EXHIBIT 10.14
Unless this bond is presented by an authorized representative of The Depository
Trust Company ("DTC"), to the Issuer or its agent for registration of transfer,
exchange, or payment and any bond issued is registered in the name of Cede & Co.
or in such other name as is requested by an authorized representative of DTC
(and any payment is made to Cede & Co. or to such other entity as is requested
by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THIS BOND SHALL BE A LIMITED OBLIGATION OF THE ISSUER, THE PRINCIPAL, INTEREST
AND REDEMPTION PREMIUM (IF ANY) OF WHICH ARE PAYABLE SOLELY FROM AND SECURED BY
THE SECURITY DESCRIBED IN THE INDENTURE, INCLUDING THE MONEYS AVAILABLE TO BE
DRAWN BY THE TRUSTEE UNDER ANY LETTER OF CREDIT (AS DEFINED IN THE INDENTURE)
THAT MAY BE IN EFFECT FROM TIME TO TIME TO SUPPORT PAYMENTS DUE ON OR WITH
RESPECT TO THIS BOND, ALL AS DESCRIBED IN AND SUBJECT TO LIMITATIONS SET FORTH
IN THE INDENTURE, FOR THE EQUAL AND RATABLE BENEFIT OF THE HOLDERS, FROM TIME TO
TIME OF THIS BOND. THIS BOND AND THE INTEREST THEREON AND REDEMPTION PREMIUM, IF
ANY, SHALL NOT BE DEEMED TO CONSTITUTE OR CREATE AN INDEBTEDNESS, LIABILITY OR
OBLIGATION OF THE ISSUER, THE STATE OF GEORGIA OR ANY POLITICAL SUBDIVISION OR
AGENCY THEREOF WITHIN THE MEANING OF ANY STATE CONSTITUTIONAL PROVISION OR
STATUTORY LIMITATION OR A PLEDGE OF THE FAITH AND CREDIT OR THE TAXING POWER OF
THE STATE OF GEORGIA OR ANY SUCH POLITICAL SUBDIVISION OR AGENCY. THE ISSUER HAS
NO TAXING POWER.
No. R-1 CUSIP: 944391 AA 9
UNITED STATES OF AMERICA
STATE OF XXXXXXX
XXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
TAX-EXEMPT INDUSTRIAL DEVELOPMENT REVENUE BONDS
(ABSORPTION CORP. PROJECT), SERIES 2004
Date of Bond: September 2, 2004 Maturity Date: September 1, 2019
Interest Rate: Weekly Rate (subject to conversion to a Long-Term Rate as set
forth herein)
Registered Owner: CEDE & CO.
Principal Amount: Four Million Nine Hundred Thousand and no/100 Dollars
($4,900,000)
XXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY (the "Issuer"), a body
corporate and politic, an instrumentality of Xxxxx County and a public
corporation duly created by local amendment to the Georgia constitution, Ga. L.
1964, p. 1002 et seq., ratified by electors in the general election in 1964, and
continued by Ga. L. 1987, p. 3805, as amended (the "Act"), for value received,
promises to pay to the registered owner shown above, or registered assigns, but
solely from the source and in the manner hereinafter set forth, on the maturity
date shown above, the principal amount shown above and in like manner to pay
interest on said amount from the date hereof shown above until payment of such
principal amount has been made or duly provided for, at the rates and on the
dates set forth herein, except as the provisions hereinafter set forth with
respect to redemption of this Bond prior to maturity may become applicable
hereto. Interest on this Bond shall be paid (i) while the Bonds bear interest at
the Weekly Rate, the first Business Day (as defined below) of each month,
commencing October 1, 2004, (ii) while the Bonds bear interest at the Long-Term
Rate, each March 1 and September 1, and (iii) each Conversion Date (each, an
"Interest Payment Date"), and shall be computed as follows: (i) while the Bonds
bear interest at the Weekly Rate, on the basis of a year of 365 or 366 days, as
appropriate, for the actual number of days elapsed, and (ii) while the Bonds
bear interest at the Long-Term Rate, on the basis of a year of 360 days
consisting of twelve 30-day months. While this Bond bears interest at the Weekly
Rate, this Bond shall be purchased on the demand of the registered owner as
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hereinafter described. The principal of and redemption premium, if any, on this
Bond is payable in lawful money of the United States of America upon the
presentation and surrender hereof at the principal corporate trust office of
Branch Banking and Trust Company, in its capacity as trustee under the Indenture
described below (together with its successors and assigns, the "Trustee").
Interest on this Bond is payable on each Interest Payment Date in like money to
the registered owner hereof by check or draft drawn upon the Trustee and mailed
to the person in whose name this Bond is registered (i) while this Bond bears
interest at the Weekly Rate, at the close of business one Business Day prior to
such Interest Payment Date, or (ii) while this Bond bears interest at the
Long-Term Rate, at the close of business on the fifteenth day of the calendar
month preceding each Interest Payment Date (each, a "Record Date"), provided
that, owners of Bonds in the aggregate principal amount of not less than
$500,000 may, by written instruction filed with the Trustee on or before the
Record Date next preceding such Interest Payment Date, direct that interest
payments be transmitted by wire transfer to an account in the continental United
States (which wire transfer shall be at the expense of the holder).
This Bond, designated "Xxxxx County Industrial Development Authority
Tax-Exempt Industrial Development Revenue Bonds (Absorption Corp. Project),
Series 2004" is one of a series of Bonds in the aggregate principal amount of
Four Million Nine Hundred Thousand and no/100 Dollars ($4,900,000) (the
"Bonds"), issued for the purpose of financing an industrial plant consisting of
land, improvements and equipment (the "Project") to be owned by the Issuer and
leased to Absorption Corp., a corporation organized under the laws of the State
of Nevada (the "Lessee"), and paying certain expenses of issuing such Bonds,
including the cost of credit enhancement for the Bonds. The Bonds are issued as
registered bonds in denominations of $100,000 and $5,000 multiples in excess
thereof while the Bonds bear interest at the Weekly Rate and $5,000 and integral
multiples thereof if the Bonds have been converted to a Long-Term Rate that will
be in effect until the final maturity of the Bonds (a "Minimum Denomination").
The Bonds are all issued under and are all equally and ratably secured and
entitled to the protection given by an Indenture of Trust dated as of September
1, 2004 (the "Indenture"), between the Issuer and the Trustee. Reference is
hereby made to the Indenture and all indentures supplemental thereto for the
provisions, among others, with respect to the nature and extent of the security,
the rights, duties and obligations of the Issuer, the Trustee and the registered
owners of the Bonds, and the terms upon which the Bonds are issued and secured.
The terms and conditions of the financing of the Project, the use of the
proceeds of the Bonds by the Lessee for such purpose, and the payment of certain
amounts thereunder, are contained in a Lease Agreement dated as of September 1,
2004 (the "Agreement"), by and between the Issuer and the Lessee. The Lessee has
caused Branch Banking and Trust Company (the "Bank") to issue an irrevocable
letter of credit (the "Letter of Credit"), issued in favor of the Trustee dated
the date of the issuance of the Bonds, in an amount sufficient to pay the
outstanding principal amount of and unpaid interest on the Bonds, but not to
exceed $4,956,384, which Letter of Credit expires on September 2, 2011.
Substitute letters of credit may be delivered in accordance with Section 803 of
the Indenture. Reference is hereby made to the Indenture, the Agreement and the
Letter of Credit and to all amendments and supplements thereto for a description
of the provisions, among others, with respect to the nature and extent of the
security, the default provisions, the rights, duties and obligations of the
Issuer and the Trustee or the rights of the holders of the Bonds and the terms
upon which the Bonds are issued and secured. All capitalized terms not defined
herein shall have the meanings given them in the Indenture.
The Bonds are issued pursuant to and in full compliance with the Act and
other applicable laws of the State of Georgia and pursuant to a resolution of
the Issuer, which authorized the execution and delivery of the Indenture. This
Bond is a limited obligation of the Issuer payable solely from the Revenues, as
defined in the Indenture, which Revenues have been pledged and assigned to the
Trustee for the benefit of the Bondholders to secure payment of this Bond, and
from the Letter of Credit.
No covenant, agreement or obligation contained in this Bond or the
Indenture shall be deemed to be a covenant, agreement or obligation of any
present or future director, commissioner, member, officer, employee, attorney or
agent of the Issuer in his individual capacity, and neither the directors of the
Issuer nor any officer thereof executing this Bond shall be liable personally on
this Bond or be subject to any personal liability or accountability by reason of
the issuance of this Bond.
The Agreement provides for payments by the Lessee in amounts sufficient
to provide for the payment of the principal and purchase price of, redemption
premium, if any, and interest on the Bonds as due and payable. Provision has
been made in the Agreement for such payments to be paid directly to the Trustee
and deposited in a trust fund of and in the name of the Issuer held by the
Trustee designated "Xxxxx County Industrial Development
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Authority Tax-Exempt Industrial Development Revenue Bonds (Absorption Corp.
Project), Series 2004 Bond Fund" and such payments have been duly assigned to
the Trustee for that purpose.
The term "Business Day" shall mean a day of the year, other than a
Saturday or a Sunday, on which banks located in the cities in which the
principal corporate trust office of the Trustee, the principal office of any
Paying Agent, the office of the Bank at which drawings on the Letter of Credit
are to be made and the principal office of the Remarketing Agent are located are
not required or authorized to remain closed and on which the New York Stock
Exchange is not closed.
The Issuer has appointed Xxxxx & Xxxxxxxxxxxx, Inc., t/a BB&T Capital
Markets, as Remarketing Agent under the Indenture. The Issuer may from time to
time, at the direction of the Lessee, remove the Remarketing Agent.
INTEREST - GENERAL
Each Bond shall bear interest from the Interest Payment Date next
preceding its date of authentication unless such authentication date (i) is
prior to the first Interest Payment Date following the date of the initial
delivery of the Bonds and the initial payment therefor (the "Closing Date"), in
which event interest shall accrue from the Closing Date, (ii) is after a Record
Date and before the subsequent Interest Payment Date, in which event interest
shall accrue from such subsequent Interest Payment Date, or (iii) is an Interest
Payment Date, in which event interest shall accrue from such authentication
date; provided, that if interest on the Bonds is in default, Bonds shall bear
interest from the last date to which interest has been paid. The Bonds shall
bear interest until payment of the principal or redemption price thereof shall
have been made or provided for in accordance with the provisions of the
Indenture, whether at maturity, upon redemption or otherwise.
WEEKLY RATE
For the period from and including the Closing Date to and including the
next Wednesday, the Bonds shall bear interest at a rate equal to the rate set on
the date prior to the issuance of the Bonds in the manner set forth in
subparagraph (a) below. Thereafter, while the Bonds bear interest at the Weekly
Rate, for each period from and including the first Thursday following a Rate
Computation Date (as defined below) to and including the next succeeding
Wednesday (each such period, including the first period described in the
immediately preceding sentence, being hereinafter called a "Weekly Rate
Period"), the interest rate on the Bonds shall be determined as follows:
(a) On each Rate Computation Date the Remarketing Agent shall determine
that interest rate which, if borne by the Bonds, would, in its judgment having
due regard to prevailing financial market conditions and the yields at which
comparable securities are then being sold, be the lowest interest rate
necessary, but which would not exceed the interest rate necessary, to enable the
Remarketing Agent to sell the Bonds at par plus accrued interest, and the
interest rate so determined shall be the interest rate on the Bonds for the next
succeeding Weekly Rate Period; provided, however, such Weekly Rate may be
adjusted by the Remarketing Agent on any date during such Weekly Rate Period if
such an adjustment is needed in order to enable the Remarketing Agent to
remarket a Bond which has been tendered for purchase in accordance with the
Indenture. Such determination or adjustment shall be based on the knowledge of
the Remarketing Agent of actual sales or pricing during the immediately
preceding 105 days of securities which in the judgment of the Remarketing Agent
are comparable to the Bonds and prevailing market conditions, or the marketing
efforts with, or solicitation of proposals from, not less than three
institutional or money fund investors or other entities or individuals who
customarily purchase tax-exempt variable rate demand bonds or other tax-exempt
securities in denominations of $100,000 or more. Any such adjustment of the
Weekly Rate occurring during a Weekly Rate Period shall apply to all of the
Bonds Outstanding at the time that such adjustment is made, and shall be
effective beginning on the date immediately following the date on which such
rate is announced by the Remarketing Agent and thereafter to the beginning of
the next Weekly Rate Period.
(b) If on or as of any Rate Computation Date, (1) no Person is serving as
the Remarketing Agent, (2) the Remarketing Agent fails to establish the Weekly
Rate in accordance with the procedure described in the preceding paragraph, or
(3) the Weekly Rate established in accordance with the procedure described in
the preceding paragraph is held to be invalid or unenforceable, then the Weekly
Rate for the next succeeding Weekly Rate Period shall be the same as for the
Weekly Rate Period ending on or immediately after such Rate Computation
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Date; provided, however, if the Weekly Rate has been determined pursuant to the
provisions of the first part of this sentence for two consecutive Weekly Rate
Periods or if such Rate Computation Date is the first Rate Computation Date that
occurs with any conversion or deemed conversion from a Long-Term Rate to the
Weekly Rate, then the Weekly Rate for the next succeeding Weekly Rate Period
shall be the Alternate Weekly Rate.
(c) Notwithstanding the foregoing, the Weekly Rate on the Bonds shall
never exceed a rate which would cause the net effective interest rate for the
Bonds as of any date, computed in accordance with applicable usury law, to
exceed the Maximum Rate. All calculations of the Weekly Rate shall be rounded to
the nearest one-hundredth of one percent (.01%).
The determination of the Weekly Rate by the Remarketing Agent shall be
conclusive and binding upon the owners of the Bonds.
The term "Rate Computation Date" shall mean, while the Bonds bear interest
at the Weekly Rate, the Wednesday of each calendar week thereafter, provided
that if any Wednesday is not a Business Day then the Rate Computation Date shall
be the first Business Day preceding such Wednesday.
CONVERSION OF INTEREST RATE
The Lessee shall have the option to convert the rate of interest payable
on the Bonds from the Weekly Rate to a Long-Term Rate on any Business Day and
from a Long-Term Rate to the Weekly Rate or from a Long-Term Rate to another
Long-Term Rate on the Business Day immediately succeeding the last day of such
Long-Term Rate Period (each, a "Conversion Date"), upon the terms and conditions
set forth in the Indenture. The Trustee is required to give written notice of
the exercise of such option by first-class mail, postage prepaid, to the
registered owner of this Bond not less than 15 days prior to the proposed
Conversion Date. All Bonds shall be subject to mandatory purchase on the
proposed Conversion Date by the Trustee, but only from proceeds of remarketing
of the Bonds, proceeds of a drawing under the Letter of Credit, Available Moneys
and any other revenues and moneys furnished by the Lessee pursuant to the
Agreement, at a purchase price equal to the principal amount thereof plus
accrued interest, if any, to the date of purchase. If this Bond is not tendered
by 10:00 a.m. prevailing Eastern Time on the proposed Conversion Date, this Bond
will be deemed tendered, and to the extent there shall be on deposit with the
Trustee on the proposed Conversion Date an amount sufficient to pay the purchase
price thereof, this Bond shall cease to be Outstanding, no further interest
thereon shall thereafter accrue and such Bond shall constitute and represent
only the right to the payment of the purchase price that was payable on the
proposed Conversion Date.
OPTIONAL TENDER OF BONDS
While the Bonds bear interest at the Weekly Rate, any Bond (or portion
thereof in a Minimum Denomination) shall be purchased, on the demand of the
registered owner thereof, on any Business Day at a purchase price equal to the
principal amount thereof plus accrued interest, if any, to the date of purchase,
upon:
(a) delivery to the Remarketing Agent at its principal office of
telephonic notice, followed by written notice within two Business Days (which
may be delivered by telecopy, and which shall be satisfactory to the Remarketing
Agent, and a copy of which shall be delivered to the Trustee), which (i) states
the name of the registered owner and the principal amount of such Bond (and, if
only a portion thereof is to be purchased, the amount of such portion) to be
tendered and (ii) states the date on which such Bond shall be purchased pursuant
to the Indenture, 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 Remarketing
Agent (the "Purchase Date"); and
(b) delivery of such Bond (with an appropriate transfer of registration
form executed in blank acceptable to the Trustee) at the principal corporate
trust office of the Trustee at or prior to 10:00 a.m. prevailing Eastern Time on
the Purchase Date; provided, however, that such Bond (or portion thereof) shall
be so purchased only if the Bond so delivered to the Trustee shall conform in
all respects to the description thereof in the aforesaid notice.
While the Bonds are held in a book-entry system, a purchase notice
pursuant to paragraph (a) above may be delivered by a Beneficial Owner. Such
purchase notice must be delivered as set forth in paragraph (a) above and must
identify the DTC Participant through which the Beneficial Owner maintains its
interest. Upon delivery of such notice, the Beneficial Owner must make
arrangements to have its beneficial ownership interest in the Bond being
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tendered (or portion thereof) transferred to the Trustee at or prior to 10:00
a.m., prevailing Eastern Time, on the Purchase Date, but need not otherwise
comply with the requirement of delivery of the Bond (or portion thereof) being
tendered to the Trustee set forth in paragraph (b) above.
MANDATORY PURCHASE DATES
The Bonds are subject to mandatory purchase on the following dates (each,
a "Mandatory Purchase Date") at a purchase price equal to 100% of the principal
amount thereof plus interest accrued to but not including the date of purchase:
(a) each proposed Conversion Date;
(b) (A) each Substitution Date designated by the Lessee pursuant to
Section 8.03 of the Indenture, whether or not a Substitute Letter of Credit is
delivered to the Trustee on such Substitution Date, or (B) on the fifteenth
(15th) day next preceding the stated expiration or termination date of the
Letter of Credit, unless by the fortieth (40th) day next preceding such stated
expiration or termination date the Lessee provides to the Trustee (1) evidence
satisfactory to the Trustee that the term of such Letter of Credit has been
extended, or (2) notice from the Lessee pursuant to Section 8.03 of the
Indenture of its intention to provide a Substitute Letter of Credit and
designating a Substitution Date on or prior to the fifteenth (15th) day next
preceding such stated expiration or termination date;
(c) while the Bonds bear interest at the Weekly Rate, any Business Day
designated by the Lessee, with the consent of the Bank and the Remarketing
Agent; and
(d) on the first Business Day that is at least twenty (20) days after the
Trustee receives written notice from the Bank that an "Event of Default" under
the Credit Agreement has occurred and is continuing and directing a mandatory
purchase of the Bonds.
Notice of mandatory purchase shall be given by the Trustee by first-class
mail to all registered owners of the Bonds not less than 15 days prior to such
Mandatory Purchase Date.
REDEMPTION OF BONDS BEFORE MATURITY
The Bonds are subject to redemption prior to maturity as follows:
(a) OPTIONAL REDEMPTION - WEEKLY RATE. While the Bonds bear interest at
the Weekly Rate, the Bonds shall be subject to optional redemption prior to
maturity at the option of the Issuer, to be exercised as directed by the Lessee,
with the prior written consent of the Bank, in whole on any Business Day or in
part (in Minimum Denominations) on any Interest Payment Date at a redemption
price equal to 100% of the principal amount being redeemed plus interest accrued
to the redemption date.
(b) OPTIONAL REDEMPTION - LONG-TERM RATE. While the Bonds bear interest at
the Long-Term Rate, the Bonds shall be subject to redemption prior to maturity
at the option of the Issuer, to be exercised as directed by the Lessee, with the
prior written consent of the Bank, if any, in whole on any Business Day or in
part (in Minimum Denominations) on any Interest Payment Date occurring after the
applicable period of Call Protection (as defined below) set forth below at a
redemption price (expressed as a percentage of principal amount being redeemed)
plus interest accrued to the redemption date as follows; provided, however, if a
Letter of Credit is in effect, such redemption premium shall be paid only from
Available Moneys on deposit in the Bond Fund, unless such Letter of Credit
provides for payment of such redemption premium:
[Remainder of Page Left Blank Intentionally]
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LENGTH OF PERIOD FROM THE REDEMPTION PRICES AS A PERCENTAGE CALL PROTECTION (LENGTH OF TIME
INTEREST PAYMENT DATE OF PRINCIPAL AMOUNT (MEASURED (MEASURED FROM THE INTEREST
IMMEDIATELY SUCCEEDING THE FROM AND INCLUDING THE INTEREST PAYMENT DATE IMMEDIATELY
CONVERSION DATE TO THE END OF PAYMENT DATE IMMEDIATELY SUCCEEDING THE CONVERSION DATE)
THE LONG-TERM RATE PERIOD SUCCEEDING THE CONVERSION DATE) BEFORE BONDS MAY BE CALLED)
Greater than 15 years After 10 years (less one day) at 101%, 10 years (less one day)
declining by 0.5% every year to 100%
Less than or equal to 15 years and After 7 years (less one day) at 101%, 7 years (less one day)
greater than 10 years declining by 0.5% every year to 100%
Less than or equal to 10 years and After 5 years (less one day) at 101%, 5 years (less one day)
greater than 7 years declining by 0.5% every year to 100%
Less than or equal to 7 years and After 3 years (less one day) at 100 3 years (less one day)
greater than 4 years 1/2%, declining by 0.5% after a year
to 100%
Less than or equal to 4 years After 2 years (less one day) at 100% 2 years (less one day)
(c) EXTRAORDINARY OPTIONAL REDEMPTION. The Bonds shall be subject to
optional redemption, in whole but not in part, on any Business Day, at a
redemption price equal to 100% of the principal amount thereof, plus interest
accrued to the redemption date, but only with the prior written consent of the
Bank in the event the Lessee elects to exercise its option to prepay the
Agreement upon the occurrence of any of the events listed in Section 3.01(c) of
the Indenture.
(d) MANDATORY REDEMPTION UPON DETERMINATION OF TAXABILITY. The Bonds shall
be redeemed upon the occurrence of a "Determination of Taxability" in whole or
in part (in Minimum Denominations) on any Business Day selected by the Lessee,
but no later than 90 days after the occurrence of the Determination of
Taxability, at a redemption price equal to 100% of the principal amount being
redeemed, plus interest accrued to the redemption date. Fewer than all of the
Bonds may be redeemed if, in the opinion of Bond Counsel, redemption of fewer
than all of the Bonds would result in the interest payable on the Bonds
remaining Outstanding being excluded from gross income for Federal income tax
purposes. Notice of a redemption pursuant to Section 3.01 of the Indenture shall
be sent to the Holders pursuant to Section 3.02 of the Indenture as soon as
practicable by the Trustee following receipt by it that such redemption will
occur due to the occurrence of a Determination of Taxability.
(e) NOTICE OF REDEMPTION; CONDITIONAL REDEMPTION; PARTIAL REDEMPTIONS. In
the event any of the Bonds or portions thereof (which shall be in Minimum
Denominations) are called for redemption, notice thereof shall be given by the
Trustee as provided in the Indenture; provided, however, that failure to give
such notice, or any defect therein, shall not affect the validity of the
proceedings for the redemption of any Bond with respect to which no such failure
or defect has occurred. In the case of an optional redemption, such notice may
state that the redemption of the Bonds is conditional upon certain events or is
subject to rescission by the Lessee in accordance with the provisions of the
Indenture. If Bonds are redeemed in part, a portion of a Bond may be redeemed
only if the holder of such Bond will hold, following such partial redemption,
Bonds in Minimum Denominations; provided that, if a redemption cannot be
effected to result in Minimum Denominations for all holders, the Trustee shall
select Bonds for redemption so that one holder owns Bonds with a principal
amount that is less than a Minimum Denomination.
REGISTRATION AND TRANSFER OF BONDS
This Bond may be transferred on the books of registration kept by the
Trustee by the registered owner or by his duly authorized attorney upon
surrender hereof, together with a written instrument of transfer duly executed
by the registered owner or his duly authorized attorney.
BOOK-ENTRY SYSTEM
This Bond is issued initially by means of a book-entry system administered
by The Depository Trust Company ("DTC") with no physical distribution of Bonds
made to the public. One Bond of each maturity shall be
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issued to DTC or its nominee and immobilized in its custody. The book-entry
system shall be maintained by DTC and the DTC Participants and shall evidence
beneficial ownership of the Bonds in Minimum Denominations, with transfers of
beneficial ownership effected on the records of DTC and the DTC Participants
pursuant to rules and procedures established by DTC.
Each DTC Participant shall be credited in the records of DTC with the
amount of such DTC Participant's interest in the Bonds. Beneficial ownership
interests in the Bonds may be purchased by or through DTC Participants. The
holders of such beneficial ownership interests are hereinafter referred to as
the "Beneficial Owners." The Beneficial Owners shall not receive Bonds
representing their beneficial ownership interests. The ownership interests of
each Beneficial Owner shall be recorded through the records of the DTC
Participant from which such Beneficial Owner purchased its Bonds. Transfers of
ownership interests in the Bonds shall be accomplished by book entries made by
DTC and, in turn, by DTC Participants acting on behalf of Beneficial Owners. SO
LONG AS CEDE & CO., AS NOMINEE FOR DTC, IS THE REGISTERED OWNER OF THE BONDS,
THE TRUSTEE AND REGISTRAR SHALL TREAT CEDE & CO. AS THE ONLY HOLDER OF THE BONDS
FOR ALL PURPOSES UNDER THE INDENTURE, INCLUDING RECEIPT OF ALL PRINCIPAL AND
PURCHASE PRICE OF, REDEMPTION PREMIUM, IF ANY, AND INTEREST ON THE BONDS,
RECEIPT OF NOTICES, VOTING AND REQUESTING OR DIRECTING THE TRUSTEE TO TAKE OR
NOT TO TAKE, OR CONSENTING TO, CERTAIN ACTIONS UNDER THE INDENTURE.
Payments of principal, interest, purchase price and redemption premium, if
any, with respect to the Bonds, so long as DTC or its nominee, Cede & Co., is
the only owner of the Bonds, shall be paid by the Trustee directly to DTC or its
nominee, Cede & Co., as provided in the Blanket Issuer Letter of Representation
that has been executed and delivered by the Issuer to DTC (the "Letter of
Representation"). DTC shall remit such payments to DTC Participants, and such
payments thereafter shall be paid by DTC Participants to the Beneficial Owners.
The Issuer, the Lessee, the Trustee, and the Remarketing Agent shall not be
responsible or liable for payment by DTC or DTC Participants, for sending
transaction statements or for maintaining, supervising or reviewing records
maintained by DTC or DTC Participants.
In the event that (a) DTC determines not to continue to act as securities
depository for the Bonds or (b) the Lessee or the Remarketing Agent determines
that the continuation of the book-entry system of evidence and transfer of
ownership of the Bonds would adversely affect their interests or the interests
of the Beneficial Owners of the Bonds, the Trustee at the request of the Lessee
or the Remarketing Agent shall discontinue the book-entry system with DTC. If
the Remarketing Agent fails to identify another qualified securities depository
to replace DTC, the Remarketing Agent shall cause the Trustee to authenticate
and deliver replacement Bonds in the form of fully registered Bonds to each
Beneficial Owner.
In the event that a book-entry system of evidence and transfer of
ownership of the Bonds is discontinued pursuant to the provisions of the
Indenture, the Bonds shall be delivered solely as fully registered Bonds without
coupons in Minimum Denominations, shall be lettered "R" and numbered separately
from "1" upward, and shall be payable, executed, authenticated, registered,
exchanged and cancelled pursuant to the provisions hereof and of the Indenture.
THE ISSUER, THE LESSEE, THE REMARKETING AGENT AND THE TRUSTEE SHALL NOT
HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO ANY DTC PARTICIPANT OR ANY BENEFICIAL
OWNER WITH RESPECT TO (A) THE BONDS; (B) THE ACCURACY OF ANY RECORDS MAINTAINED
BY DTC OR ANY DTC PARTICIPANT; (C) THE PAYMENT BY DTC OR ANY DTC PARTICIPANT OF
ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL OR PURCHASE
PRICE OF AND REDEMPTION PREMIUM, IF ANY, AND INTEREST ON THE BONDS; (D) THE
DELIVERY OR TIMELINESS OF DELIVERY BY DTC OR ANY DTC PARTICIPANT OF ANY NOTICE
DUE TO ANY BENEFICIAL OWNER WHICH IS REQUIRED OR PERMITTED UNDER THE TERMS OF
THE INDENTURE TO BE GIVEN TO BENEFICIAL OWNERS; (E) THE SELECTION OF BENEFICIAL
OWNERS TO RECEIVE PAYMENTS IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS;
OR (F) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC, OR ITS NOMINEE, CEDE &
CO., AS OWNER.
SO LONG AS A BOOK-ENTRY SYSTEM OF EVIDENCE OF TRANSFER OF OWNERSHIP OF ALL
THE BONDS IS MAINTAINED IN ACCORDANCE HEREWITH, THE PROVISIONS OF THE INDENTURE
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RELATING TO THE DELIVERY OF PHYSICAL BOND CERTIFICATES SHALL BE DEEMED TO GIVE
FULL EFFECT TO SUCH BOOK-ENTRY SYSTEM.
MISCELLANEOUS
The registered owner of this Bond shall have no right to enforce the
provisions of the Indenture or to institute action to enforce the covenants
therein, or to take any action with respect to any event of default under the
Indenture, or to institute, appear in and defend any suit or other proceeding
with respect thereto, except as provided in the Indenture. In certain events, on
the conditions, in the manner and with the effect set forth in the Indenture,
the principal of this Bond may be declared and may become due and payable before
the stated maturity thereof, together with accrued interest thereon.
Modifications or alterations of the Indenture, or of any indenture
supplemental thereto, may be made only to the extent and in the circumstances
permitted by the Indenture.
This Bond is issued with the intent that the laws of the State of Georgia
will govern its construction.
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all acts, conditions and
things required to exist, happen and be performed precedent to and in the
issuance of the Bonds do exist, have happened and have been performed in due
time, form and manner as required by law; that the indebtedness represented by
the Bonds, together with all obligations of the Issuer, does not exceed any
constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the Certificate of
Authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, Xxxxx County Industrial Development Authority has
caused this Bond to be signed by the manual or facsimile signature of its
Chairman or Vice Chairman, its seal to be affixed hereto or a facsimile of its
seal to be printed hereon or affixed hereto and attested by its Secretary or
Assistant Secretary, and this Bond to be dated the date set forth above.
XXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By: X. X. Xxxxxxxxxxx
------------------------------------
(SEAL) Chairman
ATTEST:
By: /s/ X. Xxxx
-------------------------------
Secretary
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds described in the within-mentioned Indenture.
BRANCH BANKING AND TRUST COMPANY,
as Trustee
By: /s/ Xx Xxxxxxxx
------------------------------------
Agent
Date of Authentication: September 2, 2004
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8
STATE OF GEORGIA )
)
COUNTY OF XXXXX )
VALIDATION CERTIFICATE
The undersigned Clerk of the Superior Court of Xxxxx County, State of
Georgia, DOES HEREBY CERTIFY that this Bond was validated and confirmed by
judgment of the Superior Court of Xxxxx County (Case No. 151-04-CV-0418), on the
25th day of August, 2004, that no intervention or objection was filed opposing
the validation of this Bond and that no appeal of such judgment of validation
has been taken.
IN WITNESS WHEREOF, I have hereunto set my hand and have caused to be
affixed hereon the official seal of the Superior Court of Xxxxx County, Georgia.
This 25th day of August, 2004.
/S/ Xxxxxxx Xxxxxxx, Xx.
----------------------------------------------
Clerk, Superior Court of Xxxxx County, Georgia
(SEAL)
9
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
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(Please print or typewrite Name and Address,
including Zip Code, and Federal Taxpayer Identification or
Social Security Number of Assignee)
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the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints
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Attorney to register the transfer of the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
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Signature guaranteed by:
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NOTICE: Signature must be guaranteed by a participant NOTICE: The signature to this assignment must
of the Securities Transfer Agent Medallion Program correspond with the name as it appears on the face of
("STAMP") or similar program. the within Bond in every particular, without
alteration, enlargement or any change whatever
10
