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TRUST INDENTURE
DATED AS OF FEBRUARY 1, 2001
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BETWEEN
UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS,
AS THE ISSUER
AND
SECURITY BANK OF KANSAS CITY,
AS THE TRUSTEE
$22,075,000
TAXABLE INDUSTRIAL REVENUE BONDS
(EPA LABORATORY PROJECT)
SERIES 2001
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TRUST INDENTURE
TABLE OF CONTENTS
PAGE
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Parties........................................................1
Recitals.......................................................1
Granting Clauses...............................................1
ARTICLE I
DEFINITIONS
Section 101. Definitions of Words and Terms.................................2
Section 102. Rules of Interpretation.......................................10
ARTICLE II
THE BONDS
Section 201. Title and Amount of Bonds.....................................10
Section 202. Limited Nature of Obligations.................................10
Section 203. Denomination, Numbering and Dating of Bonds...................10
Section 204. Method and Place of Payment of Bonds..........................10
Section 205. Execution and Authentication of Bonds.........................11
Section 206. Registration, Transfer and Exchange of Bonds..................11
Section 207. Persons Deemed Owners of Bonds................................11
Section 208. Authorization of Series 2001 Bonds............................11
Section 209. Authorization of Additional Bonds.............................11
Section 210. Temporary Bonds...............................................12
Section 211. Mutilated, Lost, Stolen or Destroyed Bonds....................14
Section 212. Cancellation and Destruction of Bonds Upon Payment............14
Section 213. Book Entry; Securities Depository.............................14
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption of Bonds Generally.................................15
Section 302. Redemption of Bonds...........................................15
Section 303. Selection of Bonds to be Redeemed.............................16
Section 304. Trustee's Duty to Redeem Bonds................................16
Section 305. Notice and Effect of Call for Redemption......................17
Section 306. Effect of Call for Redemption.................................18
ARTICLE IV
FORM OF BONDS
Section 401. Form of Bonds Generally.......................................18
Section 402. Form of Series 2001 Bonds.....................................18
ARTICLE V
CREATION OF PROJECT FUND; CUSTODY AND
APPLICATION OF BOND PROCEEDS
Section 501. Creation of Project Fund......................................18
(i)
Section 502. Deposits into the Project Fund................................18
Section 503. Disbursements from the Project Fund...........................18
Section 504. Disposition Upon Completion of the Project....................19
Section 505. Disposition Upon Acceleration.................................19
ARTICLE VI
REVENUES AND FUNDS
Section 601. Creation of Funds and Accounts................................19
Section 602. Deposits Into and Application of Moneys in the Revenue Fund...19
Section 603. Deposits into the Debt Service Fund...........................20
Section 604. Application of Moneys in the Debt Service Fund................20
Section 605. Deposits into and Application of Moneys in the Project
Replacement Fund......................................20
Section 606. Deposits into and Application of Moneys in the Capitalized
Interest Fund.........................................20
Section 607. Deposits Into and Application of Moneys in the Tax and
Insurance Fund........................................21
Section 608. Deposits Into and Application of Moneys in the Project
Operation and Maintenance Fund........................21
Section 609. Payments Due on Saturdays, Sundays and Holidays...............21
Section 610. Nonpresentment of Bonds.......................................21
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 701. Moneys to be Held in Trust....................................21
Section 702. Investment of Moneys in Funds.................................21
Section 703. Record Keeping................................................21
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of Principal of, Premium, if Any, and Interest
on the Bonds..........................................22
Section 802. Authority to Execute Indenture and Issue Bonds................22
Section 803. Performance of Covenants......................................22
Section 804. Instruments of Further Assurance..............................22
Section 805. Maintenance, Taxes and Insurance..............................22
Section 806. Inspection of Project Books...................................22
Section 807. Enforcement of Rights Under the Lease.........................22
Section 808. Possession and Use of Project.................................22
ARTICLE IX
REMEDIES ON DEFAULT
Section 901. Acceleration of Maturity in Event of Default..................23
Section 902. Exercise of Remedies by the Trustee...........................23
Section 903. Limitation on Exercise of Remedies by Owners..................23
Section 904. Right of Owners to Direct Proceedings.........................23
Section 905. Remedies Cumulative...........................................23
Section 906. Waivers of Events of Default..................................23
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of the Trusts......................................24
Section 1002. Fees, Charges and Expenses of the Trustee.....................25
Section 1003. Notice to Owners if Default Occurs............................25
Section 1004. Intervention by the Trustee...................................25
(ii)
Section 1005. Successor Trustee Upon Merger, Consolidation or Sale..........25
Section 1006. Resignation of Trustee........................................25
Section 1007. Removal of Trustee............................................25
Section 1008. Appointment of Successor Trustee..............................25
Section 1009. Vesting of Trusts in Successor Trustee........................25
Section 1010. Right of Trustee to Pay Taxes and Other Charges...............25
Section 1011. Trust Estate May Be Vested in Co-trustee......................26
Section 1012. Annual Accounting.............................................26
Section 1013. Recordings and Filings........................................26
Section 1014. Performance of Duties under the Lease.........................26
Section 1015. Designation of Paying Agents..................................26
Section 1016. Fees, Charges and Expenses of Paying Agents...................26
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 1101. Supplemental Indentures Not Requiring Consent of Owners.......26
Section 1102. Supplemental Indentures Requiring Consent of Owners...........27
Section 1103. Tenant's Consent to Supplemental Indentures...................27
ARTICLE XII
LEASE AND SUBLEASE AMENDMENTS
Section 1201. Lease Amendments..............................................27
Section 1202. Sublease Amendments...........................................27
ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and Discharge of Indenture.......................27
Section 1302. Bonds Deemed to be Paid.......................................28
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and Other Instruments by Owners......................28
Section 1402. Interested Parties............................................28
Section 1403. Notices.......................................................29
Section 1404. Suspension of Newspaper Publication or Mail Service...........29
Section 1405. Amendment.....................................................29
Section 1406. Severability..................................................29
Section 1407. Counterparts..................................................29
Section 1408. Governing Law.................................................29
Signatures and Seals.........................................S-1
Schedule I - Property Subject to Lease
Schedule II - Permitted Encumbrances
Appendix A-Form of Series 2001 Bonds
(iii)
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of February 1, 2001, between the UNIFIED
GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS, a municipal corporation and
political subdivision duly organized and existing under the laws of the State of
Kansas, as Issuer, and SECURITY BANK OF KANSAS CITY, a banking corporation duly
organized and existing and authorized to accept and execute trusts of the
character herein set forth under the laws of the State of Kansas, with its
principal office located in the City of Kansas City, Kansas, as Trustee;
WITNESSETH:
WHEREAS, the Issuer is authorized by the Act to acquire, construct,
improve and equip certain "facilities" (as defined in the Act) for commercial,
industrial and manufacturing purposes, to enter into leases and lease-purchase
agreements with any person, firm or corporation for said facilities, and to
issue revenue bonds for the purpose of paying the cost of any such facilities;
and
WHEREAS, pursuant to such authorization, the Issuer's governing body
passed and approved an Ordinance on November 30, 2000, authorizing the Issuer to
issue the Series 2001 Bonds for the purpose of financing the acquisition,
construction, furnishing and equipping of an approximately 70,000 square foot
commercial building located at the corner of Minnesota and 0xx Xxxxxx in Kansas
City, Kansas, which constitutes the Project, and authorizing the Issuer to lease
the Project to the Tenant; and
WHEREAS, pursuant to such Ordinance, the Issuer is authorized (a) to
execute and deliver this Indenture for the purpose of issuing and securing the
Series 2001 Bonds and any Additional Bonds, as hereinafter provided, and (b) to
enter into the Lease, under which the proceeds of the Bonds shall be used to
acquire, construct, furnish and equip the Project and pursuant to which the
Issuer shall lease the Project to the Tenant, in consideration of rentals which
are intended to be sufficient to provide for the payment of the principal of,
premium, if any, and interest on the Bonds as the same become due; and
WHEREAS, all things necessary to make the Bonds, when authenticated by the
Trustee and issued as provided in this Indenture, the valid and legally binding
limited obligations of the Issuer, and to constitute this Indenture a valid and
legally binding pledge and assignment of the Trust Estate herein made for the
security of the payment of the principal of, premium, if any, and interest on
the Bonds issued hereunder, have been done and performed, and the execution and
delivery of this Indenture and the execution and issuance of the Bonds, subject
to the terms hereof, have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
That the Issuer, in consideration of the premises, the acceptance by the
Trustee of the trusts hereby created, the purchase and acceptance of the Bonds
by the Owners thereof, and of other good and valuable consideration, the receipt
of which is hereby acknowledged, and in order to secure the payment of the
principal of, premium, if any, and interest on all of the Bonds issued and
Outstanding under this Indenture from time to time according to their tenor and
effect, and to secure the performance and observance by the Issuer of all the
covenants, agreements and conditions herein and in the Bonds contained, does
hereby pledge and assign unto the Trustee and its successors and assigns, the
following property (said property being herein referred to as the "Trust
Estate"):
(a) the real estate situated in Wyandotte County, Kansas,
described in paragraph (a) of SCHEDULE I attached hereto, with all
buildings, structures, facilities, additions, improvements, machinery,
equipment and any other property now or hereafter constructed, located
or installed thereon to the extent and subject to the limitations
provided in the Lease, and with the tenements, hereditaments,
appurtenances, rights, privileges and immunities thereunto belonging or
appertaining;
(b) all right, title and interest of the Issuer in, to and
under the Lease (except the Issuer's right to indemnity thereunder) and
the Sublease, and all rents, revenues and receipts derived by the
Issuer from the Project including, without limitation, all Rental
Payments derived by the Issuer under and pursuant to and subject to the
provisions of the Lease; provided that the pledge and assignment hereby
made shall not impair or diminish the obligations of the Issuer under
the provisions of the Lease; and
(c) all moneys and securities from time to time held by the
Trustee under the terms of this Indenture, and any and all other
property of every kind and nature from time to time hereafter, by
delivery or by writing of any kind, pledged, assigned or transferred as
and for additional security hereunder by the Issuer or by anyone in its
behalf, or with its written consent, to the Trustee, which is hereby
authorized to receive any and all such property at any and all times
and to hold and apply the same subject to the terms hereof.
TO HAVE AND TO HOLD, all and singular, the Trust Estate with all rights
and privileges hereby pledged and assigned, or agreed or intended so to be, to
the Trustee and its successors in trust and assigns;
IN TRUST NEVERTHELESS, upon the terms and subject to the conditions
herein set forth, for the equal and proportionate benefit, protection and
security of all Owners from time to time of the Bonds issued and Outstanding
under this Indenture, without preference, priority or distinction as to lien or
otherwise of any of the Bonds over any other of the Bonds except with respect to
the Bond Reserve Fund and as expressly provided by this Indenture;
PROVIDED, HOWEVER, that if the Issuer shall well and truly pay, or cause
to be paid, the principal of, premium, if any, and interest on all the Bonds, at
the times and in the manner mentioned in the Bonds according to the true intent
and meaning thereof, or shall provide for the payment thereof (as provided in
ARTICLE XIII hereof), and shall pay or cause to be paid to the Trustee all other
sums of money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this Indenture and the rights
hereby granted shall cease, determine and be void; otherwise, this Indenture
shall be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is hereby expressly declared,
covenanted and agreed by and between the parties hereto, that all Bonds issued
and secured hereunder are to be issued, authenticated and delivered and that all
the Trust Estate is to be held and applied under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the Issuer does hereby agree and covenant with the
Trustee and with the respective Owners from time to time of the Bonds, as
follows:
ARTICLE I
DEFINITIONS
SECTION 101. DEFINITIONS OF WORDS AND TERMS. In addition to the words and
terms defined elsewhere in this Indenture, the following words and terms as used
in this Indenture shall have the following meanings, unless some other meaning
is plainly intended:
"ACT" means K.S.A. 12-1740 to 12-1749d, inclusive, as amended.
"ADDITIONAL BONDS" means any Bonds issued in addition to and on a parity
with the Series 2001 Bonds and issued pursuant to SECTION 209 of this Indenture.
"ADDITIONAL RENT" means all fees, charges and expenses of the Trustee and
the Paying Agents, all Default Administration Costs, all other payments of
whatever nature payable or to become payable pursuant to the Indenture or which
the Tenant has agreed to pay or assume under the provisions of the Lease, and
any and all expenses (including reasonable attorney's fees) incurred by the
Issuer in connection with the issuance of the Bonds or the enforcement of any
rights under the Lease or this Indenture. The fees, charges and expenses of the
Trustee shall include all costs incurred in connection with the issuance,
transfer, exchange, registration, redemption or payment of the Bonds except (a)
reasonable fees and expenses incurred in connection with the replacement of a
Bond or Bonds mutilated, stolen, lost or destroyed or (b) any tax or other
government charge imposed on the Trustee in relation to the transfer, exchange,
registration, redemption or payment of the Bonds.
"ADDITIONAL TERM" means the term commencing on the last day of the Basic
Term and terminating five (5) years thereafter.
"ANNUAL BUDGET" means the Annual Budget of the Project required by SECTION
10.4(B) of the Lease.
"AFFILIATE" means any person (including any corporation, partnership,
limited liability company or other entity (including without limitation, any
trust or estate or natural person) which, directly or through one or more
intermediaries, owns or controls, or is controlled by or which is under common
control with, the Tenant.
"AUTHORIZED TENANT REPRESENTATIVE" means any member of the Tenant as is at
the time designated to act on behalf of the Tenant as evidenced by written
certificate furnished to the Issuer and the Trustee containing the specimen
signature of such person and signed on behalf of the Tenant by a member. Such
certificate may designate an alternate or alternates, each of whom shall be
entitled to perform all duties of the Authorized Tenant Representative.
"AUTHORIZED NEWSPAPER" means a newspaper published and of general
circulation within the Issuer's boundaries and the official newspaper or other
designated official publication of the State.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as amended.
"BASIC RENT" means the monthly pro rata amount which, when added to Basic
Rent Credits, will be sufficient to pay, on the next Payment Date, all principal
of, premium, if any, and interest on the Bonds which is due and payable on such
Payment Date.
"BASIC RENT CREDITS" means all funds on deposit in the Debt Service Fund
and the Capitalized Interest Fund and the accounts contained therein and
available for the payment of principal of, premium, if any, and interest on the
Bonds on any Payment Date.
"BASIC RENT PAYMENT DATE" means March 1, 2001 and the first day of each
month thereafter until the principal of, premium, if any, and interest on the
Bonds have been fully paid or provision has been made for their payment in
accordance with the provisions of the Indenture.
"BASIC TERM" means the term commencing as of the date of the Lease and
ending on October 1, 2022, subject to prior termination as specified in the
Lease, but to continue thereafter until all of the principal of, premium, if
any, and interest on all Outstanding Bonds shall have been paid in full or
provision made for their payment in accordance with the provisions of the
Indenture.
"BOND" or "BONDS" means the fully registered Series 2001 Bonds and any
Additional Bonds.
2
"BOND COUNSEL" means the firm of Xxxxxxx & Xxxx, P.C. or any other
attorney or firm of attorneys whose expertise in matters relating to the
issuance of obligations by states and their political subdivisions is nationally
recognized and acceptable to the Trustee and the Tenant.
"BOND REGISTER" means the books maintained by the Trustee for the
registration and transfer of the Bonds.
"BUSINESS DAY" means a day which is not (a) a Saturday or Sunday or (b)
any day on which banks in the State are authorized or required to be closed.
"CAPITALIZED INTEREST FUND" has the meaning set forth in SECTION 601 of
this Indenture.
"CEDE & CO." means Cede & Co., as nominee of The Depository Trust Company,
New York, New York.
"CERCLA" means the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss.9601, et seq.
"CERTIFICATE OF COMPLETION" means a written certificate signed by the
Authorized Tenant Representative and the Project Consultant stating that (a) the
Project has been completed in accordance with the Plans and Specifications, (b)
the Project has been completed in a good and workmanlike manner, (c) no
mechanic's or other similar liens have been filed, nor is there any basis for
the filing of such liens, with respect to the Project, (d) all Improvements
constituting a part of the Project are located or installed upon the Land, (e)
if required by ordinances duly adopted by the Issuer or by applicable building
codes, that an appropriate certificate of occupancy has been issued with respect
to the Project and (f) the Project has been accepted by the Subtenant pursuant
to the terms of the Sublease.
"CHANGE OF CIRCUMSTANCES" means the occurrence of any of the following
events:
(a) title to, or the temporary use of, all or any material part of
the Project shall be condemned by any authority exercising the power of
eminent domain;
(b) title to substantially all of the Project is found to be
deficient or nonexistent to the extent that the Project is untenantable or
the efficient utilization of the Project by the Tenant is substantially
impaired;
(c) substantially all of the Project is damaged or destroyed by fire
or other casualty; or
(d) as a result of (i) changes in the Constitution of the State,
(ii) any legislative or administrative action by the State or any
political subdivision thereof, or by the United States or (iii) any action
instituted in any court, the Lease shall become void or unenforceable, or
impossible to perform without unreasonable delay, or unreasonable burdens
or excessive liabilities are imposed upon the Issuer or the Tenant by
reason of such changes of circumstances.
"CODE" means the Internal Revenue Code of 1986, as amended, together with
the regulations promulgated thereunder by the United States Department of the
Treasury.
"COMPLETION DATE" means the date of completion of the acquisition,
purchase, construction and installation of the Project pursuant to the Lease.
"CONSTRUCTION PERIOD" means the period from the beginning of construction
of the Project to the Completion Date.
"COSTS OF ISSUANCE" means any and all expenses of whatever nature incurred
in connection with the issuance and sale of the Bonds, including but not limited
to underwriting fees and expenses, underwriting discount, bond and other
printing expenses, and legal fees and expenses of counsel.
"DEBT SERVICE FUND" has the meaning set forth in SECTION 601 of this
Indenture.
"DEFAULT" means any event or condition the occurrence of which, with the
lapse of time or the giving of notice or both, constitutes an Event of Default
under the Lease.
"DEFAULT ADMINISTRATION COSTS" means the reasonable fees, charges and
expenses of the Trustee incurred in anticipation of an Event of Default, or
after the occurrence of an Event of Default, including, but not limited to,
counsel fees, litigation costs and expenses, the expenses of maintaining and
preserving the Project and the expenses of re-letting or selling the Project.
"DEFEASANCE OBLIGATIONS" means:
(a) Government Obligations which are not subject to redemption prior
to maturity; or
(b) obligations of any state or political subdivision of any state,
the interest on which is excluded from gross income for federal income tax
purposes and which meet the following conditions:
3
(i) (A) the obligations are not subject to redemption prior to
maturity or (B) the trustee for such obligations has been given
irrevocable instructions concerning their calling and redemption and
the issuer of such obligations has covenanted not to redeem such
obligations other than as set forth in such instructions;
(ii) the obligations are secured by cash or Government
Obligations that may be applied only to payment of principal of,
premium, if any, and interest payments on such obligations;
(iii) such cash and Government Obligations serving as security
for the obligations are held in an irrevocable escrow fund by an
escrow agent or a trustee irrevocably in trust for the owners of
such obligations, and the issuer of such obligations is not, and has
not been since the establishment of such escrow, a debtor in a
proceeding commenced under the Bankruptcy Code;
(iv) the sufficiency of such cash and noncallable Government
Obligations to pay in full all principal of, premium, if any, and
interest on such obligations has been verified by the report of an
independent certified public accountant (for purposes of this
subparagraph (iv), a "Verification") and no substitution of
Government Obligations shall be permitted except with cash or other
Government Obligations and upon delivery of a new Verification;
(v) such cash and Government Obligations are not available to
satisfy any other claims, including those against the trustee or
escrow agent;
(vi) the Trustee has received an opinion of Bond Counsel
delivered in connection with the original issuance of such
obligations to the effect that the interest on such obligations was
exempt for purposes of federal income taxation, and the Trustee has
received an opinion of Bond Counsel delivered in connection with the
establishment of the irrevocable escrow to the effect that the
establishment of the escrow will not result in the loss of any
exemption for purposes of federal income taxation to which interest
on such obligations would otherwise be entitled;
(vii) the Trustee has received an unqualified opinion of
bankruptcy counsel to the effect that the payment of principal of
and interest on such obligations made from such escrow would not be
avoidable as preferential payments and recoverable under the
Bankruptcy Code should the obligor or any other person liable on
such obligations become a debtor in a proceeding commenced under the
Bankruptcy Code; and
(vi) the obligations are rated in the highest long-term rating
category by Moody's (presently "AAA") and S&P (presently "AAA").
"ENVIRONMENTAL ASSESSMENT" means an environmental assessment with respect
to the Project conducted by an independent consultant satisfactory to the
Trustee which reflects the results of such inspections, records reviews, soil
tests, groundwater tests and other tests requested, which assessment and results
shall be satisfactory in scope, form and substance to the Trustee and the
Tenant.
"ENVIRONMENTAL LAW" means CERCLA, the Superfund Amendments and
Reauthorization Act of 1986, and any other federal, state or local environmental
statute, regulation or ordinance presently in effect or coming into effect
during the term of the Lease.
"EVENT OF BANKRUPTCY" means an event whereby the Tenant shall: (a) admit
in writing its inability to pay its debts as they become due; (b) file a
petition in bankruptcy or for reorganization or for the adoption of an
arrangement under the Bankruptcy Code as now or in the future amended, or file a
pleading asking for such relief, (c) make an assignment for the benefit of
creditors; (d) consent to the appointment of a trustee or receiver for all or a
major portion of its property; (e) be finally adjudicated as bankrupt or
insolvent under any federal or state law; (f) suffer the entry of a final and
nonappealable court order under any federal or state law appointing a receiver
or trustee for all or a major part of its property or ordering the winding-up or
liquidation of its affairs, or approving a petition filed against it under the
Bankruptcy Code, which order, if the Tenant has not consented thereto, shall not
be vacated, denied, set aside or stayed within 60 days after the day of entry;
or (g) suffer a writ or warrant of attachment or any similar process to be
issued by any court against all or any substantial portion of its property, and
such writ or warrant of attachment or any similar process is not contested,
stayed, or is not released within 60 days after the final entry, or levy or
after any contest is finally adjudicated or any stay is vacated or set aside.
"EVENT OF DEFAULT" under this Indenture means any of the following events:
(a) default in the due and punctual payment of any interest on any
Bond;
(b) default in the due and punctual payment of the principal of or
premium, if any, on any Bond on the stated maturity or accelerated
maturity date thereof, or at the redemption date thereof,
(c) default in the performance or observance of any other of the
covenants, agreements or conditions on the part of the Issuer contained in
this Indenture or in the Bonds, and the continuance thereof for a period
of 30 days after written notice thereof shall have been given to the
Issuer, the Tenant and the Subtenant by the Trustee or the Issuer, the
Tenant and the Subtenant by the Owners of not less than 25% in aggregate
principal amount of Bonds then Outstanding; provided, however, that if any
default shall be such that it cannot be corrected within such 30-day
period, it shall not constitute an Event of Default if corrective action
is instituted by the Issuer or the Tenant within such period and
diligently pursued until such default is corrected; or
4
(d) "Default" as defined in the Lease shall have occurred.
"FULL INSURABLE VALUE" means the full actual replacement cost of the
Project less physical depreciation as determined from time to time upon the
request of the Issuer, the Tenant or the Trustee (but not more frequently than
once in every 24 months) by an architect, appraiser, appraisal company or one of
the insurers, selected and paid by the Tenant.
"GOVERNMENT OBLIGATIONS" means direct obligations of, or obligations the
payment of the principal of and interest on which are unconditionally guaranteed
by, the United States of America.
"HAZARDOUS SUBSTANCES" shall mean "hazardous substances" as defined in
CERCLA.
"IMPOSITIONS" means all taxes and assessments, general and special, which
may be lawfully taxed, charged, levied, assessed or imposed upon or against or
payable for or in respect of the Project or any part thereof or the Tenant's
interest therein, including any new lawful taxes and assessments not of the kind
enumerated above to the extent that the same are lawfully made, levied or
assessed in lieu of or in addition to taxes or assessments now customarily
levied against real or personal property, and further including all water and
sewer charges, assessments and other governmental charges and impositions
whatsoever, foreseen or unforeseen.
"IMPROVEMENTS" means the buildings, structures, facilities, additions,
improvements, machinery, equipment and other property described in paragraph (b)
of SCHEDULE I attached hereto and made a part hereof.
"INDENTURE" means this Trust Indenture by and between the Issuer and the
Trustee, as from time to time amended and supplemented by Supplemental
Indentures in accordance with the provisions of ARTICLE XI of this Indenture.
"INTEREST PAYMENT DATE" means (a) with respect to the Series 2001 Bonds,
April 1 and October 1 of each year, commencing October 1, 2001, and terminating
when the principal of, premium if any, and interest on the Series 2001 Bonds
have been fully paid, and (b) with respect to any Additional Bonds, the dates
specified as interest payments dates in the Supplemental Indenture relating
thereto.
"INVESTMENT SECURITIES" means any of the following securities, to the
extent the same are at the time permitted for investment of funds held by the
Trustee pursuant to this Indenture:
(a) cash (insured at all times by the Federal Deposit Insurance
Corporation or otherwise collateralized with obligations described in
paragraph (b) below);
(b) direct obligations of (including obligations issued or held in
book entry form on the books of) the Department of the Treasury of the
United States of America;
(c) obligations of any of the following federal agencies, which
obligations represent the full faith and credit of the United States of
America:
- Export-Import Bank
- Farm Credit System Financial Assistance Corporation
- Rural Economic Community Development Administration (formerly
the Farmers Home Administration)
- General Services Administration
- U.S. Maritime Administration
- Small Business Administration
- Government National Mortgage Association (GNMA)
- U.S. Department of Housing & Urban Development (PHA's)
- Federal Housing Administration
- Federal Financing Bank;
(d) direct obligations of any of the following federal agencies,
which obligations are not fully guaranteed by the full faith and credit of
the United States of America:
- Senior debt obligations rated "Aaa" by Moody's and "AAA" by
S&P issued by the Federal National Mortgage Association (FNMA)
or Federal Home Loan Mortgage Corporation (FHLMC)
- Obligations of the Resolution Funding Corporation (REFCORP)
- Senior debt obligations of the Federal Home Loan Bank System
(e) U.S. dollar denominated deposit accounts, federal funds and
bankers' acceptances with domestic commercial banks (including the Trustee
and its affiliates) which have a rating on their short term certificates
of deposit on the date of purchase of "A-1" or "A-1+" by S&P and "P-l" by
Moody's and maturing no more than 360 days after the date of purchase
(provided that ratings on holding companies are not considered to be
ratings on the subsidiary banks);
(f) commercial paper which is rated at the time of purchase in the
single highest classification by S&P (presently "A-1+") and by Moody's
(presently "P-l") and which matures not more than 270 days after the date
of purchase;
5
(g) investments in a money market fund rated "AAAm" or "AAAm-G" or
better by S & P;
(h) "pre-refunded municipal obligations," which is defined as any
bonds or other obligations of any state of the United States of America or
of any agency, instrumentality or local governmental unit of any such
state which are not callable at the option of the obligor prior to
maturity or as to which irrevocable instructions have been given by the
obligor to call on the date specified in the notice; and
(i) which are rated based on an irrevocable escrow account or
fund (the "escrow"), in the highest rating category of S&P and
Moody's or any successors thereto; or
(ii) (A) which are fully secured as to principal, premium, if
any, and interest by an escrow consisting only of cash or
obligations described in paragraphs (a) and (b) above, which escrow
may be applied only to the payment of such principal of and interest
and redemption premium, if any, on such bonds or other obligations
on the maturity date or dates thereof or the specified redemption
date or dates pursuant to such irrevocable instructions, as
appropriate, and (B) which escrow is sufficient, as verified by a
nationally recognized independent certified public accountant, to
pay principal of and interest and premium, if any, on the bonds or
other obligations described in this paragraph on the maturity date
or dates specified in the irrevocable instructions referred to
above, as appropriate;
(i) general obligations of any state with a rating of at least
"A2/A" or higher by both Moody's and S&P; or
(j) investment agreements constituting an obligation of a bank, bank
holding company, savings and loan association, trust company, insurance
company or other financial institution whose outstanding unsecured
short-term debt is rated at the time of such agreement in the highest
rating category by a nationally recognized rating agency or whose
outstanding unsecured long-term debt is rated at the time of such
agreement in either of the two highest rating categories by a nationally
recognized rating agency.
"ISSUER" means the Unified Government of Wyandotte County/Kansas City,
Kansas, a municipal corporation and political subdivision organized and existing
under the laws of the State, and its successors and assigns.
"LAND" means the real property on which the Project is located, as more
specifically described in paragraph (a) of SCHEDULE I attached hereto and made a
part hereof and paragraph (a) of SCHEDULE I of the Lease.
"LAND CLOSING DATE" has the meaning set forth in SECTION 14.1 of the
Lease.
"LEASE" means the Lease dated as of the date of this Indenture between the
Issuer and the Tenant, as from time to time amended and supplemented in
accordance with the provisions thereof and of ARTICLE XII of this Indenture.
"LEASE EVENT OF DEFAULT" under the Lease means any one of the following
events:
(a) failure of the Tenant to make any payment of Basic Rent when due
or within five (5) days thereafter and in the amounts required hereunder;
(b) failure of the Tenant to make any payment of Additional Rent at
the times and in the amounts required hereunder, or failure by the Tenant
to observe or perform any other covenant, agreement, obligation or
provision of the Lease, if the same is not remedied within thirty (30)
days after the Issuer or the Trustee has given the Tenant written notice
specifying such failure (or such longer period as shall be reasonably
required to correct such default; provided that (i) the Tenant has
commenced such correction within said 30-day period, and (ii) the Tenant
diligently prosecutes such correction to completion);
(c) an Event of Bankruptcy; or
(d) the Tenant abandons the Project.
"MOODY'S" means Xxxxx'x Investors Service, a corporation organized and
existing under the laws of the State of Delaware, and its successors and
assigns, and, if such corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Issuer by notice to the Trustee.
"NET PROCEEDS" means, when used with respect to any insurance or
condemnation award with respect to the Project, the proceeds from the insurance
or condemnation award remaining after the payment of all expenses (including
attorneys' fees and any extraordinary expenses of the Trustee) incurred in the
collection of such proceeds.
"NOTICE ADDRESS" means:
(a) with respect to the Issuer:
6
Unified Government of Wyandotte County/Kansas City, Kansas
000 X. 0xx Xxxxxx
0xx Xxxxx
Xxxxxx Xxxx, XX 00000
Attention: County Administrator
(b) with respect to the Trustee:
Security Bank of Kansas City
One Security Plaza
000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000-0000
Attention: Corporate Trust Department
(c) with respect to the Tenant:
Kansas EPA Laboratory, LLC
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Member
(d) with respect to the Subtenant:
General Services Administration
X.X. Xxx 00000
Xx. Xxxxx, Xxxxx 00000-0000
Attention: Finance Division (7BCPL)
With a copy to:
Contracting Officer
GSA Property Acquisition and Realty Services (6PEEM)
0000 X. Xxxxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxxxx
(e) with respect to the Owners:
The addresses of the Owners shown on the Bond Register.
"OUTSTANDING" means, as of a particular date, all Bonds issued,
authenticated and delivered under this Indenture, except:
(a) Bonds cancelled by the Trustee or delivered to the Trustee for
cancellation pursuant to this Indenture;
(b) Bonds for which moneys or investments have been deposited in
trust with the Trustee for payment or redemption in accordance with the
provisions of the Indenture; and
(c) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered pursuant to this Indenture.
"OWNER" means the registered owner of any fully registered Bond.
"PARTICIPANTS" means those financial institutions from whom the Securities
Depository effects book-entry transfers and pledges of Bonds deposited with the
Securities Depository, as such listing exists at the time of such reference.
"PAYING AGENT" means the Trustee and any other commercial bank or trust
institution organized under the laws of any state of the United States of
America or any national banking association designated pursuant to this
Indenture or any Supplemental Indenture as paying agent for any series of Bonds
for the principal of, premium, if any, and interest on such Bonds.
"PAYMENT DATE" means any date on which the principal of or interest on any
Bonds is payable.
"PERMITTED ENCUMBRANCES" means any mortgages, liens or other encumbrances
specifically described in SCHEDULE II hereto, easements and rights of way of
record at the time of conveyance of the Land to the Issuer, and any other title
exceptions not affecting marketability or the usefulness of the Project for the
Tenant's purposes.
7
"PLANS AND SPECIFICATIONS" means the plans and specifications prepared
with respect to the Project, as amended by the Tenant from time to time prior to
the Completion Date, the same being duly certified by the Authorized Tenant
Representative, which plans and specifications have been approved by the Project
Consultant and are on file at the principal office of the Tenant in Kansas City,
Missouri, and shall be available for reasonable inspection by the Issuer, the
Trustee and their duly appointed representatives.
"PRINCIPAL PAYMENT DATE" means (a) with respect to the Series 2001 Bonds,
October 1 of each year, commencing October 1, 2003, during which the principal
of and premium, if any, on the Series 2001 Bonds remains Outstanding and unpaid,
and (b) with respect to any Additional Bonds, the dates specified as the
principal payment dates in the Supplemental Indenture relating thereto.
"PROJECT" means the Land and the Improvements, including an approximately
70,000 square foot office building located at the corner of Minnesota and 0xx
Xxxxxx xx Xxxxxx Xxxx, Xxxxxx.
"PROJECT ADDITIONS" means any Improvements acquired, constructed or
installed from proceeds of any series of Additional Bonds authorized and issued
pursuant to this Indenture, and any alterations or additions made to the Project
to the extent provided in ARTICLE XI of the Lease.
"PROJECT CLOSING DATE" has the meaning set forth in SECTION 13.1 of the
Lease.
"PROJECT CONSULTANT" means the consultant appointed for the Project by the
Tenant and approved by the Issuer and the Trustee, which shall be an architect,
engineer or firm of architects or engineers who is not a full-time employee of
the Tenant or the Issuer.
"PROJECT CONTRACTS" has the meaning set forth in SECTION 4.4 of the Lease.
"PROJECT COSTS" means those costs incurred in connection with the Project,
including:
(a) all costs and expenses necessary or incident to the acquisition
of any Improvements that are acquired, constructed or in progress at the
date of the original issuance and delivery of the Series 2001 Bonds;
(b) fees and expenses of architects, appraisers, surveyors and
engineers for estimates, surveys, soil borings and soil tests and other
preliminary investigations and items necessary to the commencement of
construction, preparation of plans, drawings and specifications and
supervision of construction, as well as for the performance of all other
duties of architects, appraisers, surveyors and engineers in relation to
the construction, furnishing and equipping of the Project or the issuance
of the Bonds;
(c) all costs and expenses of acquiring, constructing or installing
any Improvements that are acquired, constructed or installed after the
date of the original issuance and delivery of the Series 2001 Bonds;
(d) the cost of the title insurance policies and the cost of any
insurance and performance and payment bonds maintained during the
Construction Period with respect to the Project in accordance with ARTICLE
VI of the Lease;
(e) interest accruing on the Bonds prior to the Completion Date, if
and to the extent proceeds of the Bonds set aside and deposited to the
credit of the Capitalized Interest Fund or any accounts contained therein
pursuant to SECTION 603 of this Indenture are insufficient for payment of
such interest;
(f) Costs of Issuance; and
(g) all other items of expense as may be necessary or incident to:
(i) the authorization, issuance and sale of the Bonds; (ii) the
acquisition, construction, equipping and furnishing of the Project; and
(iii) the financing thereof.
"PROJECT FUND" has the meaning set forth in SECTION 501 of this Indenture.
"PROJECT OPERATION AND MAINTENANCE FUND" has the meaning set forth in
SECTION 601 of this Indenture.
"PROJECT OPERATION AND MAINTENANCE FUND REQUIREMENT" means $100,000.
"PROJECT REPLACEMENT FUND" has the meaning set forth in SECTION 601 of
this Indenture.
"RECORD DATE" means the 15th day of the month immediately preceding each
Payment Date, or if such date is not a Business Day, the Business Day
immediately preceding such Payment Date.
"RENTAL PAYMENTS" means the aggregate of the Basic Rent (as defined in the
Lease) and Additional Rent (as defined in the Lease) payments provided for
pursuant to ARTICLE V of the Lease.
"REPLACEMENT BONDS" means Bonds issued to the beneficial owners of the
Bonds in accordance with SECTION 213(B) of this Indenture.
8
"REVENUE FUND" has the meaning set forth in SECTION 601 of this Indenture.
"S&P" means Standard & Poor's Ratings Services, A Division of The
XxXxxx-Xxxx Companies, a corporation organized and existing under the laws of
the State of New York, and its successors and assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, S&P shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Issuer by notice to the
Trustee.
"SECURITIES DEPOSITORY" means The Depository Trust Company, New York, New
York, and its successors and assigns.
"SERIES 2001 BONDS" means the Unified Government of Wyandotte
County/Kansas City, Kansas Taxable Industrial Revenue Bonds (EPA Laboratory
Project), Series 2001, dated the date of original issuance and delivery thereof,
in the aggregate principal amount of $22,075,000.
"SERIES 2001 CAPITALIZED INTEREST ACCOUNT" means the Series 2001
Capitalized Interest Account created within the Capitalized Interest Fund
pursuant to SECTION 601 of this Indenture.
"SERIES 2001 DEBT SERVICE ACCOUNT" means the Series 2001 Debt Service
Account created within the Debt Service Fund pursuant to SECTION 601 of this
Indenture.
"SERIES 2001 PROJECT ACCOUNT" means the Series 2001 Project Account
created within the Project Fund pursuant to SECTION 501 of this Indenture.
"SERIES 2001 PLACEMENT AGENT" means U.S. Bancorp Xxxxx Xxxxxxx, Inc.
"STATE" means the State of Kansas.
"SUBLEASE" means the US Government Lease for Real Property, Lease No.
GS-06P-00027, executed on December 8, 2000, as supplemented by Supplemental
Lease Agreement No. 1 executed on December 8, 2000 and any further supplements
and amendments thereto, whereby the Tenant subleases the Project to the
Subtenant.
"SUBTENANT" means the United States of America acting by and through the
General Services Administration for the benefit of the Environmental Protection
Agency, and its successors and assigns.
"SUPPLEMENTAL INDENTURE" means any indenture supplemental or amendatory to
this Indenture entered into by the Issuer and the Trustee pursuant to ARTICLE XI
of this Indenture.
"TAX AND INSURANCE FUND" has the meaning set forth in SECTION 601 of this
Indenture.
"TENANT" means Kansas EPA Laboratory, LLC, a Missouri limited liability
company, and its successors and assigns.
"TERM" means, collectively, the Basic Term and the Additional Term.
"TRUST ESTATE" has the meaning set forth in the Granting Clauses of this
Indenture.
"TRUSTEE" means Security Bank of Kansas City, in the City of Kansas City,
Kansas, in its capacity as bond registrar and trustee and its successor or
successors and any other corporation or association which at the time may be
substituted in its place pursuant to and at the time serving as Trustee under
this Indenture.
"VALUE" means:
(a) as to investments for which the bid and asked prices are
published on a regular basis in The Wall Street Journal (or, if not in The
Wall Street Journal, then in The New York Times), the average of the most
recently published bid and asked prices for such investments at the time
of determination;
(b) as to investments the bid and asked prices of which are not
published on a regular basis in The Wall Street Journal or The New York
Times, the average bid price at the time of determination for such
investments by any two nationally recognized government securities dealers
(selected by the Trustee in its absolute discretion) making a market in
such investments at the time or the bid price published by a nationally
recognized pricing service;
(c) as to certificates of deposit and bankers acceptances, the face
amount thereof, plus accrued interest; and
(d) as to any investment not specified above, the value thereof
established by prior agreement between the Issuer and the Trustee.
9
SECTION 102 RULES OF INTERPRETATION.
(a) Words of the masculine gender shall be deemed and construed to
include correlative words of the feminine and neuter genders. Unless the
context shall indicate otherwise, the words importing the singular number
shall include the plural and vice versa, and words importing persons shall
include firms, associations and corporations, including public bodies, as
well as natural persons.
(b) Wherever in this Indenture it is provided that either party
shall or will make any payment or perform or refrain from performing any
act or obligation, each such provision shall, even though not so
expressed, be construed as an express covenant to make such payment or to
perform, or not to perform, as the case may be, such act or obligation.
(c) All references in this instrument to designated "Articles,"
"Sections" and other subdivisions are, unless otherwise specified, to the
designated Articles, Sections and subdivisions of this instrument as
originally executed. The words "herein," "hereof," "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or subdivision.
(d) The Table of Contents and the Article and Section headings of
this Indenture shall not be treated as a part of this Indenture or as
affecting the true meaning of the provisions hereof.
ARTICLE II
THE BONDS
SECTION 201. TITLE AND AMOUNT OF BONDS. No Bonds may be issued under this
Indenture except in accordance with the provisions of this Article. The Bonds
authorized to be issued under this Indenture shall be issued in one or more
separate series, the first series of which shall be designated as "Unified
Government of Wyandotte County/Kansas City, Kansas Taxable Industrial Revenue
Bonds (EPA Laboratory Project), Series 2001," and any subsequent series of which
may contain such other appropriate particular designation added to or
incorporated in such title as the Issuer may determine. The total principal
amount of Bonds that may be issued hereunder is hereby expressly limited to the
$22,075,000 principal amount of Series 2001 Bonds and the permitted principal
amount of any Additional Bonds issued hereunder as set forth in the Supplemental
Indenture related thereto.
SECTION 202. LIMITED NATURE OF OBLIGATIONS.
(a) The Bonds and the interest thereon shall be limited obligations of the
Issuer payable solely and only from the Trust Estate, and are secured by a
pledge and assignment of the Trust Estate to the Trustee in favor of the Owners,
as provided in this Indenture. The Bonds and the interest thereon shall not be a
debt or general obligation of the Issuer or the State, or any municipal
corporation or political subdivision thereof, and neither the Bonds, the
interest thereon, nor any judgment thereon or with respect thereto, are payable
in any manner from tax revenues of any kind or character. The Bonds shall not
constitute an indebtedness or a pledge of the faith and credit of the Issuer,
the State or any municipal corporation or political subdivision thereof, within
the meaning of any constitutional or statutory limitation or restriction.
(b) No provision, covenant or agreement contained in this Indenture or the
Bonds, or any obligation herein or therein imposed upon the Issuer, or the
breach thereof, shall constitute or give rise to or impose upon the Issuer a
pecuniary liability or a charge upon its general credit or powers of taxation.
In making the agreements, provisions and covenants set forth in this Indenture,
the Issuer has not obligated itself except with respect to the Project and the
application of the payments, revenues and receipts therefrom as hereinabove
provided. Neither the officers of the Issuer nor any person executing the Bonds
shall be liable personally on the Bonds by reason of the issuance thereof.
SECTION 203. DENOMINATION, NUMBERING AND DATING OF BONDS.
(a) The Bonds shall be issuable in the form of fully registered Bonds in
the denomination of $100,000 or any integral multiple of $5,000 in excess
thereof not exceeding the principal amount of the Bonds maturing on any
Principal Payment Date. The Bonds shall be substantially in the forms set forth
in ARTICLE IV of this Indenture. The Bonds of each series of Bonds shall be
numbered in such manner as the Trustee shall determine.
(b) The Bonds of each series of Bonds shall be dated as provided in this
Indenture or the Supplemental Indenture authorizing the issuance of such series
of Bonds. The Bonds shall bear interest from their effective date of
registration. The effective date of registration shall be set forth on each such
Bond, such effective date of registration to be as of the Interest Payment Date
next preceding the date of authentication thereof by the Trustee, unless such
date of authentication shall be an Interest Payment Date, in which case the
effective date of registration shall be as of such date of authentication, or
unless the date of authentication shall be prior to the first Interest Payment
Date for such series of Bonds, in which case the effective date of registration
shall be either the dated date of such series of Bonds or the date such series
of Bonds is issued and delivered, as provided in SECTION 208(D) of this
Indenture or the Supplemental Indenture authorizing such series of Bonds;
provided, however, that if payment of the interest on any Bonds of any series
shall be in default at the time of authentication of any fully registered Bonds
issued in lieu of Bonds surrendered for transfer or exchange, the effective date
of registration shall be as of the date to which interest has been paid in full
on the Bonds surrendered.
SECTION 204. METHOD AND PLACE OF PAYMENT OF BONDS. Payment of the
principal and premium, if any, on the Bonds shall be made (a) by check or draft
upon the presentation and surrender of such Bonds as the same respectively
become due and payable at the principal
10
office of any Paying Agent named in the Bonds or (b) upon written request to the
Trustee of any Owner owning Bonds in an aggregate principal amount of at least
$500,000, by electronic transfer to a bank for credit to the account number
filed with the Trustee no later than the Business Day immediately preceding the
applicable Record Date (which request shall be signed by the Owner and shall
include the name of the bank, its address, its ABA routing number and the name,
phone number and contact name related to the Owner's account at such bank to
which the payment is to be credited). Payment of the interest on each Bond shall
be made by the Trustee on each Interest Payment Date to the person appearing as
the Owner thereof on the Bond Register by check or draft mailed to such Owner at
his address as it appears on such Bond Register as of the applicable Record
Date.
SECTION 205. EXECUTION AND AUTHENTICATION OF BONDS.
(a) The Bonds shall be executed on behalf of the Issuer by the manual or
facsimile signature of its Mayor/CEO and attested by the manual or facsimile
signature of its Unified Clerk, and shall have the corporate seal of the Issuer
affixed thereto or imprinted thereon. In case any officer whose signature or
facsimile thereof appears on any Bonds shall cease to be such officer before the
delivery of such Bonds, such signature or facsimile thereof shall nevertheless
be valid and sufficient for all purposes, the same as if such person had
remained in office until delivery. Any Bond may be signed by such persons as
shall be the proper officers to sign such Bond at the actual time of the
execution of such Bond although on the date of such Bond such persons may not
have been such officers.
(b) The Bonds shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in ARTICLE IV hereof, which shall be
manually executed by the Trustee. No Bond shall be entitled to any security or
benefit under this Indenture or shall be valid or obligatory for any purpose
unless and until such Certificate of Authentication shall have been duly
executed by the Trustee. Such executed Certificate of Authentication upon any
Bond shall be conclusive evidence that such Bond has been duly authenticated and
delivered under this Indenture. The Certificate of Authentication on any Bond
shall be deemed to have been duly executed if signed by any authorized officer
or employee of the Trustee, but it shall not be necessary that the same officer
or employee sign the Certificate of Authentication on all of the Bonds that may
be issued hereunder at any one time.
SECTION 206. REGISTRATION, TRANSFER AND EXCHANGE OF BONDS.
(a) The Trustee shall keep books for the registration and transfer of
Bonds as provided in this Indenture.
(b) Any Bond may be transferred or exchanged only upon the books
maintained by Trustee for the registration and transfer of Bonds upon surrender
thereof to the Trustee duly endorsed for transfer or accompanied by an
assignment duly executed by the Owner or his attorney or legal representative in
such form as shall be satisfactory to the Trustee. Upon any such transfer or
exchange, the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange for such Bond a new fully registered Bond or Bonds,
registered in the name of the transferee, of any denomination or denominations
authorized by this Indenture in an aggregate principal amount equal to the
principal amount of such Bond, of the same series and maturity and bearing
interest at the same rate.
(c) The Bonds and any interest in the Bonds shall be transferable only to
a "qualified institutional buyer" as defined in Rule 144A promulgated by the
SEC.
(d) In all cases in which Bonds shall be exchanged or transferred
hereunder, the Issuer shall execute and the Trustee shall authenticate and
deliver at the earliest practicable time new Bonds in accordance with the
provisions of this Indenture. All Bonds surrendered in any such exchange or
transfer shall forthwith be cancelled by the Trustee. The Trustee may make a
charge for every such exchange or transfer of Bonds sufficient to reimburse it
for any tax, fee or other governmental charge required to be paid with respect
to such exchange or transfer, and such charge shall be paid by the Owner before
a new Bond shall be delivered. The fees and charges of the Trustee for making
any transfer or exchange hereunder and the expense of any bond printing
necessary to effect such transfer or exchange shall be paid by the Tenant as
Additional Rent (as defined in the Lease). In the event any Owner fails to
provide a correct taxpayer identification number to the Trustee, the Trustee may
make a charge against such Owner sufficient to pay any governmental charge
required to paid as a result of such failure. In compliance with Section 3406 of
the Code, such amount may be deducted by the Trustee from amounts otherwise
payable to such Owner hereunder or under the Bonds. Neither the Issuer nor the
Trustee shall be required to make any exchange or transfer of Bonds (i) on or
after a Record Date and preceding the Payment Date immediately subsequent to
such Record Date or (ii) in the case of any proposed redemption of Bonds, during
the 15 days immediately preceding the selection of Bonds for such redemption or
after such Bonds or any portion thereof has been selected for redemption.
SECTION 207. PERSONS DEEMED OWNERS OF BONDS. The person in whose name any
Bond shall be registered as shown on the registration books required to be
maintained by the Trustee by this Section shall be deemed and regarded as the
absolute owner thereof for all purposes. Payment of, or on account of the
principal of and premium, if any, and, interest on any such Bond shall be made
only to or upon the order of the Owner thereof or his legal representative. All
such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond, including the interest thereon, to the extent of the
sum or sums so paid.
SECTION 208. AUTHORIZATION OF SERIES 2001 BONDS.
(a) There shall be initially issued and secured pursuant to this Indenture
a series of Bonds in the aggregate principal amount of $22,075,000 for the
purpose of providing funds to pay Costs of Issuance and Project Costs, which
Bonds shall be designated as provided in SECTION 201 hereof.
11
The Series 2001 Bonds shall be dated February 1, 2001, shall become due
(subject to prior redemption as hereinafter provided in ARTICLE III) and shall
bear interest from the dated date or the Interest Payment Date to which interest
has been paid at the rates as follows:
TERM BONDS
$680,000 6.750% TERM BONDS MATURING OCTOBER 1, 2005
$1,720,000 7.000% TERM BONDS MATURING OCTOBER 1, 2009
$6,690,000 7.410% TERM BONDS MATURING OCTOBER 1, 2016
$12,985,000 7.650% TERM BONDS MATURING OCTOBER 1, 2022
(b) Interest on the Series 2001 Bonds shall be payable to the Owners
thereof in accordance with the provisions of SECTION 204 hereof.
(c) The Trustee is hereby designated as the Issuer's Paying Agent for the
payment of the principal of, premium, if any, and interest on the Series 2001
Bonds.
(d) Upon the original issuance and delivery of the Series 2001 Bonds, the
effective date of registration of the Series 2001 Bonds shall be February 1,
2001.
(e) The Series 2001 Bonds shall be substantially in the form and manner
set forth in ARTICLE IV hereof and delivered to the Trustee for authentication,
but prior to or simultaneously with the authentication and delivery of the
Series 2001 Bonds by the Trustee, there shall be filed with the Trustee the
following:
(i) an original or certified copy of the Ordinance adopted by
Issuer's governing body authorizing the issuance of the Bonds and the
execution of this Indenture and the Lease;
(ii) an original executed counterpart of this Indenture;
(iii) an original executed counterpart of the Lease;
(iv) an original executed counterpart of the Sublease;
(v) an opinion or opinions of Bond Counsel to the effect that the
Series 2001 Bonds constitute valid and legally binding obligations of the
Issuer and that the interest on the Bonds is exempt from Kansas income
taxation, subject to such limitations and restrictions as shall be
described therein;
(vi) a request and authorization to the Trustee on behalf of the
Issuer to authenticate the Bonds and to deliver the Bonds to the Series
2001 Placement Agent upon payment to the Trustee, for the account of the
Issuer, of the purchase price thereof (and the Trustee shall be entitled
to conclusively rely upon such request and authorization as to the amount
of such purchase price); and
(vii) such other certificates, statements, receipts and documents as
the Trustee or Bond Counsel shall reasonably require for the delivery of
the Series 2001 Bonds.
(f) When the documents specified in subsection (e) of this Section shall
have been filed with the Trustee, and when the Series 2001 Bonds shall have been
executed and authenticated as required by this Indenture, the Trustee shall
deliver the Series 2001 Bonds to or upon the order of the Series 2001 Placement
Agent, but only upon payment to the Trustee of the purchase price of the Series
2001 Bonds. The proceeds of the sale of the Series 2001 Bonds, including accrued
interest and premium thereon, if any, shall be immediately paid over to the
Trustee, and the Trustee shall deposit and apply such proceeds as provided in
ARTICLE V hereof.
SECTION 209. AUTHORIZATION OF ADDITIONAL BONDS.
(a) Additional Bonds may be issued under and equally and ratably secured
by this Indenture on a parity with the Series 2001 Bonds and any other
Additional Bonds Outstanding at any time and from time to time, upon compliance
with the conditions hereinafter provided in this Section, for any of the
following purposes:
(i) to provide funds to pay the costs of completing the construction
of the Project, the total of such costs to be evidenced by a certificate
signed by the Authorized Tenant Representative and the Project Consultant;
12
(ii) to provide funds to pay all or any part of the costs of
purchase, construction or installation of Project Additions as the Tenant
may deem necessary or desirable, provided that such Project Additions
shall not impair the nature of the Project as a "facility" within the
meaning and purposes of the Act; or
(iii) to provide funds for refunding all or any part of the Bonds of
any series then Outstanding, including the payment of any premium thereon
and interest to accrue to the designated redemption date and any expenses
in connection with such refunding.
(b) Before any Additional Bonds shall be issued under the provisions of
this Section, (i) Moody's shall reaffirm the then current rating of the Series
2001 Bonds and shall issue an equivalent rating for the Additional Bonds;
provided, however, such rating shall not be required if the purpose of the
issuance of the Additional Bonds is to provide funds for refunding all of the
Bonds of any series then Outstanding, and (ii) the Issuer's governing body shall
adopt an Ordinance (A) authorizing the issuance of such Additional Bonds, fixing
the amount and terms thereof and describing the purpose or purposes for which
such Additional Bonds are being issued or describing the Bonds to be refunded,
(B) authorizing the Issuer to enter into a Supplemental Indenture for the
purpose of providing for the issuance of and securing such Additional Bonds and,
(C) if required, authorizing the Issuer to enter into a supplemental lease with
the Tenant to provide for rental payments at least sufficient to pay the
principal of, premium, if any, and interest on the Bonds then to be Outstanding
(including the Additional Bonds to be issued) as the same become due for
completing the Project, for the purchase, construction and installation of the
Project Additions, and for such other matters as are appropriate because of the
issuance of the Additional Bonds proposed to be issued so long as such matters,
in the judgment of the Issuer, are not to the prejudice of the Issuer or the
Owners. If required by the Series 2001 Placement Agent and the Owners of not
less than a majority in aggregate principal amount of Bonds then Outstanding,
the Supplemental Indenture providing for the issuance of and securing such
Additional Bonds shall require the establishment of an additional reserve fund
to be fully funded at the time of issuance of the Additional Bonds in an amount
not to exceed the least of (1) 10% of the stated principal amount of the
Additional Bonds (or the offering price thereof if the aggregate initial
offering price of the Additional Bonds to the public is less than 98% or more
than 102% of par in lieu of the stated principal amount), (2) the maximum annual
principal and interest requirements on the Additional Bonds (determined as of
the issue date), or (3) 125% of the average annual principal and interest
requirements on the Additional Bonds (determined as of the issue date of the
Additional Bonds).
(c) Such Additional Bonds shall have the same designation as the Series
2001 Bonds, except for an identifying series letter or date and the addition of
the word "Refunding" when applicable, shall be dated, shall be stated to mature
on Payment Dates in a specified year or years, shall bear interest at a
specified rate or rates not exceeding the maximum rate then permitted by law,
and shall be redeemable at specified times and prices (subject to the provisions
of ARTICLE III of this Indenture), all as may be provided by the Supplemental
Indenture authorizing the issuance of such Additional Bonds. Except as to any
difference in the date, the maturity or maturities, the rate or rates of
interest or the provisions for redemption, such Additional Bonds shall be on a
parity with and shall be entitled to the same benefit and security of this
Indenture as the Series 2001 Bonds and any other Additional Bonds Outstanding at
the time of the issuance of such Additional Bonds.
(d) Such Additional Bonds shall be substantially in the form and executed
in the manner set forth in this Article and ARTICLE IV hereof and shall be
deposited with the Trustee for authentication, but prior to or simultaneously
with the authentication and delivery of such Additional Bonds by the Trustee,
there shall be filed with the Trustee the following:
(i) an original or certified copy of the Ordinance adopted by
Issuer's governing body authorizing the issuance of such Additional Bonds
and the execution of such Supplemental Indenture and the appropriate
amendments or supplements to the Lease;
(ii) an original executed counterpart of the Supplemental Indenture
providing for the issuance of the Additional Bonds;
(iii) an original executed counterpart of the amendment or
supplement to the Lease, if required;
(iv) an original executed counterpart of the amendment or supplement
to the Sublease, if required;
(v) an opinion of Bond Counsel to the effect that the issuance of
such Additional Bonds are permitted under the Indenture and that the
Additional Bonds constitute valid and legally binding obligations of the
Issuer;
(vi) a request and authorization to the Trustee on behalf of the
Issuer to authenticate the Additional Bonds and to deliver such Additional
Bonds to the purchasers therein identified upon payment to the Trustee,
for account of the Issuer, of the purchase price thereof (and the Trustee
shall be entitled to conclusively rely upon such request and authorization
as to the names of the purchasers and the amount of such purchase price);
(vii) in the case of Additional Bonds being issued to refund
Outstanding Bonds, such additional documents as shall be reasonably
required by the Trustee to establish that provision has been duly made for
the payment of all of the Bonds to be refunded in accordance with the
provisions of ARTICLE XIII of this Indenture;
(viii) deposit of the amount of funds, if any, required by
subsection (b) of this Section in a reserve fund for such Additional
Bonds;
(ix) such other certificates, statements, receipts and documents as
the Trustee or Bond Counsel shall reasonably require for the delivery of
such Additional Bonds; and
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(x) delivery of rating letters from Moody's confirming the rating on
the Series 2001 Bonds and issuing an equivalent rating for the Additional
Bonds.
(e) When the documents listed in subsection (d) of this Section shall have
been filed with the Trustee with respect to an issuance of Additional Bonds, and
when such Additional Bonds shall have been executed and authenticated as
required by this Indenture, the Trustee shall deliver such Additional Bonds to
or upon the order of the original purchasers thereof, but only upon payment to
the Trustee of the purchase price of such Additional Bonds. The proceeds of the
sale of such Additional Bonds (except Additional Bonds issued to refund
Outstanding Bonds), including accrued interest and premium thereon, if any,
shall be immediately paid over to the Trustee and shall be deposited and applied
by the Trustee as provided in ARTICLE V hereof and in the Supplemental Indenture
authorizing the issuance of such Additional Bonds. The proceeds (excluding
accrued interest and premium, if any, which shall be deposited in the applicable
account within the Debt Service Fund) of all Additional Bonds issued to refund
Outstanding Bonds shall be deposited by the Trustee, after payment or making
provision for payment of all expenses incident to such financing, to the credit
of a special trust fund, appropriately designated, to be held in trust for the
sole and exclusive purpose of paying the principal of, premium, if any, and
interest on the Bonds to be refunded, as provided in SECTION 1302 hereof and in
the Supplemental Indenture authorizing the issuance of such refunding Bonds.
(f) Except as provided in this Section, the Issuer will not otherwise
issue any obligations ratably secured and on a parity with the Series 2001
Bonds, but the Issuer may issue other obligations specifically subordinate and
junior to the Series 2001 Bonds with the express written consent of the Owners
of not less than a majority in aggregate principal amount of Bonds then
Outstanding.
SECTION 210. TEMPORARY BONDS.
(a) Until definitive Bonds of any series are available for delivery, the
Issuer may execute, and upon request of the Issuer the Trustee shall
authenticate and deliver, in lieu of definitive Bonds, but subject to the same
limitations and conditions as definitive Bonds, temporary printed, engraved,
lithographed or typewritten Bonds, in the form of fully registered Bonds in
denominations of $5,000 or any integral multiple thereof, substantially of the
tenor hereinabove set forth and with such appropriate omissions, insertions and
variations as may be required with respect to such temporary Bonds.
(b) If temporary Bonds shall be issued, the Issuer shall cause the
definitive Bonds to be prepared and to be executed and delivered to the Trustee,
and the Trustee, upon presentation to it at its principal office of any
temporary Bond shall cancel the same and authenticate and deliver in exchange
therefor, without charge to the Owner thereof, a definitive Bond or Bonds of an
equal aggregate principal amount, of the same series and maturity and bearing
interest at the same rate as the temporary Bond surrendered. Until so exchanged
the temporary Bonds shall in all respects be entitled to the same benefit and
security of this Indenture as the definitive Bonds to be issued and
authenticated hereunder.
SECTION 211. MUTILATED, LOST, STOLEN OR DESTROYED BONDS. In the event any
Bond shall become mutilated, or be lost, stolen or destroyed, the Issuer shall
execute and the Trustee shall authenticate and deliver a new Bond of like
series, date and tenor as the Bond mutilated, lost, stolen or destroyed;
provided, however, that in the case of any mutilated Bond, such mutilated Bond
shall first be surrendered to the Trustee, and in the case of any lost, stolen
or destroyed Bond, there shall be first furnished to the Issuer and the Trustee
evidence of such loss, theft or destruction satisfactory to the Issuer and the
Trustee, together with indemnity satisfactory to them. In the event any such
Bond shall have matured, instead of issuing a substitute Bond the Issuer may pay
or authorize the payment of the same without surrender thereof. Upon the
issuance of any substitute Bond, the Issuer and the Trustee may require the
payment of an amount sufficient to reimburse the Issuer and the Trustee for any
tax or other governmental charge that may be imposed in relation thereto and any
other reasonable fees and expenses incurred in connection therewith.
SECTION 212. CANCELLATION AND DESTRUCTION OF BONDS UPON PAYMENT.
(a) All Bonds which have been paid or redeemed or which the Trustee has
purchased or which have otherwise been surrendered to the Trustee under this
Indenture, either at or before maturity, shall be cancelled by the Trustee
immediately upon the payment, redemption or purchase of such Bonds and the
surrender thereof to the Trustee.
(b) All Bonds cancelled under any of the provisions of this Indenture
shall be delivered by the Trustee to the Issuer, or, upon request of the Issuer,
shall be destroyed by the Trustee. The Trustee shall execute a certificate in
triplicate describing the Bonds so delivered or destroyed, and shall file
executed counterparts of such certificate with the Issuer and the Tenant.
SECTION 213. BOOK-ENTRY; SECURITIES DEPOSITORY.
(a) The Bonds shall initially be registered to Cede & Co., the nominee for
the Securities Depository, and no beneficial owner will receive certificates
representing their respective interests in the Bonds, except in the event the
Trustee issues Replacement Bonds as provided in subsection (b). It is
anticipated that during the term of the Bonds, the Securities Depository will
make book-entry transfers among its Participants and receive and transmit
payment of principal of, premium, if any, and interest on, the Bonds to the
Participants until and unless the Trustee authenticates and delivers Replacement
Bonds to the beneficial owners as described in subsection (b).
(b) (i) If the Issuer determines that (A) the Securities Depository is unable to
properly discharge its responsibilities, (B) the Securities Depository is no
longer qualified to act as a securities depository and registered clearing
agency under the Securities Exchange Act of 1934, as amended, or (C) the
continuation of a book-entry system to the exclusion of any Bonds being issued
to any Owner other than Cede & Co. is no longer in the best interests of the
beneficial owners of the Bonds, or (ii) if the Trustee receives written notice
from Participants having
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interests in not less than 50% of the Bonds Outstanding, as shown on the records
of the Securities Depository (and certified to such effect by the Securities
Depository), that the continuation of a book-entry system to the exclusion of
any Bonds being issued to any Owner other than Cede & Co. is no longer in the
best interests of the beneficial owners of the Bonds, then the Trustee shall
notify the Owner of such determination or such notice and of the availability of
certificates to beneficial owners requesting the same, and the Trustee shall
register in the name of and authenticate and deliver Replacement Bonds to the
beneficial owners or their nominees in principal amounts representing the
interest of each, making such adjustments as it may find necessary or
appropriate as to accrued interest and previous calls for redemption; provided,
however, that in the case of a determination under (i)(A) or (i)(B) of this
subsection, the Issuer, with the consent of the Trustee, may select a successor
securities depository in accordance with subsection (c) to effect book-entry
transfers. In the event Replacement Bonds are issued, all references to the
Securities Depository herein shall relate to the period of time when the
Securities Depository is the Owner of at least one Bond. Upon the issuance of
Replacement Bonds, all references herein to obligations imposed upon or to be
performed by the Securities Depository shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Replacement Bonds. If the Securities Depository resigns and the Issuer is unable
to locate a qualified successor of the Securities Depository in accordance with
subsection (c), then the Trustee shall authenticate and cause delivery of
Replacement Bonds to the beneficial owners, as provided in this Indenture. The
Trustee may rely on information from the Securities Depository and its
Participants as to the names and addresses of, and the principal amounts held
by, the beneficial owners of the Bonds. The cost of printing Replacement Bonds
shall be paid for by the Tenant.
(c) In the event the Securities Depository resigns, or the Issuer
determines that the Securities Depository is unable to properly discharge its
responsibilities or is no longer qualified to act as a securities depository and
registered clearing agency under the Securities Exchange Act of 1934, as
amended, the Issuer may appoint a successor Securities Depository provided the
Trustee receives written evidence satisfactory to the Trustee with respect to
the ability of the successor Securities Depository to discharge its
responsibilities. Any such successor Securities Depository shall be a securities
depository which is a registered clearing agency under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation that operates
a securities depository upon reasonable and customary terms. The Trustee upon
its receipt of a Bond or Bonds for cancellation shall cause the delivery of
Bonds to the successor Securities Depository in appropriate denominations and
form as provided herein.
ARTICLE III
REDEMPTION OF BONDS
SECTION 301. REDEMPTION OF BONDS GENERALLY. The Bonds shall be subject to
redemption prior to maturity in accordance with the terms and provisions of this
Article. Additional Bonds shall be subject to redemption prior to maturity in
accordance with the terms and provisions contained in this Article and as may be
specified in the Supplemental Indenture authorizing such Additional Bonds;
provided, however, that no provision shall be made with respect to the
redemption of any Additional Bonds which would result in, or constitute the
creation of, a preference or priority of such Additional Bonds over the Series
2001 Bonds.
SECTION 302. REDEMPTION OF BONDS. The Bonds shall be subject to redemption
as follows:
(a) MANDATORY REDEMPTION FROM MONEYS REMAINING IN PROJECT FUND. The
Bonds are subject to mandatory redemption prior to the stated maturity
thereof, on any date, using any balance remaining in the Project Fund,
including any amounts transferred to the Project Fund from the Capitalized
Interest Fund pursuant to SECTION 606(C) hereof, which is transferred to
the Debt Service Fund upon completion of the Project and payment of all
Project Costs as provided in SECTION 504 of this Indenture. The Bonds
redeemed using such funds will be redeemed in inverse order of maturity,
or in such other order of maturity as selected by the Tenant, at a
redemption price equal to 100% of the principal amount thereof, plus
accrued interest thereon to the redemption date, without premium.
(b) EXTRAORDINARY OPTIONAL REDEMPTION. In the event of a Change of
Circumstances, the Bonds shall be subject to redemption and payment prior
to the stated maturity thereof, at the option of the Issuer, upon
instructions from the Tenant, at any time at a redemption price equal to
the principal amount thereof, plus accrued interest thereon to the
redemption date, without premium, provided all of the Bonds are so
redeemed and paid according to their terms.
(c) MANDATORY SINKING FUND REDEMPTION. The Series 2001 Bonds are
subject to mandatory redemption and payment prior to maturity pursuant to
the mandatory redemption requirements of this Section on October 1 in each
of the years set forth below, at a redemption price equal to the principal
amount thereof plus accrued interest thereon to the redemption date,
without premium.
TERM BONDS MATURING OCTOBER 1, 2005
YEAR PRINCIPAL AMOUNT
---- ----------------
2003 $150,000
2004 255,000
2005* 275,000
------------------------------
*Maturity Date
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TERM BONDS MATURING OCTOBER 1, 2009
YEAR PRINCIPAL AMOUNT
---- ----------------
2006 $ 300,000
2007 320,000
2008 530,000
2009* 570,000
TERM BONDS MATURING OCTOBER 1, 2016
YEAR PRINCIPAL AMOUNT
---- ----------------
2010 $ 615,000
2011 665,000
2012 715,000
2013 1,045,000
2014 1,125,000
2015 1,215,000
2016* 1,310,000
TERM BONDS MATURING OCTOBER 1, 2022
YEAR PRINCIPAL AMOUNT
---- ----------------
2017 $1,410,000
2018 1,975,000
2019 2,135,000
2020 2,300,000
2021 2,485,000
2022* 2,680,000
------------------------------
*Maturity Date
(d) OPTIONAL REDEMPTION. The Series 2001 Bonds or portions thereof
maturing in the years 2016 and 2022 shall be subject to redemption and
payment prior to maturity on or after October 1, 2010, at the option of
the Issuer, upon instructions from the Tenant, as a whole at any time, or
in part on any Interest Payment Date, at the following redemption prices
(expressed as percentages of the principal amount thereof), plus accrued
interest to the redemption date:
Redemption Period Price
----------------- -----
October 1, 2010 through September 30, 2011 102%
October 1, 2011 through September 30, 2012 101
October 1, 2012 and thereafter 100
SECTION 303. SELECTION OF BONDS TO BE REDEEMED.
(a) Bonds shall be redeemed only in the principal amount of $5,000 or
integral multiples thereof. If less than all of the Outstanding Bonds of any
series are to be redeemed and paid prior to maturity, such Bonds shall be
redeemed from maturities selected by the Issuer, upon instructions from the
Tenant, and by lot within maturities, with Bonds of less than a full maturity to
be selected by the Trustee in such equitable manner as it may determine.
(b) In the case of a partial redemption of Bonds by lot when Bonds of
denominations greater than $5,000 are then Outstanding, then for all purposes in
connection with such redemption each $5,000 of face value shall be treated as
though it was a separate Bond of the denomination of $5,000. If it is determined
that one or more, but not all, of the $5,000 units of face value represented by
any fully registered Bond is selected for redemption, then the Owner of such
Bond or his attorney or legal representative shall forthwith present and
surrender such Bond to the Trustee (i) for payment of the redemption price
(including the premium, if any, and interest to the redemption date) of the
$5,000 unit or units of face value called for redemption, and (ii) for exchange,
without charge to the Owner thereof, for a new Bond or Bonds of the aggregate
principal amount of the unredeemed portion of the principal amount of such Bond.
If the Owner of any such Bond of a denomination greater than $5,000 shall fail
to present such Bond to the Trustee for payment and exchange as aforesaid, such
Bond shall, nevertheless, become due and payable on the redemption date to the
extent of the principal amount thereof called for redemption (and to that extent
only).
SECTION 304. TRUSTEE'S DUTY TO REDEEM BONDS. The Trustee shall call Bonds
for redemption and payment as herein provided and shall give notice of
redemption as provided in SECTION 305 hereof (a) with respect to mandatory
redemptions contemplated by SECTION 302(A), and SECTION 302(C) hereof, on its
own accord and without receiving a request by the Issuer therefor, and (b) with
respect to optional redemptions contemplated by SECTION 302(B) and SECTION
302(D) hereof, upon receipt by the Trustee of a written request of the Issuer,
together with the consent or request of the Tenant, if such consent or request
is required, at least 45 days prior to the redemption date. If the consent or
request of the Tenant is required pursuant to the provisions of this Indenture,
such request shall specify the principal amount and the respective maturities of
the Bonds to be called for redemption, the applicable redemption price or prices
and the provision or provisions of this Indenture pursuant to which such Bonds
are to be called for redemption.
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SECTION 305. NOTICE AND EFFECT OF CALL FOR REDEMPTION.
(a) Official notice of any redemption shall be given by the Trustee on
behalf of the Issuer by mailing a copy of an official redemption notice by first
class mail to each of the Owners of the Bonds to be redeemed at least 30 days
prior to the date fixed for redemption, unless such notice is waived by any such
Owner, at the address shown on the Bond Register for such Owner as of the date
of such notice.
(b) All official notices of redemption shall be dated and shall state:
(i) the complete official caption, including series, of the issue of
which the Bonds being redeemed are a part;
(ii) the date of mailing of the notice of redemption;
(iii) the date fixed for redemption;
(iv) the redemption price or prices;
(v) with respect to the redemption of the Bonds in part, the numbers
of the Bonds to be redeemed, by giving the individual certificate number
of each Bond to be redeemed (or stating that all Bonds between two stated
certificate numbers, both inclusive, are to be redeemed or that all of the
Bonds of one or more maturities have been called for redemption);
(vi) the CUSIP numbers of all Bonds being redeemed (which may be
accompanied by a disclaimer as to the accuracy of the CUSIP numbers);
(vii) in the case of a partial redemption of Bonds, the principal
amount and maturity date of each Bond being redeemed;
(viii) the date of issue of the Bonds as originally issued;
(ix) the rate or rates of interest borne by each Bond being
redeemed;
(x) the maturity date of each Bond being redeemed; and
(xi) the place or places where amounts due upon such redemption will
be payable.
(c) Prior to any redemption date, funds shall be on deposit with the
Trustee which are sufficient to pay the redemption price of all the Bonds or
portions of Bonds that are to be redeemed on that date, in addition to any
amounts therein required for regularly scheduled payments of principal and
interest on the Bonds.
(d) Once official notice of redemption has been given as provided in this
Section, the Bonds or portions of Bonds to be so redeemed shall, on the
redemption date, become due and payable at the redemption price specified in
such notice, and from and after such date (unless the Issuer shall default in
the payment of the redemption price) such Bonds or portion of Bonds shall cease
to bear interest. Upon surrender of such Bonds for redemption in accordance with
such notice, such Bonds shall be paid by the Trustee at the redemption price.
Installments of interest due on or prior to the redemption date shall be payable
as herein provided for payment of interest. Upon surrender for any partial
redemption of any Bond, there shall be prepared for the Owner a new Bond or
Bonds of the same maturity in the amount of the unpaid principal. All Bonds
which have been redeemed shall be cancelled and destroyed by the Trustee and
shall not be reissued.
(e) In addition to the foregoing notice, the Trustee shall give such
additional notice and take such additional actions as are necessary to comply
with any mandatory or voluntary standards then in effect for processing
redemptions of municipal securities established by the Securities and Exchange
Commission.
(f) Upon the happening of the conditions set forth in this Section, and
notice having been given as provided in this Section, the Bonds or the portions
of the principal amount of Bonds thus called for redemption shall no longer be
entitled to the protection, benefit or security of this Indenture and shall not
be deemed to be Outstanding under the provisions of this Indenture.
(g) Any defect in any notice or the failure of any parties to receive any
notice of redemption shall not cause any Bond called for redemption to remain
Outstanding.
(h) For so long as the Securities Depository is effecting book-entry
transfers of the Bonds, the Trustee shall provide the notices specified in this
SECTION 305 to the Securities Depository. It is expected that the Securities
Depository shall, in turn, notify its Participants and that the Participants, in
turn, will notify or cause to be notified the beneficial owners of the Bonds.
Any failure on the part of the Securities Depository or a Participant, or
failure on the part of a nominee of a beneficial owner of a Bond (having been
mailed notice from the Trustee, a Participant or otherwise) to notify the
beneficial owner of the Bond so affected, shall not affect the validity of the
redemption of such Bond.
17
SECTION 306. EFFECT OF CALL FOR REDEMPTION. Prior to the date fixed for
redemption, funds or Government Obligations maturing on or before the date fixed
for redemption shall be deposited with the Trustee in amounts sufficient to
provide for payment of the Bonds called for redemption, accrued interest thereon
to the redemption date and the redemption premium, if any. After the deposit of
such funds or Government Obligations, and notice having been given as provided
in SECTION 305 hereof, the Bonds or the portions of the principal amount of
Bonds thus called for redemption shall cease to bear interest on the specified
redemption date, and shall no longer be entitled to the protection, benefit or
security of this Indenture and shall not be deemed to be Outstanding under the
provisions of this Indenture.
ARTICLE IV
FORM OF BONDS
SECTION 401. FORM OF BONDS GENERALLY. The Series 2001 Bonds, and the
Trustee's Certificate of Authentication to be endorsed thereon shall be,
respectively, in substantially the forms described in SECTION 402 hereof. Any
Additional Bonds, and the Trustee's Certificate of Authentication to be endorsed
thereon shall also be in substantially such forms, with such necessary or
appropriate variations, omissions and insertions as are permitted or required by
this Indenture or any Supplemental Indenture. The Bonds may have endorsed
thereon such legends or text as may be necessary or appropriate to conform to
any applicable rules and regulations of any governmental authority or any
custom, usage or requirement of law with respect thereto.
SECTION 402. FORM OF SERIES 2001 BONDS. The forms of the Series 2001 Bonds
and the Trustee's Certificate of Authentication to be endorsed thereon are
attached hereto as APPENDIX A.
ARTICLE V
CREATION OF PROJECT FUND;
CUSTODY AND APPLICATION OF BOND PROCEEDS
SECTION 501. CREATION OF PROJECT FUND. There is hereby created and ordered
to be established in the custody of the Trustee a special trust fund in the name
of the Issuer to be designated the "Unified Government of Wyandotte
County/Kansas City, Kansas, Project Fund (EPA Laboratory Project)" (the "Project
Fund"). The Trustee is authorized and directed to (a) establish a separate
account within the Project Fund with respect to the Series 2001 Bonds, to be
designated as the "Series 2001 Project Account," and (b) establish a separate
account within the Project Fund with respect to each series of Additional Bonds
as provided in the applicable Supplemental Indenture.
SECTION 502. DEPOSITS INTO THE PROJECT FUND. The following funds shall be
paid over to the Trustee, and the Trustee shall deposit such funds into the
applicable account within the Project Fund, as and when received:
(a) the proceeds from the sale of the Series 2001 Bonds, excluding
such amounts thereof required to be paid into the Series 2001 Debt Service
Account pursuant to SECTION 603 hereof and the Series 2001 Capitalized
Interest Account pursuant to SECTION 606 hereof,
(b) the proceeds from the sale of the Additional Bonds (except
Additional Bonds issued to refund Outstanding Bonds), excluding such
amounts thereof required to be paid into the applicable account within the
Debt Service Fund pursuant to SECTION 603 hereof and the applicable
account within the Capitalized Interest Fund pursuant to SECTION 606
hereof,
(c) the earnings accrued on the investment of moneys in the Project
Fund and required to be deposited into the Project Fund pursuant to
SECTION 702 hereof,
(d) any and all payments from any contractors or other suppliers by
way of breach of contract, refunds or adjustments required to be deposited
into the Project Fund pursuant to the Lease;
(e) moneys required to be transferred to the Project Fund from the
Capitalized Interest Fund pursuant to Section 606 hereof, and
(f) except as otherwise provided herein or in the Lease, any other
money received by or to be paid to the Trustee from any other source for
the purchase or construction of the Project, when accompanied by
directions by the Tenant that such moneys are to be deposited into the
Project Fund.
SECTION 503. DISBURSEMENTS FROM THE PROJECT FUND.
(a) The moneys in the Project Fund and the accounts contained therein
shall be disbursed by the Trustee for the payment of Project Costs in accordance
with the provisions of ARTICLE IV of the Lease, and the Trustee hereby covenants
and agrees to disburse such moneys in accordance with such provisions; provided,
however, that disbursements from the Project Fund to pay Costs of Issuance and
Project Costs not part of the construction contract need not be signed by Xxxx
Construction, L.P. or the Project Consultant. If the Issuer so requests, a copy
of each requisition certificate submitted to the Trustee for payment under this
Section shall be promptly provided by the Trustee to the Issuer.
18
(b) The Trustee shall keep and maintain adequate records pertaining to the
Project Fund, all accounts within the Project Fund, and all disbursements
therefrom, and after the Project has been completed and a certificate of payment
of all costs filed as provided in SECTION 504 hereof, the Trustee shall file a
statement of receipts and disbursements with respect thereto with the Issuer and
the Tenant.
SECTION 504. DISPOSITION UPON COMPLETION OF THE PROJECT. The completion of
the Project and payment of all costs and expenses incident thereto shall be
evidenced by the filing with the Trustee by the Tenant of the "Certificate of
Completion" required by SECTION 4.7 of the Lease. As soon as practicable
following receipt by the Trustee of such Certificate of Completion and
completion by the Trustee of the determinations and transfers required by
SECTION 606(C) hereof, (a) any balance remaining in the Series 2001 Project
Account shall without further authorization be deposited in the Series 2001 Debt
Service Account and applied by the Trustee solely to the payment of principal of
the Series 2001 Bonds through the payment or redemption thereof on any
redemption date specified in SECTION 302(A) hereof or as otherwise permissible
in the opinion of Bond Counsel, and (b) any balance remaining in any other
account of the Project Fund established with respect to a particular series of
Additional Bonds shall without further authorization be deposited in the account
within the Debt Service Fund established with respect to such series of
Additional Bonds and shall be applied by the Trustee solely to the payment of
principal of such series of Additional Bonds through the payment or redemption
thereof on any redemption date specified in SECTION 302(A) hereof or as
otherwise permissible in the opinion of Bond Counsel.
SECTION 505. DISPOSITION UPON ACCELERATION. If the principal of the Bonds
shall have become due and payable pursuant to SECTION 901 of this Indenture,
upon the date of payment by the Trustee of any moneys due as hereinafter
provided in ARTICLE IX hereof, any balance remaining in any account within the
Project Fund shall, without further authorization, be deposited in the
corresponding account within the Debt Service Fund by the Trustee.
ARTICLE VI
REVENUES AND FUNDS
SECTION 601. CREATION OF FUNDS AND ACCOUNTS. In addition to the Project
Fund created pursuant to SECTION 501 of this Indenture, there are hereby created
and ordered to be established in the custody of the Trustee the following
special trust funds in the name of the Issuer to be designated as follows:
(a) "Unified Government of Wyandotte County/Kansas City, Kansas,
Debt Service Fund (EPA Laboratory Project)" (the "Debt Service Fund");
(b) "Unified Government of Wyandotte County/Kansas City, Kansas,
Project Replacement Fund (EPA Laboratory Project)" (the "Project
Replacement Fund");
(c) "Unified Government of Wyandotte County/Kansas City, Kansas,
Capitalized Interest Fund (EPA Laboratory Project)" (the "Capitalized
Interest Fund");
(d) "Unified Government of Wyandotte County/Kansas City, Kansas,
Revenue Fund (EPA Laboratory Project)" (the "Revenue Fund");
(e) "Unified Government of Wyandotte County/Kansas City, Kansas, Tax
and Insurance Fund (EPA Laboratory Project)" (the "Tax and Insurance
Fund"); and
(f) "Unified Government of Wyandotte County/Kansas City, Kansas,
Project Operation and Maintenance Fund (EPA Laboratory Project)" (the
"Project Operation and Maintenance Fund").
The Trustee is authorized and directed to (i) establish a separate account
within the funds set forth in subsections (a) and (c) above with respect to the
Series 2001 Bonds, to be designated as the "Series 2001 Debt Service Account"
and the "Series 2001 Capitalized Interest Account" respectively, and (ii)
establish a separate account within each such fund with respect to each series
of Additional Bonds as provided in the Supplemental Indenture relating thereto.
SECTION 602. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE REVENUE FUND
Any moneys received from the Tenant or Subtenant shall be deposited in the
Revenue Fund in accordance with SECTION 10.7(G) of the Lease. Moneys in the
Revenue Fund shall be applied by the Trustee no later than the 15th day of each
month in the following order or priority:
FIRST: To the Tax and Insurance Fund in an amount equal to
(1)/12th of the estimated annual real estate taxes and
assessments and insurance for the Project as set forth in the
Annual Budget.
SECOND: To the Debt Service Fund in an amount equal to the
monthly lease payment due from the Tenant pursuant to SECTION
5.1 of the Lease relating to the Bonds, and to make up any
deficiencies in the Debt Service Fund related to any Bonds.
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THIRD: To the Project Operation and Maintenance Fund an amount
sufficient to fund the Project Operation and Maintenance Fund
at the Project Operation and Maintenance Fund Requirement.
FOURTH: Paid to the Tenant.
Any balance remaining in the Revenue Fund after the Bonds have been paid
or payment thereof has been provided for shall be paid to the Tenant.
SECTION 603. DEPOSITS INTO THE DEBT SERVICE FUND. The Trustee shall
deposit into the applicable account within the Debt Service Fund, as and when
received, the following:
(a) all accrued interest on the Bonds and premium, if any, paid by
the Series 2001 Placement Agent and any original purchaser of Additional
Bonds;
(b) if required by a Supplemental Indenture authorizing the issuance
of Additional Bonds, an additional amount from the proceeds of such
Additional Bonds, such additional amount not to exceed the sum which, when
added to the accrued interest and premium, if any, received from the sale
of such Additional Bonds, will be sufficient to pay the interest accruing
on such Additional Bonds during the estimated period of construction of
the Project Additions financed through the issuance of such Additional
Bonds;
(c) all funds transferred from the Revenue Fund;
(d) any amount in the Project Fund to be transferred to an account
within the Debt Service Fund pursuant to SECTION 504 hereof upon
completion of construction of the Project and any amount remaining in the
Project Fund to be transferred to any account within the Debt Service Fund
pursuant to SECTION 505 hereof upon acceleration of the maturity of the
Bonds;
(e) all interest and other income derived from investments of Debt
Service Fund moneys as provided in SECTION 702 hereof, and
(f) all other moneys received by the Trustee under and pursuant to
any of the provisions of the Lease when accompanied by directions from the
person depositing such moneys that such moneys are to be paid into the
Debt Service Fund.
SECTION 604. APPLICATION OF MONEYS IN THE DEBT SERVICE FUND.
(a) Moneys in the Debt Service Fund and the accounts contained therein
shall be expended solely for the payment of the principal of, premium, if any,
and interest on the Bonds as the same mature and become due or upon the
redemption thereof prior to maturity.
(b) The Issuer hereby authorizes and directs the Trustee to withdraw
sufficient funds from the applicable account within the Debt Service Fund to pay
the principal of, premium, if any, and interest on each series of Bonds as the
same become due and payable and to make said funds so withdrawn available to the
Paying Agents for the purpose of paying said principal, premium, if any, and
interest.
(c) The Trustee, upon written direction of the Issuer and the Tenant,
shall use any moneys in the Debt Service Fund and the accounts contained therein
to redeem all or part of the Bonds Outstanding, and to pay interest to accrue
thereon prior to such redemption, in accordance with and to the extent permitted
by ARTICLE III hereof so long as the Tenant is not in default with respect to
any payments under the Lease and to the extent said moneys are in excess of the
amount required for payment of Bonds theretofore matured or called for
redemption and past due interest in all cases when such Bonds have not been
presented for payment. The Tenant may cause such excess money in the accounts
contained within the Debt Service Fund or such part thereof or other moneys of
the Tenant, as the Tenant may direct, to be applied by the Trustee for the
purchase of the applicable series of Bonds in the open market for the purpose of
cancellation at prices not exceeding the principal amount thereof plus accrued
interest thereon to the date of delivery for cancellation.
(d) Any amount remaining in the Debt Service Fund and the accounts
contained therein after the principal of, premium, if any, and interest on the
Bonds shall have been paid in full or provision made therefor in accordance with
ARTICLE XIII hereof, shall be paid to the Tenant by the Trustee.
SECTION 605. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE PROJECT
REPLACEMENT FUND.
(a) The Trustee shall deposit into the Project Replacement Fund, as and
when received, any Net Proceeds (as defined in the Lease) received pursuant to
ARTICLE XV of the Lease.
(b) Moneys held in the Project Replacement Fund shall be used and applied
as provided in ARTICLE XV of the Lease.
SECTION 606. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE CAPITALIZED
INTEREST FUND.
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(a) The Trustee shall deposit the sum of $3,313,557.54 into the Series
2001 Capitalized Interest Account from the proceeds of the sale of the Series
2001 Bonds. The Trustee shall deposit the sum specified in the applicable
Supplemental Indenture into the Capitalized Interest Fund from the proceeds of
the sale of any Additional Bonds.
(b) Until the moneys in the Capitalized Interest Fund are transferred in
accordance with SECTION 606(C) hereof, the Trustee shall, prior to making any
transfers from the Debt Service Fund as provided in SECTION 604 hereof, transfer
from the applicable account of the Capitalized Interest Fund to the applicable
account of the Debt Service Fund an amount sufficient to pay the interest
becoming due and payable on the applicable series of Bonds.
(c) Upon the earlier of (i) receipt by the Trustee of the Certificate of
Completion required by SECTION 504 hereof or (ii) October 1, 2003, the Trustee
shall determine, without regard to and prior to making any transfers from the
Capitalized Interest Fund, whether moneys in the Debt Service Fund, together
with rental payments due under the Sublease prior to the next succeeding Payment
Date, are sufficient to pay the principal of and interest due and payable on the
Bonds on the next succeeding Payment Date. If the Trustee determines such moneys
will not be sufficient, the Trustee shall transfer moneys in the applicable
account of the Capitalized Interest Fund to the applicable account of Debt
Service Fund to the extent required to fund the payment of principal of and
interest becoming due and payable on the applicable series of Bonds on the next
succeeding Payment Date. The Trustee shall then transfer from the Capitalized
Interest Fund to the Project Operation and Maintenance Fund an amount sufficient
to the fund the Project Operation and Maintenance Fund Requirement. Any excess
funds in any account of the Capitalized Interest Fund after making any necessary
transfer to the Project Operation and Maintenance Fund shall be transferred to
the applicable account of the Project Fund.
SECTION 607. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE TAX AND
INSURANCE FUND. The Trustee shall deposit into the Tax and Insurance Fund the
funds transferred from the Revenue Fund pursuant to SECTION 602 hereof. Any
moneys deposited into the Tax and Insurance Fund shall be held by the Trustee
and disbursed by the Trustee upon the written request of the Tenant for the
payment of the real estate taxes and assessments and insurance with respect to
the Project when due.
SECTION 608. DEPOSITS INTO AND APPLICATION OF MONEYS IN THE PROJECT
OPERATION AND MAINTENANCE FUND. The Trustee shall deposit into the Project
Operation and Maintenance Fund the funds transferred from the Capitalized
Interest Fund pursuant to SECTION 606(C) hereof and the Revenue Fund pursuant to
SECTION 602 hereof. Any moneys deposited into the Project Operation and
Maintenance Fund shall be held by the Trustee and disbursed by the Trustee upon
the written request of the Tenant for the payment of operating, repair and
capital replacement costs of the Project. Moneys in the Project Operation and
Maintenance Fund shall also be used to pay the last Bonds becoming due unless
such Bonds and all interest thereon be otherwise paid, and thereafter any
remaining balance in the Project Operation and Maintenance Fund shall be paid to
the Tenant.
SECTION 609. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. In any case
where the date of maturity of principal of, premium, if any, or interest on the
Bonds or the date fixed for redemption of any Bonds shall not be a Business Day,
then payment of principal, premium, if any, or interest need not be made on such
date but may be made on the next succeeding Business Day with the same force and
effect as if made on the date of maturity or the date fixed for redemption, and
no interest shall accrue for the period after such date.
SECTION 610. NONPRESENTMENT OF BONDS. In the event that any Bond shall not
be presented for payment when the principal thereof becomes due, either at
maturity or otherwise, or at the date fixed for redemption thereof, or the
Trustee is unable to locate the Owner for the payment of accrued interest or an
accrued interest check remains uncashed, if funds sufficient to pay such Bond
and accrued interest shall have been made available to the Trustee, all
liability of the Issuer to the Owner thereof for the payment of such Bond and
accrued interest, shall forthwith cease, determine and be completely discharged,
and thereupon it shall be the duty of the Trustee to hold such fund or funds,
without liability for interest thereon, for the benefit of the Owner of such
Bond, who shall thereafter be restricted exclusively to such fund or funds for
any claim of whatever nature on his part under this Indenture or on, or with
respect to, said Bond and accrued interest. If any Bond shall not be presented
for payment within four years following the date when such Bond becomes due,
whether by maturity or otherwise, or the accrued interest cannot be paid as set
out above, the Trustee upon the request of the Tenant shall repay to the Tenant
the funds theretofore held by it for payment of such Bond and accrued interest,
and such Bond and accrued interest shall, subject to the defense of any
applicable statute of limitation, thereafter be an unsecured obligation of the
Tenant, and the Owner thereof shall be entitled to look only to the Tenant for
payment, and then only to the extent of the amount so repaid, and the Tenant
shall not be liable for any interest thereon and shall not be regarded as a
trustee of such money.
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
SECTION 701. MONEYS TO BE HELD IN TRUST. All moneys deposited with or paid
to the Trustee for the account of any fund or account under any provision of
this Indenture, and all moneys deposited with or paid to the Paying Agent under
any provision of this Indenture, shall be held by the Trustee or Paying Agent in
trust and shall be applied only in accordance with the provisions of this
Indenture and the Lease and, until used or applied as so provided, shall
constitute part of the Trust Estate and be subject to the lien hereof. Neither
the Trustee nor any Paying Agent shall be liable for interest on any moneys
received hereunder except interest earned on investments made pursuant to
SECTION 702 of this Indenture and such other interest as may be agreed upon.
SECTION 702. INVESTMENT OF MONEYS IN FUNDS. Moneys held in the funds and
accounts created pursuant to this Indenture shall be separately invested and
reinvested by the Trustee in Investment Securities which mature or are subject
to redemption by the owner prior to the date such funds will be needed;
provided, however, that such moneys shall not be invested in such manner as will
violate the provisions of SECTIONS 703 hereof. Any such Investment Securities
shall be held by or under the control of the Trustee and shall be deemed at all
times a part
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of the fund or account in which such moneys are originally held, and except as
otherwise specifically provided in this Indenture, the interest accruing thereon
and any profit realized from such Investment Securities shall be credited to and
accumulated in such fund or account, and any loss resulting from such Investment
Securities shall be charged to such fund or account. The Trustee shall sell and
reduce to cash a sufficient amount of such Investment Securities whenever the
cash balance in any fund or account is insufficient for the purposes of such
fund or account. The Trustee may make any and all investments permitted by the
provisions of this Section through its own bond department or short-term
investment department.
SECTION 703. RECORD KEEPING. The Trustee shall maintain records designed
to show compliance with the provisions of this Article and with the provisions
of ARTICLE VI for at least six years after the payment of all of the Outstanding
Bonds.
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
SECTION 801. PAYMENT OF PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON THE
BONDS. The Issuer covenants and agrees that it will, but solely from the rents,
revenues and receipts derived from the Project as described herein, promptly pay
or cause to be paid the principal of, premium, if any, and interest on the Bonds
as the same become due and payable at the place, on the dates and in the manner
provided herein and in the Bonds according to the true intent and meaning
thereof, and to this end the Issuer covenants and agrees that it will use its
best efforts to cause the Project to be continuously leased as a revenue and
income producing undertaking, and that, should there be a default under the
Lease with the result that the right of possession of the Project is returned to
the Issuer, the Issuer shall fully cooperate with the Trustee and the Owners to
fully protect the rights and security of the Owners hereunder and shall
diligently proceed in good faith and use its best efforts to secure another
tenant for the Project to the end that at all times sufficient rents, revenues
and receipts will be derived by Issuer from the Project to provide for payment
of the principal of, premium, if any, and interest on the Bonds as the same
become due and payable. If the Issuer is unable to procure a new tenant who will
enter into such a lease, the Issuer may take such good faith action as shall be
in the best interests of the Owners, which may include the sale of the Project,
and if the Project is sold, after deducting all costs of the sale, any moneys
derived from such sale shall be used for the purpose of paying the principal of,
premium, if any, and interest on the Bonds. Nothing herein shall be construed as
requiring the Issuer to operate the Project as a business other than as lessor
or to use any funds or revenues from any source other than funds and revenues
derived from the Project to pay the principal of, premium, if any, or interest
on the Bonds.
SECTION 802. AUTHORITY TO EXECUTE INDENTURE AND ISSUE BONDS. The Issuer
covenants that it is duly authorized under the Constitution and laws of the
State to execute this Indenture, to issue the Bonds and to pledge and assign the
Trust Estate in the manner and to the extent set forth herein that all action on
its part for the execution and delivery of this Indenture and the issuance of
the Bonds has been duly and effectively taken and that the Bonds in the hands of
the Owners thereof are and will be valid and enforceable limited obligations of
the Issuer according to the import thereof.
SECTION 803. PERFORMANCE OF COVENANTS. The Issuer covenants that it will
faithfully perform at all times any and all covenants, undertakings,
stipulations and provisions contained in this Indenture, in the Bonds and in all
proceedings of its governing body pertaining thereto. Upon an Event of Default
under the Lease or this Indenture, the Issuer shall fully cooperate with the
Trustee and the Owners in order to fully protect the rights and security of the
Owners hereunder.
SECTION 804. INSTRUMENTS OF FURTHER ASSURANCE. The Issuer covenants that
it will do, execute, acknowledge and deliver, or cause to be done, executed,
acknowledged and delivered, such Supplemental Indentures and such further acts,
instruments, financing statements and other documents as the Trustee may
reasonably require for the better pledging and assigning unto the Trustee the
property and revenues herein described to secure the payment of the principal
of, premium, if any, and interest on the Bonds. The Issuer covenants and agrees
that, except as provided herein and in the Lease, it will not sell, convey,
mortgage, encumber or otherwise dispose of any part of the Project or the rents,
revenues and receipts derived therefrom or from the Lease, or of its rights
under the Lease.
SECTION 805. MAINTENANCE, TAXES AND INSURANCE. The Issuer represents that
pursuant to the provisions of ARTICLES VI, VII and VIII of the Lease, the Tenant
has agreed to cause the Project to be maintained and kept in good condition,
repair and working order, to pay, as the same respectively become due, all
taxes, assessments and other governmental charges at any time lawfully levied or
assessed upon or against the Project or any part thereof, and to keep the
Project constantly insured to the extent provided for therein, all at the sole
expense of Tenant.
SECTION 806. INSPECTION OF PROJECT BOOKS. The Issuer covenants and agrees
that all books and documents in its possession relating to the Project and the
rents, revenues and receipts derived from the Project shall at all times be open
to inspection by such accountants or other agencies as the Trustee may from time
to time designate.
SECTION 807. ENFORCEMENT OF RIGHTS UNDER THE LEASE. The Issuer covenants
and agrees that it shall enforce all of its rights and all of the obligations of
the Tenant (at the expense of the Tenant) under the Lease to the extent
necessary to preserve the Project in good order and repair, and to protect the
rights of the Trustee and the Owners hereunder with respect to the pledge and
assignment of the rents, revenues and receipts coming due under the Lease. The
Issuer agrees that the Trustee as assignee of the Lease in its name or in the
name of the Issuer may enforce all rights of the Issuer and all obligations of
the Tenant under and pursuant to the Lease for and on behalf of the Owners,
whether or not the Issuer is in default hereunder.
SECTION 808. POSSESSION AND USE OF PROJECT. So long as not otherwise
provided in this Indenture, the Tenant shall be suffered and permitted to
possess, use and enjoy the Project and appurtenances so as to carry out its
obligations under the Lease.
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ARTICLE IX
REMEDIES ON DEFAULT
SECTION 901. ACCELERATION OF MATURITY IN EVENT OF DEFAULT.
(a) If an Event of Default shall have occurred and be continuing, the
Trustee may, and shall, upon the written request of the Owners of not less than
25% in aggregate principal amount of Bonds then Outstanding, declare the
principal of all Bonds then Outstanding and the interest accrued thereon to be
immediately due and payable by notice in writing delivered to the Issuer and the
Tenant, and such principal and interest shall thereupon become and be
immediately due and payable.
(b) If, at any time after such declaration, but before the Bonds shall
have matured by their terms, all overdue installments of principal and interest
on the Bonds, together with the reasonable and proper expenses of the Trustee,
and all other sums then payable by the Issuer under this Indenture shall either
be paid or provision satisfactory to the Trustee shall be made for such payment,
then and in every such case the Trustee shall, but only with the approval of the
Owners of not less than 50% in aggregate principal amount of the Bonds
Outstanding, rescind such declaration and annul such default in its entirety. In
such event, the Trustee shall rescind any declaration of acceleration of
installments of Basic Rent (as defined in the Lease) and Additional Rent (as
defined in the Lease) as provided in SECTION 17.1 of the Lease.
(c) In case of any rescission of a default, then and in every such case
the Issuer, the Trustee and the Owners shall be restored to their former
position and rights hereunder respectively, but no such rescission shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 902. EXERCISE OF REMEDIES BY THE TRUSTEE.
(a) If an Event of Default shall have occurred and be continuing, the
Trustee may pursue and exercise any available remedy at law or in equity by
suit, action, mandamus or other proceeding or exercise one or more of the rights
and powers conferred by this Article in such manner as the Trustee, being
advised by counsel, shall deem most expedient in the interests of the Owners to
enforce the payment of the principal of, premium, if any, and interest on the
Bonds then Outstanding, and to enforce and compel the performance of the duties
and obligations of the Issuer as herein set forth.
(b) All rights of action under this Indenture or under any of the Bonds
may be enforced by the Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceedings relating thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its name
as Trustee without necessity of joining as plaintiffs or defendants any Owners,
and any recovery of judgment shall, be for the equal benefit of all the Owners
of the Outstanding Bonds.
SECTION 903. LIMITATION ON EXERCISE OF REMEDIES BY OWNERS. No Owner of any
Bond shall have any right to institute any suit, action or proceeding in equity
or at law for the enforcement of this Indenture or for the execution of any
trust hereunder or for the appointment of a receiver or any other remedy
hereunder, unless (a) a default hereunder has occurred of which the Trustee has
knowledge, (b) such default shall have become an Event of Default, (c) the
Owners of not less than 25% in aggregate principal amount of Bonds then
Outstanding shall have made, written request to the Trustee and shall have
offered the Trustee reasonable opportunity either to proceed to exercise the
powers hereinbefore granted or to institute such action, suit or proceeding in
its own name, and (d) the Trustee shall thereafter fail or refuse to exercise
the powers hereinbefore granted or institute such action, suit or proceeding in
its own name. Such knowledge and request are hereby declared in every case, at
the option of the Trustee, to be conditions precedent to the execution of the
powers and trusts of this Indenture, and to any action or cause of action for
the enforcement of this Indenture, or for the appointment of a receiver or for
any other remedy hereunder, it being understood and intended that no one or more
Owners shall have any right in any manner whatsoever to affect, disturb or
prejudice this Indenture by its, his or their action or to enforce any right
hereunder except in the manner herein provided, and that all proceedings at law
or in equity shall be instituted, had and maintained in the manner herein
provided and for the equal benefit of the Owners of all Bonds then Outstanding.
Nothing in this Indenture contained shall, however, affect or impair the right
of any Owner to payment of the principal of and interest on any Bond at and
after the maturity thereof or the obligation of the Issuer to pay the principal
of, premium, if any, and interest on each of the Bonds issued hereunder to the
respective Owners thereof at the time, place, from the source and in the manner
expressed herein and in the Bonds.
SECTION 904. RIGHT OF OWNERS TO DIRECT PROCEEDINGS. Anything in this
Indenture to the contrary notwithstanding, the Owners of a majority in aggregate
principal amount of Bonds then Outstanding, shall have the right, at any time,
by an instrument or instruments in writing executed and delivered to the
Trustee, to direct the time, method and place of conducting all proceedings to
be taken in connection with the enforcement of the terms and conditions of this
Indenture, or for the appointment of a receiver or any other proceedings
hereunder; provided, however, that such direction shall be in accordance with
the provisions of law and of this Indenture.
SECTION 905. REMEDIES CUMULATIVE. No remedy by the terms of this Indenture
conferred upon or reserved to the Trustee or the Owners is intended to be
exclusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to any other remedy given to the Trustee or
the Owners hereunder or now or hereafter existing at law or in equity. No delay
or omission to exercise any right, power or remedy accruing upon any Event of
Default shall impair any such right, power or remedy or shall be construed to be
a waiver of any such Event of Default or acquiescence therein and every such
right, power or remedy may be exercised from time to time and as often as may be
deemed expedient. No waiver of any Event of Default hereunder, whether by the
Trustee or the Owners, shall extend to or affect any subsequent Event of Default
or shall impair any rights or remedies consequent thereon.
SECTION 906. WAIVERS OF EVENTS OF DEFAULT. The Trustee may in its
discretion waive any Event of Default hereunder and its consequences and rescind
any declaration of maturity of principal of and interest on the Bonds, and shall
do so upon the written request of the
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Owners of at least 51% in aggregate principal amount of all the Bonds then
Outstanding. In case of any such waiver or rescission, or in case any
proceedings taken by the Trustee under this Indenture on account of any such
Event of Default shall have been discontinued or abandoned for any reason, or
shall have been determined adversely, then and in every such case the Issuer,
the Trustee and the Owners shall be restored to their former positions, rights
and obligations hereunder, respectively, but no such waiver or rescission shall
extend to any subsequent or other Event of Default, or impair any rights or
remedies consequent thereon, and all rights, remedies and powers of the Trustee
shall continue as if no such proceedings had been taken.
ARTICLE X
THE TRUSTEE
SECTION 1001. ACCEPTANCE OF THE TRUSTS. The Trustee hereby accepts the
trusts imposed upon it by this Indenture, and agrees to perform said trusts in
the manner in which a corporate trustee ordinarily would perform said trusts
under a corporate indenture. The Trustee shall exercise such of the rights and
powers vested in it by this Indenture and shall use the same degree of care and
skill in its exercise as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs, and upon and subject to the
following express terms and conditions:
(a) The Trustee's duties and responsibilities shall include those
expressly set forth in this Indenture and the Lease and shall further
include those rights, duties, responsibilities, and obligations which are
expressly reserved to or imposed upon the Issuer under this Indenture and
the Lease, excepting only such of those rights, duties, responsibilities,
and obligations as may only be properly and lawfully exercised by or
imposed upon the Issuer. No implied covenants or obligations shall be read
into this Indenture against the Trustee.
(b) Upon the occurrence of an Event of Default, the Trustee shall be
and is hereby authorized to bring appropriate action for judgment or such
other relief as may be appropriate and such action may be in the name of
the Trustee or in the name of the Issuer and Trustee jointly; but in such
case, the Issuer shall have no obligation for any fees and expenses of
such action except out of any funds which might come into the hands of the
Issuer by reason of the ownership of the Project and this Indenture and
the Lease. In addition, the Trustee may file such proof of claim and such
other documents as may be necessary or advisable in order to have the
claims of the Trustee and the Owners relative to the Bonds or the
obligations relating thereto allowed in any judicial proceeding.
(c) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents, attorneys
or receivers. The Trustee shall be entitled to rely upon the opinion or
advice of counsel, who may be counsel to the Trustee, the Issuer or the
Tenant, concerning all matters of trust hereof and the duties hereunder,
and may in all cases pay such reasonable compensation to all such agents,
attorneys and receivers as may reasonably be employed in connection with
the trusts hereof.
(d) The Trustee, in its individual or any other capacity, may become
the owner or pledgee of Bonds with the same rights which it would have if
it were not Trustee.
(e) The Trustee may rely and shall be protected in acting or
refraining from acting upon any ordinance, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
affidavit, letter, telegram or other paper or document provided for under
this Indenture believed by it to be genuine and correct and to have been
signed, presented or sent by the proper person or persons. Any action
taken by the Trustee pursuant to this Indenture upon the request or
authority or consent of any person who, at the time of making such request
or giving such authority or consent is the Owner of any Bond, shall be
conclusive and binding upon all future Owners of the same Bond and upon
Bonds issued in exchange therefor or upon transfer or in substitution
thereof.
(f) As to the existence or nonexistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, or
whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee shall be entitled
to rely upon a certificate signed by the Authorized Issuer Representative
as sufficient evidence of the facts therein contained, and the Trustee
shall also be at liberty to accept a similar certificate to the effect
that any particular dealing, transaction or action is necessary or
expedient; provided, however, that the Trustee may at its discretion
secure such further evidence as it deems necessary or advisable, but in no
case shall the Trustee be bound to secure the same.
(g) The permissive right of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty, and the Trustee shall not
be answerable for other than its negligence or willful misconduct.
(h) At any and all reasonable times the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives shall have the right to inspect any and all of the Project
and all books, papers and records of the Issuer and the Tenant pertaining
to the Project and the Bonds, and to make such notes and copies as may be
desired.
(i) The Trustee shall not be required to give any bond or surety
with respect to the execution of its trusts and powers hereunder or
otherwise with respect to the Project.
(j) The Trustee shall have the right, but shall not be required, to
demand, with respect to the authentication of any Bonds, the withdrawal of
any cash, the release of any property, or any action whatsoever within the
purpose of this Indenture, any
24
showings, certificates, opinions, appraisals or other information, or
corporate action or evidence thereof, in addition to that by the terms
hereof required, as a condition of such action by the Trustee deemed
desirable for the purpose of establishing the right of the Issuer to the
authentication of any Bonds, the withdrawal of any cash, or the taking of
any other action by the Trustee.
SECTION 1002. FEES, CHARGES AND EXPENSES OF THE TRUSTEE. The Trustee shall
be entitled to payment of or reimbursement for reasonable fees for its ordinary
services rendered hereunder and all advances, agent and counsel fees and other
ordinary expenses reasonably and necessarily made or incurred by the Trustee in
connection with such ordinary services and, in the event that it should become
necessary that the Trustee perform extraordinary services, it shall be entitled
to reasonable compensation therefor and to reimbursement for reasonable and
necessary extraordinary expenses in connection therewith; provided, however,
that if such extraordinary services or extraordinary expenses are occasioned by
the neglect or misconduct of the Trustee it shall not be entitled to
compensation or reimbursement therefor. The Trustee shall be entitled to payment
and reimbursement for the reasonable fees and charges of the Trustee as Paying
Agent for the Bonds. The Trustee agrees that the Issuer shall have no liability
for any fees, charges or expenses of the Trustee, and the Trustee agrees to look
only to the Tenant for the payment of all fees, charges and expenses of the
Trustee as provided in the Lease. Upon the occurrence of an Event of Default and
during its continuance, the Trustee shall have a lien with right of payment
prior to payment of principal of, premium, if any, or interest on any Bond, upon
all moneys in its possession under any provisions hereof for the foregoing
advances, fees, costs and expenses incurred and for Default Administration
Costs.
SECTION 1003. NOTICE TO OWNERS IF DEFAULT OCCURS. If an Event of Default
occurs the Trustee shall give written notice thereof to the Owners of all Bonds
then Outstanding, as shown by the Bond Register required to be maintained by the
Trustee and kept at the principal office of the Trustee.
SECTION 1004. INTERVENTION BY THE TRUSTEE. In any judicial proceeding to
which the Issuer is a party and which, in the opinion of the Trustee and its
counsel, has a substantial bearing on the interests of the Owners, the Trustee
may intervene on behalf of the Owners and shall do so if requested in writing by
the Owners of at least 25% of the aggregate principal amount of Bonds then
Outstanding.
SECTION 1005. SUCCESSOR TRUSTEE UPON MERGER, CONSOLIDATION OR SALE. Any
corporation or association into which the Trustee may be merged or converted or
with or into which it may be consolidated, or to which it may sell or transfer
its corporate trust business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any merger, conversion, sale,
consolidation or transfer to which it is a party, shall be and become successor
Trustee hereunder without the execution or filing of any instrument or any
further act on the part of any of the parties hereto.
SECTION 1006. RESIGNATION OF TRUSTEE. The Trustee may resign by an
instrument in writing delivered by registered or certified mail to the Issuer
and the Tenant, to take effect not sooner than 90 days after its delivery.
SECTION 1007. REMOVAL OF TRUSTEE. The Trustee may be removed at any time
by an instrument or concurrent instruments in writing delivered to the Trustee,
executed by the Issuer and the Tenant. The Trustee shall be removed by the
Issuer by written notice to the Trustee in the event of a breach of trust set
forth in this Indenture.
SECTION 1008. APPOINTMENT OF SUCCESSOR TRUSTEE. In case the Trustee
hereunder shall resign or be removed, or shall otherwise become incapable of
acting hereunder, or in case it shall be taken under the control of any public
officer or officers or of a receiver appointed by a court, a successor Trustee
may be appointed, by the Owners of a majority in aggregate principal amount of
Bonds then Outstanding, by an instrument or concurrent instruments in writing
delivered to the Issuer and the Tenant; provided, however, that in case of such
vacancy and so long as no Event of Default hereunder shall have occurred and be
continuing, the Issuer, by an instrument executed and signed by its Mayor/CEO
and attested by its Unified Clerk under its seal, may appoint a temporary
Trustee to fill such vacancy until a successor Trustee shall be appointed by the
Owners in the manner above provided; and any such temporary Trustee so appointed
by the Issuer shall immediately and without further act be superseded by the
successor Trustee so appointed by such Owners. The Trustee and every successor
Trustee appointed hereunder shall be a trust institution or commercial bank
located in the State, shall be in good standing and qualified to accept such
trusts, shall be subject to examination by a federal or state bank regulatory
authority, and shall have a reported capital and surplus of not less than
$50,000,000. If such institution publishes reports of conditions at least
annually pursuant to law or regulation, then for the purposes of this Section
the capital and surplus of such institution shall be deemed to be its capital
and surplus as set forth in its most recent report of condition so published.
Notwithstanding any other provision of this Indenture, no removal, resignation
or termination of the Trustee shall take effect until a successor, shall be
appointed and has accepted such appointment.
SECTION 1009. VESTING OF TRUSTS IN SUCCESSOR TRUSTEE. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to its
predecessor, the Issuer and the Tenant an instrument in writing accepting such
appointment hereunder, and thereupon such successor shall, without any further
act, deed or conveyance, become fully vested with all the trusts, powers,
rights, obligations, duties, remedies, immunities and privileges of its
predecessor; provided, however, that such predecessor shall, nevertheless, on
the written request of the Issuer, execute and deliver an instrument
transferring to such successor Trustee all the trusts, powers, rights,
obligations, duties, remedies, immunities and privileges of such predecessor
hereunder and every predecessor Trustee shall deliver all securities and moneys
held by it as Trustee hereunder to its successor. Should any instrument in
writing from the Issuer be required by any successor Trustee for more fully and
certainly vesting in such successor the trusts, powers, rights, obligations,
duties, remedies, immunities and privileges hereby vested in the predecessor,
any and all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer.
SECTION 1010. RIGHT OF TRUSTEE TO PAY TAXES AND OTHER CHARGES. In case any
tax, assessment or governmental or other charge upon, or insurance premium with
respect to, any part of the Project is not paid as required herein or in the
Lease, the Trustee may pay such tax, assessment or governmental charge or
insurance premium, without prejudice to any rights of the Trustee or the Owners
hereunder arising in consequence of such failure; provided, however, that the
Trustee shall be under no obligation to make any such payment unless it shall
have been
25
requested to do so by the Owners of at least 25% of the aggregate principal
amount of Bonds then Outstanding and shall have been provided adequate funds for
the purpose of such payment. Any amount at any time so paid under this Section,
with interest thereon from the date of payment at a rate per annum equal to the
Trustee's published prime rate in effect at the time, shall become an additional
obligation secured by this Indenture, and the same shall be given a preference
in payment over any payment of principal of, premium, if any, or interest on the
Bonds, and shall be paid out of the proceeds of rents, revenues and receipts
collected from the Project, if not otherwise caused to be paid.
SECTION 1011. TRUST ESTATE MAY BE VESTED IN CO-TRUSTEE.
(a) It is the purpose of this Indenture that there shall be no violation
of any law of any jurisdiction (including particularly the State) denying or
restricting the right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that in case of
litigation under this Indenture or the Lease, and in particular in case of the
enforcement of either on default, or in case the Trustee deems that by reason of
any present or future law of any jurisdiction it may not exercise any of the
powers, rights or remedies herein granted to the Trustee, or take any other
action which may be desirable or necessary in connection therewith, it may be
necessary or desirable that the Trustee appoint an additional individual or
institution as a co-trustee or separate trustee, and the Trustee is hereby
authorized to appoint such co-trustee or separate trustee.
(b) In the event that the Trustee appoints an additional individual or
institution as a co-trustee or separate trustee, each and every remedy, power,
right, claim, demand, cause of action, immunity, title, interest and lien
expressed or intended by this Indenture to be exercised by the Trustee with
respect thereto shall be exercisable by such co-trustee or separate trustee but
only to the extent necessary to enable such co-trustee or separate trustee to
exercise such powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such co-trustee or separate trustee shall
run to and be enforceable by either of them.
(c) Should any deed, conveyance or instrument in writing from the Issuer
be required by the co-trustee or separate trustee so appointed by the Trustee
for more fully and certainly vesting in and confirming to him or it such
properties, rights, powers, trusts, duties and obligations, then any and all
such deeds, conveyances and instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer.
(d) In case any co-trustee or separate trustee shall die, become incapable
of acting, resign or be removed, all the properties, rights, powers, trusts,
duties and obligations of such co-trustee or separate trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a successor to such co-trustee or separate trustee.
SECTION 1012. ANNUAL ACCOUNTING. The Trustee shall render an annual
accounting to the Issuer, the Tenant and to any Owner requesting the same in
writing and remitting the Trustee's reasonable charges for preparing such
copies, showing in reasonable detail all financial transactions relating to the
Trust Estate during the accounting period, all calculations related to the
determination of rebatable arbitrage during such accounting period, and the
balance in any Funds or Accounts created by this Indenture as of the beginning
and close of such accounting period.
SECTION 1013. RECORDINGS AND FILINGS. The Trustee shall cause this
Indenture and all Supplemental Indentures, the Lease and all amendments to the
Lease or appropriate memoranda thereof and all appropriate financing and
continuation statements and other security instruments to be recorded and filed
in such manner and in such places as may be required by law in order to fully
preserve and protect the security of the Owners and the rights of the Trustee
hereunder.
SECTION 1014. PERFORMANCE OF DUTIES UNDER THE LEASE. The Trustee hereby
accepts and agrees to perform all duties and obligations assigned to it under
the Lease.
SECTION 1015. DESIGNATION OF PAYING AGENTS. The Trustee is hereby
designated and agrees to act as principal Paying Agent for and in respect to the
Bonds. The Issuer may cause the necessary arrangements to be made through the
Trustee and to be thereafter continued for the designation of alternate Paying
Agents, if any, and for the making available of funds hereunder for the payment
of the principal of, premium, if any, and interest on the Bonds, or at the
principal corporate trust office of such alternate Paying Agents. In the event
of a change in the office of Trustee, the predecessor Trustee which has resigned
or been removed shall cease to be trustee of any funds provided hereunder and
Paying Agent for principal of, premium, if any, and interest on the Bonds, and
the successor Trustee shall become such Trustee and Paying Agent unless a
separate Paying Agent or Agents are appointed by the Issuer in connection with
the appointment of any successor Trustee.
SECTION 1016. FEES, CHARGES AND EXPENSES OF PAYING AGENTS. The Paying
Agents shall be entitled to payment of or reimbursement for reasonable fees for
their services rendered hereunder and all advances, agent and counsel fees and
other expenses reasonably and necessarily made or incurred by them in connection
with such services. The Issuer shall have no liability for any fees, charges or
expenses of the Paying Agents, and the Paying Agents shall look only to the
Tenant for the payment of all fees, charges and expenses of the Paying Agents as
provided in the Lease.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 1101. SUPPLEMENTAL INDENTURES NOT REQUIRING CONSENT OF OWNERS. The
Issuer and the Trustee may from time to time, without the consent of or notice
to any of the Owners enter into such Supplemental Indenture or Supplemental
Indentures as shall not be inconsistent with the terms and provisions hereof,
for any one or more of the following purposes:
26
(a) To cure any ambiguity or formal defect or omission in this
Indenture or to make any other change not prejudicial to the Owners;
(b) To grant to or confer upon the Trustee for the benefit of the
Owners any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the Owners or the Trustee or
either of them;
(c) To more precisely identify the Project or to substitute or add
additional property thereto;
(d) To subject additional revenues, properties or collateral to this
Indenture; and
(e) To issue Additional Bonds as provided in SECTION 209 hereof.
SECTION 1102. SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF OWNERS.
(a) Exclusive of Supplemental Indentures described in SECTION 1101 hereof
and subject to the terms and provisions contained in this Section and not
otherwise, the Owners of not less than a majority in aggregate principal amount
of the Bonds then Outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to consent to and
approve the execution by the Issuer and the Trustee of such other Supplemental
Indenture or Supplemental Indentures as shall be deemed necessary and desirable
by the Issuer for the purpose of modifying, amending, adding to or rescinding,
in any particular, any of the terms or provisions contained in this Indenture or
in any Supplemental Indenture; provided, however, that nothing contained in this
Section shall permit or be construed as permitting without the consent of the
Owners of 100% of the Bonds then Outstanding (i) an extension of the maturity of
the principal of or the interest on any Bond issued hereunder, (ii) a reduction
in the principal amount of any Bond or the rate of interest thereon, (iii) a
privilege or priority of any Bond or Bonds over any other Bond or Bonds, or (iv)
a reduction in the aggregate principal amount of Bonds the Owners of which are
required for consent to any such Supplemental Indenture.
(b) If at any time the Issuer shall request the Trustee to enter into any
such Supplemental Indenture for any of the purposes of this Section, the Trustee
shall cause notice of the proposed execution of such Supplemental Indenture to
be mailed to each Owner as shown on the Bond Register. Such notice shall briefly
set forth the nature of the proposed Supplemental Indenture and shall state that
copies thereof are on file at the principal office of the Trustee for inspection
by all Owners. If within 60 days or such longer period as may be prescribed by
the Issuer following the mailing of such notice, the Owners of not less than 51%
in aggregate principal amount of the Bonds then Outstanding at the time of the
execution of any such Supplemental Indenture shall have consented to and
approved the execution thereof as herein provided, no Owner of any Bond shall
have any right to object to any of the terms and provisions contained therein,
or the operation thereof, or in any manner to question the propriety of the
execution thereof, or to enjoin or restrain the Trustee or the Issuer from
executing the same or from taking any action pursuant to the provisions thereof.
SECTION 1103. TENANT'S CONSENT TO SUPPLEMENTAL INDENTURES. Anything herein
to the contrary notwithstanding, a Supplemental Indenture under this Article
which affects any rights of the Tenant shall not become effective unless and
until the Tenant shall have consented in writing to the execution and delivery
of such Supplemental Indenture, provided that receipt by the Trustee of an
amendment to the Lease executed by the Tenant in connection with the issuance of
Additional Bonds under SECTION 209 hereof shall be deemed to constitute consent
of the Tenant to the execution of a Supplemental Indenture pursuant to SECTION
209 hereof. In this regard, the Trustee shall cause notice of the proposed
execution and delivery of any such Supplemental Indenture (other than a
Supplemental Indenture proposed to be executed and delivered pursuant to SECTION
209 hereof), together with a copy of the proposed Supplemental Indenture, to be
mailed to the Tenant at least 15 days prior to the proposed date of execution
and delivery of any such Supplemental Indenture.
ARTICLE XII
LEASE AND SUBLEASE AMENDMENTS
SECTION 1201. LEASE AMENDMENTS. The Lease may be amended to the extent and
upon the terms and conditions set forth in SECTION 18.4 of the Lease.
SECTION 1202. SUBLEASE AMENDMENTS. The Sublease may be amended only with
the prior written consent of the Trustee and the Trustee's receipt of a
confirmation of the then current rating on the Bonds from Moody's.
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 1301. SATISFACTION AND DISCHARGE OF INDENTURE.
(a) When the principal of, premium, if any, and interest on all the Bonds
shall have been paid in accordance with their terms or provision has been made
for such payment, as provided in Section 1302 hereof, and provision shall also
have been made for paying all other sums payable hereunder, including the fees
and expenses of the Trustee and the Paying Agents to the date of retirement of
the Bonds, then the right, title and interest of the Trustee under this
Indenture shall thereupon cease, determine and be void, and thereupon the
Trustee shall cancel, discharge and release this Indenture and shall execute,
acknowledge and deliver to the Issuer such instruments of satisfaction and
discharge or release as shall be requisite to evidence such release and the
satisfaction and discharge of this Indenture, and shall assign and deliver to
the Issuer
27
any property at the time subject to this Indenture which may then be in its
possession, except amounts in the Debt Service Fund and any accounts contained
therein required to be paid to the Tenant pursuant to SECTION 604(D) hereof.
(b) The Issuer is hereby authorized to accept a certificate by the Trustee
that the principal of, premium, if any, and interest due and payable upon all of
the Bonds then Outstanding and all amounts required to be paid to the United
States have been paid or such payment provided for in accordance with SECTION
1302 hereof as evidence of satisfaction of this Indenture, and upon receipt
thereof shall cancel and erase the inscription of this Indenture from its
records.
SECTION 1302. BONDS DEEMED TO BE PAID.
(a) Bonds shall be deemed to be paid, discharged and defeased within the
meaning of this Indenture and shall cease to be Outstanding under this Indenture
when payment of the principal of and the applicable premium, if any, on such
Bonds, plus interest thereon to the due date thereof (whether such due date be
by reason of maturity or upon redemption as provided in this Indenture, or
otherwise), either (i) shall have been made or caused to be made in accordance
with the terms thereof, or (ii) shall have been provided for by depositing with
the Trustee or other Paying Agent, in trust and irrevocably set aside
exclusively for such payment, moneys and Defeasance Obligations in an amount,
together with the income or increment to accrue thereon, without consideration
of any reinvestment thereof, sufficient to make such payment. At such time as a
Bond shall be deemed to be paid hereunder, as aforesaid, it shall no longer be
secured by or entitled to the benefits of this Indenture, except for the
purposes of any such payment from such moneys or Government Obligations.
(b) Notwithstanding the foregoing, in the case of the redemption of Bonds
which by their terms may be redeemed prior to the stated maturities thereof, no
deposit under clause (ii) of the immediately preceding paragraph shall be deemed
a payment of such Bonds as aforesaid until proper notice of such redemption
shall have been given in accordance with ARTICLE III of this Indenture or
irrevocable instructions shall have been given to the Trustee to give such
notice.
(c) Notwithstanding anything to the contrary contained in this Indenture,
all moneys or Government Obligations set aside and held in trust pursuant to the
provisions of this Section for the payment of Bonds (including premium thereon,
if any) and interest thereon shall be applied to and used solely for the payment
of the particular Bonds (including premium thereon, if any) and interest thereon
with respect to which such moneys and Government Obligations have been so set
aside in trust.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 1401. CONSENTS AND OTHER INSTRUMENTS BY OWNERS.
(a) Any consent, request, direction, approval, objection or other
instrument required by this Indenture to be signed and executed by the Owners
may be in any number of concurrent writings of similar tenor and may be signed
or executed by such Owners in person or by agent appointed in writing. Proof of
the execution of any such instrument or of the writing appointing any such agent
and of the ownership of Bonds, if made in the following manner, shall be
sufficient for any of the purposes of this Indenture, and shall be conclusive in
favor of the Trustee with regard to any action taken, suffered or omitted under
any such instrument, namely:
(i) the fact and date of the execution by any person of any such
instrument may be proved by the certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within such
jurisdiction that the person signing such instrument acknowledged before
him the execution thereof, or by affidavit of any witness to such
execution; and
(ii) the fact of ownership of the Bonds and the amount or amounts,
number and other identification of such Bonds, and the date of holding the
same shall be proved by the Bond Register.
(b) In determining whether the Owners of the requisite principal amount of
Bonds Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver under this Indenture, Bonds owned by the Tenant or any
affiliate of the Tenant shall be disregarded and deemed not to be Outstanding
under this Indenture, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Bonds which the Trustee knows to be so owned
shall be so disregarded. For purposes of this paragraph, the word "affiliate"
means any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Tenant and for the purposes of this
definition, "control" means the power to direct the management and policies of
such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. Notwithstanding the foregoing, Bonds so
owned which have been pledged in good faith shall not be disregarded as
aforesaid if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Bonds and that the pledgee is not
the Tenant or any affiliate of the Tenant.
SECTION 1402. INTERESTED PARTIES.
(a) THIRD PARTY BENEFICIARIES. To the extent that this Indenture confers
upon or gives or grants to the Tenant or the Owners any right, remedy or claim
under or by reason of this Indenture, the Tenant and the Owners are hereby
explicitly recognized as being third-party beneficiaries hereunder and may
enforce any such right, remedy or claim conferred, given or granted hereunder.
28
(b) PARTIES INTERESTED HEREIN. Nothing expressed or implied in this
Indenture is intended or shall be construed to confer upon, or to give or grant
to, any person or entity, other than the Issuer, the Trustee, the Tenant and the
Owners, any right, remedy or claim under or by reason of this Indenture or any
covenant, condition or stipulation hereof, and all covenants, stipulations,
promises and agreements in this Indenture contained by and on behalf of the
Issuer shall be for the sole and exclusive benefit of the Issuer, the Trustee,
the Tenant and the Owners as herein provided.
SECTION 1403. NOTICES. Any notice, request, complaint, demand or other
communication required or desired to be given or filed under this Indenture
shall be in writing and shall be deemed duly given or filed if the same shall be
duly mailed by registered or certified mail, postage prepaid, to the appropriate
Notice Address. All notices so given shall be deemed duly given as of the date
they are so mailed. A duplicate copy of each notice, certificate or other
communication given hereunder by either the Issuer or the Tenant to the other
shall also be given to the Trustee. The Issuer, the Trustee and the Tenant may
from time to time designate, by notice given hereunder to the others, such other
address to which subsequent notices, certificates or other communications shall
be sent.
The Trustee shall give notice to any rating agency then maintaining a
rating on the Bonds (i) if the Trustee resigns or is removed, or a new Trustee
or co-trustee is appointed, (ii) if there is a call for the redemption of all
Series 2001 Bonds, (iii) if all of the Series 2001 Bonds are defeased in
accordance with ARTICLE XIII, (iv) if an Event of Default occurs (of which the
Trustee has knowledge) or the Trustee waives any Event of Default pursuant to
SECTION 906, or (v) at least 15 days prior to any amendment is made to this
Indenture, the Lease or the Sublease. The Issuer shall provide copies of all
documents related to the amendment of this Indenture, the Lease or the Sublease
to any rating agency then maintaining a rating on the Series 2001 Bonds.
SECTION 1404. SUSPENSION OF NEWSPAPER PUBLICATION OR MAIL SERVICE. If,
because of the temporary or permanent suspension of the publication or general
circulation of any Authorized Newspaper or suspension of regular mail service or
for any other reason, it is impossible or impractical to publish or mail any
notice in the manner herein provided, then such publication in lieu thereof or
other form of notice as shall be made with the approval of the Trustee shall
constitute a sufficient notice.
SECTION 1405. AMENDMENT. Any provision of this Indenture or the Bonds may
be amended with the written consent of the Owners of 100% of the Bonds then
Outstanding, the Issuer, the Tenant, the Trustee and, to the extent the rights
or obligations of the Subtenant under the Sublease are affected, the Subtenant.
SECTION 1406. SEVERABILITY. If any provision of this Indenture shall be
held or deemed to be invalid, inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions or in all jurisdictions, or
in all cases because it conflicts with any other provision or provisions hereof
or any constitution or statute or rule of public policy, or for any other
reason, such circumstances shall not have the effect of rendering the provision
in question inoperative or unenforceable in any other case or circumstance, or
of rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever.
SECTION 1407. COUNTERPARTS. This Indenture may be simultaneously executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
SECTION 1408. GOVERNING LAW. This Indenture shall be governed exclusively
by and construed in accordance with the applicable laws of the State.
[The remainder of this page intentionally left blank.]
29
IN WITNESS WHEREOF, Issuer has caused this Indenture to be signed in its
name and behalf by its Mayor and its corporate seal to be hereunto affixed and
attested by its Unified Clerk, and to evidence its acceptance of the trusts
hereby created, Trustee has caused this Indenture to be signed in its name and
behalf and its official seal to be hereunto affixed and attested by its duly
authorized officers, all as of the date first above written.
UNIFIED GOVERNMENT OF
WYANDOTTE COUNTY/KANSAS CITY,
KANSAS, as Issuer
By: /s/ Xxxxx Xxxxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: Mayor/CEO
(Seal)
ATTEST:
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Deputy Unified Government Clerk
Trust Indenture
EPA Laboratory - 2001
S-1
SECURITY BANK OF KANSAS CITY, as
Trustee
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Trust Officer
(Seal)
ATTEST:
By: /s/ Xxxx X. XxXxxxxxxx
---------------------------------------
Name: Xxxx X. XxXxxxxxxx
Title: Vice President
Trust Indenture
EPA Laboratory - 2001
S-2
