redemption or purchase date, be
paid by wire transfer within the continental United States in immediately
available funds to the bank account number of such Holder specified in such
request and entered by the Trustee on the Register, but, in the case of
principal or redemption price and purchase price, only upon presentation and
surrender of such Xxxxx at the Principal Office of the Trustee.
(c) Subject to the foregoing, each Bond delivered under this
Indenture upon transfer thereof, or in exchange for or in replacement of any
other Bond, shall carry the rights to interest accrued and unpaid, and to accrue
on that Bond, or which were carried by that Xxxx.
(d) Except as provided in this Section and in subsection
2.10(a), (i) the Holder of any Bond shall be deemed and regarded as the absolute
owner thereof for all purposes of this Indenture, (ii) payment of or on account
of the Debt Service on any Bond shall be made only to or upon the order of that
Holder or its duly authorized attorney in the manner permitted by this
Indenture, and (iii) neither the Issuer nor the Trustee shall, to the extent
permitted by law, be affected by notice to the contrary. All of those payments
shall be valid and effective to satisfy and discharge the liability upon that
Bond, including without limitation the interest thereon to the extent of the
amount or amounts so paid.
SECTION 2.09. Registration, Transfer and Exchange of Bonds
(a) All Bonds shall be issued in fully registered form. The
Bonds shall be registered upon original issuance and upon subsequent transfer or
exchange as provided in this Indenture. The Trustee shall act as registrar and
transfer agent for the Bonds. So long as any of the Bonds remain outstanding,
the Issuer will cause books for the registration and transfer of Bonds, as
provided in this Indenture, to be maintained and kept at the Principal Office of
the Trustee.
(b) Bonds may be exchanged, at the option of their Holder, for
Bonds of any authorized denomination or denominations in an aggregate principal
amount equal to the unmatured and unredeemed principal amount of, and bearing
interest at the same rate and maturing on the same date or dates as, the Bonds
being exchanged. The exchange shall be made upon presentation and surrender of
the Bonds being exchanged at the Principal Office of the Trustee, together with
an assignment duly executed by the Holder or its duly authorized attorney in
form and with guarantee of signature satisfactory to the Trustee.
(c) Any Bond may be transferred upon the Register, upon
presentation and surrender thereof at the Principal Office of the Trustee,
together with an assignment duly executed by the Holder or its duly authorized
attorney in form and with guarantee of signature satisfactory to the Trustee.
Upon transfer of any Bond, the Issuer shall execute in the name of the
transferee, and the Trustee shall authenticate and deliver, a new Bond or Bonds
of any authorized denomination or denominations in an aggregate principal amount
equal to the unmatured and unredeemed principal amount of, and bearing interest
at the same rate and maturing on the same date or dates as, the Bonds presented
and surrendered for transfer.
(d) In all cases in which Bonds shall be exchanged or
transferred hereunder, the Issuer shall execute, and the Trustee shall
authenticate and deliver, Bonds in accordance with the provisions of this
Indenture. The exchange or transfer shall be made without charge; provided that
the Issuer or the Trustee may make a charge for every exchange or transfer of
Bonds sufficient to reimburse them for any tax or excise required to be paid
with respect to the exchange or transfer. The charge shall be paid before a new
Bond is delivered.
(e) All Bonds issued upon any transfer or exchange of Bonds
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Bonds surrendered
upon transfer or exchange. After the Conversion Date, the Trustee shall not be
required to exchange or transfer (i) any Bond during a period beginning at the
opening of business ten days before the date of the mailing of a notice of
redemption of Bonds and ending at the close of business on the day of such
mailing, (ii) any Bond selected for redemption, in whole or in part, or (iii)
any Bond during the period of 15 days preceding any Interest Payment Date.
(f) In case any Bond is redeemed in part only, on or after the
redemption date and upon presentation and surrender of the Bond, the Issuer,
subject to the provisions of Sections 2.12 and 2.13, shall cause execution of,
and the Trustee shall authenticate and deliver, a new Bond or Bonds in
authorized denominations in an aggregate principal amount equal to the unmatured
and unredeemed portion of, and bearing interest at the same rate and maturing on
the same date or dates as, the Bond redeemed in part.
SECTION 2.10. Mutilated, Lost, Wrongfully Taken or Destroyed Bonds
(a) If any Bond is mutilated, lost, wrongfully taken or
destroyed, in the absence of written notice to the Issuer or the Trustee that a
lost, wrongfully taken or destroyed Bond has been acquired by a purported bona
fide purchaser, the Issuer shall execute, and the Trustee shall authenticate and
deliver, a new Bond of like date, maturity and denomination and of the same
series as the Bond mutilated, lost, wrongfully taken or destroyed; provided that
(i) in the case of any mutilated Bond, the mutilated Bond first shall be
surrendered to the Trustee, and (ii) in the case of any lost, wrongfully taken
or destroyed Xxxx, there first shall be furnished to the Issuer, the Company and
the Trustee evidence of the loss, wrongful taking or destruction satisfactory to
the Trustee, together with indemnity satisfactory to it and to the Authorized
Representative of the Issuer. The Issuer and the Trustee may charge the Holder
of a mutilated, lost, wrongfully taken or destroyed Bond their reasonable fees
and expenses in connection with their actions pursuant to this Section.
(b) Notwithstanding the foregoing, the Trustee shall not be
required to authenticate and deliver any substitute Bond for a Bond which has
been called for redemption or which has matured or is about to mature and, in
any such case, the principal or redemption price and interest then due or
becoming due shall be paid by the Trustee from the funds provided by the Issuer
hereunder in accordance with the terms of the mutilated, lost, wrongfully taken
or destroyed Bond without substitution therefor.
(c) Every substituted Xxxx issued pursuant to this Section
shall constitute an additional contractual obligation of the Issuer and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Bonds duly issued hereunder unless the Bond alleged to have
been lost, wrongfully taken or destroyed shall be at any time enforceable by a
bona fide purchaser for value without notice. In the event the Bond alleged to
have been lost, wrongfully taken or destroyed shall be enforceable by anyone,
the Issuer may recover the substitute Bond from the Bondholder to whom it was
issued or from anyone taking under the Bondholder except a bona fide purchaser
for value without notice. Subject to the foregoing, all Bonds authenticated and
delivered under this Section 2.10 shall evidence the same debt as the last,
wrongfully taken or destroyed Xxxx.
(d) All Bonds shall be held and owned on the express condition
that the foregoing provisions of this Section are exclusive with respect to the
replacement or payment of mutilated, lost, wrongfully taken or destroyed Bonds
and, to the extent permitted by law, shall preclude any and all other rights and
remedies with respect to the replacement or payment of negotiable instruments or
other investment securities without their surrender, notwithstanding any law or
statute to the contrary now existing or hereafter enacted.
SECTION 2.11. Cancellation of Bonds
(a) Any Xxxx surrendered pursuant to this Article for the
purpose of payment, redemption, retirement, exchange, replacement or transfer
shall be cancelled upon presentation and surrender thereof to the Trustee. Bonds
purchased pursuant to Section 4.01 or 4.02 shall not be surrendered Bonds and
shall be Outstanding Bonds, unless otherwise specifically provided in this
Indenture.
(b) The Company may deliver at any time to the Trustee for
cancellation any Bonds previously authenticated and delivered hereunder, which
the Company may have purchased pursuant to the provisions of this Indenture. All
Bonds so delivered shall be cancelled promptly by the Trustee. Certification of
the surrender and cancellation of any Bonds shall be made to the Issuer by the
Trustee. Cancelled Bonds shall be destroyed by the Trustee by shredding or
incineration after their cancellation. The Trustee shall provide certificates
describing the destruction of cancelled Bonds to the Issuer.
Section 2.12. Special Agreement with Holders. Notwithstanding any
provision of this Indenture or of any Bond to the contrary, the Trustee may
enter into an agreement with any Holder providing for making all payments to
that Holder of principal of and interest and any premium on that Bond or any
part thereof at a place and by a method (including wire transfer of federal
funds) other than as provided in this Indenture and in the Bond, without
presentation or surrender of the Bond, upon any conditions which shall be
satisfactory to the Trustee; provided that (i) except as otherwise provided in
Section 2.13, payment of principal shall be made only upon presentation and
surrender of the Bond and (ii) payment in any event shall be made to the Person
in whose name a Bond shall be registered on the Register, with respect to
payment of principal and premium, on the date such principal and premium is due,
and, with respect to the payment of interest, as of the applicable Regular
Record Date, Special Record Date or other date agreed upon, as the case may be.
The Trustee will furnish a copy of each such agreement, upon request, to the
Issuer, the Agent and the Company. Any payment of principal, premium or interest
pursuant to such an agreement shall constitute payment thereof pursuant to, and
for all purposes of, this Indenture.
SECTION 2.13. Book-Entry System for the Bonds
(a) Notwithstanding the foregoing provisions of this Article
II, any Series of Bonds which is issued as Book-Entry Bonds shall initially be
issued in the form of one fully-registered bond for the aggregate principal
amount of the Bonds of each maturity, which Book-Entry Bonds shall be registered
in the name of Cede & Co., as nominee of DTC. Except as provided in paragraph
(g) below, all Book-Entry Bonds shall be registered in the Register in the name
of Cede & Co., as nominee of DTC; provided that if DTC shall request that
Book-Entry Bonds be registered in the name of a different nominee, the Trustee
shall exchange all or any portion of the Book-Entry Bonds for an equal aggregate
principal amount of Book-Entry Bonds registered in the name of such nominee or
nominees of DTC. No person other than DTC or its nominee shall be entitled to
receive from the Issuer or the Trustee either a Book-Entry Bond or any other
evidence of ownership of the Book-Entry Bonds, or any right to receive any
payment in respect thereof, unless DTC or its nominee shall transfer record
ownership of all or any portion of the Book-Entry Bonds on the Register in
connection with discontinuing the book entry system as provided in paragraph (g)
below or otherwise.
(b) So long as any Bonds are registered in the name of DTC or
any nominee thereof, all payments of the principal or redemption price of or
interest on such Bonds shall be made to DTC or its nominee in accordance with
the Representation Letter on the dates provided for such payments under this
Indenture. Each such payment to DTC or its nominee shall be valid and effective
to fully discharge all liability of the Issuer or the Trustee with respect to
the principal or redemption price of or interest on the Book-Entry Bonds to the
extent of the sum or sums so paid. In the event of the redemption of less than
all of the Book-Entry Bonds Outstanding of any maturity, the Trustee shall not
require surrender by DTC or its nominee of the Book-Entry Bonds so redeemed, but
DTC (or its nominee) may retain such Bonds and make an appropriate notation on
the Bond certificate as to the amount of such partial redemption; provided that
DTC shall deliver to the Trustee, upon request, a written confirmation of such
partial redemption and thereafter the records maintained by the Trustee shall be
conclusive as to the amount of the Bonds of such maturity which have been
redeemed.
(c) The Issuer and the Trustee may treat DTC (or its nominee)
as the sole and exclusive owner of the Book-Entry Bonds registered in its name
for the purposes of payment of the principal or redemption price of or interest
on the Book-Entry Bonds, selecting the Book-Entry Bonds or portions thereof to
be redeemed, giving any notice permitted or required to be given to Holders
under this Indenture, registering the transfer of Book-Entry Bonds, obtaining
any consent or other action to be taken by Holders and for all other purposes
whatsoever; and neither the Issuer nor the Trustee shall be affected by any
notice to the contrary. Neither the Issuer nor the Trustee shall have any
responsibility or obligation to any participant in DTC, any person claiming a
beneficial ownership interest in Book-Entry Bonds under or through DTC or any
such participant, or any other person which is not shown on the Register as
being a Holder, with respect to either: (1) the Book-Entry Bonds, (2) the
accuracy of any records maintained by DTC or any such participant, (3) the
payment by DTC or any such participant of any amount in respect of the principal
or redemption price of or interest on the Book-Entry Bonds, (4) any notice which
is permitted or required to be given to Holders under this Indenture, (5) the
selection by DTC or any such participant of any person to receive payment in the
event of a partial redemption of the Book-Entry Bonds, and (6) any consent given
or other action taken by DTC as Holder.
(d) So long as any Bonds are registered in the name of DTC or
any nominee thereof, all notices required or permitted to be given to the
Holders of such Bonds under this Indenture shall be given to DTC as provided in
the Representation Letter.
(e) In connection with any notice or other communication to be
provided to Holders pursuant to this Indenture by the Issuer or the Trustee with
respect to any consent or other action to be taken by Holders, DTC shall
consider the date of receipt of notice requesting such consent or other action
as the record date for such consent or other action, provided that the Issuer or
the Trustee may establish a special record date for such consent or other
action. The Issuer or the Trustee shall give DTC notice of such special record
date not less than 15 calendar days in advance of such special record date to
the extent possible.
(f) At or prior to settlement for the Book-Entry Bonds, the
Issuer and the Trustee shall execute or signify their approval of the
Representation Letter. Any successor Trustee shall, in its written acceptance of
its duties under this Indenture, agree to take any actions necessary from time
to time to comply with the requirements of the Representation Letter.
(g) The book-entry system for registration of the ownership of
Book-Entry Bonds may be discontinued at any time if either (1) after notice to
the Issuer and the Trustee, DTC determines to resign as securities depository
for the Book-Entry Bonds, or (2) after notice to DTC and the Trustee, the Issuer
determines that continuation of the system of book-entry transfers through DTC
(or through a successor securities depository) is not in the best interests of
the Issuer. In either of such events (unless in the case described in clause (2)
above, the Issuer appoints a successor securities depository), the Book-Entry
Bonds shall be delivered in registered certificate form to such persons, and in
such maturities and principal amounts, as may be designated by DTC, but without
any liability on the part of the Issuer or the Trustee for the accuracy of such
designation. Whenever DTC requests the Issuer and the Trustee to do so, the
Issuer and the Trustee shall cooperate with DTC in taking appropriate action
after reasonable notice to arrange for another securities depository to maintain
custody of certificates evidencing Book-Entry Bonds.
(h) Anything herein to the contrary notwithstanding, so long
as any Bonds are registered in the name of DTC or any nominee thereof, in
connection with any optional tender of such Bonds bearing interest at a Weekly
Rate, the beneficial owners of such Bonds are responsible for submitting the
Bondholder Tender Notice to the Remarketing Agent only.
(i) Upon remarketing of Book-Entry Bonds in accordance with
Section 4.03 herein, payment of the purchase price thereof shall be made to DTC
and no surrender of certificates is expected to be required. Such sales shall be
made through DTC participants (which may include the Remarketing Agent) and the
new beneficial owners of such Book-Entry Bonds shall not receive delivery of
Bond certificates. DTC shall transmit payment to DTC participants, and DTC
participants shall transmit payment to beneficial owners whose Book-Entry Bonds
were purchased pursuant to a remarketing. Neither the Issuer, the Trustee nor
the Remarketing Agent is responsible for transfers of payment to DTC
participants or beneficial owners.
(j) The provisions of this Section 2.13 are subject to the
provisions of Article IV relating to Pledged Bonds.
(End of Article II)
ARTICLE III
REDEMPTION OF BONDS
Section 3.01. Terms of Redemption. The Bonds are subject to redemption
prior to stated maturity as follows:
(a) Mandatory Sinking Fund Redemption. The Series A Bonds are
subject to mandatory sinking fund redemption prior to maturity at a redemption
price of 100% of the principal amount redeemed plus accrued interest to the
redemption date, on the Annual Payment Dates in the years and in the principal
amounts specified in Exhibit B to this Indenture. In the event that any Series A
Bonds are redeemed (other than through sinking fund redemption pursuant to this
Section) and are cancelled by the Trustee, the Trustee shall cause the Issuer to
receive a credit against its sinking fund redemption obligations in the
aggregate principal amount of Bonds so redeemed, such credits to be given in
such order of maturity as may be directed by the Issuer, at the direction of the
Company, with the consent of the Agent which consent shall not be unreasonably
withheld or delayed provided that the Company shall provide the Agent with
evidence reasonably satisfactory to the Agent that the Company has or will have
sufficient funds to meet the Company's payment obligations under the Lease as
they become due. Also, at its option, the Company may deliver to the Trustee for
cancellation Series A Bonds purchased by the Company pursuant to this Indenture.
Such Series A Bonds so purchased, delivered and cancelled shall be credited by
the Trustee at 100% of the principal amount thereof against the sinking fund
redemption obligations of the Issuer in such order of maturity as may be
directed by the Company with the consent of the Agent, which consent shall not
be unreasonably withheld or delayed provided that the Company shall provide the
Agent with evidence reasonably satisfactory to the Agent that the Company has or
will have sufficient funds to meet the Company's payment obligations under the
Lease as they become due, and the principal amount of Series A Bonds to be
redeemed by sinking fund redemption shall be accordingly reduced. Concurrently
with the events described above in this Subsection, the Trustee shall take such
action as may be necessary to cause the Company to receive corresponding credits
against its obligations to make Lease Payments. Anything herein to the contrary
notwithstanding, the Issuer and the Company shall not receive credits pursuant
to this Subsection for sinking fund redemption obligations in respect of which
the Trustee has given notice of redemption to Holders prior to the accrual of
such credits.
(b) Partial Redemption on Final Project Completion Date. The
Series A Bonds are subject to partial redemption after the Final Project
Completion Date in accordance with Section 3.9 of the Lease. Subject to the
provisions of subsection 5.04(c)(iv), the aggregate principal amount of Series A
Bonds to be so redeemed shall be equal to (i) the total amount of moneys
remaining in the Project Fund (including investment earnings thereon) after the
Final Project Completion Date which are transferred to the Excess Bond Proceeds
Account within the Bond Fund pursuant to Section 5.03, including (ii) moneys
remaining in the Capitalized Interest Account and the Capitalized Interest
Reserve Account (including investment earnings thereon) after the Final Project
Completion Date which are transferred to the Excess Bond Proceeds Account within
the Bond Fund pursuant to Sections 5.02A and 5.02B, respectively, and including
(iii) all investment earnings on amounts in the Bond Fund through and including
the Final Project Completion Date.
(c) Partial Redemption from Uncompleted Project Purchase
Price. The Series A Bonds are subject to partial redemption after the Final
Project Completion Date in accordance with Subsection 4.2(a) of the Lease. The
aggregate principal amount of Series A Bonds to be so redeemed shall be equal to
the aggregate Uncompleted Project Purchase Price actually received by the Issuer
from the Company pursuant to Subsection 4.2(a) of the Lease.
(d) Partial Redemption Upon Purchase.
(i) The Series A Bonds are subject to partial
redemption after the Final Project Completion Date in the event the Company
elects to purchase one or more Individual Properties pursuant to Subsection
4.3(b) of the Lease. The aggregate principal amount of Series A Bonds to be so
redeemed shall be equal to the aggregate purchase prices actually received by
the Issuer from the Company for the Individual Property or Properties so
purchased in accordance with Subsection 4.3(b) of the Lease.
(ii) The Series A Bonds are subject to partial redemption
in the event the Company elects to purchase one or more Subperforming Theater
Properties pursuant to Section 15.4 of the Lease. The aggregate principal amount
of Series A Bonds to be so redeemed shall be equal to the aggregate purchase
prices received by the Issuer from the Company for the Subperforming Theater
Property or Properties so purchased in accordance with Section 15.4 of the
Lease.
(e) Extraordinary Optional Redemption. The Series A Bonds are
subject to redemption prior to maturity by the Issuer in the event of the
exercise by the Company of its option to direct that redemption upon occurrence
of any of the events described in Section 15.5 of the Lease, at any time in
whole or in part on any Interest Payment Date, in each case, at a redemption
price of 100% of the principal amount redeemed plus accrued interest to the
redemption date.
(f) Optional Redemption During Weekly Mode. Prior to the
Conversion Date, the Bonds may be redeemed by the Issuer, at the direction of
the Company (subject to Section 3.03) in whole at any time or in part on any
Interest Payment Date, prior to maturity at a redemption price equal to 100% of
the principal amount thereof plus accrued interest to the redemption date. In
the case of the optional redemption of Bonds in part, the Company may direct
that the Trustee only redeem Series A Bonds and not Series B Bonds to the extent
that the aggregate principal amount of the Series A Bonds Outstanding exceeds
the aggregate principal amount of Series B Bonds Outstanding, and thereafter all
optional redemptions shall be applied to the Series A Bonds and the Series B
Bonds in equal amounts.
(g) Optional Redemption After Conversion Date. From and after
the Conversion Date, the Bonds shall be subject to optional redemption prior to
maturity by the Issuer, at the direction of the Company, if, and to the extent
and at such redemption prices as are set forth in the notice to Bondholders of
the conversion of the Bonds.
(h) Optional Redemption on Special Right of Termination and
Purchase. The Bonds are subject to optional redemption prior to maturity, at a
redemption price equal to 100% of the principal amount thereof plus accrued
interest to the redemption date, in the event the Company exercises its option
to terminate the Lease pursuant to Section 15.7 of the Lease.
(i) Use of Certain Funds to Redeem Bonds. The Trustee shall
draw on the Letters of Credit in the manner provided by Section 5.04 to pay the
principal of and interest on any Bonds called for mandatory sinking fund
redemption pursuant to Section 3.01(a). In the case of redemption pursuant to
Section 3.01(b), the Trustee shall pay the redemption price from the Excess Bond
Proceeds Account. In the case of any Special Redemption, the Trustee shall pay
the redemption price on all Bonds to be redeemed from funds constituting
Available Monies held by the Trustee for such purposes in the Special Redemption
Account within the Bond Fund.
Section 3.02. Partial Redemption. If fewer than all of the Bonds of a
Series are to be redeemed, the selection of Bonds to be redeemed, or portions
thereof in amounts of $100,000 ($5,000 after the Conversion Date) or any whole
multiple thereof, shall be made by lot or by such other method as the Trustee
deems fair and appropriate; provided that any Pledged Bonds shall be redeemed
first and any Company Bonds shall be redeemed second. In the case of a partial
redemption of Bonds when Bonds of denominations greater than $100,000 ($5,000
after the Conversion Date) are then outstanding, each $100,000 ($5,000 after the
Conversion Date) unit of face value of principal thereof shall be treated as
though it were a separate Bond of the denomination of $100,000 ($5,000 after the
Conversion Date). If it is determined that one or more, but not all, of the
$100,000 ($5,000 after the Conversion Date) units of face value represented by a
Bond are to be called for redemption, then upon notice of redemption of a
$100,000 ($5,000 after the Conversion Date) unit or units, the Holder of that
Bond shall, subject to Section 2.12, surrender the Bond to the Trustee (a) for
payment of the redemption price of the $100,000 ($5,000 after the Conversion
Date) unit or units of face value called for redemption (including without
limitation the interest accrued to the date fixed for redemption and any
premium) and (b) for issuance, without charge to the Holder thereof, of a new
Bond or Bonds of any authorized denomination or denominations in an aggregate
principal amount equal to the unmatured and unredeemed portion of, and bearing
interest at the same rate and maturing on the same date as, the Bond
surrendered.
Section 3.03. Issuer's Election to Redeem. Except in the case of
redemption pursuant to any mandatory redemption provisions of this Indenture,
Bonds shall be redeemed only by written notice from the Company on behalf of the
Issuer to the Trustee and the Agent. Such notice shall specify the redemption
date and the principal amount of Bonds to be redeemed, and shall be given at
least 45 days prior to the redemption date or such shorter period as shall be
acceptable to the Trustee.
SECTION 3.04. Notice of Redemption
(a) When required to redeem Bonds under any provision of this
Indenture, or when directed to do so by the Issuer or the Company pursuant to
the provisions of this Indenture or any Supplemental Indenture authorizing the
issuance of Additional Bonds or Refunding Bonds, the Trustee shall cause notice
of the redemption to be given not more than 60 days and not less than 15 days
(30 days if the Bonds are on the Term Mode) prior to the redemption date by
mailing copies of such notice of redemption by first class mail, postage
prepaid, to all Holders of Bonds to be redeemed at their registered addresses,
but failure to mail any such notice or defect in the mailing thereof in respect
of any Bond shall not affect the validity of the redemption of any other Bond
with respect to which notice was properly given. Each such notice shall be dated
and shall be given in the name of the Issuer and shall state the following
information:
(i) the identification numbers, as established under
this Indenture, and the CUSIP numbers, if any, of the Bonds being redeemed,
provided that any such notice shall state that no representation is made as to
the correctness of CUSIP numbers either as printed on such Bonds or as contained
in the notice of redemption and that reliance may be placed only on the
identification numbers contained in the notice or printed on such Bonds;
(ii) any other descriptive information needed to
identify accurately the Bonds being redeemed;
(iii) in the case of partial redemption of any Bonds,
the respective principal amounts thereof to be redeemed;
(iv) the redemption date;
(v) the redemption price;
(vi) that on the redemption date the redemption price
will become due and payable upon each such Bond or portion thereof called for
redemption, and that interest thereon shall cease to accrue from and after said
date; and
(vii) the place where such Bonds are to be
surrendered for payment of the redemption price, which place of payment shall be
the Principal Office of the Trustee.
In addition, the Trustee shall at all reasonable times make available to any
party to any Transaction Document complete information as to Bonds which have
been redeemed or called for redemption.
(b) In addition to the foregoing notice, further notice of any
redemption of Bonds hereunder shall be given by the Trustee, at least two
Business Days in advance of the mailed notice to Holders, by registered or
certified mail or overnight delivery service to (i) the Rating Agencies or its
successors, if any, and to (ii) Financial Information, Inc.'s "Daily Called Bond
Service", 00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000,
Attention: Editor; Xxxxx Information Services' "Called Bond Service", 00 Xxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; and Standard and Poor's "Called
Bond Record", 00 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, in
accordance with then-current guidelines of the Securities and Exchange
Commission, to such other addresses and/or such other services, as the Issuer
may designate with respect to the Bonds, or no such services, as the Issuer may
designate in a certificate of the Issuer delivered to the Trustee. So long as
the Bonds or any portion thereof are held by DTC, the Trustee shall send each
notice of redemption of the Bonds to DTC at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx
Xxxx, 00000, Attention: Call Notification Department (FAX - (000) 000-0000)) or
at such other address as may be provided in writing to the Trustee from time to
time. The foregoing notice of redemption shall be sent to DTC at least 30 days
prior to the redemption date by legible facsimile transmission, certified or
registered mail, overnight delivery service or another secure method which
enables the Trustee subsequently to verify the transmission of such notice. Such
further notice shall contain the information required in Subsection 3.04(a).
Failure to give all or any portion of such further notice shall not in any
manner defeat the effectiveness of a call for redemption if notice thereof is
given to the Holders as prescribed in Subsection 3.04(a).
(c) If at the time of mailing of notice of any extraordinary
optional redemption there shall not have been deposited moneys in the Bond Fund
available for payment pursuant to Subsection 5.04(c) sufficient to redeem all
the Bonds called for redemption, such notice shall state that it is conditional
in that it is subject to the deposit of the redemption moneys in the Bond Fund
available for payment pursuant to Section 5.04 not later than 12:00 noon on the
redemption date, in which case such notice shall be of no effect unless moneys
are so deposited.
SECTION 3.05. Payment of Redeemed Bonds
(a) If (i) unconditional notice of the redemption has been
duly given or duly waived by the Holders of all Bonds called for redemption or
(ii) conditional notice of redemption has been so given or waived and Available
Moneys for such redemption have been duly deposited with the Trustee, then in
either such case the Bonds called for redemption shall be payable on the
redemption date at the applicable redemption price. Payment of the redemption
price together with accrued interest shall be made by the Trustee, out of
Revenues or other funds deposited for such purpose, to or upon the order of the
Holders of the Bonds called for redemption upon surrender of such Bonds, except
as otherwise provided in Section 2.13.
(b) Upon the payment of the redemption price of Bonds being
redeemed, each check or other transfer of funds issued for such purpose shall
bear the CUSIP number identifying, by issue and maturity, the Bonds being
redeemed with the proceeds of such check or other transfer.
(c) All moneys deposited in the Bond Fund and held by the
Trustee for the redemption of particular Bonds shall be held in trust for the
account of the Holders thereof and shall be paid to them, respectively, upon
presentation and surrender of those Bonds, except as otherwise provided in
Section 2.13.
(End of Article III)
ARTICLE IV
PURCHASE AND REMARKETING OF BONDS;
CONVERSION TO FIXED RATE
SECTION 4.01. Purchase on Demand of Holder During Weekly Mode
(a) While the Bonds are in the Weekly Mode, any Bond (or
portion thereof in an authorized denomination) other than a Pledged Bond or a
Company Bond shall be purchased on the demand of the Holder thereof on any
Business Day designated by such Holder in a Bondholder Tender Notice at a
purchase price equal to 100% of the principal amount thereof plus accrued
interest, if any, to the Purchase Date, if there is delivered to the Trustee at
its Principal Office or Delivery Office, and to the Remarketing Agent at its
Principal Office, a Bondholder Tender Notice which (i) states the principal
amount (or portion thereof) of such Bond and (ii) states the Purchase Date on
which such Bond (or portion thereof) shall be purchased pursuant to this
Section, which date shall be a Business Day not prior to the seventh day next
succeeding the date of the delivery of such notice to the Trustee, the Indexing
Agent and the Remarketing Agent. By delivering the Bondholder Tender Notice, the
Holder irrevocably agrees to deliver such Bond, if not held in book-entry form,
duly endorsed for transfer in blank and with guarantee of signature satisfactory
to the Trustee, to the Principal Office or the Delivery Office of the Trustee or
any other address designated by the Trustee at or prior to 12:00 noon on the
Purchase Date specified in the Bondholder Tender Notice. The determination by
the Trustee of a Holder's compliance with the Bondholder Tender Notice and Bond
delivery requirements of this Section is in the sole discretion of the Trustee
and binding on the Company, the Issuer, the Remarketing Agent, the Indexing
Agent, the Agent and the Holder of the Bonds. Any Bondholder Tender Notice which
the Trustee determines is not in compliance with this Section shall be of no
force or effect.
(b) So long as the Bonds are registered to, and held in
book-entry form by, DTC or its nominee, the beneficial owner of the Bonds is
responsible for submitting the Bondholder Tender Notice and shall be treated as
the Holder of such Bonds for such purpose, and such notice need only be
submitted to the Remarketing Agent.
(c) Any election by a Holder to tender a Bond (or portion
thereof) for purchase on a Business Day in accordance with this Section shall be
irrevocable and shall be binding on the Holder making such election and on any
transferee of such Holder. Each Bondholder Tender Notice shall automatically
constitute (i) an irrevocable offer to sell the Bond (or portion thereof) to
which such notice relates on the Purchase Date at a price equal to the purchase
price of such Bond (or portion thereof), (ii) an irrevocable authorization and
instruction to the Trustee to effect transfer of such Bond (or portion thereof)
upon payment of the purchase price to the Trustee on the Purchase Date, (iii)
with respect to a tender of a portion of a Bond, an irrevocable authorization
and instruction to the Trustee to effect the exchange of such Bond in part for
other Bonds in a principal amount equal to the retained portion so as to
facilitate the sale of the tendered portion of such Bond, and (iv) an
acknowledgment that such Holder will have no further rights with respect to such
Bond (or portion thereof) upon payment of the purchase price thereof to the
Trustee on the Purchase Date, except for the right of such Holder to receive
such purchase price upon surrender of such Bond, if not held in book-entry form,
to the Trustee endorsed for transfer in blank and with guarantee of signature
satisfactory to the Trustee and that after the Purchase Date such Holder will
hold such Bond as agent for the Trustee. If the Bonds are not held in book-entry
form and, after delivery to the Trustee, the Indexing Agent and the Remarketing
Agent of a Bondholder Tender Notice in accordance with this Section, the Holder
making such election shall fail to deliver such Bond or Bonds described in the
Bondholder Tender Notice to the Trustee at its Principal Office or Delivery
Office on or before 12:00 noon on the applicable Purchase Date as required by
this Section, then the undelivered Bond or portion thereof described in such
Bondholder Tender Notice shall be deemed to have been tendered for purchase to
the Trustee and, to the extent that there shall be held by the Trustee on or
before the applicable Purchase Date an amount sufficient to pay the purchase
price thereof and available for such purpose pursuant to the terms of this
Section, such Undelivered Bond shall on such Purchase Date cease to bear
interest and no longer shall be considered to be Outstanding. Moneys held by the
Trustee for the purchase of the Undelivered Bonds in accordance with the
provisions of this Section shall be held in a special separate trust account for
the Holders of such Undelivered Bonds. Such moneys shall be held by the Trustee
uninvested and without liability for interest pending delivery of such
Undelivered Bonds to the Trustee.
(d) The Trustee shall, as to any Undelivered Bond, promptly
place a stop transfer against an appropriate amount of Bonds registered in the
name of the Holder thereof on the Register. The Trustee shall place such stop
transfer commencing with the lowest serial number Bond registered in the name of
such Holder (until stop transfers have been placed against an appropriate amount
of Bonds) until the appropriate tendered Bonds are delivered to the Trustee.
Upon such delivery, the Trustee shall make any necessary adjustments to the
Register.
(e) If the Bonds are not held in book-entry form and if for
any reason a Holder fails to deliver a tendered Bond to the Trustee on the
Purchase Date, the Issuer shall execute and the Trustee shall authenticate and
deliver in accordance with Section 4.03 a new Bond or Bonds in replacement of
the Undelivered Bond. The replacement of any such Undelivered Bond shall not be
deemed to create new indebtedness, but such Bond as is issued in replacement
shall be deemed to evidence the indebtedness previously evidenced by the
Undelivered Bond.
(f) A Holder who gives a Bondholder Tender Notice may
repurchase the Bonds so tendered on the Purchase Date if the Remarketing Agent
agrees to remarket such Bond to such Holder, and if the Remarketing Agent agrees
to remarket the specified Bond to such Holder prior to delivery of such Bonds as
set forth above, the delivery requirement set forth above shall be waived.
(g) Upon surrender of any Bond (which is not held in
book-entry form) for purchase in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to the Holder thereof a new Bond or Bonds
of the same maturity, of authorized denominations, in an aggregate principal
amount equal to the unpurchased portion of the Bond surrendered.
(h) On the date set for purchase of Bonds to be purchased
pursuant to this Section and upon receipt by the Trustee of 100% of the
aggregate purchase price of such Bonds, the Trustee shall pay the purchase price
of such Bonds to the selling Holders thereof at its Principal Office or Delivery
Office at or before 5:00 p.m.; provided that such Bonds (if not held in
book-entry form) shall have been surrendered to the Trustee properly endorsed
for transfer on such date with all signatures guaranteed at or prior to 12:00
noon on such Purchase Date. Such payment shall be made in immediately available
funds and shall be made only with the following funds in the following order of
availability:
(i) moneys held in the Remarketing Proceeds Purchase
Account representing proceeds from the remarketing of such Bonds by the
Remarketing Agent to any Person other than the Issuer, the Company, any
guarantor of the Company's obligations under the Lease, if any, or any
Affiliate;
(ii) moneys constituting Available Moneys held in the Bond
Fund and available to make such payment pursuant to Section 10.02; and
(iii) proceeds from a drawing on the Letters of Credit
deposited directly into the Letter of Credit Purchase Account (provided that
such proceeds shall not be applied to purchase Pledged Bonds or Bonds which are
known by the Trustee to be Company Bonds).
(i) No purchase of Bonds pursuant to this Section shall be
deemed to be a payment or a redemption of such Bonds or any portion thereof and
such purchase will not operate to extinguish or discharge the indebtedness of
such Bonds.
SECTION 4.02. Mandatory Purchase on Conversion Date, upon Expiration of
Letter of Credit, and at Direction of Agent
(a) The Bonds shall be subject to mandatory purchase, at a
purchase price equal to the principal amount thereof plus, in the case of
purchases on a Purchase Date which is not an Interest Payment Date, accrued
interest thereon, as follows:
(i) on the Conversion Date, or if the Conversion Date is
not a Business Day, the first Business Day succeeding the Conversion Date;
(ii) on the Interest Payment Date next preceding the
Expiration Date of the Letters of Credit or, if earlier, the 30th day next
preceding such Expiration Date, unless the Trustee has received notice from the
Agent that the Letters of Credit have been or will be extended or an Alternate
Letter of Credit will be provided pursuant to Section 5.08;
(iii) On the Expiration Date of the Letters of Credit
unless the Trustee has received by 11:00 a.m. on such Expiration Date a written
extension of the Letters of Credit or an Alternate Letter of Credit; and
(iv) on the Purchase Date stipulated by the Agent pursuant
to Section 7.03 in the event the Agent directs the Trustee pursuant to Section
7.03 to call the Bonds for mandatory purchase pursuant to this clause.
(b) In the case of any mandatory purchase of the Bonds
pursuant to clause (a)(ii) or (a)(iii) above, the Trustee shall cause notice of
such mandatory purchase to be given not more than 45 and not less than 15 days
prior to the Purchase Date, by mailing copies of such notice of mandatory
purchase by first class mail, postage prepaid, to all Holders of Bonds to be
purchased at their registered addresses, but failure to mail any such notice or
defect in the mailing thereof in respect of any Bond shall not affect the
validity of the mandatory purchase of any other Bond with respect to which
notice was properly given. Each such notice shall be dated and shall be given in
the name of the Issuer and shall state the following information: (i) the
identification numbers, as established under this Indenture, and the CUSIP
numbers, if any, of the Bonds being purchased; (ii) any other descriptive
information needed to identify accurately the Bonds being purchased; (iii) the
Purchase Date; (iv) the purchase price; (v) that on the Purchase Date the
purchase price will become due and payable upon each Bond; (vi) the place where
the Bonds are to be delivered for payment of the purchase price, which place of
payment shall be the Principal Office or Delivery Office of the Trustee; and
(vii) the Holders of Bonds subject to mandatory purchase shall be required to
deliver their Bonds for purchase to the Trustee at its Principal Office or
Delivery Office prior to 12:00 noon on the corresponding Purchase Date, and any
Bond not so delivered prior to 12:00 noon on the applicable Purchase Date shall
be deemed to have been tendered to the Trustee as of such Purchase Date and,
from and after such Purchase Date, shall cease to bear interest and no longer
shall be considered to be outstanding. In the event of a failure by a Holder to
deliver such Holder's Bond on or before the applicable Purchase Date, such
Holder shall not be entitled to any payment (including any interest to accrue
subsequent to such Purchase Date) other than the purchase price for such
Undelivered Bond, such Undelivered Bond shall no longer be entitled to the
benefits of this Indenture, except for the purpose of payment of the purchase
price therefor, and such Holder shall thereafter hold such Undelivered Bond as
agent for the Trustee. If for any reason a Holder fails to deliver to the
Trustee on or before the applicable Purchase Date any Bond remarketed by the
Remarketing Agent pursuant to Section 4.03, the Issuer shall execute and the
Trustee shall authenticate and deliver to the Remarketing Agent for redelivery
to the purchaser a new Bond or Bonds in replacement of the Undelivered Bond. The
replacement of any such Undelivered Bond shall not be deemed to create new
indebtedness, but such Bond as is issued in replacement shall be deemed to
evidence the indebtedness previously evidenced by the Undelivered Bond.
(c) On the date set for purchase of Bonds to be purchased
pursuant to this Section 4.02 and upon receipt by the Trustee of 100% of the
aggregate purchase price of such Bonds, the Trustee shall pay the purchase price
of such Bonds to the Holders thereof at its Principal Office or Delivery Office
at or before 5:00 p.m.; provided that such Bonds shall have been surrendered to
the Trustee properly endorsed for transfer on such date with all signatures
guaranteed at or prior to 12:00 noon on such date. Such payment shall be made in
immediately available funds and payment for Bonds purchased pursuant to this
Section shall be made only with the following funds in the following order of
availability:
(i) moneys held in the Remarketing Proceeds Purchase
Account representing proceeds from the remarketing of such Bonds by the
Remarketing Agent to any Person other than the Issuer, the Company or any
Affiliate;
(ii) moneys constituting Available Moneys held in the Bond
Fund and available to make such payment pursuant to Section 10.02; and
(iii) proceeds from a drawing on the Letters of Credit
deposited directly into the Letter of Credit Purchase Account (provided that
such proceeds shall not be applied to purchase Pledged Bonds or Bonds which are
known by the Trustee to be Company Bonds).
(d) No purchase of Bonds pursuant to this Section shall be
deemed to be a payment or a redemption of such Bonds or any portion thereof and
such purchase will not operate to extinguish or discharge the indebtedness of
such Bonds.
SECTION 4.03. Remarketing
(a) Upon receipt of a Bondholder Tender Notice to the Trustee
and the Remarketing Agent (or to the Remarketing Agent only in the case of Bonds
held in book-entry form) pursuant to Section 4.01 and not later than the fifth
day preceding the Purchase Date for each mandatory purchase pursuant to Section
4.02, the Remarketing Agent shall use its best efforts to find purchasers for
and arrange for the sale of the Bonds identified in the Bondholder Tender Notice
pursuant to Section 4.01 or all Bonds subject to mandatory purchase pursuant to
Section 4.02 (other than any Bonds purchased in anticipation of the expiration
of the Letters of Credit or at the direction of the Agent), at a price equal to
the principal amount thereof plus, in the case of purchases on a Purchase Date
which is not an Interest Payment Date, accrued interest thereon, for settlement
in immediately available funds at or before 3:00 p.m. on the applicable Purchase
Date. Except as otherwise expressly provided herein, the Remarketing Agent may
not remarket to the Issuer, the Company or any Affiliate any Bonds to be
purchased pursuant to Section 4.01 or 4.02. In its capacity as a registered
broker-dealer, the Remarketing Agent may, but is not obligated to, acquire for
its own account any Bonds to be so purchased, but not otherwise remarketed, in
which case the Remarketing Agent shall have remarketed such Bonds to itself. The
Remarketing Agent may, but shall not be required to, purchase and sell Bonds for
its own account at any time.
(b) At or before 3:00 p.m. on the Business Day preceding the
Purchase Date of Bonds to be purchased pursuant to Section 4.01 or 4.02 and
remarketed pursuant to this Section (or such other time as to which the Trustee
and the Remarketing Agent may agree), the Remarketing Agent shall give notice by
telegram, telex, telecopy or other similar communication to the Trustee and the
Agent of the names, addresses and taxpayer identification numbers of the
purchasers and the denominations of Bonds to be delivered to each purchaser and,
if available, the payment instructions for regularly scheduled interest
payments.
(c) The Remarketing Agent shall, at or before 10:00 a.m. on
the Purchase Date of Bonds to be purchased pursuant to Section 4.01 or 4.02 and
remarketed pursuant to this Section, give telephonic notice, promptly confirmed
in writing, to the Trustee, the Company and the Agent specifying the principal
amount of Bonds remarketed and not remarketed, respectively, and the amount
representing the purchase price of Bonds which the Remarketing Agent does not
then hold in trust.
(d) The Remarketing Agent shall cause to be paid to the
Trustee in immediately available funds by 3:00 p.m. on the Purchase Date of
Bonds to be purchased pursuant to Section 4.01 or 4.02 and remarketed pursuant
to this Section, all amounts (if any) then held by the Remarketing Agent
representing proceeds of the remarketing of such Bonds, which shall be applied
by the Trustee on the applicable Purchase Date to pay the Purchase Price of
Bonds to be purchased on such Purchase Date. Pending such application, all such
remarketing proceeds received by the Trustee shall be deposited by the Trustee
in the special trust account designated as the Remarketing Proceeds Purchase
Account which the Trustee shall establish and use as provided in this Article IV
and shall not be commingled with other funds held by the Trustee. All moneys in
the Remarketing Proceeds Purchase Account shall be held in trust for the benefit
of the Holder of the Bonds to be purchased, uninvested and without liability for
interest thereon, pending application of such moneys by the Trustee as provided
above.
(e) On the Purchase Date of Bonds to be purchased pursuant to
Sections 4.01 or 4.02, the Trustee shall register (or hold) all Bonds
purchased on such date as follows:
(i) Bonds remarketed by the Remarketing Agent shall be
registered and made available (at the Principal Office or Delivery Office of the
Trustee) to the Remarketing Agent or the purchasers thereof in accordance with
the instructions of the Remarketing Agent delivered to the Trustee pursuant to
this Section 4.03; and
(ii) Bonds purchased with proceeds of a drawing on the
Letters of Credit which are Pledged Bonds shall be held as Pledged Bonds in
accordance with Section 4.05.
(f) Any Bond (or portion thereof) with respect to which the
Trustee receives a Bondholder Tender Notice pursuant to Section 4.01 on or after
the date notice of a mandatory purchase pursuant to Section 4.02 or redemption
pursuant to Section 3.04 is given and before the corresponding mandatory
Purchase Date or redemption date, respectively, shall not be remarketed except
to a buyer who receives and acknowledges the binding effect of such notice. In
addition, Bonds which are deemed paid pursuant to Article X shall not be
remarketed but shall be canceled upon being purchased pursuant to Section 4.01
or 4.02 in accordance with the Bond cancellation provisions of Section 2.11.
(g) Except in connection with the conversion of the Bonds to
the Term Mode, the Remarketing Agent shall have no obligation to remarket any
Bonds which are not supported by the Letters of Credit or an Alternate Letter of
Credit as contemplated by this Indenture.
Section 4.04. Drawings on Letter of Credit for Purchase of Bonds. As
provided by Section 4.03, the Remarketing Agent shall advise the Trustee of the
amounts not held by the Remarketing Agent which shall be drawn under the Letters
of Credit in order for the Trustee to make timely payments of the purchase price
of Bonds from remarketing proceeds or moneys drawn under the Letters of Credit.
In the absence of such notice, the Trustee shall be deemed to have received
notice from the Remarketing Agent specifying that no portion of the purchase
price of such Bonds is held by the Remarketing Agent, in which case the Trustee
shall draw the entire amount thereof under the Letters of Credit. Prior to 11:00
a.m. on each Purchase Date, the Trustee shall take all action necessary to draw
on the Letters of Credit in accordance with their terms, the amounts specified
(or deemed specified) for receipt by the Trustee on such Purchase Date. The
Trustee shall establish a special trust account designated as the Letter of
Credit Purchase Account into which the Trustee shall deposit and hold in trust,
uninvested and without liability for interest thereon, all such amounts (and
only such amounts) received by the Trustee from drawings on the Letters of
Credit for purchases of Bonds pending application of such amounts by the Trustee
pursuant to this Article IV. Any remaining amounts in the Letters of Credit
Purchase Account after any application required by this Article IV shall be paid
over by the Trustee to the Agent (for further disbursement by the Agent to the
LC Issuers) as reimbursement for the drawing on the Letters of Credit from which
such amounts were derived; provided that the Letter of Credit shall be
reinstated to the extent of such reimbursement and the Trustee shall take all
necessary action on its part pursuant to the Letters of Credit to effect such
reinstatement. Anything herein to the contrary notwithstanding, no amounts drawn
on the Letters of Credit shall be applied to the purchase of Pledged Bonds or
Company Bonds.
SECTION 4.05. Xxxxx Purchased with Proceeds of Letters of Credit
(a) Pledged Bonds.
(i) Bonds purchased with proceeds of a drawing on the
Letters of Credit pursuant to this Article shall constitute "Pledged Bonds" and
shall be held by the Trustee as agent for the Agent as pledgee of the Company
pursuant to the Fund Account Security Agreement (and shall be shown as such on
the Register and, if held in book-entry form, in the ownership records
maintained by DTC and any applicable DTC participant) unless and until (1) the
Trustee has confirmation from the Agent to the extent contemplated by the terms
of the Letters of Credit that the Letters of Credit have been reinstated with
respect to such drawing and (2) the Agent has notified the Trustee by telephone
(thereafter promptly confirmed in writing) that such Bonds have been released
from the pledge pursuant to the Reimbursement Agreement and are no longer
Pledged Bonds. Pending reinstatement of the Letters of Credit and release of
such pledge as aforesaid, the Agent shall be entitled to receive all payments of
principal of and interest on Pledged Bonds as pledgee of the Company and such
Bonds shall not be transferable or deliverable to any party (including the
Company) except the Agent pursuant to the Reimbursement Agreement.
(ii) Notwithstanding anything to the contrary contained
herein or in the Bonds, (A) Pledged Bonds shall bear interest at the same rate
per annum, and shall be payable in the same manner, as amounts due and payable
under the Reimbursement Notes corresponding to such Pledged Bonds, and the Agent
shall provide copies of all interest bills on the Reimbursement Notes to the
Trustee, upon which the Trustee shall be entitled to rely, and (B) interest
which is actually paid pursuant to the Reimbursement Notes corresponding to such
Pledged Bonds shall be credited against the interest which is due and payable by
the Issuer with respect to such Pledged Bonds, and the Issuer shall be deemed to
have paid the interest on such Pledged Bonds to the extent that interest
actually is paid pursuant to the Reimbursement Notes corresponding to such
Pledged Bonds.
(b) Remarketing of Pledged Bonds. The Remarketing Agent shall
continue to use its best efforts to arrange for the sale of any Pledged Bonds
required to be remarketed pursuant to Section 4.03, subject to full
reinstatement of the Letters of Credit with respect to the drawings with which
such Bonds were purchased, at a price equal to the principal amount thereof plus
accrued interest.
(c) Notice of Remarketing. At or prior to 2:00 p.m. on the
Business Day preceding each day on which any Pledged Bonds that are successfully
remarketed by the Remarketing Agent are to be purchased, the Remarketing Agent
shall give telephonic notice, promptly confirmed in writing, to the Trustee, the
Company and the Agent specifying:
(i) the Business Day on which such purchase will take
place and the principal amount of Pledged Bonds successfully remarketed by the
Remarketing Agent, and
(ii) to the Trustee only, the names, addresses and tax
identification numbers of the proposed purchasers thereof and the denominations
of Bonds to be delivered to each purchaser and, if available, the payment
instructions for regularly scheduled interest payments.
(d) Delivery of Remarketed Pledged Bonds and Proceeds Thereof.
Contemporaneously with reinstatement of the Letters of Credit as described in
Subsection 4.05(a) and the sale of Pledged Bonds arranged by the Remarketing
Agent as described in Subsection 4.05(b), (i) such Bonds (if not held in
book-entry form) shall be made available (at the Principal Office or Delivery
Office of the Trustee) to the Remarketing Agent or the purchasers thereof in
accordance with the instructions of the Remarketing Agent and (ii) the proceeds
of such sale shall be delivered to the Agent for the account of the Company to
be applied to any unpaid reimbursement obligation under the Reimbursement
Agreement with respect to the prior drawings made on the Letters of Credit in
respect of the purchase of such Bonds.
SECTION 4.06. Company Bonds
(a) Remarketing of Company Bonds. Subject to the provisions
and limitations of the Remarketing Agreement and Section 4.03, the Remarketing
Agent shall, if so directed by the Company, use its best efforts to arrange for
the sale of any Company Bonds, at a price equal to the principal amount thereof,
plus accrued interest.
(b) Notice of Remarketing. On or prior to each Business Day on
which any Company Bonds that are successfully remarketed by the Remarketing
Agent pursuant to Section 4.06(a) are to be purchased, the Remarketing Agent
shall give telephonic notice, promptly confirmed in writing, to the Trustee, the
Company, the Indexing Agent and the Agent specifying:
(i) the Business Day on which such purchase will take
place and the principal amount of Company Bonds successfully remarketed by the
Remarketing Agent, and
(ii) to the Trustee only, the names, addresses and tax
identification numbers of the proposed purchasers thereof, the denominations of
Bonds to be delivered to each purchaser and, if available, the payment
instructions for regularly scheduled interest payments.
(c) Delivery of Remarketed Company Bonds and Proceeds Thereof.
Upon the sale of Company Bonds arranged by the Remarketing Agent pursuant to
Section 4.06(a), (i) such Bonds (if not held in book-entry form) shall be made
available (at the Principal Office or Delivery Office of the Trustee) to the
Remarketing Agent or the purchasers thereof in accordance with the instructions
of the Remarketing Agent and (ii) the proceeds of such sale shall be delivered
to the Company.
SECTION 4.07. No Purchases After Acceleration; Inadequate Funds for
Purchases
(a) Anything in this Indenture to the contrary
notwithstanding, there shall be no purchases of Bonds pursuant to this Article
if the Bonds have been declared immediately due and payable pursuant to Section
7.03 and such declaration has not been annulled, stayed or otherwise suspended.
(b) If the funds available for purchases of Bonds are
inadequate for the purchase of all Bonds tendered on any Purchase Date pursuant
to this Article, the Trustee shall, after any applicable grace period: (i)
return all tendered Bonds to the Holders thereof; and (ii) return all moneys
received for the purchase of such Bonds (other than moneys provided by the
Company and other than proceeds from a drawing on the Letters of Credit, unless
the Letters of Credit are reinstated with respect thereto) to the persons
providing such moneys.
(End of Article IV)
ARTICLE V
FUNDS AND LETTER OF CREDIT
Section 5.01. Creation of Funds and Accounts. There are hereby
established the following Funds and Accounts under this Indenture:
(a) The Project Fund, within which are hereby established the
following Accounts:
(i) The Capitalized Interest Account, within which
are hereby established the following Subaccounts:
(A) Bond Interest Subaccount
(B) Bank Fees Subaccount
(C) Other Fees Subaccount
(ii) The Capitalized Interest Reserve Account
(iii) The Financing Costs Account
(iv) The Project Costs Account
(v) The Equity Investment Account.
(b) The Bond Fund, within which are hereby established the
following Accounts:
(i) The Letter of Credit Debt Service Accounts within
which are hereby established a Wachovia Letter of Credit Subaccount, a SunTrust
Letter of Credit Subaccount and a Bond Subaccount.
(ii) The Letter of Credit Purchase Account
(iii) The Excess Bond Proceeds Account
(iv) The Remarketing Proceeds Purchase Account.
(c) The Trustee may establish additional accounts and
subaccounts within the Funds and accounts established hereunder as appropriate
to accomplish the purposes of this Indenture.
SECTION 5.01A. Creation of Project Fund
(a) There is hereby established with the Trustee a trust fund
designated "Project Fund" for the payment of Costs of the Projects. There shall
be deposited in each account and subaccount in the Project Fund an amount of the
proceeds from the sale of the Bonds as shall be specified in a written order
from an Authorized Representative of the Issuer to be delivered simultaneously
with the delivery of the Bonds. The Trustee shall maintain a record of the
income on investments and interest earned on amounts held in the Project Fund,
including the Capitalized Interest Account. Such income or interest shall be
transferred by the Trustee on the last Business Day of each calendar month to
the Capitalized Interest Account.
(b) Pending disbursement pursuant to the Lease and the Agency
and Development Agreement, the moneys and Qualified Investments to the credit of
the Project Fund shall be held as security for the obligations to the Agent
under the Reimbursement Agreement and, upon receipt by the Trustee of a
certificate of the Agent that a event of default has occurred under the
Reimbursement Agreement and directing the application of monies in the Project
Fund, the Trustee shall transfer such monies in accordance with such direction.
SECTION 5.02. Disbursements from and Records of Project Fund
(a) Requisition, moneys in the various Accounts and
Subaccounts within the Project Fund shall be disbursed in accordance with the
provisions of such Requisition. The Trustee shall cause to be kept and
maintained adequate records pertaining to the Project Fund and all disbursements
therefrom. The Trustee shall make such records available for inspection by, or
shall provide copies thereof to, the Issuer, the Company and the Agent upon
request. The Trustee shall serve as repository for all original Requisitions
submitted for disbursements from the Project Fund.
(b) In the event that the Leased Property or any portion
thereof is destroyed or damaged by fire or other casualty, and the Company
exercises its option pursuant to Section 19.1(a) of the Lease to repair or
replace same, or in the event that any net proceeds from a condemnation award
are to be applied to make any necessary restorations of the remaining portion of
an Individual Property, the Net Proceeds shall be deposited in a separate
subaccount in the Project Costs Account within the Project Fund and, upon
receipt of a Requisition, applied to such repair, replacement or restoration,
substantially in accordance with the disbursement procedures set forth in such
Requisition.
SECTION 5.02A. Capitalized Interest Account
(a) There is hereby established with the Trustee an account
within the Project Fund designated "Capitalized Interest Account" for (i) the
reimbursement to the LC Issuers of amounts drawn under the Letters of Credit for
payment of interest on the Bonds during the period commencing on the Series
Issue Date and terminating on the Final Project Completion Date and (ii) the
payment of all amounts which constitute Supplemental Rent payable during the
period from the date hereof to the Final Project Completion Date. There shall be
deposited in each of the Bond Interest Subaccount, the Bank Fees Subaccount and
the Other Fees Subaccount within the Capitalized Interest Account an amount of
the proceeds from the sale of the Bonds as shall be specified in a written order
from an Authorized Representative of the Issuer to be delivered simultaneously
with the delivery of the Bonds. On the Final Project Completion Date any funds
remaining in the Capitalized Interest Account shall be transferred to the Excess
Bond Proceeds Account within the Bond Fund and applied as provided in Section
5.04. All income and interest earned on amounts held in the Capitalized Interest
Account shall be held in, and shall become a part of, the Capitalized Interest
Account.
(b) Prior to 12:00 noon on the Business Day immediately
preceding each Interest Payment Date, the Trustee shall present the requisite
draft and certificate for a drawing on the Letters of Credit so as to comply
with the provisions of the Letters of Credit for payment to be made in
sufficient time for the Trustee to receive the proceeds of such drawing at or
before 10:00 a.m. on such Interest Payment Date, in an amount equal to accrued
interest on the Bonds coming due on such Interest Payment Date and transfer such
amount to the Letter of Credit Debt Service Account within the Bond Fund to be
applied as provided in Section 5.04(c). Prior to the Final Project Completion
Date, the Trustee shall withdraw from the Bond Interest Subaccount within the
Capitalized Interest Account an amount equal to the aggregate amount of drawings
on the Letters of Credit and transfer same to the Agent, on behalf of the LC
Issuers, pursuant to the Reimbursement Agreement.
(c) Upon receipt of a Requisition, moneys in the Bank Fees
Subaccount and the Other Fees Subaccount within the Capitalized Interest Account
shall be disbursed by the Trustee in accordance with the provisions of such
Requisition.
Section 5.02B. Capitalized Interest Reserve Account. There is hereby
established with the Trustee an account within the Project Fund designated
"Capitalized Interest Reserve Account" for the payment, to the extent the amount
on deposit in the Capitalized Interest Account is insufficient therefor, (i) the
reimbursement to the LC Issuers of amounts drawn under the Letters of Credit for
payment of interest on the Bonds during the period commencing on the Series
Issue Date and terminating on the Final Project Completion Date, and (ii) the
payment of all amounts which constitute Supplemental Rent payable during the
period from the date hereof to the Final Project Completion Date. There shall be
deposited in the Capitalized Interest Reserve Account an amount of the proceeds
from the sale of the Bonds as shall be specified in a written order from an
Authorized Representative of the Issuer to be delivered simultaneously with the
delivery of the Bonds. In the event that the aggregate amount drawn by the
Trustee on the Letters of Credit on any Interest Payment Date exceeds the amount
on deposit in the Bond Interest Subaccount within the Capitalized Interest
Account, the Trustee shall withdraw the excess from the Capitalized Interest
Reserve Account and transfer the excess to the Agent, on behalf of the LC
Issurers, pursuant to the Reimbursement Agreement. In the event that the amount
to be disbursed from the Bank Fees Subaccount or the Other Fees Subaccount
within the Capitalized Interest Account pursuant to a Requisition exceeds the
amount on deposit in such Subaccount, the Trustee shall withdrawn the excess
from the Capitalized Interest Reserve Account and transfer such excess to the
applicable Subaccount within the Capitalized Interest Account to be applied as
provided in Section 5.02A. On the Final Project Completion Date, any funds
remaining in the Capitalized Interest Reserve Account shall be transferred to
the Excess Bond Proceeds Account within the Bond Fund and applied as provided in
Section 5.04. All income and interest earned on amounts held in the Capitalized
Interest Reserve Account shall be credited to the Bond Interest Subaccount of
the Capitalized Interest Reserve Account and transferred by the Trustee on the
last Business Day of each calendar month to the Capitalized Interest Account.
Section 5.02C. Financing Costs Accounts. There is hereby established
with the Trustee an account within the Project Fund designated "Financing Costs
Account" for the payment of all Financing Costs. There shall be deposited in the
Financing Costs Account an amount of the proceeds from the sale of the Bonds as
shall be specified in a written order from an Authorized Representative of the
Issuer to be delivered simultaneously with the delivery of the Bonds. Upon
receipt of a Requisition, monies in the Financing Costs Account shall be
disbursed by the Trustee in accordance with the provisions of such Requisition.
The Trustee shall close the Financing Costs Account when all amounts deposited
therein have been disbursed for the payment of such Financing Costs. All income
and interest earned on amounts held in the Financing Costs Account shall be
transferred to the Capitalized Interest Account.
Section 5.02D. Projects Costs Account. There is hereby established with
the Trustee an account within the Project Fund designated "Project Costs
Account" for the payment of all Hard and Soft Costs. There shall be deposited in
the Project Costs Account an amount of the proceeds from the sale of the Bonds
as shall be specified in a written order from an Authorized Representative of
the Issuer to be delivered simultaneously with the delivery of the Bonds.
Disbursements from the Project Costs Account shall be made in accordance with
the terms of a Requisition therefor. All income and interest earned on amounts
held in the Project Costs Account shall be credited to the Project Costs Account
and transferred by the Trustee on the last Business Day of each calendar month
to the Bond Interest Subaccount of the Capitalized Interest Account.
Section 5.02E. Equity Investment Account. There is hereby established
with the Trustee an account within the Project Fund designated "Equity
Investment Account." There shall be deposited in the Equity Investment Account
by the Issuer, such amounts, and at such times, as shall be determined by the
Issuer and contained in a written notice to the Trustee. Disbursements from the
Equity Investment Account shall be made in accordance with the terms of a
Requisition therefor. All income and interest earned on amounts held in the
Equity Investment Account shall be transferred to the Bond Interest Subaccount
of the Capitalized Interest Account.
Section 5.03 Disposition of Excess Bond Proceeds. The completion of the
Applicable Projects and payment of all Costs of the Projects payable out of the
Project Fund (except for amounts, if any, to be retained by the Trustee as
provided under the Lease for the payment of Costs of the Projects not then due
and payable) shall be evidenced by the filing with the Trustee of the
certificate of an Authorized Representative of the Company required by the
Agency and Development Agreement. As soon as practicable after the filing with
the Trustee of such certificate, any balance remaining in the Project Fund
(other than the amounts retained by the Trustee as described in the preceding
sentence) shall be transferred to the Excess Bond Proceeds Account within the
Bond Fund and applied as provided in Section 5.04.
SECTION 5.04. Bond Fund
(a) Revenues to be Paid Over to the Trustee.
All Rent Payments received by the Trustee shall be
paid directly to the Agent to be applied pursuant to the terms of the
Reimbursement Agreement. The Issuer, the Company, and the Agent have entered
into the Payment Direction Agreement which provides, among other things, that
the Company will make all Rent Payments to the Agent, in its fiduciary capacity
as agent for the Issuer. Rent Payments are not to be paid to the Trustee and are
not to be deposited in the Bond Fund, and the Trustee shall not be responsible
for the receipt, collection or disposition of Rent Payments.
(b) Creation of Bond Fund and Accounts. There is hereby
established with the Trustee a trust fund designated as the "Bond Fund", within
which there shall be established a Letter of Credit Debt Service Account, a
Letter of Credit Purchase Account, a Remarketing Proceeds Purchase Account, an
Excess Bond Proceeds Account and a Special Redemption Account. All moneys (and
only those moneys) received by the Trustee from drawings under the Letters of
Credit to pay principal of, premium, if any, on and interest on the Bonds shall
be deposited in the Letter of Credit Debt Service Account and applied to such
purpose as provided in Section 5.04(c)(i) below.
(c) Application of Bond Fund. Except as otherwise provided in
Section 7.06, moneys in the Bond Fund shall be applied as follows:
(i) Moneys in the Letter of Credit Debt Service
Account shall be applied to the payment when due of principal of, premium, if
any, on and interest on the Bonds.
(ii) Moneys in the Letter of Credit Purchase Account
shall be applied to the payment of the purchase of Bonds pursuant to Article IV.
(iii) Moneys in the Remarketing Proceeds Purchase
Account shall be applied to the payment of the purchase of Bonds pursuant to
Article IV.
(iv) Available moneys in the Special Redemption
Account shall be applied to the redemption of Bonds in the case of a Special
Redemption.
(v) Notwithstanding anything to the contrary
contained herein, the Trustee shall, on the Final Project Completion Date, apply
the following amounts in the Bond Fund to the redemption of Bonds in accordance
with Article III; provided, however, that in the event that the following
amounts shall total, in the aggregate, less than $100,000, all of the following
amounts shall be transferred to the Agent, for the credit of the Company, to the
payment of the first Rent Payments thereafter to become due under the Lease:
(A) All moneys which are transferred to the
Excess Bond Proceeds Account within the Bond Fund from the Project Fund
pursuant to Section 5.03;
(B) All moneys which are transferred to the
Excess Bond Proceeds Account within the Bond Fund from the Capitalized
Interest Account pursuant to Section 5.02A;
(C) All moneys which are transferred to the
Excess Bond Proceeds Account within the Bond Fund from the Capitalized
Interest Reserve Account pursuant to Section 5.02B; and
(D) All investment earnings on amounts on
deposit in the Bond Fund.
(d) Drawings on Letters of Credit. Prior to 12:00 noon on the
Business Day immediately preceding each Interest Payment Date (commencing
January 5, 1998), each mandatory sinking fund redemption date or acceleration
date and the maturity date of the Bonds, the Trustee shall present the requisite
draft and certificate for a drawing on the Letters of Credit so as to comply
with the provisions of the Letters of Credit for payment to be made in
sufficient time for the Trustee to receive the proceeds of such drawing at or
before 10:00 a.m. on such Interest Payment Date, redemption date or maturity
date, as the case may be, to pay principal or redemption price of and interest
on the Bonds due on such date. In addition, the Trustee shall draw on the
Letters of Credit pursuant to their respective terms in accordance with and in
order to satisfy the requirements of Section 7.03. By 5:00 p.m. on each date it
presents the requisite documents for a drawing on the Letters of Credit, the
Trustee shall give notice to the Company by telephone, promptly confirmed in
writing, of the amount to be so drawn. The Trustee shall promptly notify the
Company by oral or telephonic communication confirmed in writing if the LC
Issuers fail to transfer funds in accordance with the Letters of Credit upon the
presentment of the requisite drafts and certificates. In calculating the amount
to be drawn on the Letters of Credit for the payment of principal of and
interest on the Bonds, whether on an Interest Payment Date, at maturity or upon
redemption or acceleration, the Trustee shall not take into account the
potential receipt of funds from the Company under the Lease on such Interest
Payment Date, or the existence of any other moneys in the Bond Fund, but shall
draw on the Letters of Credit for the full amount of principal and interest
coming due on the Bonds.
(e) Payment in Full. Whenever the amount in the Bond Fund
available for the payment of principal or redemption price or and interest on
the Bonds in accordance with Subsection 5.04(c) is sufficient to redeem all of
the outstanding Bonds and to pay interest accrued to the redemption date, the
Issuer will, upon request of the Company, cause the Trustee to redeem all such
Bonds on the redemption date specified by the Company pursuant to the Bonds and
the Indenture. Any amounts remaining in the Bond Fund after payment in full of
the principal of and premium, if any, and interest on the Bonds (or provision
for payment thereof) and the fees, charges and expenses of the Issuer and the
Trustee shall be paid to the person entitled thereto in accordance with Section
10.01.
(f) Credits. If at any time the Trustee has funds, including
funds received pursuant to the Letters of Credit, which under the provisions of
this Indenture are to be applied to pay the principal of, premium, if any, on or
interest on the Bonds, the Company, to the extent that such funds are to be so
applied, shall be entitled to a credit, equal to the amount of such funds,
against payments due from the Company under the Lease; provided that, with
respect to funds received pursuant to one or more drawings on the Letters of
Credit, the LC Issuers have been reimbursed therefor.
SECTION 5.05. Investment of Bond Fund and Project Fund
(a) All moneys received by the Trustee under this Indenture
shall be deposited with the Trustee or in accounts maintained solely in the name
of the Trustee with another financial institution or institutions, subject to
the provisions of the Fund Account Security Agreement, until or unless invested
or deposited as provided in this Section. All deposits with the Trustee (whether
original deposits or deposits or redeposits in time accounts) shall be secured
as required by applicable law for such trust deposits.
(b) Moneys in the Bond Fund (except moneys in the Letter of
Credit Debt Service Account and except any moneys representing principal of, or
premium, if any, or interest on, any Bonds which are deemed paid under Section
10.02) and the Project Fund shall be invested and reinvested by the Trustee in
Qualified Investments at the written direction of an Authorized Representative
of the Company. Except as otherwise provided in Section 10.02, moneys deposited
in the Letter of Credit Debt Service Account, the Letter of Credit Purchase
Account or the Remarketing Proceeds Purchase Account shall not be invested but
shall be held in their respective accounts pending application pursuant to
Section 5.04 or Article IV, as applicable. Moneys in the Bond Fund representing
principal of, or premium, if any, or interest on, any Bonds which are deemed
paid under Section 10.02 shall be invested only if and as provided in Section
10.02.
(c) Investments pursuant to this Section of moneys in the Bond
Fund shall mature or be redeemable at the times and in the amounts necessary to
provide moneys to pay Debt Service as it becomes due on Interest Payment Dates,
at stated maturity or by redemption, or to reimburse the LC Issuers when due for
drawings on the Letters of Credit applied to make Debt Service payments. The
Trustee shall sell or redeem investments credited to the Bond Fund to produce
sufficient moneys available hereunder at the times required for the purpose of
paying Debt Service (or reimbursing the LC Issuers for drawings on the Letters
of Credit therefor) when due as aforesaid, and shall do so without necessity for
any order by or on behalf of the Issuer or the Company and without restriction
by reason of any order. Each investment of moneys in the Project Fund shall
mature or be redeemable by the Trustee at such time as may be foreseeably
necessary to make payments from the Project Fund. The Trustee shall, from time
to time, sell investments in the Project Fund or the Bond Fund made pursuant to
this Section and, at the written direction of an Authorized Representative of
the Company, reinvest the proceeds therefrom in Qualified Investments maturing
or redeemable as aforesaid.
(d) Any investment of moneys in any Fund established under
this Indenture may be purchased from or through, or sold to, the Trustee or any
affiliate of the Trustee; and any such investment made through the purchase of
shares in a fund described in clause (a), (b) or (e) of the definition of
Qualified Investments may be in a fund which is advised or administered by the
Trustee or any affiliate of the Trustee (for which services the Trustee or such
affiliate, as the case may be, may receive a fee).
(e) An investment made from moneys credited to the Bond Fund
shall constitute part of that Fund and an investment made from moneys credited
to any Account within the Project Fund and subsequently transferred to the Bond
Interest Subaccount of the Capitalized Interest Account therein shall constitute
part of the Capitalized Interest Account therein, and each respective Fund shall
be credited with all proceeds of sale and income from investment of moneys
credited thereto. For purposes of this Indenture, those investments shall be
valued at cost.
(f) If the Company shall not give directions as to investments
of moneys held by the Trustee in the Project Fund or the Bond Fund, or if an
Event of Default has occurred and is continuing hereunder, the Trustee shall
make such investments in Qualified Investments as described in this Section and
as permitted under applicable law as it deems advisable; provided that in no
event shall it invest in securities issued by or obligations of, or guaranteed
by, the Issuer, the Company or any Affiliate.
(g) Notwithstanding any other provisions contained in this
Section 5.05 or elsewhere in this Indenture, the Trustee is hereby authorized
and directed to enter into the Funds Investment Agreement, dated as of November
1, 1997, among the Company, the Trustee and Wachovia Bank, N.A., in its capacity
as depository of the moneys described therein, and the compliance by the Trustee
with the terms and provisions thereof shall constitute full compliance by the
Trustee with the terms and provisions of this Indenture relating to the deposit
and investment of the various Funds and Account established hereunder.
SECTION 5.06. Moneys to be Held in Trust
(a) Revenues and investments thereof in the Bond Fund (other
than the Excess Bond Proceeds Account therein) shall, until applied as provided
in this Indenture, be held by the Trustee for the benefit of the Holders of all
outstanding Bonds, in the order of priority set forth in the granting clauses of
this Indenture, except that any portion of the Revenues representing principal
of, and premium, if any, and interest on, any Bonds which have matured or been
called for redemption in accordance with Article III or which are otherwise
deemed paid under Section 10.02, shall be held for the benefit of the Holders of
such Bonds only.
(b) Revenues and investments thereof in all Accounts in the
Project Fund and the Excess Bond Proceeds Account in the Bond Fund shall, until
applied as provided in this Indenture, be held by the Trustee for the benefit of
the Agent in the order of priority set forth in the granting clauses of this
Indenture.
Section 5.07. Nonpresentment of Bonds. In the event that any Bond shall
not be presented for payment when the principal thereof becomes due in whole or
in part, either at stated maturity or by redemption or acceleration prior to
maturity or a check or draft for interest is uncashed, all liability of the
Issuer to that Holder for such Bond or such check or draft thereupon shall cease
and be discharged completely; provided that moneys sufficient to pay the
principal and accrued interest then due of that Bond or such check or draft
shall have been made available to the Trustee for the benefit of its Holder.
Thereupon, it shall be the duty of the Trustee to hold those moneys subject to
the provisions of Section 10.03.
SECTION 5.08. Letter of Credit
(a) Expiration. The Letters of Credit may provide that they
expire upon the earliest to occur of (i) the Expiration Date, (ii) the date when
the Trustee surrenders the Letters of Credit to the LC Issuers for cancellation,
(iii) the date on which the LC Issuers receive a certificate from the Trustee to
the effect that there are no outstanding Bonds or that the Trustee has accepted
an Alternate Letter of Credit, (iv) the date on which the final drawing
available under the Letters of Credit is honored by the LC Issuers, or (v) five
(5) Business Days after the date upon which the Trustee receives a notice from
the Agent stating that an event of default has occurred under the Reimbursement
Agreement and directing the Trustee to call the Bonds for mandatory purchase or
to declare the principal of the Bonds to be immediately due and payable.
(b) Extension or Replacement in Anticipation of Expiration.
Not later than the Interest Payment Date next preceding the Expiration Date of
the current Letters of Credit or, if earlier, the 30th day next preceding such
Expiration Date, the Company may provide for the delivery to the Trustee of (1)
an amendment to the Letters of Credit which extends the Expiration Date to a
date that is not earlier than six months from its then current Expiration Date
and that follows an Interest Payment Date by not less than two Business Days and
not more than 15 calendar days or (2) Alternate Letters of Credit issued by a
national banking association, a bank, a trust company or other financial
institution or credit provider, which shall have terms which are the same in all
material respects (except Expiration Date and except any changes pursuant to
this Indenture with respect to interest or premium coverage in connection with a
concurrent interest rate reset or conversion) as the current Letters of Credit
and which shall have an Expiration Date that is not earlier than one year from
the Expiration Date of the Letters of Credit then in effect and that follows an
Interest Payment Date by not less than two Business Days and not more than 15
calendar days. The Company shall be deemed to have provided for such amendment
extending the Letters of Credit or for such Alternate Letters of Credit if the
Company shall have delivered to the Trustee, in form satisfactory to the
Trustee, a commitment from the LC Issuers or the proposed provider of the
Alternate Letters of Credit to deliver such amendment or Alternate Letters of
Credit on or before the Interest Payment Date next preceding the current
Expiration Date of the Letters of Credit; provided that if such amendment or
Alternate Letters of Credit are not delivered to the Trustee on or before such
Interest Payment Date, an Event of Default shall be deemed to have occurred
under Subsection 7.01(h). Any such amended Letters of Credit or Alternate
Letters of Credit shall provide for drawings to pay up to (i) while the Bonds
are in the Weekly Mode, an amount equal to the principal amount of the
outstanding Bonds, plus 43 days interest thereon computed at the Maximum Rate,
and (ii) from and after the Conversion Date, an amount equal to the principal
amount of the outstanding Bonds, plus 210 days interest thereon at the
applicable Term Rate based on a 360-day year. The institution issuing the
Alternate Letters of Credit must be such as to maintain a rating on the Bonds
equal to or higher than the then current rating on the Bonds given by the Rating
Agencies, and the Trustee shall have received no later than 45 days (or such
shorter period as shall be acceptable to the Trustee) prior to the Interest
Payment Date next preceding the Expiration Date written notice from each Rating
Agency then rating the Bonds that the issuance of the Alternate Letters of
Credit and substitution thereof for the then current Letters of Credit will
result in a rating on the Bonds equal to or higher than the then current rating
on the Bonds. The Trustee shall not accept Alternate Letters of Credit under
this Subsection unless there shall have been delivered to the Trustee an opinion
of counsel to the Agent satisfactory to the Trustee with respect to the
validity, binding effect and enforceability of such Alternate Letters of Credit.
If the Letters of Credit are so extended or if Alternate Letters of Credit
complying with the requirements of this Subsection are so provided, the
mandatory purchase pursuant to Section 4.02(a)(ii) shall not occur. Unless all
of the conditions of this Subsection which are required to be met 45 days (or
such shorter period as shall be acceptable to the Trustee) preceding the
Interest Payment Date next preceding the Expiration Date of the Letters of
Credit have been satisfied, the Trustee shall take all action necessary to call
the Bonds for mandatory purchase pursuant to Section 4.02(a)(ii) on the Interest
Payment Date next preceding such Expiration Date; provided that if the Company
shall have notified the Trustee in writing that it expects to meet all the
conditions for the delivery of an amendment extending the existing Letters of
Credit, or the delivery of Alternate Letters of Credit from a bank identified in
such notice, meeting all of the requirements of this Subsection on or before the
Interest Payment Date next preceding the Expiration Date of the existing Letters
of Credit, then the notice of mandatory purchase pursuant to Section 4.02(a)(ii)
shall state that it is subject to rescission, and the Trustee shall rescind such
notice, if such conditions are so met (in which case such mandatory redemption
or mandatory purchase shall not occur). The provisions of this Subsection with
respect to the substitution of Alternate Letters of Credit in the event that the
Expiration Date of the Letters of Credit is not extended shall apply equally to
the substitution of any Alternate Letters of Credit in the event that the
Expiration Date of an existing Alternate Letter of Credit is not extended.
(c) Other Replacement. The delivery of Alternate Letters of
Credit in anticipation of the expiration of current Letters of Credit shall be
governed by Subsection 5.08(b). Otherwise, if at any time the Company shall
provide for the delivery to the Trustee of (1) Alternate Letters of Credit which
shall have terms which are the same in all material respects (except as to
Expiration Date and except any changes pursuant to this Indenture with respect
to interest or premium coverage in connection with a concurrent interest rate
reset or conversion) as the current Letters of Credit, which shall have an
Expiration Date that is not less than one year from the date of their delivery
and not sooner than the Expiration Date of the current Letters of Credit then in
effect and that follows an Interest Payment Date by not less than two Business
Days and not more than 15 calendar days and which shall be issued by a national
banking association, a bank, a trust company or other financial institution or
credit provider satisfying the requirements of Subsection 5.08(b), and (2) an
opinion of counsel to the proposed issuer satisfactory to the Trustee with
respect to the validity, binding effect and enforceability of such Alternate
Letters of Credit, and if the requirements set forth in this Subsection are met,
then the Trustee shall accept such Alternate Letters of Credit and promptly
surrender for cancellation the previously held Letters of Credit to the issuer
thereof in accordance with the terms of such Letters of Credit. Any Alternate
Letters of Credit shall provide for drawings to pay up to (i) while the Bonds
are in the Weekly Mode, an amount equal to the principal amount of the
outstanding Bonds, plus 43 days interest thereon computed at the Maximum Rate
based on a 365-day year, and (ii) while the Bonds are in the Term Mode, an
amount equal to the principal amount of the outstanding Bonds, plus 210 days
interest thereon at the Term Rate based on a 360-day year. The institutions
issuing the Alternate Letters of Credit must be such as to maintain a rating on
the Bonds equal to or higher than the then current rating on the Bonds given by
the Rating Agencies. The replacement of the Letters of Credit by the Alternate
Letters of Credit must not, by itself, adversely affect the current rating or
ratings on the Bonds, and the absence of such an adverse effect shall be
evidenced in writing by the Rating Agencies to the Trustee prior to such
replacement.
(d) Notice to Holders. While the Bonds are in the Weekly Mode,
the Trustee shall give notice to the Holders, in the name of the Issuer, of the
proposed replacement of the current Letters of Credit with Alternate Letters of
Credit, which notice shall specify (i) the proposed replacement date and (ii)
the last dates prior to such proposed replacement on which Bondholder Tender
Notices must be delivered and Bonds must be delivered (if not held in book-entry
form) for the purchase of Bonds pursuant to Section 4.01 and the places where
such Bondholder Tender Notices and Bonds must be delivered for such purchase.
Such notice shall be given by first class mail, postage prepaid, not less than
30 days prior to the Interest Payment Date next preceding the proposed
replacement date.
(e) Reduction. In each case that Bonds are redeemed or deemed
to have been paid pursuant to Section 10.01, the Trustee shall take such action
as may be permitted under the Letters of Credit to reduce the amount available
thereunder to an amount equal to the principal amount of the outstanding Bonds,
plus (i) while the Bonds are in the Weekly Mode, 43 days interest on such
principal amount computed at the Maximum Rate based on a 365-day year, and (ii)
while the Bonds are in the Term Mode, 210 days interest on such principal amount
computed at a rate not less than the applicable Term Rate based on a 360-day
year; provided that such action by the Trustee shall not be required if the
Letters of Credit so reduce automatically pursuant to their terms.
(f) Substitution by Agent. Upon reduction of the amount
available under the Letters of Credit pursuant to the terms of the Letters of
Credit and Subsection 5.08(e) as a result of redemption of Bonds, the LC Issuers
shall have the right, at their option, to require the Trustee to promptly
surrender the outstanding Letters of Credit to the LC Issuers and to accept in
substitution therefor substitute Letters of Credit in the same form, dated the
date of such substitution, for an amount equal to the amount available under the
Letters of Credit as so reduced, but otherwise having terms identical to the
then outstanding Letters of Credit.
(g) Other Credit Enhancement; No Credit Enhancement. After a
mandatory purchase of the Bonds pursuant to Section 4.02(a)(ii) or (iii),
nothing in this Section shall limit the Company's right to provide other credit
enhancement (such as a letter of credit not meeting the requirements of this
Section or bond insurance) or no credit enhancement as security for the Bonds;
provided that any such credit enhancement shall have administrative provisions
reasonably satisfactory to the Trustee.
Section 5.09. Opening of Funds and Accounts. The Trustee shall not be
obligated to open or maintain any fund or account hereunder if at such time no
moneys are on deposit or to be deposited therein.
(End of Article V)
ARTICLE VI
COVENANTS AND REPRESENTATIONS
OF ISSUER
Section 6.01. Payment of Principal, Premium, if any, and Interest. The
Issuer covenants that it will promptly pay or cause to be paid the principal of,
and premium, if any, and interest on every Bond issued under this Indenture at
the place, on the dates, and in the manner provided herein and in said Bonds
according to the true intent and meaning thereof, but solely from the amounts
pledged therefor which are from time to time held by the Trustee in the Bond
Fund. The principal of, and premium, if any, and interest on the Bonds are
payable from the amounts to be paid under the Lease and otherwise as provided
herein and in the Lease, which amounts are hereby specifically pledged to the
payment thereof in the manner and to the extent herein specified, and nothing in
the Bonds or in this Indenture shall be construed as pledging any other funds or
assets of the Issuer. The Issuer shall not in any event be liable for the
payment of the principal of, or premium, if any, or interest on any of the Bonds
or for the performance of any pledge, obligation or agreement undertaken by the
Issuer except to the extent that the moneys pledged herein are sufficient
therefor.
Section 6.02. No Further Assignment of Revenues. The Issuer will not
assign the Revenues or create any debt, lien or charge thereon, other than the
assignment thereof under this Indenture and the assignment to the Agent under
the Mortgages, the Assignments of Rents and the Master Assignment.
Section 6.03. Recording and Filing. The Company has agreed pursuant to
the Lease that it will cause all financing statements related to this Indenture
and all supplements hereto to be recorded and filed in such manner and in such
places as may from time to time be required by law in order to preserve and
protect fully the security of the Holders of the Bonds and the Agent and the
rights of the Trustee hereunder, and to take or cause to be taken any and all
other action necessary to perfect the security interest created by this
Indenture. The Trustee shall be entitled to rely conclusively upon an opinion of
counsel reasonably satisfactory to it as to any of the matters set forth in this
Section 6.03.
SECTION 6.04. [Intentionally Omitted]
Section 6.05. Further Assurances. Except to the extent otherwise
provided in this Indenture, the Issuer shall, from time to time, execute and
deliver such further instruments and take such further action as the Trustee may
reasonably require to carry out the purposes of this Indenture.
Section 6.06. Observance and Performance of Agreements. The Issuer will
observe and perform faithfully at all times covenants, agreements, authority,
actions, undertakings, stipulations and provisions to be observed or performed
on its part under the Lease, this Indenture and the Bonds, and under all
proceedings of the Issuer pertaining thereto.
Section 6.07. Representations and Warranties. The Issuer represents and
warrants that:and Warranties
(a) It is duly authorized to issue the Bonds, to execute and
deliver this Indenture and the Lease and to provide the security for payment of
the Debt Service in the manner and to the extent set forth in this Indenture.
(b) All actions required on its part to be performed for the
issuance, sale and delivery of the Bonds and for the execution and delivery of
this Indenture and the Lease have been or will be taken duly and effectively.
(c) The Bonds will be valid and binding limited obligations of
the Issuer according to their terms.
(End of Article VI)
ARTICLE VII
DEFAULT AND REMEDIES
Section 7.01. Defaults; Events of Default. The occurrence of any of the
following events is defined as and declared to be and to constitute an Event of
Default hereunder:
(a) Failure to pay the principal of or any premium on any Bond
when such principal or premium shall become due and payable, whether at stated
maturity, by redemption, by acceleration or otherwise;
(b) Failure to pay any interest on any Bond when due;
(c) Failure to pay the purchase price due to the Holder of any
Bond who has tendered such Bond for purchase pursuant to Article IV when such
purchase price shall have become due and payable;
(d) Failure by the Issuer to observe or perform any other
covenant, agreement or obligation on its part to be observed or performed and
which is contained in this Indenture or in the Bonds, which failure shall have
continued for a period of 90 days after written notice, by registered or
certified mail, to the Issuer, the Agent and the Company specifying the failure
and requiring that it be remedied, which notice may be given by the Trustee in
its discretion and shall be given by the Trustee at the written request of the
Holders of not less than 25% in aggregate principal amount of Bonds outstanding;
(e) The occurrence and continuance of an Event of Default as
defined in Section 17.1 of the Lease;
(f) Receipt by the Trustee of a written notice from the Agent
stating that an Event of Default has occurred under the Reimbursement Agreement
and directing the Trustee to call the Bonds for mandatory purchase or to declare
the principal of the outstanding Bonds immediately due and payable;
(g) Receipt by the Trustee of a written notice from the Agent,
prior to the sixth day (or, if such sixth day is not a Business Day, the next
preceding Business Day) following payment of a drawing under any Letter of
Credit for interest on Bonds which remain outstanding after the application of
the proceeds of such drawing, stating that such Letter of Credit will not be
reinstated with respect to such interest;
(h) Failure by the Company to cause an amendment extending the
Expiration Date of the current Letters of Credit or Alternate Letters of Credit
to be delivered to the Trustee pursuant to Subsection 5.08(b) on or before the
Interest Payment Date next preceding such Expiration Date, unless the Bonds have
been called for mandatory redemption or mandatory purchase on such Interest
Payment Date pursuant to Section 4.02(a)(ii);
(i) The occurrence of an Act of Bankruptcy of an LC Issuer; or
(j) The Issuer becomes insolvent or fails, or admits in
writing its inability, to pay its debts as they mature or applies for, consents
to, or acquiesces in the appointment of a trustee, receiver or custodian for the
Issuer or a substantial part of its property; or in the absence of such
application, consent or acquiescence, a trustee, receiver or custodian is
appointed for the Issuer or a substantial part of its property and is not
discharged within sixty (60) days; or any bankruptcy, reorganization, debt
arrangement, moratorium or any case or proceeding under bankruptcy or insolvency
law, or any dissolution or liquidation proceeding, is instituted by or, if
permitted by law, against the Issuer and, if instituted against the Issuer, is
consented to or acquiesced in by the Issuer or is not dismissed within sixty
(60) days, or if an "order for relief" is entered at any time in any such case
under the Bankruptcy Code.
The term "default" or "failure" as used in this Article means a default
or failure by the Issuer in the observance or performance of any of the
covenants, agreements or obligations on its part to be observed or performed
contained in this Indenture or in the Bonds or a default or failure by the
Company under the Lease, exclusive of any period of grace or notice required to
constitute an Event of Default as provided above or in the Lease.
Section 7.02. Notice of Default. If an Event of Default shall
occur, the Trustee shall give written notice of the Event of Default (other than
an Event of Default described in Section 7.01(j), as to which no notice is
required) to the Issuer, the Company, the Agent, the Indexing Agent and the
Remarketing Agent within five (5) days after the Trustee acquires actual
knowledge of the Event of Default. If an Event of Default occurs of which the
Trustee has notice pursuant to this Indenture, the Trustee shall give written
notice thereof, within 30 days after the Trustee's receipt of notice of its
occurrence, to the Holders of all Bonds outstanding as shown by the Register at
the close of business 15 days prior to the mailing of that notice; provided that
except in the case of a default in the payment of the principal of or any
premium or interest on any Bond or the purchase price of Bonds tendered for
purchase pursuant to Section 4.01 or 4.02, the Trustee shall be protected in
withholding such notice if and so long as the Trustee in good faith determines
that the withholding of notice to the Holders is in the best interests of the
Holders.
SECTION 7.03. Acceleration
(a) Upon the occurrence of any Event of Default under
Subsection 7.01(d), (e) or (f), the Trustee shall, upon the written direction of
the Agent, declare, by a notice in writing delivered to the Issuer and the
Company, the principal of all Bonds outstanding (if not then already due and
payable), together with interest accrued thereon, to be due and payable
immediately; provided that, if the Bonds are in the Weekly Mode, the Agent may,
at its option, but subject to the following provisions of this paragraph, direct
the Trustee in writing to call (in which case the Trustee shall call) the Bonds
for mandatory purchase pursuant to Section 4.02(a)(iii) on a Business Day
stipulated by the Agent in such direction, which Business Day shall not be
earlier than 5 Business Days (or such shorter period as shall be acceptable to
the Trustee) after the date the Trustee receives such direction. Irrespective of
whether an Event of Default has occurred under Section 7.01(d), (e) or (f) for
which the Agent has directed the Trustee to call the Bonds for mandatory
purchase, upon the occurrence of an Event of Default under Subsection 7.01(g) or
(h), the Trustee shall, and upon the occurrence of an Event of Default under
Subsection 7.01(a), (b), (c) or (i) the Trustee may, declare the principal of
all Bonds outstanding (if not then already due and payable) of the Series of
Bonds to which such Event of Default pertains, and the interest accrued thereon,
to be due and payable immediately, such declaration to be made by a notice in
writing delivered to the Issuer, the Holder and the Company. Upon any
declaration that the principal of and interest on the Bonds are due and payable
immediately, such principal and interest shall become and be due and payable
immediately.
(b) Written notice of any such declaration shall be given
concurrently to the Agent, the Indexing Agent and the Remarketing Agent. The
Trustee immediately upon such declaration shall give notice thereof in the same
manner as provided in Section 3.04 with respect to redemption of the Bonds,
except that there shall be no minimum period of notice prior to the date of
payment. Such notice shall specify the date on which payment of principal and
interest shall be tendered to the Holders of the Bonds.
(c) Upon any such declaration hereunder, the Trustee shall (i)
immediately draw upon the Letters of Credit to the full extent permitted by the
terms thereof (such drawing to provide for payment by the LC Issuers to be due
at the earliest time which the Trustee may require under the Letters of Credit
and in no case later than the Business Day following the date of declaration of
acceleration and to include amounts in respect of interest accruing on the Bonds
through the date payment of such drawing by the LC Issuers is due) and (ii)
immediately exercise such rights as it may have under the Lease to declare all
payments thereunder to be immediately due and payable. Upon receipt by the
Trustee of payment of the full amount drawn on the Letters of Credit and
provided sufficient moneys are available in the Bond Fund to pay pursuant to
Section 5.04 all sums due on the Bonds, (A) interest on the Bonds shall cease to
accrue as provided in Section 10.03 and (B) the Agent shall succeed to and be
subrogated to the right, title and interest of the Trustee and the Holders in
and to all funds held under this Indenture (except any funds held in the Bond
Fund or any account with respect to Undelivered Bonds which are identified for
the payment of the Bonds or of the purchase price of Undelivered Bonds) and any
other security held for the payment of the Bonds, all of which, upon payment of
any fees and expenses due and payable to the Trustee pursuant to the Lease or
this Indenture, shall be assigned by the Trustee to the Agent.
(d) If, after the principal of the Bonds has been so declared
to be due and payable, all arrears of principal of and interest on the Bonds
outstanding are paid in full, and the Issuer and the Company also perform all
other things in respect of which either of them may have been in default
hereunder, under the Lease or under the Reimbursement Agreement and pay the
reasonable charges of the Trustee and the Holders, including reasonable
attorney's fees, then, and in every such case, the Trustee or the Holders of a
majority in principal amount of the Bonds then outstanding, by notice to the
Issuer and the Company (and to the Holders or the Trustee, as the case may be),
may annul such declaration and its consequences, and such annulment shall be
binding upon the Trustee and all Holders; provided that there shall be no
annulment of any declaration resulting from (i) any Event of Default specified
in Subsection 7.01(f) or (g) during the Agent Consent Period, without the prior
written consent of the Agent or (ii) any Event of Default which has resulted in
a drawing under the Letters of Credit unless the Trustee has received written
notice from the LC Issuers that the Letters of Credit have been reinstated (A)
while the Bonds are in the Weekly Mode, to an amount equal to the principal
amount of the Bonds outstanding, plus 43 days interest thereon at the Maximum
Rate, and (B) while the Bonds are in a Term Mode, to an amount equal to the
principal amount of the Bonds outstanding, plus 210 days interest thereon at a
rate not less than the current Term Rate. No annulment shall extend to or affect
any subsequent Event of Default or shall impair any rights consequent thereon.
SECTION 7.04. Other Remedies; Rights of Holders
(a) With or without taking action under Section 7.03, upon the
occurrence and continuance of an Event of Default, the Trustee may pursue any
available remedy to enforce the payment of Debt Service or the observance and
performance of any other covenant, agreement or obligation under this Indenture,
the Lease, the Letters of Credit, the other Security Documents or any other
instrument providing security, directly or indirectly, for the Bonds.
(b) If any Event of Default has occurred and is continuing,
the Trustee in its discretion may, and upon the written request of Holders of a
majority in principal amount of all Bonds outstanding and receipt of indemnity
to its satisfaction shall, in its own name:
(i) By xxxxxxxx, or other suit, action or proceeding at
law or in equity, enforce all rights of the Holders, including the right to
require the Issuer to enforce any rights under the Lease and to require the
Issuer to carry out any other provisions of this Indenture for the benefit of
the Holders;
(ii) Bring suit upon the Bonds;
(iii) By action or suit in equity require the Issuer to
account as if it were the trustee of an express trust for the Holders; and
(iv) By action or suit in equity enjoin any acts or things
which may be unlawful or in violation of the rights of the Holders.
(c) If an Event of Default under Subsection 7.01(e) occurs and
is continuing, the Trustee in its discretion may, and upon the written request
of Holders of a majority in principal amount of all Bonds outstanding or of the
Agent and receipt of indemnity to its satisfaction shall, enforce each and every
right granted to it as assignee of the Lease.
(d) No remedy conferred upon or reserved to the Trustee (or to
the Holders) by this Indenture is intended to be exclusive of any other remedy.
Each remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or otherwise to the Trustee or to the Holders now or hereafter
existing.
(e) No delay in exercising or omission to exercise any remedy,
right or power accruing upon any default or Event of Default shall impair that
remedy, right or power or shall be construed to be a waiver of any default or
Event of Default or acquiescence therein. Every remedy, right and power may be
exercised from time to time and as often as may be deemed to be expedient.
(f) No waiver of any default or Event of Default hereunder,
whether by the Trustee or by the Holders, shall extend to or shall affect any
subsequent default or Event of Default or shall impair any remedy, right or
power consequent thereon.
(g) As the grantee of a security interest in the Lease (except
for the Reserved Rights), the Trustee is empowered to enforce each remedy, right
and power granted to the Issuer under the Lease. In exercising any remedy, right
or power thereunder or hereunder, the Trustee shall take any action which would
best serve the interests of the Holders in the judgment of the Trustee, applying
the standards described in Sections 8.01 and 8.02.
Section 7.05. Right of Holders to Direct Proceedings. The Holders of
majority in aggregate principal amount of Bonds Outstanding shall have the right
to direct, by an instrument or document in writing executed and delivered to the
Trustee, the method and place of conducting all remedial proceedings hereunder;
provided that (i) any direction shall be in accordance with the provisions of
law and of this Indenture, (ii) the Trustee shall be indemnified as provided in
Sections 8.01 and 8.02, (iii) the Trustee may take any other action which it
deems to be proper and which is not inconsistent with the direction, and (iv)
during the Agent Consent Period, then the Agent shall have the sole right to
give such direction in lieu of such Holders.
Section 7.06. Application of Moneys. All moneys received by the Trustee
pursuant to any drawing made upon the Letters of Credit pursuant to Section 7.03
shall be applied by the Trustee to and only to the payment of principal of or
premium, if any, or interest on the Bonds (other than Bonds known by the Trustee
to be Company Bonds and Pledged Bonds). After payment of any costs, expenses,
liabilities and advances paid, incurred or made by the Trustee in the collection
of moneys pursuant to any right given or action taken under the provisions of
this Article or the provisions of the Lease or the Letters of Credit (including,
without limitation, reasonable attorneys' fees and expenses, except as limited
by law or judicial order or decision entered in any action taken under this
Article), all moneys so received by the Trustee, shall be applied as follows,
subject to Sections 3.05, 5.06 and 5.07:
(a) Unless the principal of all of the Bonds shall have
become, or shall have been declared to be, due and payable, all of those moneys
shall be deposited in the Bond Fund and shall be applied:
First -- To the payment to the Holders entitled
thereto of all installments of interest then due on the Bonds,
in the order of the dates of maturity of the installments of
that interest, beginning with the earliest date of maturity
and, if the amount available is not sufficient to pay in full
any particular installment, then to the payment thereof
ratably, according to the amounts due on that installment, to
the Holders entitled thereto, without any discrimination or
privilege, except as to any difference in the respective rates
of interest specified in the Bonds; and
Second -- To the payment to the Holders entitled
thereto of the unpaid principal of any of the Bonds which
shall have become due (other than Bonds previously called for
redemption for the payment of which moneys are held pursuant
to the provisions of this Indenture), whether at stated
maturity or by redemption, in the order of their due dates,
beginning with the earliest due date, with interest on those
Bonds from the respective dates upon which they became due at
the rates specified in those Bonds, and if the amount
available is not sufficient to pay in full all Bonds due on
any particular date, together with that interest, then to the
payment thereof ratably, according to the amounts of principal
due on that date, to the Holders entitled thereto, without any
discrimination or privilege.
The surplus, if any, remaining after the application of the
moneys as set forth above shall to the extent of any
unreimbursed drawing under the Letters of Credit, or other
obligations owing to the Agent under the Reimbursement
Agreement, be paid to the Agent or the LC Issuers, as
applicable. Any remaining moneys shall be paid to the Company
or the person lawfully entitled to receive the same as a court
of competent jurisdiction may direct.
(b) If the principal of all of the Bonds shall have become due
or shall have been declared to be due and payable pursuant to this Article, all
of those moneys shall be deposited into the Bond Fund and shall be applied to
the payment of the principal, premium (if any) and interest then due and unpaid
upon the Bonds, without preference or priority of principal over interest, of
interest over principal, of any installment of interest over any other
installment of interest, or of any Bond over any other Bond, ratably, according
to the amounts due respectively for principal and interest, to the Holders
entitled thereto, without any discrimination or privilege, except as to any
difference in the respective rates of interest specified in the Bonds.
(c) If the principal of all of the Bonds shall have been
declared to be due and payable pursuant to this Article, and if that declaration
thereafter shall have been rescinded and annulled under the provisions of
Section 7.03 or 7.10, subject to the provisions of paragraph (b) of this Section
in the event that the principal of all of the Bonds shall become due and payable
later, the moneys shall be deposited in the Bond Fund and shall be applied in
accordance with the provisions of Article V.
(d) Whenever moneys are to be applied pursuant to the
provisions of this Section, those moneys shall be applied at such times, and
from time to time, as the Trustee shall determine, having due regard to the
amount of moneys available for application and the likelihood of additional
moneys becoming available for application in the future. Whenever the Trustee
shall direct the application of those moneys, it shall fix the date upon which
the application is to be made (and with respect to acceleration such date shall
be fixed in accordance with Section 7.03), and upon that date, interest shall
cease to accrue on the amounts of principal, if any, to be paid on that date,
provided the moneys are available therefor. The Trustee shall give notice of the
deposit with it of any moneys and of the fixing of that date, all consistent
with the requirements of Section 2.08 for the establishment of, and for giving
notice with respect to, a Special Record Date for the payment of overdue
interest. Except as otherwise provided in Section 2.13, the Trustee shall not be
required to make payment of principal of and any premium on a Bond to the Holder
thereof, until the Bond shall be presented to the Trustee for appropriate
endorsement or for cancellation if it is paid fully.
Section 7.07. Remedies Vested in Trustee. All rights of action
(including without limitation, the right to file proof of claims) 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
proceeding relating thereto. Any suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee without the necessity of joining any
Holders as plaintiffs or defendants. Any recovery of judgment shall be for the
benefit of the Agent and the Holders of the outstanding Bonds, subject to the
provisions of this Indenture.
SECTION 7.08. Rights and Remedies of Holders
(a) A Holder shall not have any right to institute any suit,
action or proceeding for the enforcement of this Indenture, for the execution of
any trust hereof, or for the exercise of any other remedy hereunder, unless:
(i) there has occurred and is continuing an Event of
Default of which the Trustee has been notified, as provided in Subsection
8.02(f), or of which it is deemed to have notice under that Subsection,
(ii) the Holders of at least a majority in aggregate
principal amount of Bonds then outstanding shall have made written request to
the Trustee and shall have afforded the Trustee reasonable opportunity to
proceed to exercise the remedies, rights and powers granted herein or to
institute the suit, action or proceeding in its own name, and shall have offered
indemnity to the Trustee as provided in Sections 8.01 and 8.02, and
(iii) the Trustee thereafter shall have failed or refused
to exercise the remedies, rights and powers granted herein or to institute the
suit, action or proceeding in its own name.
(b) At the option of the Trustee, such notification (or
notice), request, opportunity and offer of indemnity are conditions precedent in
every case, to the institution of any suit, action or proceeding described
above.
(c) No one or more Holders shall have any right to affect,
disturb or prejudice in any manner whatsoever the security or benefit of this
Indenture by its or their action, or to enforce, except in the manner provided
herein, any remedy, right or power hereunder. Any suit, action or proceedings
shall be instituted, had and maintained in the manner provided herein for the
benefit of the Holders of all Bonds outstanding. Notwithstanding the foregoing
provisions of this Section or any other provision of this Indenture, the
obligation of the Issuer shall be absolute and unconditional to pay hereunder,
but solely from the Revenues and other funds pledged under this Indenture, the
principal or redemption price of, and interest on, the Bonds to the respective
Holders thereof on the respective due dates thereof, and nothing herein shall
affect or impair the right of action, which is absolute and unconditional, of
such Holders to enforce such payment; provided that no Holder shall have a right
to draw upon the Letters of Credit.
Section 7.09. Termination of Proceedings. In case the Trustee shall
have proceeded to enforce any remedy, right or power under this Indenture in any
suit, action or proceeding, and the suit, action or proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, the Issuer, the Trustee, the Agent and the Holders
shall be restored to their former positions and rights hereunder, respectively,
and all rights, remedies and powers of the Trustee shall continue as if no suit,
action or proceeding had been taken.
Section 7.10. Waivers of Events of Default. Except as hereinafter
provided, at any time, in its discretion, the Trustee, but only with the express
prior consent of the Agent, may (and, upon the written request of the Holders of
a majority in aggregate principal amount of all Bonds outstanding, shall) waive
any Event of Default hereunder and its consequences and annul any corresponding
acceleration of maturity of principal of the Bonds. There shall not be so
waived, however, any Event of Default described in Subsection 7.01(a), (b), (c),
(f), (g) or (h) nor shall any acceleration in connection therewith be annulled,
except with written consent of the Agent (and, in the case of an Event of
Default under Subsection 7.01(g) only, with written notice from the LC Issuers
to the Trustee that the Letters of Credit have been reinstated to their full
stated amounts) and unless at the time of that waiver or annulment payments of
the amounts and satisfaction of the other conditions provided in Section 7.03
for annulment have been made or provision has been made therefor. No waiver
shall extend to any subsequent or other Event of Default or impair any right
consequent thereon.
Section 7.11. Trustee's Right to Appointment of Receiver. The Trustee
shall be entitled as of right to the appointment of a receiver.
Section 7.12. Trustee's Obligation to Agent Upon Payment of All Amounts
Due Holders. Once the principal of and premium, if any, and interest on all
Bonds issued hereunder have been paid, or provision has been made pursuant to
Article X for payment of the same and any purchase price of Bonds that is
payable pursuant to Article IV, together with the compensation and expenses of
the Trustee and all other sums payable hereunder by the Issuer or the Company,
the Trustee's sole obligation hereunder shall be to assign promptly and turn
over to the Agent, as successor, subrogee or otherwise, (i) all of the Trustee's
right, title and interest under this Indenture, (ii) all balances held hereunder
not required for the payment of the Bonds and such other obligations and (iii)
the Trustee's right, title and interest in, to and under the Lease.
Section 7.13. Agent's Right to Control Proceedings. Notwithstanding any
of the provisions contained in this Indenture, during the Agent Consent Period,
all rights and remedies granted to the Trustee under this Article VII (excepting
rights and remedies with respect to the payment of fees, expenses or indemnity
to the Trustee), and all elective rights of the Holders to direct the Trustee to
exercise any such rights or remedies, shall be exercised and exercisable solely
by the Agent by written notice to the Trustee, the Issuer, the Indexing Agent
and the Remarketing Agent.
(End of Article VII)
ARTICLE VIII
TRUSTEE, REMARKETING AGENT AND INDEXING AGENT
SECTION 8.01. Trustee's Acceptance and Responsibilities
(a) The Trustee accepts the trusts imposed upon it by this
Indenture, and agrees to observe and perform those trusts, but only upon and
subject to the terms and conditions set forth in this Article, to all of which
the parties hereto and the Holders agree. In its capacity as Trustee hereunder,
the Trustee shall authenticate the Bonds and shall act as Bond registrar,
transfer agent, tender agent and paying agent, all as provided herein.
(b) Prior to the occurrence of a default or an Event of
Default of which the Trustee has been notified, as provided in Subsection
8.02(f), or of which by that Subsection the Trustee is deemed to have notice,
and after the cure or waiver of all defaults or Events of Default which may have
occurred,
(i) the Trustee undertakes to perform only those duties
and obligations which are set forth specifically in this Indenture, and no
duties or obligations shall be implied to the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may rely conclusively, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the
case of any such certificates or opinions which by any provision hereof are
required specifically to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(c) In case a default or an Event of Default has occurred and
is continuing hereunder (of which the Trustee has been notified, or is deemed to
have notice), the Trustee shall exercise those rights and powers vested in it by
this Indenture and shall use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of its own affairs.
(d) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to affect the
limitation of the Trustee's duties and obligations provided in Subsection
8.01(b)(i) or the Trustee's right to rely on the truth of statements and the
correctness of opinions as provided in Subsection 8.01(b)(ii);
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by any one of its officers, unless it shall be
established that the Trustee was grossly negligent in ascertaining the pertinent
facts;
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of the
Bonds then outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it; provided that this clause (iv) shall
not relieve the Trustee of its duties to take actions required to be taken under
Section 7.03 and with respect to drawings to be made under the Letters of Credit
and making payments on the Bonds when due.
(e) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
(f) The Trustee accepts and agrees to perform any and all
duties which are imposed upon the Trustee under the Representation Letter.
Section 8.02. Certain Rights and Obligations of Trustee. Except as
otherwise provided in Section 8.01:ligations of Trustee
(a) The Trustee (i) may execute any of the trusts or powers
hereof and perform any of its duties by or through attorneys, agents, receivers
or employees (but shall be answerable therefor only in accordance with the
standard specified above), (ii) shall be entitled to the advice of counsel
concerning all matters of trusts hereof and duties hereunder, and (iii) may pay
reasonable compensation in all cases to all of those attorneys, agents,
receivers and employees reasonably employed by it in connection with the trusts
hereof. The Trustee may act upon the opinion or advice of any attorney (who may
be the attorney or attorneys for the Issuer or the Company) approved by the
Trustee in the exercise of reasonable care. The Trustee shall not be responsible
for any loss or damage resulting from any action taken or omitted to be taken in
good faith in reliance upon that opinion or advice.
(b) Except for its certificate of authentication on the Bonds,
the Trustee shall not be responsible for (i) any recital in this Indenture or in
the Bonds, (ii) the validity, priority, recording, rerecording, filing or
refiling of this Indenture or any Supplemental Indenture, (iii) any instrument
or document of further assurance or collateral assignment, (iv) any financing
statements, amendments thereto or continuation statements, (v) the validity of
the execution by the Issuer of this Indenture, any Supplemental Indenture or
instruments or documents of further assurance, (vi) the sufficiency of the
security for the Bonds issued hereunder or intended to be secured hereby, (vii)
the value of or title to the Leased Property, or insurance of the Leased
Property or collection of insurance moneys, or (viii) the maintenance of the
security hereof. The Trustee shall not be bound to ascertain or inquire as to
the observance or performance of any covenants, agreements or obligations on the
part of the Issuer or the Company under the Lease except as set forth
hereinafter; but the Trustee may require of the Issuer or the Company full
information and advice as to the observance or performance of those covenants,
agreements and obligations. Except as otherwise provided in Section 7.04, the
Trustee shall have no obligation to observe or perform any of the duties of the
Issuer under the Lease.
(c) The Trustee shall not be accountable for the application
by the Company or any other Person of the proceeds of any Bonds authenticated or
delivered hereunder.
(d) The Trustee may, in the absence of bad faith or gross
negligence on its part, act upon any notice, request, consent, certificate,
order, affidavit, letter, telegram or other paper or document reasonably
believed by it to be genuine and correct and to have been signed or sent by the
proper Person or Persons. Any action taken by the Trustee pursuant to this
Indenture upon the request or authority or consent of any Person who is the
Holder of any Bonds at the time of making the request or giving the authority or
consent, shall be conclusive and binding upon all future Holders of the same
Bond and of Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or nonexistence of any fact for which
the Issuer, the Agent or the Company may be responsible or as to the sufficiency
or validity of any instrument, document, report, paper or proceeding, the
Trustee, in the absence of bad faith or gross negligence on its part, shall be
entitled to rely upon a certificate signed on behalf of the Issuer, the Agent or
the Company by an Authorized Representative or authorized officer thereof, as
applicable, as sufficient evidence of the facts recited therein. Prior to the
occurrence of a default or Event of Default hereunder of which the Trustee has
been notified, as provided in Subsection 8.02(f), or of which by that Subsection
the Trustee is deemed to have notice, the Trustee may accept a similar
certificate to the effect that any particular dealing, transaction or action is
necessary or expedient; provided that the Trustee in its discretion may require
and obtain any further evidence which it deems to be necessary or advisable; and
provided further that the Trustee shall not be bound to secure any further
evidence. The Trustee may accept a certificate of the officer, or an assistant
thereto, having charge of the appropriate records, to the effect that a
resolution has been adopted by the Issuer in the form recited in that
certificate, as conclusive evidence that the resolution has been duly adopted
and is in full force and effect.
(f) The Trustee shall not be required to take notice, and
shall not be deemed to have notice, of any default or Event of Default
hereunder, except Events of Default described in Subsections 7.01(a), (b), (c),
(f), (g) and (h), unless the Trustee shall be notified specifically of the
default or Event of Default in a written instrument or document delivered to it
by the Issuer, the Agent or by the Holders of at least 10% of the aggregate
principal amount of Bonds outstanding. In the absence of delivery of a notice
satisfying those requirements, the Trustee may assume conclusively that there is
no default or Event of Default, except as noted above.
(g) At any reasonable time, the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives (i) may inspect and copy fully all books, papers and records of
the Issuer pertaining to the Leased Property and the Bonds, and (ii) may make
any memoranda from and in regard thereto as the Trustee may desire.
(h) The Trustee shall not be required to give any bond or
surety with respect to the execution of these trusts and powers or otherwise in
respect of the premises.
(i) Notwithstanding anything contained elsewhere in this
Indenture to the contrary, the Trustee may demand any showings, certificates,
reports, opinions, appraisals and other information, and any corporate action
and evidence thereof, in addition to that required by the terms hereof, as a
condition to the authentication of any Bonds or the taking of any action
whatsoever within the purview of this Indenture, if the Trustee deems it to be
desirable for the purpose of establishing the right of the Issuer to the
authentication of any Bonds or the right of any Person to the taking of any
other action by the Trustee; provided that the Trustee shall not be required to
make any such demand.
(j) Before taking action hereunder pursuant to Section 8.04 or
Article VII (with the exception of any action required to be taken under Section
7.03 and except with respect to drawings made under the Letters of Credit and
with respect to payment on the Bonds when due), the Trustee may require that a
satisfactory indemnity bond be furnished to it for the reimbursement of all
expenses which it may incur and to protect it against all liability by reason of
any action so taken, except liability which is adjudicated to have resulted from
its gross negligence or willful misconduct; provided that no such bond shall be
required from the Issuer. The Trustee may take action without that indemnity,
and in that case, the Issuer shall cause the Company to reimburse the Trustee
for all of the Trustee's expenses pursuant to Section 8.03. The Trustee shall
not be required to expend its own funds for the enforcement of this Indenture,
absent such indemnity.
(k) Unless otherwise provided herein, all moneys received by
the Trustee under this Indenture shall be held in trust for the purposes for
which those moneys were received, until those moneys are used, applied or
invested as provided herein; provided that those moneys need not be segregated
from other moneys, except to the extent required by this Indenture or by law.
The Trustee shall not have any liability for interest on any moneys received
hereunder, except to the extent expressly provided herein or agreed with the
Issuer or the Company.
(l) Any resolution of the Issuer, and any opinions,
certificates and other instruments and documents for which provision is made in
this Indenture, may be accepted by the Trustee, in the absence of bad faith on
its part, as conclusive evidence of the facts and conclusions stated therein and
shall be full warrant, protection and authority to the Trustee for its actions
taken hereunder.
(m) The Trustee may construe any ambiguous or inconsistent
provisions of this Indenture in such manner as it deems reasonable, and any such
construction of such provisions by the Trustee shall be binding upon the Issuer,
the Company, the Agent and the Holders.
(n) The permissive right of the Trustee to do any thing under
this Indenture shall not be construed as a duty.
(o) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
(p) The Trustee shall not be under any obligation to effect or
maintain insurance or to renew any policies of insurance or to inquire as to the
sufficiency of any policies of insurance carried by the Company, or to report,
or make or file claims or proof of loss for, any loss or damage insured against
or which may occur, or, to keep itself informed or advised as to the payment of
any taxes or assessments, or to require any such payment to be made.
(q) The Trustee shall not be personally liable for any claims
by or on behalf of any person, firm, corporation or other legal entity arising
from the conduct or management of, or from any work or thing done on, the
Project, and shall have no affirmative duty with respect to compliance of the
Project under state or federal laws pertaining to the transport, storage,
treatment of disposal of pollutants, contaminants, waste or hazardous materials,
or regulations, permits or licenses issued under such laws.
SECTION 8.03. Fees, Charges and Expenses of Trustee
(a) The Trustee shall be entitled to payment or reimbursement
by the Company, as provided in the Lease, for reasonable fees for the Ordinary
Services of the Trustee and its agents rendered hereunder and for all advances,
counsel fees and other Ordinary Expenses reasonably and necessarily paid or
incurred by it and its agents in connection with the provision of Ordinary
Services. For purposes hereof, fees for Ordinary Services provided for by their
respective standard fee schedule shall be considered reasonable. In the event
that it should become necessary for any of them to perform Extraordinary
Services, they shall be entitled to reasonable extra compensation therefor and
to reimbursement for reasonable and necessary Extraordinary Expenses incurred in
connection therewith. The Trustee shall not be entitled to compensation or
reimbursement for Extraordinary Services or Extraordinary Expenses occasioned by
its gross negligence or willful misconduct.
(b) The fees for the Trustee's Ordinary Services and Ordinary
Expenses and Extraordinary Services and Extraordinary Expenses shall be entitled
to payment and reimbursement only from (i) the Project Fund, (ii) payments made
by the Company pursuant to the Lease, or (iii) from other moneys available
therefor; provided that following the occurrence of an Event of Default the
Trustee shall have a first priority lien on all of the Trust Estate, excepting
only drawings on the Letters of Credit, for the payment of such fees and
expenses. Any amounts payable to the Trustee pursuant to this Section shall be
payable upon demand and shall bear interest from five Business Days following
the date of demand therefor at the interest rate then in effect for the Bonds.
The initial or acceptance fees of the Trustee and the fees, charges and expenses
of the Trustee and its agents described above, may be paid by the Trustee from
the Project Fund as and when due to the extent that those fees, charges and
expenses become due prior to the Final Project Completion Date.
Section 8.04. Intervention by Trustee. The Trustee may intervene on
behalf of the Holders, and shall intervene if requested to do so in writing by
the Holders of at least 25% of the aggregate principal amount of Bonds
outstanding, in any judicial proceeding to which the Issuer or the Company is a
party and which in the opinion of the Trustee and its counsel has a substantial
bearing on the interests of Holders of the Bonds, provided, however, that at all
times during the Agent Consent Period, the Trustee shall take such actions as,
and only as, directed by the Agent in writing. The rights and obligations of the
Trustee under this Section are subject to the approval of that intervention by a
court of competent jurisdiction. The Trustee may require that a satisfactory
indemnity bond be provided to it in accordance with Sections 8.01 and 8.02
before it takes action hereunder.
SECTION 8.05. Successor Trustee
(a) Anything herein to the contrary notwithstanding:
(i) any corporation or association (A) into which the
Trustee may be converted or merged, (B) with which the Trustee or any successor
to it may be consolidated, or (C) to which the Trustee may sell or transfer its
assets and trust business as a whole or substantially as a whole, or any
corporation or association resulting from any such conversion, merger,
consolidation, sale or transfer, ipso facto, shall be and become successor
Trustee hereunder and shall be vested with all of the title to the whole
property or trust estate hereunder; and
(ii) that corporation or association, as successor
Trustee, shall be vested further, as was its predecessor, with each and every
trust, property, remedy, power, right, duty, obligation, discretion, privilege,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by, vested in or
conveyed to the Trustee, without the execution or filing of any instrument or
document or any further act on the part of any of the parties hereto.
(b) Any successor Trustee, however, (i) shall be a trust
company or a bank having the powers of a trust company, (ii) shall be in good
standing within the State of Georgia, (iii) shall be duly authorized to exercise
trust powers within the State of Georgia, and (iv) shall have a reported capital
and surplus of not less than $50,000,000 and a rating assigned to its long-term
unsecured debt by Xxxxx'x Investors Service, Inc. at least equal to "Baa3" (if
the Bonds are then rated by Xxxxx'x Investors Service, Inc.) and by Standard &
Poor's Corporation at least equal to "BBB-" (if the Bonds are then rated by
Standard & Poor's Corporation) unless the Issuer receives written confirmation
from the respective Rating Agencies that the appointment of a particular
successor trustee not meeting such rating requirement will not result in a
reduction or withdrawal of its rating of the Bonds.
Section 8.06. Resignation of Trustee. The Trustee may resign at any
time from the trusts created hereby by giving written notice of the resignation
to the Issuer, the Company, the Agent, the Indexing Agent and the Remarketing
Agent and by mailing written notice of the resignation to the Holders as their
names and addresses appear on the Register at the close of business 15 days
prior to the mailing. The resignation shall take effect only upon the
appointment of a successor Trustee.
SECTION 8.07. Removal of Trustee
(a) The Trustee may be removed at any time by an instrument or
document or concurrent instruments or documents delivered to the Trustee at
least five Business Days prior to the date of removal, with copies thereof
mailed to the Issuer, the Company, the Agent, the Indexing Agent and the
Remarketing Agent, and signed by or on behalf of the Holders of not less than a
majority in aggregate principal amount of the Bonds outstanding.
(b) The Trustee also may be removed at any time for any breach
of trust or for acting or proceeding in violation of, or for failing to act or
proceed in accordance with, any provision of this Indenture with respect to the
duties and obligations of the Trustee by any court of competent jurisdiction
upon the application of the Issuer or the Holders of not less than 25% in
aggregate principal amount of the Bonds outstanding.
(c) The removal of the Trustee pursuant to this Section shall
take effect only upon the appointment of a successor Trustee.
SECTION 8.08. Appointment of Successor Trustee
(a) If (i) the Trustee shall resign, shall be removed, shall
be dissolved, or shall become otherwise incapable of acting hereunder, (ii) the
Trustee shall be taken under the control of any public agency, or (iii) a
receiver shall be appointed for the Trustee by a court, then a successor Trustee
shall be appointed by the Issuer, with the written consent of the Company and
the Agent; provided that if a successor Trustee is not so appointed within 10
days after (A) a notice of resignation or an instrument or document of removal
is received by the Issuer, as provided in Sections 8.06 and 8.07, respectively,
or (B) the Trustee is dissolved, taken under control, becomes otherwise
incapable of acting or a receiver is appointed, in each case, as provided above,
then, so long as the Issuer shall not have appointed a successor Trustee, the
Holders of a majority in aggregate principal amount of Bonds outstanding may
designate a successor Trustee by an instrument or document or concurrent
instruments or documents in writing signed by or on behalf of those Holders. If
no appointment of a successor Trustee shall be made pursuant to the foregoing
provisions of this Section, the Holder of any Bond outstanding or any retiring
Trustee may apply to any court of competent jurisdiction to appoint a successor
Trustee. Such court may thereupon, after such notice, if any, as such court may
deem proper and prescribe, appoint a successor Trustee.
(b) Every successor Trustee appointed pursuant to this Section
(i) shall be a trust company or a bank having the powers of a trust company,
(ii) shall be in good standing within the State of New York, (iii) shall be duly
authorized to exercise trust powers within the State of New York, (iv) shall
have a reported capital and surplus of not less than $50,000,000 and a rating
assigned to its long-term unsecured debt by Xxxxx'x Investors Service, Inc. at
least equal to "Baa3" (if the Bonds are then rated by Xxxxx'x Investors Service,
Inc.) and by Standard & Poor's Corporation at least equal to "BBB-" (if the
Bonds are then rated by Standard & Poor's Corporation) unless the Issuer
receives written confirmation from the Rating Agencies that the appointment of a
particular successor trustee not meeting such rating requirement will not result
in a reduction or withdrawal of its rating of the Bonds, and (vi) shall be
willing to accept the trusteeship under the terms and conditions of this
Indenture.
(c) Every successor Trustee appointed hereunder shall execute
and acknowledge, and shall deliver to its predecessor, the Issuer, the Company,
the Agent, the Indexing Agent and the Remarketing Agent, an instrument or
document in writing accepting the appointment. Thereupon, without any further
act, the successor shall become vested with all of the trusts, properties,
claims, demands, causes of action, immunities, estates, titles, interests and
liens of its predecessor. Upon the written request of its successor, the Issuer,
the Company, the Agent, the Indexing Agent or the Remarketing Agent, the
predecessor Trustee (i) shall execute and deliver an instrument or document
transferring to its successor all of the trusts, properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands, causes of
action, immunities, estates, titles, interests and liens of the predecessor
Trustee hereunder, and (ii) shall take any other action necessary to duly
assign, transfer and deliver to its successor all property (including, without
limitation, all securities and moneys and the Letters of Credit) held by it as
Trustee. Should any instrument or document in writing from the Issuer be
requested by any successor Trustee for vesting and conveying more fully and
certainly in and to that successor the trusts, properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands, causes of
action, immunities, estates, titles, interests and liens vested or conveyed or
intended to be vested or conveyed hereby in or to the predecessor Trustee, the
Issuer shall execute, acknowledge and deliver that instrument or document.
(d) In the event of a change in the Trustee, the predecessor
Trustee shall cease to be custodian of any moneys which it may hold pursuant to
this Indenture and shall cease to be Bond registrar, transfer agent, tender
agent, authenticating agent and paying agent for the Bonds. The successor
Trustee shall become custodian for moneys held under this Indenture and Xxxx
registrar, transfer agent, tender agent, authenticating agent and paying agent
as and to the extent provided herein.
Section 8.09. Adoption of Authentication. In case any of the Bonds
shall have been authenticated, but shall not have been delivered, any successor
Trustee may adopt the certificate of authentication of any predecessor Trustee
and may deliver those Bonds so authenticated as provided herein. In case any
Bonds shall not have been authenticated, any successor Trustee may authenticate
those Bonds either in the name of any predecessor or in its own name. In all
cases, the certificate of authentication shall have the same force and effect as
provided in the Bonds or in this Indenture with respect to the certificate of
authentication of the predecessor Trustee.
SECTION 8.10. Designation and Succession of Authenticating Agent, Bond
Registrar, Transfer Agent and Paying Agent
(a) The Trustee may, with the consent of the Issuer, appoint
an agent or agents, with power to act on the Trustee's behalf and subject to the
Trustee's direction in the authentication, registration, transfer and exchange
and tender of Bonds and payment of Debt Service under the provisions of this
Indenture; provided that any tender agent or paying agent so appointed shall
have and maintain a rating assigned to its long-term unsecured debt by Xxxxx'x
Investors Service, Inc. at least equal to "Baa3" (if the Bonds are then rated by
Xxxxx'x Investors Service, Inc.) and by Standard & Poor's Corporation at least
equal to "BBB-" (if the Bonds are then rated by Standard & Poor's Corporation)
unless the Issuer receives written confirmation from the Rating Agencies that
the appointment of a tender agent or paying agent not meeting such rating
requirement will not result in a reduction or withdrawal of its rating of the
Bonds; and provided further, however, that the Trustee may serve as tender
agent, paying agent or any other such agent pursuant to this Indenture. For all
purposes of this Indenture, the authentication, registration and delivery of
Bonds by any such agent pursuant to this Section shall be deemed to be
authentication, registration and delivery of those Bonds by the Trustee.
(b) Any corporation or association with or into which any such
agent may be merged or converted or with which it may be consolidated, or any
corporation or association resulting from any merger, consolidation or
conversion to which any such agent shall be a party, or any corporation or
association succeeding to the trust business of any such agent, shall be the
successor of that agent hereunder, if that successor corporation or association
is otherwise eligible hereunder, without the execution or filing of any paper or
any further act on the part of the parties hereto or the such agent or such
successor corporation.
(c) Any such agent may at any time resign by giving written
notice of resignation to the Trustee and to the Issuer, the Company, the
Indexing Agent and the Remarketing Agent. The Trustee may at any time terminate
the agency of any such agent by giving written notice of termination to such
agent and to the Issuer, the Company, the Indexing Agent and the Remarketing
Agent. Upon receiving such a notice of resignation or upon such a termination,
or in the case at any time any such agent shall cease to be eligible under this
Section, the Trustee may appoint a successor agent. The Trustee shall give
written notice of appointment of a successor agent to the Issuer, the Company,
the Indexing Agent and the Remarketing Agent and shall mail, within 10 days
after that appointment, notice thereof to all Holders as their names and
addresses appear on the Register on the date of that appointment.
(d) The Trustee shall pay to any such agent from time to time
reasonable compensation for its services, and the Trustee shall be entitled to
be reimbursed for such payments as Ordinary Expenses, subject to Section 8.03.
(e) The pertinent provisions of Subsections 8.02(b), (c), (d),
(h) and (i) shall be applicable to any such agent.
Section 8.11. Dealing in Bonds. The Trustee, the Agent, the Indexing
Agent and the Remarketing Agent, their respective affiliates, and any directors,
officers, employees or agents thereof, in good faith, may become the owners of
Bonds secured hereby with the same rights which it or they would have hereunder
if the Trustee, the Agent, the Indexing Agent or the Remarketing Agent did not
serve in those capacities. The Trustee may serve as, or be affiliated with, the
Remarketing Agent, the Indexing Agent or the Agent. The Trustee may also engage
in or be interested in any financial or other transaction with the Issuer, the
Company or any related party.
Section 8.12. Representations, Agreements and Covenants of Trustee. The
Trustee hereby represents and covenants that it is a national banking
association duly organized and validly existing under the laws of the United
States of America, in good standing and duly authorized to exercise corporate
trust powers in the State of Georgia, that it will take such action, if any, as
is necessary to remain in good standing and duly authorized to exercise
corporate trust powers in the State of Georgia.
SECTION 8.13. Appointment of Remarketing Agent
(a) The Issuer shall, with the consent of the Company, appoint
the Remarketing Agent for the Bonds, subject to the conditions set forth in
Section 8.14. The Remarketing Agent shall designate to the Trustee its Principal
Office and signify its acceptance of the duties and obligations imposed upon it
hereunder by a written instrument of acceptance delivered to the Issuer, the
Company, the Indexing Agent and the Trustee under which the Remarketing Agent
will agree, particularly:
(i) to direct all Holders of Bonds which are to be
tendered pursuant to Article IV hereof to deliver such Bonds to the Trustee;
(ii) to direct all Persons purchasing such Bonds to direct
payment therefor to the Trustee to be applied as provided in Section 4.03; and
(iii) to keep such books and records as shall be
consistent with prudent industry practice and to make such books and records
available for inspection by the Issuer, the Trustee, the Company and the Agent
at all reasonable times.
(b) In addition, the Remarketing Agent will enter into the
Remarketing Agreement with the Company in form and substance mutually
satisfactory to them. The Remarketing Agent shall be entitled to advice of legal
counsel on any matter relating to the Remarketing Agent's obligations hereunder
and shall be entitled to act upon the opinion of such counsel in the exercise of
reasonable care in fulfilling such obligations.
SECTION 8.14. Qualifications of Remarketing Agent
(a) The Remarketing Agent (other than the original Remarketing
Agent identified herein) shall be a national banking association or a bank or
trust company or a member of the National Association of Securities Dealers,
Inc., authorized by law to perform all the duties imposed upon it by this
Indenture. The Remarketing Agent may at any time resign and be discharged of the
duties and obligations created by this Indenture by giving at least 30 days'
prior written notice by registered or certified mail to the Trustee, the Issuer,
the Indexing Agent, the Company and the Agent. The Remarketing Agent may be
removed at any time by the Issuer or the Company, with the consent of the other
and, during the Agent Consent Period, the Agent upon 30 days' notice which shall
be in writing, signed by the Issuer and delivered to the Remarketing Agent, the
Indexing Agent, the Company, the Trustee and the Agent.
(b) In the event of the resignation or removal of the
Remarketing Agent, the Issuer, with the consent of the Company and the Agent,
shall appoint a successor Remarketing Agent meeting the qualifications set forth
in this Section and the Remarketing Agent shall pay over, assign and deliver any
moneys and Bonds held by it in such capacity to its successor or, if there be no
successor, to the Trustee as hereinafter provided.
(c) In the event that the Remarketing Agent shall resign or be
removed, or be dissolved, or if the property or affairs of the Remarketing Agent
shall be taken under the control of any state or federal court or administrative
body because of bankruptcy or insolvency, or for any other reason, and the
Issuer shall not have appointed its successor as Remarketing Agent, the Trustee,
notwithstanding the provisions of Subsection 8.14(a) shall ipso facto be deemed
to be the Remarketing Agent for all purposes of this Indenture until the
appointment by the Issuer of the successor Remarketing Agent; provided that the
Trustee, in its capacity as Remarketing Agent, shall not be required to remarket
Bonds nor to establish the Weekly Rate or the Term Rate.
Section 8.15. Compensation and Expenses of Remarketing Agent. The terms
of the Company's obligation to pay reasonable compensation to and the reasonable
expenses of the Remarketing Agent may be set forth in the Remarketing Agreement.
SECTION 8.16. Appointment of Indexing Agent
(a) The Issuer shall, with the consent of the Company, appoint
the Indexing Agent for the Bonds, subject to the conditions set forth in Section
8.18. The Indexing Agent shall designate to the Trustee its Principal Office and
signify its acceptance of the duties and obligations imposed upon it hereunder
by a written instrument of acceptance delivered to the Issuer, the Company, the
Remarketing Agent and the Trustee under which the Indexing Agent will agree,
particularly:
(i) to determine the Weekly Rate and the Term Rate in
accordance with Sections 2.03 and 2.04 of this Indenture, and to give notice to
the Trustee and the Remarketing Agent of the Weekly Rate, and to the Trustee,
the Remarketing Agent, the Issuer, the Company and the Agent of the Term Rate,
on the date of the determination thereof; and
(ii) to keep such books and records as shall be consistent
with prudent industry practice and to make such books and records available for
inspection by the Issuer, the Trustee, the Remarketing Agent, the Company and
the Agent at all reasonable times.
(b) In addition, the Indexing Agent will enter into the
Indexing Agreement with the Company in form and substance mutually satisfactory
to them. The Indexing Agent shall be entitled to advice of legal counsel on any
matter relating to the Indexing Agent's obligations hereunder and shall be
entitled to act upon the opinion of such counsel in the exercise of reasonable
care in fulfilling such obligations.
SECTION 8.17. Qualifications of Indexing Agent
(a) The Indexing Agent shall be an investment banking firm, a
firm of financial consultants, a national banking association or a bank or trust
company, authorized by law to perform all the duties imposed upon it by this
Indenture and the Indexing Agreement. The Indexing Agent may at any time resign
and be discharged of the duties and obligations created by this Indenture by
giving at least 30 days' prior written notice by registered or certified mail to
the Trustee, the Issuer, the Remarketing Agent, the Company and the Agent. The
Indexing Agent may be removed at any time by the Issuer or the Company, with the
consent of the other and, during the Agent Consent Period, the Agent upon 30
days' notice which shall be in writing, signed by the Issuer and delivered to
the Indexing Agent, the Remarketing Agent, the Company, the Trustee and the
Agent.
(b) In the event of the resignation or removal of the Indexing
Agent, the Issuer, with the consent of the Company and, during the Agent Consent
Period, the Agent, shall appoint a successor Indexing Agent meeting the
qualifications set forth in this Section.
(c) In the event that the Indexing Agent shall resign or be
removed, or be dissolved, or if the property or affairs of the Indexing Agent
shall be taken under the control of any state or federal court or administrative
body because of bankruptcy or insolvency, or for any other reason, and the
Issuer shall not have appointed its successor as Indexing Agent, the Trustee,
notwithstanding the provisions of Subsection 8.17(a), shall ipso facto be deemed
to be the Indexing Agent for all purposes of this Indenture until the
appointment by the Issuer of the successor Indexing Agent; provided that the
Trustee, in its capacity as Indexing Agent, shall not be required to establish
the Weekly Rate or the Term Rate.
Section 8.18. Compensation and Expenses of Indexing Agent. The terms of
the Company's obligation to pay reasonable compensation to and the reasonable
expenses of the Indexing Agent may be set forth in the Indexing Agreement.
(End of Article VIII)
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
Section 9.01. Supplemental Indentures Not Requiring Consent of Holders.
Without the consent of or notice to any Holders, the Issuer and the Trustee may
enter into indentures supplemental to this Indenture for any one or more of the
following purposes:
(a) To cure any ambiguity, inconsistency or formal defect or
omission in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit of
the Holders any additional rights, remedies, powers or authority;
(c) To authorize the issuance of a Series of Additional Bonds
or Refunding Bonds;
(d) To confirm any pledge of or lien on the Revenues, to
assign additional revenues under this Indenture or to accept additional security
or instruments of further assurance;
(e) To add to the covenants, agreements and obligations of the
Issuer under this Indenture, other covenants, agreements and obligations to be
observed for the protection of the Holders, or to surrender or limit any right,
power or authority reserved to or conferred upon the Issuer in this Indenture;
(f) To permit the use of a book entry system to identify the
owner of an interest in an obligation issued by the Issuer under this Indenture,
whether that obligation was formerly, or could be, evidenced by a tangible
security;
(g) To permit the Trustee to comply with any obligations
imposed upon it by law;
(h) To specify further the duties and responsibilities of, and
to define further the relationship among, the Trustee, the Indexing Agent and
the Remarketing Agent;
(i) To achieve compliance of this Indenture with any
applicable federal securities or tax laws;
(j) To evidence the appointment of a new Remarketing Agent or
Indexing Agent;
(k) To provide for Alternate Letters of Credit or any other
credit enhancement permitted by the terms of this Indenture;
(l) To make any amendments required to secure a rating on the
Bonds from a Rating Agency equal to the rating of the Agent's unsecured
indebtedness;
(m) To implement a conversion to a Term Mode Rate; or
(n) To permit any other amendment which is not materially
adverse to the interests of the Trustee or the Holders.
Before the Issuer and the Trustee shall enter into any Supplemental Indenture
pursuant to this Section, there shall have been delivered to the Trustee and the
Issuer an opinion of counsel to the Issuer to the effect that such Supplemental
Indenture is authorized or permitted by this Indenture, and will, upon the
execution and delivery thereof, be valid and binding upon the Issuer in
accordance with its terms.
Section 9.02. Supplemental Indentures Requiring Consent of Holders.
Subject to Section 9.09, and in addition to the Supplemental Indentures
permitted by Section 9.01, this Indenture may be amended or supplemented from
time to time by a Supplemental Indenture consented to by the Company and
approved by Holders of a majority in aggregate principal amount of the Bonds
then outstanding, except that, other than as permitted by Section 9.01, this
Indenture may not be amended with respect to (1) the principal or redemption
price or interest payable upon any Bonds, (2) the Interest Payment Dates, the
dates of maturity or the redemption or purchase provisions of any Bonds, and (3)
this Article. This Indenture may be amended with respect to the matters
enumerated in clauses (1) to (3) of the preceding sentence only with the
unanimous consent of all Holders. Before the Issuer and the Trustee may enter
into such Supplemental Indenture, there shall have first been delivered to the
Trustee (a) the required consents, in writing, of Holders and (b) an opinion of
counsel to the Issuer to the effect that such Supplemental Indenture is
authorized or permitted by this Indenture, and will, upon the execution and
delivery thereof, be valid and binding upon the Issuer in accordance with its
terms.
Section 9.03. Consent of Company. Anything contained herein to the
contrary notwithstanding, a Supplemental Indenture executed and delivered in
accordance with this Article which affects any rights of the Company or directly
or indirectly imposes any additional obligations or liabilities on the Company
shall not become effective unless and until the Company shall have consented in
writing to the execution and delivery of that Supplemental Indenture.
Section 9.04. Authorization to Trustee; Effect of Supplement. The
Trustee is authorized to join with the Issuer in the execution and delivery of
any Supplemental Indenture in accordance with this Article and to make the
further agreements and stipulations which may be contained therein. Thereafter,
(a) such Supplemental Indenture shall form a part of this Indenture; (b) all
terms and conditions contained in that Supplemental Indenture as to any
provision authorized to be contained therein shall be deemed to be a part of the
terms and conditions of this Indenture for any and all purposes; (c) this
Indenture shall be deemed to be modified and amended in accordance with the
Supplemental Indenture; and (d) the respective rights, duties and obligations
under this Indenture of the Issuer, the Company, the Trustee, the Remarketing
Agent, the Indexing Agent, the Agent and all Holders of Bonds outstanding shall
be determined, exercised and enforced hereunder in a manner which is subject in
all respects to those modifications and amendments made by the Supplemental
Indenture. The Trustee shall not be required to execute any Supplemental
Indenture containing provisions adverse to the Trustee.
Section 9.05 Modification by Unanimous Consent. Notwithstanding
anything contained elsewhere in this Indenture, the rights and obligations of
the Issuer and of the Holders, and the terms and provisions of the Bonds and
this Indenture or any Supplemental Indenture, may be modified or altered in any
respect with the consent of (i) the Issuer, (ii) the Holders of all of the Bonds
outstanding, (iii) the Agent and (iv) the Company.
Section 9.06. Amendment of Lease. Subject to Section 9.09, if the
Issuer and the Company propose to amend the Lease, the Trustee shall consent
thereto; provided that if such proposal would amend the Lease in such a way as
would materially adversely affect the interests of the Holders, the Trustee
shall notify the Holders of the proposed amendment and may consent thereto with
the consent of Holders of a majority in aggregate principal amount of the Bonds
then Outstanding, except that no amendment materially adversely affecting the
interests of the Holders shall be consented to by the Trustee without the
unanimous consent of all Holders if such materially adverse amendment would (1)
decrease the amounts payable under the Lease constituting Revenues, (2) change
the date of payment or prepayment provisions under the Lease, or (3) change any
provisions with respect to amendment of the Lease. Before the Issuer shall enter
into, and the Trustee shall consent to, any modification, alteration, amendment
or supplement to the Lease pursuant to this Section, there shall have been
delivered to the Issuer and the Trustee an opinion of counsel to the Issuer to
the effect that such amendment is authorized or permitted by this Indenture.
Section 9.07. Amendment of Letters of Credit. If the LC Issuers propose
to amend the Letters of Credit, the Trustee shall consent thereto, provided that
(a) if such proposal would amend the Letters of Credit in such a way as would
materially adversely affect the interests of the Holders, the Trustee shall
notify the Holders and the Rating Agencies (if the Bonds are then rated by a
Rating Agency) of the proposed amendment and may consent thereto only with (i)
the prior written consent of Holders of a majority in aggregate principal amount
of the Bonds then outstanding and (ii) the confirmation by such Rating Agencies
that such amendment will not result in a withdrawal or reduction of their rating
of the Bonds, and (b) the Trustee shall not, without the unanimous consent of
all Holders, consent to any amendment materially adversely affecting the
interests of the Holders which would decrease or delay the amounts payable under
the Letters of Credit in respect of outstanding Bonds on any Interest Payment
Date or on any date of redemption, acceleration, payment at maturity or purchase
of the Bonds, or advance the Expiration Date of the Letters of Credit to an
earlier date. No consent of the Holders shall be required for amendments to the
Letters of Credit which are provided for or contemplated by this Indenture.
Section 9.08. Trustee Authorized to Join in Supplements and Amendments;
Reliance on Counsel. The Trustee is authorized to join with the Issuer in the
execution and delivery of any Supplemental Indenture or amendment permitted by
this Article and in so doing shall be fully protected by an opinion of counsel
that such Supplemental Indenture or amendment is so permitted.
Section 9.09. Consent of Agent. Notwithstanding anything herein
contained, during the Agent Consent Period, no supplement or amendment or other
modification shall be made to the Indenture without the prior written consent of
the Agent.
Section 9.10. Notice to Rating Agencies. The Trustee shall promptly
notify the Rating Agencies (if the Bonds are then rated by a Rating Agency) of
any material supplement or amendment to this Indenture, the Lease, the
Remarketing Agreement, the Letters of Credit or the Reimbursement Agreement.
(End of Article IX)
ARTICLE X
DEFEASANCE
Section 10.01 Defeasance. When the principal of, and premium (if any)
and interest on, all Bonds issued hereunder have been paid, or provision has
been made for payment of the same and any tender purchase price which may become
payable pursuant to Article IV, together with the compensation and expenses of
the Trustee and all other sums payable hereunder by the Issuer or the Company,
the right, title and interest of the Trustee in and to the Trust Estate shall
thereupon cease and the Trustee, on demand of the Issuer or the Company, shall
release this Indenture and shall execute such documents to evidence such release
as may be reasonably required by the Issuer or the Company and shall turn over
to the Company or to such person, body or authority as may be entitled to
receive the same all balances then held by it hereunder not required for the
payment of the Bonds and such other sums and shall surrender the Letters of
Credit to the Agent for the account of the LC Issuers; provided that (a) any
proceeds of the Letters of Credit not required for payment of the Bonds shall be
turned over to the LC Issuers and (b) in the event there has been a drawing
under the Letters of Credit for which the LC Issuers have not been fully
reimbursed pursuant to the Reimbursement Agreement or the Reimbursement Notes or
any other obligations are then due and owing to the Agent under the
Reimbursement Agreement, the Trustee shall assign and turn over to the Agent, as
successor, subrogee or otherwise, all of the Trustee's right, title and interest
under this Indenture, all balances held hereunder not required for the payment
of the Bonds and such other sums and the Trustee's right, title and interest in,
to and under the Lease and any other property comprising the Trust Estate. If
payment or provision therefor is made with respect to less than all of the
Bonds, the particular Bonds (or portions thereof) for which provision for
payment shall have been considered made shall be selected by lot or by such
other method as the Trustee deems fair and appropriate, and thereupon the
Trustee shall take similar action for the release of this Indenture with respect
to such Bonds.
SECTION 10.02. Provision for Payment
(a) Provision for the payment of Bonds shall be deemed to have
been made when the Trustee holds in the Bond Fund (1) cash in an amount
sufficient to make all payments (including principal, premium, if any, interest
and tender purchase price payments, if any) specified in Section 10.01 with
respect to such Bonds, or (2) noncallable, direct obligations issued by the
United States of America, maturing on or before the date or dates when the
payments specified above shall become due, the principal amount of which and the
interest thereon, when due, is or will be, in the aggregate, sufficient without
reinvestment to make all such payments, or (3) any combination of cash and such
obligations the amounts of which and interest thereon, when due, are or will be,
in the aggregate, sufficient without reinvestment to make all such payments;
provided that (i) such amount on deposit shall be deemed sufficient only if (A)
while the Bonds bear interest at a Weekly Rate, it provides for payment of
interest at the Maximum Rate and the Issuer shall have surrendered any power
hereunder to thereafter change the Maximum Rate, or (B) while the Bonds bear
interest at a Term Rate, it provides for payment of interest at such Term Rate
and the Bonds have been irrevocably called or designated for redemption in
accordance with Subsection 10.02(c) on or before the end of the Term Rate Period
for which such Term Rate has been set and (ii) provision for payment of Bonds
shall be deemed to be made only if (A) the Trustee holds in the Bond Fund cash
constituting Available Moneys and/or such obligations purchased with Available
Moneys for payment of such Bonds pursuant to Section 5.04 in amounts sufficient
to make all payments specified above with respect to such Bonds, as verified by
an accountant's certification in form and by an accountant acceptable to the
Trustee and the Rating Agencies, and (B) in the case of Bonds in the Weekly
Mode, the Bonds have been called for redemption on a date not more than 60 days
from the date provision for payment is being made pursuant to this Section and,
in determining the sufficiency of amounts held to make payments with respect to
the Bonds, there shall be excluded any and all interest expected to be earned on
obligations held by the Trustee.
(b) Neither the moneys nor the obligations deposited with the
Trustee pursuant to this Article shall be withdrawn or used for any purpose
other than, and such obligations and moneys shall be segregated and held in
trust for, the payment of the principal or redemption price of, premium, if any,
on and interest on, the Bonds (or portions thereof), or for the payment of the
purchase price of such Bonds in accordance with Article IV. While the Bonds are
in the Weekly Mode, such moneys, if not then needed for such purpose, shall, but
only to the extent practicable, be invested and reinvested in direct obligations
issued by the United States of America maturing on or prior to the earlier of
(i) the date moneys may be required for the purchase of Bonds pursuant to
Article IV and (ii) the Interest Payment Date next succeeding the date of
investment or reinvestment.
(c) Whenever moneys or obligations shall be deposited with the
Trustee for the payment or redemption of Bonds more than 60 days prior to the
date that such Bonds are to mature or be redeemed, the Trustee shall mail a
notice to the Holders of Bonds for the payment of which such moneys or
obligations are being held at their registered addresses stating that such
moneys or obligations have been deposited. Such notice shall also be sent by the
Trustee to the Rating Agencies. Notwithstanding the foregoing, no delivery to
the Trustee under this Section shall be deemed a payment of any Bonds which are
to be redeemed prior to their stated maturity until such Bonds shall have been
irrevocably called or designated for redemption on a date thereafter on which
such Bonds may be redeemed in accordance with the provisions of this Indenture
and proper notice of such redemption shall have been given in accordance with
Article III or the Issuer shall have given the Trustee, in form satisfactory to
the Trustee, irrevocable instructions to give, in the manner and at the times
prescribed by Article III, notice of redemption.
(d) Notwithstanding anything to the contrary contained herein,
if the principal or purchase price of the Bonds, together with the premium (if
any) thereon and all interest accruing thereon, has been paid or provision
therefor made in accordance with this Section 10.02 at any time during which (i)
the Bonds bear interest at a Weekly Rate and (ii) the Bonds are rated by one or
more Rating Agencies, then no release of this Indenture shall be effective
pursuant to this Article X without the written confirmation of each such Rating
Agency that such release will not cause such Rating Agency to withdraw or lower
its rating on the Bonds.
Section 10.03. Deposit of Funds for Payment of Bonds. If the principal
or purchase price of any Bonds becoming due, either at maturity or by call for
redemption or tender or otherwise, together with the premium (if any) thereon
and all interest accruing thereon to the due date, has been paid or provision
therefor made in accordance with Section 10.02, all interest on such Bonds shall
cease to accrue on the due date and all liability of the Issuer with respect to
such Bonds shall likewise cease, except as hereinafter provided. Thereafter, (a)
any surplus balance held by the Trustee with respect to such Bonds over the
principal of, premium (if any) on and actual interest accrued on such Bonds
shall be paid to the Agent as a return of excess funds drawn under the Letters
of Credit (or, if the Rating Agencies shall have confirmed their ratings of the
Bonds in connection with the provision for payment of the Bonds, such surplus
shall be paid as may otherwise be approved by the Rating Agencies in connection
with such confirmation) and (b) the Holders of such Bonds shall be restricted
exclusively to the funds so deposited for any claim of whatsoever nature with
respect to such Bonds, and the Trustee shall hold such funds in trust for such
Holders uninvested and without liability for interest thereon. Moneys so
deposited with the Trustee which remain unclaimed five years after the date
payment thereof becomes due shall, at the request of the Company (or the Agent)
and if neither the Issuer nor the Company is at the time to the knowledge of the
Trustee in default with respect to any covenant contained in the Indenture, the
Bonds or the Lease, be paid to the Company (or to the Agent as provided in
Section 10.01 with respect to surplus balances), and the Holders of the Bonds
for which the deposit was made shall thereafter be limited to a claim against
the Company; provided that the Trustee, before making payment to the Company,
may, at the expense of the Company, cause a notice to be given to the Holders at
their registered addresses, stating that the moneys remaining unclaimed will be
returned to the Company after a specified date.
Section 10.04. Survival of Certain Provisions. Notwithstanding the
foregoing, any provisions of this Indenture which relate to the maturity of
Bonds, interest payments and dates thereof, optional and mandatory redemption
provisions, credit against mandatory sinking fund requirements, exchange,
transfer and registration of Bonds, replacement of mutilated, lost, wrongfully
taken or destroyed Bonds, safekeeping and cancellation of Bonds, nonpresentment
of Bonds, holding of moneys in trust, payment of moneys to the Company and the
Agent, and the duties of the Trustee in connection with all of the foregoing,
shall remain in effect and be binding upon the Trustee and the Holders
notwithstanding the release and discharge of this Indenture. The provisions of
this Article shall survive the release, discharge and satisfaction of this
Indenture.
(End of Article X)
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Limitation of Rights; No Personal Recourse
(a) With the exception of rights conferred expressly in this
Indenture, nothing expressed or mentioned in or to be implied from this
Indenture or the Bonds is intended or shall be construed to give to any Person
other than the parties hereto, the Company, the Remarketing Agent, the Indexing
Agent, the Agent and the Holders of the Bonds any legal or equitable right,
remedy, power or claim under or with respect to this Indenture or any covenants,
agreements, conditions and provisions contained herein.
(b) This Indenture does not pledge the general credit of the
Issuer. The liability of the Issuer hereunder and under the Bonds and the Lease
shall be limited to its interest in the Trust Estate.
(c) No covenant or agreement contained in this Indenture, the
Bonds or the Lease shall be deemed to be the covenant or agreement of any
manager, member, director, officer, attorney, agent or employee of the Issuer in
an individual capacity. No recourse shall be had for the payment of any claim
based thereon against any manager, member, director, officer, agent, attorney or
employee of the Issuer past, present or future, or its successors or assigns, as
such, either directly or through the Issuer, or any successor entity, whether by
virtue of any constitutional provision, statute or rule of law, or by the
enforcement of any assessment or penalty, or otherwise.
Section 11.02. Severability. In case any section or provision of this
Indenture, or any covenant, agreement, stipulation, obligation, act or action,
or part thereof, made, assumed, entered into or taken under this Indenture, or
any application thereof, is held to be illegal or invalid for any reason, or is
inoperable at any time, such illegality, invalidity or inoperability shall not
affect the remainder thereof or any other section or provision of this Indenture
or any other covenant, agreement, stipulation, obligation, act or action, or
part thereof, made, assumed, entered into or taken under this Indenture, all of
which shall be construed and enforced at the time as if the illegal, invalid or
inoperable portion were not contained therein.
SECTION 11.03. Notices
(a) Any notice, request, complaint, demand or other instrument
or document to be given hereunder shall be given and shall be deemed given if
hand delivered, transmitted by confirmed facsimile (with written confirmation to
follow) or sent by nationally recognized private overnight courier or certified
or registered mail, in each case with confirmation of delivery and delivery
charges prepaid, addressed to the Issuer, the Trustee, the Company, the Agent,
the Indexing Agent and the Remarketing Agent, as the case may be, as follows:
(i) If to the Issuer, at Movieplex Realty Leasing, L.L.C.,
Two World Trade Center, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx.
Xxxxx X. Xxxxx, Vice President.
(ii) If to the Trustee, at First Union National Bank,
Trustee, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department;
(iii) If to the Company, at Carmike Cinemas, Inc., 0000
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000-0000, Attention: Xx. Xxxx X. Xxxxxxx, III;
(iv) If to the Agent, at Wachovia Bank, N.A., 000
Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000-0000, Attention: Syndications
Group; with a copy to Wachovia Bank, N.A., 000 Xxxxxxxxx Xxxxxx, X.X., 00xx
Xxxxx, Xxxxxxx, Xxxxxxx 00000-1757, Attention: Xx. Xxxx Xxxxxxxxxx;
(v) If to the Remarketing Agent, at RealVest Securities
Corporation, Two World Trade Center, New York, New York 10048-0203, Attention:
Xx. Xxxxxxx Xxxxxxx.
(vi) If to the Indexing Agent, at RealVest Securities
Corporation, Two World Trade Center, New York, New York 10048-0203, Attention:
Xx. Xxxxxxx Xxxxxxx.
(b) The foregoing parties may designate, by notice given
hereunder, any further or different addresses to which any subsequent notice,
request, demand or other instrument or document shall be sent. The Trustee shall
designate, by notice to the Issuer, the Company, the Agent, the Indexing Agent
and the Remarketing Agent addresses to which notices or copies thereof shall be
sent to the Trustee's agents hereunder.
(c) The Trustee hereby agrees to send written notice to the
Rating Agencies upon the occurrence of any of the following events: (1) any
change in the Trustee, the Indexing Agent or the Remarketing Agent or any tender
agent or paying agent; (2) any amendment to the Indenture, the Lease, the
Reimbursement Agreement or the Letters of Credit; (3) any termination,
expiration or extension of the Letters of Credit; (4) the conversion of the
interest rate on the Bonds from the Weekly Mode to the Term Note; and (5)
payment of all principal, interest and premium, if any, on all of the Bonds.
(d) Bondholder notices shall be given by first class mail
addressed to each Holder at his, her or its address as it appears on the
Register. Copies of all notices to the Trustee, the Issuer, the Company, the
Remarketing Agent, the Indexing Agent or the Holders shall also be given to the
Agent.
Section 11.04. Suspension of Mail If because of the suspension of
delivery of first class mail or, for any other reason, the Trustee shall be
unable to mail by first class mail any notice required to be mailed by the
provisions of this Indenture, the Trustee shall give such notice in such other
manner as in the judgment of the Trustee shall most effectively approximate
first class mailing thereof, and the giving of that notice in that manner for
all purposes of this Indenture shall be deemed to be in compliance with the
requirement for the mailing thereof. Except as otherwise provided herein, the
mailing of any notice shall be deemed complete upon deposit of that notice in
the mail and the giving of any notice by any other means of delivery shall be
deemed complete upon receipt of the notice by the delivery service.
Section 11.05. Payments Due on Saturdays, Sundays and Holidays. If any
Interest Payment Date, date of maturity of any Bonds, or date fixed for
redemption of any Bonds is a Saturday, Sunday or a day on which the Trustee or
any paying agent is required or authorized by law (including without limitation
executive orders) to close and is closed, then payment of interest, principal
and any redemption premium need not be made by the Trustee or any paying agent
on that date, but that payment may be made on the next succeeding Business Day
on which the Trustee or any paying agent is open for business with the same
force and effect as if that payment were made on the Interest Payment Date, date
of maturity or date fixed for redemption, and no interest shall accrue for the
period after that date; provided that if the Trustee is open for business on the
applicable Interest Payment Date, date of maturity or date fixed for redemption,
it shall make any payment required hereunder with respect to payment of interest
on outstanding Bonds and payment of principal of and premium on Bonds presented
to it for payment, regardless of whether any paying agent shall be open for
business or closed on the applicable Interest Payment Date, date of maturity or
date fixed for redemption.
SECTION 11.06. Instruments of Holders
(a) Any writing, including without limitation any consent,
request, direction, approval, objection or other instrument or document,
required under this Indenture to be executed by any Holder may be in any number
of concurrent writings of similar tenor and may be executed by that Xxxxxx in
person or by an agent or attorney appointed in writing. Proof of (1) the
execution of any such writing, (2) the execution of any writing appointing any
agent or attorney, and (3) the ownership of Bonds, shall be sufficient for any
of the purposes of this Indenture, if made in the following manner, and if so
made, shall be conclusive in favor of the Trustee with regard to any action
taken thereunder, namely:
(i) The fact and date of the execution by any person of
any writing may be proved by the certificate of any officer in any jurisdiction,
who has power by law to take acknowledgments within that jurisdiction, that the
person signing the writing acknowledged that execution before that officer, or
by affidavit of any witness to that execution; and
(ii) The fact of ownership of Bonds shall be proved by the
Register maintained by the Trustee.
(b) Nothing contained herein shall be construed to limit the
Trustee to the foregoing proof, and the Trustee may accept any other evidence of
the matters stated therein which it deems to be sufficient. Any writing,
including without limitation any consent, request, direction, approval,
objection or other instrument or document, of the Holder of any Bond shall bind
every future Holder of the same Bond, with respect to anything done or suffered
to be done by the Issuer, the Trustee, the Indexing Agent or the Remarketing
Agent pursuant to that writing.
Section 11.07. Binding Effect. This Indenture shall inure to the
benefit of and shall be binding upon the Issuer and the Trustee and their
respective successors and assigns, subject, however, to the limitations
contained herein.
Section 11.08. Counterparts. This Indenture may be executed in any
number of counterparts, each of which shall be regarded as an original and all
of which shall constitute but one and the same instrument.
Section 11.09. Governing Law. This Indenture and the Bonds shall be
deemed to be contracts made under the laws of the New York and for all purposes
shall be governed by and construed in accordance with the laws of the New York.
(End of Article XI)
IN WITNESS WHEREOF, the Issuer has caused this Indenture to be executed
and delivered on its behalf by one of its Authorized Representatives and the
Trustee has caused this Indenture to be executed and delivered on its behalf by
one of its duly authorized officers and its corporate seal to be hereunto
affixed and attested by one of its duly authorized officers all as of the day
and year first above written.
[SEAL] MOVIEPLEX REALTY XXXXXXX,
L.L.C., Issuer
By: XXXXXXXX, XXXXXX & CO.,
INC., Manager
WITNESS:
/s/Xxxxx Xxxxxxx By: /s/Xxxxx X. Xxxxx
---------------- -----------------
Name: Xxxxx Xxxxxxx Name: Xxxxx X. Xxxxx
Title: Asst. Secretary Title: Vice President
[SEAL] FIRST UNION NATIONAL BANK,
as Trustee
WITNESS:
/s/Xxxxxxx Xxxxxx By: /s/Xxxxx X. Xxxx
----------------- ----------------
Name: Xxxxxxx Xxxxxx Name: Xxxxx X. Xxxx
Title: Vice President Title: Vice President
This execution page is part of the Trust Indenture dated as of November
1, 1997 between Movieplex Realty Leasing, L.L.C., as Issuer, and First Union
National Bank, as Trustee.
