EXHIBIT 10.11
____________________________________________________________
XXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
TRUST INDENTURE
Dated as of August 1, 2000
____________________
XXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
INDUSTRIAL DEVELOPMENT
REVENUE BONDS, 2000 SERIES A
(INNOVATIVE SOLUTIONS AND SUPPORT, LLC PROJECT)
____________________________________________________________
BOND COUNSEL AUTHORITY SOLICITOR
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Xxxxxxx & Xxx Xxxxxx O'Xxxxx Xxxxxxx & Xxxx, P.C.
000 Xxxxx Xxxxx Xxxxxx 00 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000 Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000-3090
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions........................................................................................ 3
SECTION 1.02 Interpretation; Time of Day........................................................................ 12
SECTION 1.03 Captions, Headings and Table of Contents........................................................... 13
ARTICLE II
AUTHORIZATION AND TERMS OF BONDS
SECTION 2.01 Amount, Form and Issuance of Bonds................................................................. 14
SECTION 2.02 Designation, Denominations, Maturity, Dated Dates, Interest Accrual and Tender..................... 14
SECTION 2.03 Weekly Rate........................................................................................ 15
SECTION 2.04 Term Rate.......................................................................................... 16
SECTION 2.05 Conversion at Option of Borrower................................................................... 17
SECTION 2.06 Execution and Authentication of Bonds.............................................................. 18
SECTION 2.07 Source of Payment of Bonds......................................................................... 18
SECTION 2.08 Payment and Ownership of Bonds..................................................................... 18
SECTION 2.09 Registration, Transfer and Exchange of Bonds....................................................... 19
SECTION 2.10 Mutilated, Lost, Wrongfully Taken or Destroyed Bonds............................................... 20
SECTION 2.11 Cancellation of Bonds.............................................................................. 21
SECTION 2.12 Special Agreement with Holders..................................................................... 21
SECTION 2.13 Book Entry System for the Bonds.................................................................... 22
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01 Terms of Redemption................................................................................ 25
SECTION 3.02 Partial Redemption................................................................................. 28
SECTION 3.03 Issuer's Election to Redeem........................................................................ 28
SECTION 3.04 Notice of Redemption............................................................................... 28
SECTION 3.05 Payment of Redeemed Bonds.......................................................................... 30
ARTICLE IV
PURCHASE AND REMARKETING OF BONDS
SECTION 4.01 Purchase on Demand of Holder During Weekly Mode.................................................... 31
SECTION 4.02 Mandatory Purchase on Conversion Date and at End of Term Rate Period; Upon Expiration of Letter
of Credit; Upon Issuance of Alternate Letter of Credit; and at Direction of Bank................. 33
SECTION 4.03 Remarketing........................................................................................ 35
SECTION 4.04 Drawings on Letter of Credit for Purchase of Bonds................................................. 36
SECTION 4.05 Bonds Purchased with Proceeds of Letter of Credit.................................................. 37
(i)
SECTION 4.06 Borrower Bonds.................................................................................... 38
SECTION 4.07 No Purchases After Acceleration; Inadequate Funds for Purchases................................... 38
ARTICLE V
FUNDS AND LETTER OF CREDIT
SECTION 5.01 Creation of Project Fund.......................................................................... 40
SECTION 5.02 Disbursements from and Records of Project Fund.................................................... 40
SECTION 5.03 Disposition of Excess Bond Proceeds............................................................... 40
SECTION 5.04 Bond Fund......................................................................................... 40
SECTION 5.05 Investment of Bond Fund, Project Fund and Rebate Fund............................................. 42
SECTION 5.06 Bond Fund Moneys to be Held in Trust.............................................................. 44
SECTION 5.07 Nonpresentment of Bonds........................................................................... 44
SECTION 5.08 Creation of Rebate Fund........................................................................... 44
SECTION 5.09 Letter of Credit.................................................................................. 46
ARTICLE VI
COVENANTS AND REPRESENTATIONS OF ISSUER
SECTION 6.01 Corporate Existence; Compliance with Laws......................................................... 50
SECTION 6.02 Payment of Bond Service........................................................................... 50
SECTION 6.03 No Further Assignment of Revenues................................................................. 50
SECTION 6.04 Filings........................................................................................... 50
SECTION 6.05 Rights and Enforcement of Financing Agreement..................................................... 50
SECTION 6.06 Further Assurances................................................................................ 51
SECTION 6.07 Issuer Not to Adversely Affect Tax-Exempt Status.................................................. 51
SECTION 6.08 Bonds Not to Become Arbitrage Bonds............................................................... 51
SECTION 6.09 Observance and Performance Agreements............................................................. 51
SECTION 6.10 Representations and Warranties.................................................................... 51
ARTICLE VII
DEFAULT AND REMEDIES
SECTION 7.01 Defaults; Events of Default....................................................................... 52
SECTION 7.02 Notice of Default................................................................................. 53
SECTION 7.03 Acceleration 53
SECTION 7.04 Other Remedies; Rights of Holders................................................................. 54
SECTION 7.05 Right of Holders to Direct Proceedings............................................................ 55
SECTION 7.06 Application of Moneys............................................................................. 56
SECTION 7.07 Remedies Vested in Trustee........................................................................ 57
SECTION 7.08 Rights and Remedies of Holders.................................................................... 57
SECTION 7.09 Termination of Proceedings........................................................................ 58
SECTION 7.10 Waivers of Events of Default...................................................................... 58
SECTION 7.11 Trustee's Right to Appointment of Receiver........................................................ 59
SECTION 7.12 Trustee and Holders Entitled to All Benefits Under Act............................................ 59
(ii)
SECTION 7.13 Trustee's Obligation to Bank Upon Payment of All Amounts Due Holders.............................. 59
ARTICLE VIII
TRUSTEE AND REMARKETING AGENT
SECTION 8.01 Trustee's Acceptance and Responsibilities......................................................... 60
SECTION 8.02 Certain Rights and Obligations of Trustee......................................................... 61
SECTION 8.03 Fees, Charges and Expenses of Trustee............................................................. 64
SECTION 8.04 Intervention by Trustee........................................................................... 65
SECTION 8.05 Successor Trustee................................................................................. 65
SECTION 8.06 Resignation by Trustee............................................................................ 65
SECTION 8.07 Removal of Trustee................................................................................ 66
SECTION 8.08 Appointment of Successor Trustee.................................................................. 66
SECTION 8.09 Adoption of Authentication........................................................................ 67
SECTION 8.10 Designation and Succession of Authenticating Agent, Bond Registrar, Transfer Agent, Tnder Agent
and Paying Agent..................................................................... 67
SECTION 8.11 Dealing in Bonds.................................................................................. 68
SECTION 8.12 Representations, Agreements and Covenants of Trustee.............................................. 68
SECTION 8.13 Appointment of Remarketing Agent.................................................................. 69
SECTION 8.14 Qualifications of Remarketing Agent............................................................... 69
SECTION 8.15 Compensation and Expenses of Remarketing Agent.................................................... 70
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
SECTION 9.01 Supplemental Indentures Not Requiring Consent of Holders.......................................... 71
SECTION 9.02 Supplemental Indentures Requiring Consent of Holders.............................................. 72
SECTION 9.03 Consent of Borrower............................................................................... 72
SECTION 9.04 Authorization to Trustee; Effect of Supplement.................................................... 72
SECTION 9.05 Modification by Unanimous Consent................................................................. 73
SECTION 9.06 Amendment of Financing Agreement.................................................................. 73
SECTION 9.07 Amendment of Letter of Credit..................................................................... 73
SECTION 9.08 Trustee Authorized to Join in Supplements and Amendments; Reliance on Counsel..................... 73
SECTION 9.09 Consent of Bank................................................................................... 74
SECTION 9.10 Notice to Rating Service.......................................................................... 74
ARTICLE X
DEFEASANCE
SECTION 10.01 Defeasance....................................................................................... 75
SECTION 10.02 Provision for Payment............................................................................ 75
SECTION 10.03 Deposit of Funds for Payment of Bonds............................................................ 76
SECTION 10.04 Survival of Certain Provisions................................................................... 77
(iii)
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Limitation of Rights; No Personal Recourse....................................................... 78
SECTION 11.02 Severability..................................................................................... 78
SECTION 11.03 Notices.......................................................................................... 78
SECTION 11.04 Suspension of Mail............................................................................... 79
SECTION 11.05 Payments Due on Saturdays, Sundays and Holidays.................................................. 80
SECTION 11.06 Instruments of Holders........................................................................... 80
SECTION 11.07 Binding Effect................................................................................... 81
SECTION 11.08 Counterparts..................................................................................... 81
SECTION 11.09 Governing Law.................................................................................... 81
SECTION 11.10 Certain References to Bank....................................................................... 81
(iv)
TRUST INDENTURE
THIS TRUST INDENTURE, dated as of August 1, 2000 between XXXXXXX
COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a public instrumentality and body
corporate and politic of the Commonwealth of Pennsylvania, and CHASE MANHATTAN
TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized
and validly existing under the laws of the United States of America, as Trustee
(the capitalized terms used in the recitals and granting clauses hereof being
used therein as defined in Article I of this Trust Indenture),
WITNESSETH THAT:
A. Pursuant to the Act, the Issuer has authorized and approved the
Project and the financing thereof through the issuance of the Bonds and the use
of the proceeds thereof pursuant to the Financing Agreement to finance costs of
the Project;
B. The Bonds will be issued under and secured by this Indenture, and
the Issuer is empowered and authorized to execute and deliver this Indenture and
the Financing Agreement and to do or cause to be done all acts provided or
required herein or therein to be performed on its part;
C. All acts and conditions required to happen, exist and be performed
precedent to and in the issuance of the Bonds and the execution and delivery of
this Indenture have happened, exist and have been performed (i) to make the
Bonds, when issued, delivered and authenticated, valid and binding legal
obligations of the Issuer and (ii) to make this Indenture a valid, binding and
legal trust agreement for the security of the Bonds; and
D. The Trustee has accepted the trusts created by this Indenture, and
in evidence thereof has joined in the execution hereof.
NOW, THEREFORE, the Issuer, intending to be legally bound, in
consideration of the acceptance by the Trustee of the trusts hereby created and
of the purchase and acceptance of the Bonds by the Holders, and of the sum of
One Dollar, lawful money of the United States of America, to it duly paid by the
Trustee at or before the execution and delivery of these presents, and for other
good and valuable consideration, the receipt of which is hereby acknowledged, in
order to secure, in the following order of priority, first, the payment of the
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principal of, premium, if any, on and interest on the Bonds according to their
tenor and effect and the performance and observance by the Issuer of all the
covenants expressed or implied herein and in the Bonds, and, second, the payment
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to the Bank and performance of the reimbursement and other obligations of the
Borrower under the Reimbursement Agreement, does hereby assign, transfer and
pledge to the Trustee and its successors in trust and its and their assigns
forever and grant to the Trustee and its successors in trust and its and their
assigns a security interest in:
a. All right, title and interest (but not the obligations) of the
Issuer under and pursuant to the terms of the Financing Agreement, all Loan
Payments (i.e., all loan payments required to be paid by the Borrower
pursuant to Section 4.2 of the Financing Agreement) and all other payments,
revenues and receipts receivable by the Issuer under the Financing
Agreement (except for the Unassigned Issuer's Rights); and
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b. All of the right, title and interest of the Issuer in and to all
Funds (other than the Rebate Fund) and Accounts established under this
Indenture and all moneys and investments now or hereafter held therein and
all present and future Revenues.
TO HAVE AND TO HOLD, the Financing Agreement, Funds, Accounts,
Revenues and the other right, title and interest hereby assigned, transferred
and pledged or agreed or intended so to be (collectively the "Trust Estate") to
the Trustee and its successors in said trust and to its and their assigns
forever;
IN TRUST NEVERTHELESS, upon the terms herein set forth, first, for the
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equal and proportionate benefit, security and protection of all present and
future Holders of the Bonds issued under and secured by this Indenture without
privilege, priority or distinction as to the lien or otherwise of any of the
Bonds over any other of the Bonds except as provided herein, and, second, for
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the benefit and security of the Bank with respect to the Borrower's obligations
under the Reimbursement Agreement;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns,
shall well and truly pay, or cause to be paid, the principal of the Bonds and
the interest and premium, if any, due or to become due thereon, at the times and
in the manner mentioned in the Bonds according to the true intent and meaning
thereof, or shall provide, as permitted hereby, for the payment thereof by
depositing with the Trustee the entire amount due or to become due thereon, and
shall well and truly keep, perform and observe all the covenants and conditions
pursuant to the terms of this Indenture to be kept, performed and observed by
the Issuer, and shall pay or cause to be paid to the Trustee all sums due or to
become due to it in accordance with the terms and provisions hereof, and if the
Borrower shall pay and perform or cause to be paid and performed all of its
reimbursement and other obligations under the Reimbursement Agreement, then,
upon such final payments and subject to the provisions of Article X, this
Indenture and the rights hereby granted shall cease, determine and be void, and
the Trustee shall forthwith release, surrender and otherwise cancel any interest
it may have in the Trust Estate; otherwise this Indenture shall be and remain in
full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
all Bonds issued and secured hereunder are to be issued, authenticated and
delivered and the Trust Estate, including all said payments, revenues and
receipts hereby pledged, is to be dealt with and disposed of, under, upon and
subject to the terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes as hereinafter expressed, and the Issuer has agreed and
covenanted, and does hereby agree and covenant, with the Trustee and with the
respective Holders, from time to time, of the Bonds, or any part thereof, as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. In this Indenture, the following terms
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shall have the meanings specified in this Article, unless the context otherwise
requires:
"Act" means the Pennsylvania Economic Development Financing Law (Act
No. 102, approved August 23, 1967, P.L. 251, as amended, including the
amendments effected by Act No. 48, approved July 10, 1987, P.L. 273 and Act No
74, approved December 17, 1993, P.L. 490). The Act is codified at 73 X.X.xx. 371
et seq.
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"Affiliate" means any Person directly or indirectly controlling,
controlled by or under common control with the Borrower as certified to the
Trustee and the Remarketing Agent by an Authorized Representative of the
Borrower. In addition, the term "Affiliate" shall also include (i) any General
Partner and (ii) any Person who has guaranteed the payment of the Borrower's
obligations under the Financing Agreement or the Reimbursement Agreement.
"Alternate Letter of Credit" means an irrevocable letter of credit
authorizing drawings thereunder by the Trustee, issued by a national banking
association, a bank, a trust company or other financial institution as the Bank,
and satisfying the requirements of Section 5.09.
"Authorized Representative" shall have the meaning assigned to such
term in the Financing Agreement.
"Available Moneys" means (i) proceeds of a drawing under the Letter of
Credit and (ii) any moneys paid to the Trustee and with respect to which the
Trustee has received an opinion of nationally recognized counsel experienced in
bankruptcy matters and acceptable to the Trustee and the Rating Service to the
effect that the use of such moneys to pay principal of, premium (if any) on or
interest on the Bonds, as applicable, will not constitute an avoidable transfer
under Section 547 of the United States Bankruptcy Code in the event of a
bankruptcy case under the United States Bankruptcy Code by the Issuer or by or
against the Borrower or any Affiliate, as debtor; provided that when used with
respect to payment of amounts due in respect of any Pledged Bonds or Borrower
Bonds or any payments due at any time when a Letter of Credit is not held by the
Trustee, "Available Moneys" means any moneys held by the Trustee and available
for such payment pursuant to the terms of this Indenture except for moneys drawn
under the Letter of Credit.
"Bank" means, initially, PNC Bank, National Association, a national
banking association, as issuer of the Letter of Credit, and its successors and
assigns in that capacity and, in the event an Alternate Letter of Credit is
outstanding, the issuer of the Alternate Letter of Credit.
"Bond Counsel" shall mean an attorney-at-law or a firm of attorneys of
nationally recognized standing in matters pertaining to bonds (including the tax
status of interest thereon) issued by states and their political subdivisions,
duly admitted to the practice of law before the highest court of any state of
the United States of America.
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"Bond Fund" means the fund so designated and established pursuant
to Section 5.04.
"Bond Service" means, for any period or payable at any time, the
principal of, premium, if any, on and interest on the Bonds for that period or
payable at that time whether due on an Interest Payment Date, at maturity or
upon acceleration or redemption.
"Bond Year" means, while Bonds remain outstanding, the annual
period provided for the computation of Excess Earnings under Section 148(f) of
the Code.
"Bondholder Tender Notice" means a written notice meeting the
requirements of Section 4.01.
"Bonds" means the $4,335,000 Industrial Development Revenue
Bonds, 2000 Series A (Innovative Solutions and Support, LLC Project) of the
Issuer issued, authenticated and delivered pursuant to Section 2.01.
"Borrower" means Innovative Solutions and Support, LLC, a limited
liability company duly organized and validly existing under the laws of the
Commonwealth of Pennsylvania, and its successors and assigns.
"Borrower Bonds" means any Bonds of which ownership is registered
in the name of the Borrower or any Affiliate, other than Pledged Bonds.
"Borrower Purchase Account" means the special trust account so
designated and established by the Trustee pursuant to Section 4.04.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banks located in Pittsburgh, Pennsylvania, New York, New York or
any other city in which the Designated Office or Payment Office of the Trustee
or the office of the Bank at which drawing documents are required to be
presented under the Letter of Credit is located are required or authorized to
close or on which The New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time. References to the Code and Sections of the Code include the
relevant regulations, temporary regulations and proposed regulations thereunder
and under the Internal Revenue Code of 1954, as amended, and any successor
provisions to those Sections, regulations, temporary regulations or proposed
regulations.
"Conversion Date" means any Interest Payment Date on which the
Rate Mode of the Bonds is converted to another Rate Mode pursuant to Section
2.05.
"Determination of Taxability" means (1) the receipt by the
Trustee of notice of the enactment of legislation or the adoption of final
regulations or a final decision, ruling or technical advice by any federal
judicial or administrative authority which, in the opinion of Bond Counsel, has
the effect of requiring interest on the Bonds to be included in the gross income
of the Holders for federal income tax purposes (other than a Holder who is a
"substantial user" of the Project or a "related person" as those terms are used
in Section 147(a) of the Code) or (2) the receipt by the Trustee of an opinion
of Bond Counsel furnished by the Borrower to the effect that
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interest on the Bonds is to be included in the gross income of the Holders for
federal income tax purposes (other than a Holder who is a "substantial user" of
the Project or a "related person" as those terms are used in Section 147(a) of
the Code) or (3) the delivery to the Trustee of a written statement signed by an
Authorized Representative of the Borrower to the effect that the maximum amount
of capital expenditures permitted under Section 144(a)(4) of the Code has been
or will be exceeded or that the Borrower or another "test-period beneficiary"
(as that term is defined in Section 144(a)(10)(D) of the Code) has exceeded or
will exceed the maximum amount of tax-exempt obligations permitted to be
outstanding under Section 144(a)(10) of the Code; provided that no decision by
any court or decision, ruling or technical advice by any administrative
authority shall be considered final (a) unless the Holder involved in the
proceeding or action giving rise to such decision, ruling or technical advice
(i) gives the Borrower, the Issuer, the Bank and the Trustee prompt written
notice of the commencement thereof and (ii) offers the Borrower the opportunity
to control the contest thereof, provided the Borrower shall have agreed to bear
all expenses in connection therewith and to indemnify that Holder against all
liabilities in connection therewith, and (b) until the expiration of all periods
for judicial review or appeal.
"DTC" means The Depository Trust Company, New York, New York and its
successors and assigns.
"Eligible Investments" means
(i) Government Obligations; the Trustee, in purchasing Government
Obligations, (a) may make any such purchase subject to agreement with the seller
for repurchase by the seller at a later date, and in such connection may accept
the seller's agreement for the payment of interest in lieu of the right to
receive the interest payable by the issuer of the securities purchased, provided
that title to the Government Obligations so purchased by the Trustee shall vest
in the Trustee, that the Trustee shall have actual or constructive possession of
such Government Obligations, and that the current market value of such
Government Obligations (or of cash or additional Government Obligations pledged
with the Trustee as collateral for the purpose) is at all times at least equal
to the principal and interest thereafter to become payable by the seller under
said agreement, or (b) may purchase shares of a fund whose sole assets are of a
type described in this clause (i) and such repurchase agreements thereof;
(ii) obligations issued or guaranteed by any state or political
subdivision thereof and rated in the highest category, if rated as short-term
obligations, or not lower than the third highest category, if rated as long term
obligations, by Moody's or by Standard & Poor's, or their successors; the
Trustee, in purchasing obligations of the type described in this clause (ii),
may purchase shares of a fund whose sole assets are such obligations or
obligations of the type described in clause (i) above;
(iii) commercial or finance company paper which is rated in the highest
rating category by either Moody's or Standard & Poor's;
(iv) deposit accounts, investment agreements, bankers' acceptances,
certificates of deposit or bearer deposit notes in any bank, trust company or
savings and loan association (including without limitation the Trustee or any
bank affiliated with the Trustee) organized under the laws of the United States
of America or any state thereof having a rating of
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its unsecured senior long-term debt obligations within one of the three highest
rating categories by either Moody's or Standard & Poor's; and
(v) obligations evidencing indebtedness described in Section 103(a) of the
Code which obligations are not investment property as defined in Section
148(b)(2) and (3) of the Code and are rated within one of the three highest
rating categories by Moody's or Standard & Poor's; the Trustee, in purchasing
securities of the type described in this clause (v), may purchase an interest in
a regulated investment company to the extent that at least 95% of the income to
the holder of such interest is interest that is excludable from gross income
under Section 103 of the Code and, in lieu of such securities being individually
rated as aforesaid, such company (or the fund in question) is rated within one
of the three highest rating categories by Moody's or Standard & Poor's.
"Event of Default" means any of the events described as an Event of Default
in Section 7.01.
"Excess Earnings" means an amount equal to the sum of (i) plus (ii) where:
(i) is the excess of (a) the aggregate amount earned from the date of
issuance of the Bonds on all nonpurpose investments in which gross proceeds of
the Bonds are invested (other than investments attributable to an excess
described in this clause (i)), over (b) the amount that would have been earned
if such nonpurpose investments (other than amounts attributable to an excess
described in this clause (i)) were invested at a rate equal to the yield on the
Bonds; and
(ii) is any income attributable to the excess described in clause (i).
The sum of (i) plus (ii) shall be determined in accordance with Section 148(f)
of the Code. As used herein, the terms "gross proceeds", "nonpurpose
investments" and "yield" have the meanings assigned to them for purposes of
Section 148(f) of the Code. "Excess Earnings", however, shall not include any
amount earned on the Bond Fund during any Bond Year if the gross earnings on
such Fund for such Bond Year are less than $100,000.
"Expiration Date" means the stated expiration date of the Letter of Credit,
as such date may be extended from time to time by the Bank.
"Extraordinary Services" and "Extraordinary Expenses" mean all services
rendered and all reasonable expenses properly incurred by the Trustee or any of
its agents under this Indenture, other than Ordinary Services and Ordinary
Expenses.
"Financial Consultant" means a firm of investment bankers, a financial
consulting firm, a law firm or a firm of certified public accountants,
satisfactory to the Borrower and the Trustee, which is experienced in the
calculation of amounts required to be rebated to the United States under Section
148(f) of the Code.
"Financing Agreement" means the Loan Agreement dated as of the date hereof
between the Issuer and the Borrower, as amended from time to time, pursuant to
which (i) the Issuer has agreed to cause the proceeds of the Bonds to be made
available to or for the benefit of the Borrower to pay Project Costs and (ii)
the Borrower has agreed to make loan payments corresponding to the Bond Service
for the term of the Bonds.
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"General Account" means the account so designated which is established
pursuant to Section 5.04.
"General Partner" means, if the Borrower is a partnership, any Person who
is a general partner of the Borrower.
"Government Obligations" means direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United
States of America, including obligations issued or held in book-entry form on
the books of the Department of the Treasury of the United States of America and
including a receipt, certificate or any other evidence of an ownership interest
in such obligations or in specified portions thereof (which may consist of
specified portions of interest thereon).
"Holder" means the Person in whose name a Bond is registered on the
Register.
"Indenture" means this Trust Indenture, as amended or supplemented from
time to time.
"Interest Payment Date" means (i) with respect to Weekly Rate interest, the
first Business Day of each calendar month commencing September 1, 2000 and (ii)
with respect to Term Rate interest, each Semiannual Date.
"Interest Rate for Advances" means the rate per annum which is two
percentage points in excess of that interest rate announced by the Trustee's
primary commercial banking affiliate as its "prime rate".
"Issuer" means Xxxxxxx County Industrial Development Authority, a
Pennsylvania public instrumentality and body corporate and politic organized and
existing under the Act.
"Issuer's Fee" means the fee of the Issuer payable pursuant to Section 4.4
of the Financing Agreement.
"Letter of Credit" means the irrevocable letter of credit issued by the
Bank to the Trustee on the date of execution and delivery of this Indenture and
any Alternate Letter of Credit, under which the Trustee is authorized, subject
to the terms and conditions thereof, to draw up to (a) an amount equal to the
principal amount of the outstanding Bonds (i) to enable the Trustee to pay the
principal amount of the Bonds when due at maturity, upon redemption or upon
acceleration and (ii) to enable the Trustee to pay the portion of the purchase
price of Bonds tendered to it and not remarketed corresponding to the principal
amount of such Bonds, plus (b) while the Bonds bear interest at a Weekly Rate,
an amount equal to interest to accrue at the Maximum Rate on the outstanding
Bonds for 50 days and, while the Bonds bear interest at a Term Rate, an amount
equal to interest to accrue at a rate not less than the Term Rate then in effect
on the outstanding Bonds for 200 days (i) to enable the Trustee to pay interest
on the Bonds when due and (ii) to enable the Trustee to pay the portion of the
purchase price of Bonds tendered to it and not remarketed corresponding to the
accrued interest on such Bonds, as the same may be amended, transferred,
reissued or extended in accordance with this Indenture, plus (c) while the Bonds
bear interest at a Term Rate, an amount equal to the sum of the optional
redemption premium (if any) and supplemental premium (if any) which would become
payable
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on the Bonds upon mandatory redemption if such irrevocable letter of credit or
Alternate Letter of Credit were not extended beyond the Expiration Date set
forth therein.
"Letter of Credit Debt Service Account" means the account so designated and
established pursuant to Section 5.04 in the Bond Fund.
"Letter of Credit Purchase Account" means the special trust account so
designated and established pursuant to Section 4.04.
"Loan Payments" means the loan payments required to be made by the Borrower
pursuant to Section 4.2 of the Financing Agreement corresponding to the Bond
Service for the term of the Bonds.
"Maximum Rate" means (i) with respect to Weekly Rate interest, 12% per
annum and (ii) with respect to Term Rate interest, 25% per annum.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors and
assigns.
"No Call Period" means the period of time referred to in the column under
that heading in the table in Section 3.01(e).
"Nominal Term Rate Period" means, with respect to a Term Mode, a period of
two or more consecutive Semiannual Periods (expressed in years and half years)
determined pursuant to Sections 2.04 and 2.05.
"Ordinary Services" and "Ordinary Expenses" mean those services normally
rendered, and those expenses normally incurred, by a trustee under instruments
similar to this Indenture, but excluding any services rendered or fees incurred
as a result of a default or Event of Default hereunder or under the Financing
Agreement or pursuant to Article IX.
"Outstanding Bonds", "Bonds outstanding" or "outstanding" as applied to
Bonds mean, as of the applicable date, all Bonds which have been authenticated
and delivered, or which are being delivered by the Trustee under this Indenture,
except:
(a) Bonds cancelled or required to be cancelled upon surrender, exchange
or transfer, or cancelled or required to be cancelled because of payment or
redemption on or prior to that date pursuant to Section 2.11;
(b) On or after any Purchase Date for Bonds to be purchased pursuant to
Article IV, all Undelivered Bonds (or portions of Bonds) which are purchased on
such date, provided that funds sufficient for such purchase are on deposit with
the Trustee;
(c) Bonds which are deemed paid in accordance with Article X; and
(d) Bonds in substitution for which others have been authenticated and
delivered under Section 2.10.
For purposes of approval or consent by the Holders, "outstanding Bonds," "Bonds
outstanding" or "outstanding" as applied to Bonds shall not include Bonds owned
by or on behalf of the
8
Issuer, the Borrower or an Affiliate (unless all of the Bonds are so owned), or
the Bank (unless all of the Bonds are so owned).
"Person" or words importing persons means firms, associations, partnerships
(including without limitation general and limited partnerships), limited
liability companies, joint ventures, societies, estates, trusts, corporations,
public or governmental bodies, other legal entities and natural persons.
"Pledged Bonds" shall have the meaning assigned to such term in Section
4.05.
"Project" means an approximately 44,800 square foot manufacturing facility
and related equipment to be owned and operated by the Borrower in fee, located
at 000 Xxxxxxxxxxxx Xxxxx (Lot 7) in the Township of Upper Uwchlan, Xxxxxxx
County, Pennsylvania as more fully described in the Financing Agreement.
"Project Costs" shall have the meaning assigned to such term in the
Financing Agreement.
"Project Fund" means the fund so designated and established pursuant to
Section 5.01.
"Purchase Date" means (a) with respect to any optional tender for purchase
pursuant to Section 4.01 of Bonds in the Weekly Mode, any Business Day
designated as the date of such purchase pursuant to such Section and (b) with
respect to any mandatory purchase pursuant to Section 4.02 (1) in the case of
Bonds which are to be purchased upon conversion from one Rate Mode to another
Rate Mode, the Conversion Date, or if such Conversion Date is not a Business
Day, the first Business Day succeeding such Conversion Date, (2) in the case of
Bonds which are to be purchased upon expiration of a Term Rate Period, the first
Business Day following the end of such Term Rate Period, (3) in the case of
Bonds to be purchased in anticipation of the expiration of the Letter of Credit
or the issuance of an Alternate Letter of Credit, the Interest Payment Date next
preceding the Expiration Date of the Letter of Credit or the Interest Payment
Date on which an Alternate Letter of Credit becomes effective, as applicable,
and (4) in the case of Bonds to be purchased at the direction of the Bank, the
purchase date stipulated by the Bank pursuant to Section 7.03.
"Rate Mode" means the Weekly Mode or a Term Mode.
"Rating Service" means Xxxxx'x Investors Service, Inc., if the Bonds are
rated by such at the time, and Standard & Poor's Ratings Services, a Division of
The XxXxxx-Xxxx Companies, Inc., if the Bonds are rated by such at the time, and
their successors and assigns, or if either shall be dissolved or no longer
assigning credit ratings to long term debt, then any other nationally recognized
entity assigning credit ratings to long term debt designated in writing by the
Issuer and satisfactory to the Trustee.
"Rebate Fund" means the fund so designated and established pursuant to
Section 5.08.
"Register" means the books kept and maintained by the Trustee for
registration and transfer of Bonds pursuant to Section 2.09.
9
"Regular Record Date" means, while the Bonds are in the Weekly Mode, the
close of business on the last Business Day preceding an Interest Payment Date
and, while the Bonds are in the Term Mode, the close of business on the
fifteenth day of the calendar month next preceding an Interest Payment Date.
"Reimbursement Agreement" means the Reimbursement, Credit and Security
Agreement dated as of August 1, 2000, between the Borrower and the Bank relating
to the Letter of Credit and the Bonds, as amended, supplemented or replaced from
time to time.
"Remarketing Agent" means, initially, PNC Capital Markets, Inc. and any
Person meeting the qualifications of, and designated from time to time to act as
Remarketing Agent under, Section 8.14. "Principal Office" of the Remarketing
Agent means the office of the Remarketing Agent at the address of the
Remarketing Agent set forth in Section 11.03, or any other office so designated
in writing by the Remarketing Agent to the Issuer, the Trustee, the Borrower and
the Bank.
"Remarketing Agreement" means the Remarketing Agreement between the
Borrower and the Remarketing Agent relating to the Bonds, as amended,
supplemented or replaced from time to time.
"Remarketing Proceeds Purchase Account" means the special trust account so
designated and established pursuant to Section 4.03.
"Representation Letter" shall mean the blanket representation letter from
the Issuer to DTC in the form attached hereto as Exhibit B.
"Revenues" means (a) the Loan Payments, (b) all other moneys received or to
be received by the Issuer or the Trustee in respect of Loan Payments, including
without limitation, all moneys and investments in the Bond Fund, (c) any
proceeds of Bonds originally deposited with the Trustee for the payment of
interest accrued on the Bonds or otherwise paid to the Trustee by or on behalf
of the Borrower or the Issuer for deposit in the Bond Fund or any excess moneys
remaining in the Project Fund following completion of the Project, (d)
investment income with respect to any moneys held by the Trustee under this
Indenture, except for Excess Earnings and investment income on moneys held in
the Rebate Fund, and (e) any moneys paid to the Trustee under the Letter of
Credit; provided that the term "Revenues" does not include any moneys or
investments in the Rebate Fund, the Remarketing Proceeds Purchase Account, the
Letter of Credit Purchase Account or the Borrower Purchase Account.
"Semiannual Date" means each February 1 and each August 1.
"Semiannual Period" means a six month period commencing on a Semiannual
Date and ending on and including the day immediately preceding the next
Semiannual Date.
"Series Issue Date" means the date of original issuance and first
authentication and delivery of the Bonds to the initial purchaser thereof
against payment therefor.
"Special Record Date" means, with respect to any Bond, the date established
by the Trustee in connection with the payment of overdue interest on that Bond
pursuant to Section 2.08.
10
"Standard & Poor's" means Standard & Poor's Ratings Services, a Division of
The XxXxxx-Xxxx Companies, Inc., and its successors and assigns.
"Supplemental Indenture" means any indenture supplemental to this Indenture
entered into between the Issuer and the Trustee in accordance with Article IX.
"Term Mode" means, with respect to the Bonds, the mode of accruing interest
thereon at Term Rates based on a constant Nominal Term Rate Period.
"Term Rate" means the rate of interest borne by the Bonds for a Term Rate
Period determined pursuant to Section 2.04.
"Term Rate Calculation Date" means a Business Day not more than 15 days and
not less than one day prior to the first day of the corresponding Term Rate
Period.
"Term Rate Period" means a period of two or more consecutive Semiannual
Periods equal to the applicable Nominal Term Rate Period determined pursuant to
Section 2.05 commencing on the Semiannual Date immediately following the last
day of the immediately preceding Term Rate Period and running through and ending
on the day immediately preceding the Semiannual Date which follows such
commencement date by a period equal to such Nominal Term Rate Period; except
that the first Term Rate Period after conversion from a Weekly Rate to a Term
Rate shall commence on the Conversion Date of such conversion and end on and
include the day immediately preceding the Semiannual Date which follows the
Semiannual Date occurring on or immediately preceding such Conversion Date by a
period equal to such Nominal Term Rate Period.
"Term Rate Period End Interest Payment Date" means the Semiannual Date
immediately following the last day of a Term Rate Period.
"Trustee" means Chase Manhattan Trust Company, National Association,
Philadelphia, Pennsylvania, until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter,
"Trustee" shall mean the successor Trustee. "Designated Office" of the Trustee
means the corporate trust office of the Trustee at the address of the Trustee
set forth in Section 11.03 and designated as the Designated Office for purposes
of this Indenture, or any other corporate trust office so designated in writing
by the Trustee to the Issuer, the Remarketing Agent, the Borrower and the Bank.
"Payment Office" of the Trustee means the office from which payments of
principal, premium (if any), interest and tender purchase price are made and
where Bonds may be surrendered for payment of upon redemption or acceleration or
at maturity, which office may be the office of an agent of the Trustee for such
purpose and shall be the office so designated in Section 11.03 or another office
of the Trustee or its agent so designated in a separate writing by the Trustee
to the Issuer, the Remarketing Agent, the Borrower and the Bank. "Transfer
Office" of the Trustee means the office where Bonds may be delivered to the
Trustee for transfer or exchange, which office may be the office of an agent of
the Trustee for such purpose and shall be the office so designated in Section
11.03 or another office of the Trustee or its agent so designated in a separate
writing by the Trustee to the Issuer, the Remarketing Agent, the Borrower and
the Bank. "Delivery Office" of the Trustee means, with respect to Bonds held in
certificated form, the office where such Bonds tendered for purchase may be
delivered to the Trustee, which office may be the office of an agent of the
Trustee for such purpose and shall be designated in Section 11.03 or another
11
office of the Trustee or its agent so designated in a separate writing by the
Trustee to the Issuer, the Remarketing Agent, the Borrower and the Bank.
"Trust Estate" shall have the meaning assigned to such term in the
foregoing habendum clause of this Indenture.
"Unassigned Issuer's Rights" shall have the meaning assigned to such in the
Financing Agreement.
"Undelivered Bonds" means any Bonds subject to purchase pursuant to Section
4.01 or 4.02 which the Holder thereof has failed to deliver as described in such
Sections.
"Weekly Mode" means, with respect to the Bonds, the mode of bearing
interest thereon at a Weekly Rate.
"Weekly Rate" means a floating weekly interest rate on the Bonds
established and adjusted in accordance with Section 2.03.
"Weekly Rate Calculation Date" means Wednesday in each calendar week or, if
any Wednesday is not a Business Day, the first Business Day preceding such
Wednesday.
"Weekly Rate Period" means the seven-day period commencing on the first
Thursday following the corresponding Weekly Rate Calculation Date and running
through Wednesday of the following calendar week; except that (i) the first
Weekly Rate Period shall commence on the Series Issue Date and end on and
include the first Wednesday occurring after the Series Issue Date, (ii) the
first Weekly Rate Period following a conversion from a Term Mode to the Weekly
Mode shall commence on the Conversion Date for such conversion and end on and
include the first Wednesday occurring after such date, and (iii) the last Weekly
Rate Period prior to a conversion from the Weekly Mode to the Term Mode shall
end on and include the last day immediately preceding the Conversion Date for
such conversion.
SECTION 1.02 Interpretation; Time of Day. Unless the context indicates
---------------------------
otherwise, words importing the singular number include the plural number, and
vice versa. The terms "hereof", "hereby", "herein", "hereto", "hereunder",
"hereinafter" and similar terms refer to this Indenture; and the term
"hereafter" means after, and the term "heretofore" means before, the Series
Issue Date. Words of any gender include the correlative words of the other
genders, unless the context indicates otherwise.
In this Indenture, unless otherwise indicated, all references to particular
Articles, Sections or Subsections are references to the Articles, Sections or
Subsections of this Indenture.
In this Indenture, all references to any time of the day shall refer to
Eastern standard time or Eastern daylight saving time, as in effect in the City
of Philadelphia, Pennsylvania on such day.
12
SECTION 1.03 Captions, Headings and Table of Contents. The captions,
----------------------------------------
headings and table of contents in this Indenture are solely for convenience of
reference and in no way define, limit or describe the scope of any Articles,
Sections, Subsections, paragraphs, subparagraphs or clauses hereof.
(End of Article I)
13
ARTICLE II
AUTHORIZATION AND TERMS OF BONDS
SECTION 2.01 Amount, Form and Issuance of Bonds. The Bonds shall, except
----------------------------------
as provided in Section 2.10, be limited to $4,335,000 in aggregate principal
amount and shall contain substantially the terms recited in the form of Bonds
set forth in Exhibit A to this Indenture. No additional series of Bonds may be
issued under this Indenture. All Bonds shall provide that Bond Service in
respect thereof shall be payable only out of the Revenues. The Issuer may cause
a copy of the text of the opinion of Bond Counsel delivered in connection with
the issuance of the Bonds to be printed on, or attached to, the Bonds, and, upon
request of the Issuer and deposit with the Trustee of an executed counterpart of
such opinion, the Trustee shall certify by manual or facsimile signature that
printed on, or attached to, the Bonds is the complete text of such opinion.
Pursuant to recommendations promulgated by the Committee on Uniform Security
Identification Procedures, "CUSIP" numbers may be printed on the Bonds. The
Bonds may bear such endorsement or legend satisfactory to the Trustee as may be
required to conform to usage or law with respect thereto.
Upon the execution and delivery hereof, the Issuer shall execute the Bonds
in the principal amount of $4,335,000 and deliver them to the Trustee for
authentication. The Trustee shall authenticate the Bonds and deliver them to, or
on the order of, the initial purchaser thereof upon receipt of a written request
and authorization to the Trustee on behalf of the Issuer, signed by an
Authorized Representative of the Issuer, and upon payment to the Trustee of the
amount specified therein, which amount shall be deposited as provided in Section
5.01.
SECTION 2.02 Designation, Denominations, Maturity, Dated Dates, Interest
-----------------------------------------------------------
Accrual and Tender.
------------------
(a) The Bonds shall be designated "Xxxxxxx County Industrial Development
Authority Industrial Development Revenue Bonds, 2000 Series A (Innovative
Solutions and Support, LLC Project)" and shall be substantially in the form
attached hereto as Exhibit A.
(b) The Bonds shall be issuable in denominations of $100,000 or any whole
multiple of $5,000 in excess thereof.
(c) The Bonds shall mature, subject to prior redemption as provided in the
form thereof recited in this Indenture, on August 1, 2015.
(d) The Series Issue Date shall be set forth on the face side of all Bonds
authenticated by the Trustee. Each Bond shall bear the date of its
authentication.
(e) The Bonds shall bear interest from the Interest Payment Date to which
interest has been paid next preceding the date of authentication, unless the
date of authentication (i) is an Interest Payment Date to which interest has
been paid, in which event the Bonds shall bear interest from the date of
authentication, or (ii) is prior to the first Interest Payment Date for the
Bonds, in which event such Bonds shall bear interest from the Series Issue Date.
Interest on the Bonds shall be paid on each Interest Payment Date. Each Bond
shall bear interest on overdue principal at the rates borne by the Bonds during
the period such principal is overdue. So long as the Bonds bear interest at a
Weekly Rate, interest on the Bonds shall be computed on the basis of
14
a year of 365 or 366 days, as applicable, for the number of days actually
elapsed. Interest accruing on the Bonds at a Term Rate shall be computed on the
basis of a 360-day year of twelve 30-day months.
(f) Bonds authenticated and delivered while bearing interest in the
Weekly Mode shall set forth on the face side thereof, in the place provided for
designating the interest rate, the words "Weekly Rate".
(g) Bonds authenticated and delivered while bearing interest in a
Term Mode shall set forth on the face side thereof, in the place provided for
designating the interest rate, the words "__% Term Rate for Term Rate Period
ending __________ 1, ____".
(h) All Bonds shall initially bear interest at a Weekly Rate from the
Series Issue Date determined in accordance with Section 2.03. The Bonds may be
converted from one Rate Mode to another Rate Mode as provided in Section 2.05.
(i) The Bonds shall be subject to optional and mandatory tender for
purchase as provided in Article IV.
SECTION 2.03 Weekly Rate. A Weekly Rate shall be determined for
-----------
each Weekly Rate Period as described below. For each Weekly Rate Period and so
long as the Bonds are in the Weekly Mode, the interest rate on the Bonds shall
be the current market rate determined by the Remarketing Agent on the
immediately preceding Weekly Rate Calculation Date, in accordance with this
Section. On each Weekly Rate Calculation Date, the Remarketing Agent shall
determine the Weekly Rate for the next succeeding Weekly Rate Period as the rate
which if borne by the Bonds would, in the judgment of the Remarketing Agent,
taking into account prevailing financial market conditions, be the interest rate
necessary, but would not exceed the interest rate necessary, to enable the
Remarketing Agent to arrange for the sale of all of the outstanding Bonds at a
price equal to the principal amount thereof plus accrued interest thereon.
Notice of such Weekly Rate shall be given by the Remarketing Agent to the
Trustee by the close of business on the Weekly Rate Calculation Date. No notice
of Weekly Rates will be given to the Issuer, the Borrower, the Bank or the
Holders; however, the Issuer, the Borrower, the Bank and the Holders may obtain
Weekly Rates from the Trustee or the Remarketing Agent upon request therefor.
Anything herein to the contrary notwithstanding, in no event shall the Weekly
Rate borne by the Bonds exceed the Maximum Rate.
In determining each Weekly Rate to be effective pursuant to this
Section, prevailing financial market conditions which the Remarketing Agent
shall take into account shall include (i) existing short-term tax-exempt market
rates and indexes of such short-term rates, (ii) the existing market supply and
demand for short-term tax-exempt securities, (iii) existing yield curves for
short-term tax-exempt securities for obligations of credit quality comparable to
the Bonds, (iv) general economic conditions, (v) industry, economic and
financial conditions that may affect or be relevant to the Bonds, and (vi) such
other facts, circumstances and conditions as the Remarketing Agent, in its sole
discretion, shall determine to be relevant.
If for any reason the Remarketing Agent does not determine a Weekly
Rate for any Weekly Rate Period as aforesaid, or if a court holds a rate for any
Weekly Rate Period to be invalid or unenforceable, the Weekly Rate for that
Weekly Rate Period shall be equal to the Weekly Rate in effect for the
immediately preceding Weekly Rate Period. The Weekly Rate for
15
any consecutive succeeding Weekly Rate Period for which the Remarketing Agent
does not determine a Weekly Rate, or a court holds a rate to be invalid or
unenforceable, shall be the 30-day tax-exempt commercial paper rate published
for that Weekly Rate Period by Munifacts Wire System, Inc. (or a replacement
publisher of a tax-exempt commercial paper rate designated in writing by the
Issuer to the Trustee and Remarketing Agent in the event Munifacts Wire System,
Inc. no longer published such rate), representing, as of the publication date,
the average of 30-day yield evaluations at par of tax-exempt securities rated by
each Rating Service in its highest commercial paper rating category; provided
that if Munifacts Wire System, Inc. or such replacement publisher does not
publish such a tax-exempt commercial paper rate on a day on which a Weekly Rate
is to be set, the Weekly Rate shall be 85% of the interest rate for 30-day
taxable commercial paper (prime paper placed through dealers) announced on such
day by the Federal Reserve Bank of New York.
The determination of the Weekly Rate by the Remarketing Agent pursuant
to this Indenture shall be conclusive and binding upon the Issuer, the Trustee,
the Borrower, the Remarketing Agent, the Bank and the Holders of the Bonds.
SECTION 2.04 Term Rate. A Term Rate shall be determined for each
---------
Term Rate Period as described below. Upon conversion to a Term Mode, a Nominal
Term Rate Period shall be fixed by the Borrower pursuant to Section 2.05 as a
term of two or more consecutive Semiannual Periods constituting the nominal
length of each Term Rate Period thereafter until the date of a conversion to
another Rate Mode. A Term Mode based on one Nominal Term Rate Period and a Term
Mode based on another Nominal Term Rate Period are different Rate Modes. Each
Term Rate shall be determined by the Remarketing Agent, on the Term Rate
Calculation Date, as the lowest rate of interest that, in the judgment of the
Remarketing Agent, taking into account prevailing financial market conditions,
would be necessary to enable the Remarketing Agent to arrange for the sale of
the Bonds in the respective Term Mode in a secondary market sale at a price
equal to the principal amount thereof, plus accrued interest, on the first
Business Day of the respective Term Rate Period; provided that (1) if the
Remarketing Agent fails for any reason to determine the Term Rate for any Term
Rate Period, such Term Rate shall be equal to 80% of the average of the annual
bond equivalent yield evaluations at par as of the first day of the
corresponding Term Rate Period or, if such day is not a Business Day, the next
preceding Business Day of United States Treasury obligations having a term to
maturity similar to such Term Rate Period, and (2) no Term Rate shall exceed the
lesser of (i) the maximum interest rate at which the Letter of Credit then in
effect provides coverage for at least 200 days interest and (ii) 25% per annum.
In determining a Term Rate pursuant to this Section, prevailing financial market
conditions which the Remarketing Agent shall take into account shall include (i)
existing long-term tax-exempt market rates and indexes of such long-term rates,
(ii) the existing market supply and demand for long-term tax-exempt securities,
(iii) existing yield curves for long-term tax-exempt securities for obligations
of credit quality comparable to the Bonds, (iv) general economic conditions, (v)
industry, economic and financial conditions that may affect or be relevant to
the Bonds, and (vi) such other facts, circumstances and conditions as the
Remarketing Agent, in its sole discretion, shall determine to be relevant.
Notice of each Term Rate shall promptly be given by telephone (promptly
confirmed in writing) by the Remarketing Agent to the Trustee, the Issuer, the
Borrower and the Bank. Determinations of Term Rates pursuant to this Section
shall be conclusive and binding upon the Issuer, the Borrower, the Trustee, the
Bank and the Holders.
16
SECTION 2.05 Conversion at Option of Borrower. The Borrower shall
--------------------------------
have the option to convert the Bonds from one Rate Mode to another Rate Mode as
herein provided on any Conversion Date the Borrower shall select; provided that
(i) each Conversion Date shall be an Interest Payment Date and (ii) Bonds in a
Term Mode cannot be converted to another Rate Mode prior to the date on or after
which the Bonds may first be redeemed at a redemption price of par, plus accrued
interest, pursuant to their terms. The Borrower may exercise its option to
convert the Bonds regardless of the number of times the Bonds have previously
been converted pursuant to the exercise of its option to convert. The Borrower
shall exercise such option by giving written notice from an Authorized
Representative of the Borrower to the Issuer, the Trustee, the Remarketing Agent
and the Bank, stating its election to convert the Rate Mode of the Bonds to
another Rate Mode specified in such notice and stating the Conversion Date
therefor, not less than 45 days (or such shorter period as shall be acceptable
to the Trustee) prior to such Conversion Date. Upon receipt of such notice by
the Trustee, the Trustee may conclusively assume that the Issuer, the
Remarketing Agent and the Bank also received a copy of such notice and that such
condition has been complied with. In connection with each conversion to a Term
Mode, the Nominal Term Rate Period shall be selected by the Borrower and
designated in such notice. Notice of the exercise of an option to convert shall
not be effective unless, within 10 days (or such greater period as shall be
acceptable to the Trustee) of the delivery of such notice, there shall have been
delivered to the Trustee (1) an opinion of Bond Counsel addressed to the
Trustee, the Issuer, the Borrower, the Bank and the Remarketing Agent to the
effect that (i) such conversion is authorized or permitted by this Indenture and
the Act and (ii) either (A) such conversion is not treated as a reissuance of
the Bonds and does not adversely affect the exclusion from gross income of the
interest on the Bonds for federal income tax purposes or (B) the interest on the
Bonds is excluded from gross income for federal income tax purposes, which
opinion shall be confirmed by such Bond Counsel on the Conversion Date, (2)
written consent of the Bank to such conversion, (3) in the case of a conversion
to a Term Mode, an amendment to the Letter of Credit or an Alternate Letter of
Credit which provides for (i) an Expiration Date not earlier than one year after
the Conversion Date, (ii) on and after such Conversion Date, coverage of 200
days accrued interest on the Bonds at a rate not less than the interest rate at
which the then current letter of credit provides coverage, subject to adjustment
on the Conversion Date to the actual Term Rate as the same shall be fixed on the
Conversion Date, and (iii) on and after such Conversion Date, coverage of
premium (if any) on the Bonds in an amount equal to the sum of the optional
redemption premium and supplemental premium which would become payable on the
Bonds upon mandatory redemption if the Letter of Credit (as amended by such
amendment) or such Alternate Letter of Credit were not extended beyond the
Expiration Date set forth therein, (4) in the case of a conversion from a Term
Mode to the Weekly Mode an amendment to the Letter of Credit or an Alternate
Letter of Credit which provides for (i) an Expiration Date not earlier than one
year after the Conversion Date and (ii) on and after such Conversion Date,
coverage for 50 days accrued interest on the Bonds at a maximum rate of 12% per
annum, and (5) written notice from the Rating Service that such conversion and
the related amendment to the Letter of Credit or delivery of an Alternate Letter
of Credit will not result in a withdrawal or reduction of the then current
rating or ratings on the Bonds or setting forth a new rating or ratings on the
Bonds effective upon such conversion. In the case of a conversion from one Rate
Mode to another Rate Mode, the Trustee shall give notice by first class mail
(postage prepaid) to the Holders not less than 30 days prior to the proposed
Conversion Date stating (i) that, in the case of a conversion to a Term Mode,
the interest rate on the Bonds is scheduled to be converted to a Term Rate and
stating the Nominal Term Rate Period on which such Term Rate will be based, or
in the case of a conversion to the Weekly
17
Mode, the interest rate on the Bonds is scheduled to be converted to a Weekly
Rate, (ii) the proposed Conversion Date, (iii) that the Borrower, on or before
the tenth day prior to the proposed Conversion Date, may determine not to
convert the Bonds in which case the Trustee shall notify the Holders in writing
to such effect, and (iv) that all outstanding Bonds will be subject to a
mandatory purchase on the Conversion Date, or if such Conversion Date is not a
Business Day, the first Business Day following such Conversion Date at a price
of par plus accrued interest, if any. The Issuer, the Borrower, the Trustee, the
Bank and the Remarketing Agent shall not be liable to any Holders for failure to
give any notice required above or for failure of any Holders to receive any such
notice. Upon each conversion under this Section, the Bonds shall be subject to
mandatory purchase pursuant to Section 4.02 on the Conversion Date or if such
Conversion Date is not a Business Day, the first Business Day following such
Conversion Date.
SECTION 2.06 Execution and Authentication of Bonds. The Bonds
-------------------------------------
shall be executed by the manual or facsimile signature of the Chairman, Vice
Chairman, Executive Director or Deputy Director of the Issuer, and the corporate
seal of the Issuer or a facsimile thereof shall be affixed, imprinted,
lithographed or reproduced thereon and attested by the manual or facsimile
signature of the Secretary or Assistant Secretary of the Issuer. In case any
officer whose signature or a facsimile of whose signature shall appear on any
Bond shall cease to be that officer before the authentication of the Bond, the
signature of such officer or the facsimile thereof nevertheless shall be valid
and sufficient for all purposes, the same as if he had remained in office until
that time. Any Bond may be executed on behalf of the Issuer by an officer who,
on the date of execution is the proper officer, although on the date of
authentication of the Bond that person was not the proper officer.
No Bond shall be valid or become obligatory for any purpose or shall
be entitled to any security or benefit under this Indenture unless and until a
certificate of authentication, substantially in the form set forth in Exhibit A
to this Indenture, has been signed by the Trustee. The authentication by the
Trustee upon any Bond shall be conclusive evidence that the Bond so
authenticated has been duly authenticated and delivered hereunder and is
entitled to the security and benefit of this Indenture. The certificate of the
Trustee may be executed by any person authorized by the Trustee, and it shall
not be necessary that the same authorized person sign the certificates of
authentication on all of the Bonds.
SECTION 2.07 Source of Payment of Bonds. To the extent provided
--------------------------
in and except as otherwise permitted by this Indenture, (i) the Bonds shall be
limited obligations of the Issuer and the Bond Service thereon shall be payable
equally and ratably solely from the Revenues and (ii) the payment of Bond
Service on the Bonds shall be secured by the Trust Estate pursuant to the
granting clauses of this Indenture. Neither the general credit nor the taxing
power of the Issuer, the Commonwealth of Pennsylvania or any political
subdivision thereof is pledged to the payment of the Bonds, and the Bonds shall
not be or be deemed obligations of the Commonwealth of Pennsylvania or any
political subdivision thereof. The Issuer has no taxing power.
SECTION 2.08 Payment and Ownership of Bonds. Bond Service shall
------------------------------
be payable in lawful money of the United States of America without deduction for
the services of the Trustee. Subject to the provisions of the second paragraph
of this Section and Sections 2.12 and 2.13, (i) the principal of and any premium
on any Bond shall be payable when due to a
18
Holder upon presentation and surrender of such Xxxx at the Payment Office of the
Trustee, and (ii) interest on any Bond shall be paid on each Interest Payment
Date by check or draft which the Trustee shall cause to be mailed on that date
to the Person in whose name the Bond is registered at the close of business on
the Regular Record Date applicable to that Interest Payment Date on the Register
at the address appearing therein. If and to the extent, however, that the Issuer
shall fail to make payment or provision for payment of interest on any Bond on
any Interest Payment Date, that interest shall cease to be payable to the Person
who was the Holder of that Xxxx as of the applicable Regular Record Date. When
moneys become available for payment of that interest, (x) the Trustee shall,
pursuant to Subsection 7.06(d), establish a Special Record Date for the payment
of that interest which shall be not more than 15 nor fewer than 10 days prior to
the date of the proposed payment, and (y) the Trustee shall cause notice of the
proposed payment and of the Special Record Date to be mailed by first class
mail, postage prepaid, to each Holder at its address as it appears on the
Register not fewer than 10 days prior to the Special Record Date and,
thereafter, that interest shall be payable to the Persons who are the Holders of
the Bonds at the close of business on the Special Record Date.
The interest and the principal or redemption price and purchase price
becoming due with respect to the Bonds shall, at the written request of the
Holder of at least $1,000,000 aggregate principal amount of such Bonds received
by the Trustee at least two Business Days before the corresponding Regular
Record Date or maturity, redemption or purchase date, be paid by wire transfer
within the continental United States in immediately available funds to the bank
account number of such Holder specified in such request and entered by the
Trustee on the Register, but, in the case of principal or redemption price and
purchase price, only upon presentation and surrender of such Bonds at the
Payment Office of the Trustee.
Subject to the foregoing, each Bond delivered under this Indenture
upon transfer thereof, or in exchange for or in replacement of any other Bond,
shall carry the rights to interest accrued and unpaid, and to accrue on that
Bond, or which were carried by that Xxxx.
Except as provided in this Section and in the first paragraph of
Section 2.10, (i) the Holder of any Bond shall be deemed and regarded as the
absolute owner thereof for all purposes of this Indenture, (ii) payment of or on
account of the Bond Service on any Bond shall be made only to or upon the order
of that Holder or its duly authorized attorney in the manner permitted by this
Indenture, and (iii) neither the Issuer nor the Trustee shall, to the extent
permitted by law, be affected by notice to the contrary. All of those payments
shall be valid and effective to satisfy and discharge the liability upon that
Bond, including without limitation the interest thereon to the extent of the
amount or amounts so paid.
SECTION 2.09 Registration, Transfer and Exchange of Bonds. All
--------------------------------------------
Bonds shall be issued in fully registered form. The Bonds shall be registered
upon original issuance and upon subsequent transfer or exchange as provided in
this Indenture. The Trustee shall act as registrar and transfer agent for the
Bonds. So long as any of the Bonds remain outstanding, the Issuer will cause
books for the registration and transfer of Bonds, as provided in this Indenture,
to be maintained and kept by the Trustee.
Bonds may be exchanged, at the option of their Holder, for Bonds of
any authorized denomination or denominations in an aggregate principal amount
equal to the unmatured and unredeemed principal amount of, and bearing interest
at the same rate and
19
maturing on the same date or dates as, the Bonds being exchanged. The exchange
shall be made upon presentation and surrender of the Bonds being exchanged at
the Transfer Office of the Trustee, together with an assignment duly executed by
the Holder or its duly authorized attorney in form and with guarantee of
signature satisfactory to the Trustee.
Any Bond may be transferred upon the Register, upon presentation and
surrender thereof at the Transfer Office of the Trustee, together with an
assignment duly executed by the Holder or its duly authorized attorney in form
and with guarantee of signature satisfactory to the Trustee. Upon transfer of
any Bond, the Issuer shall execute in the name of the transferee, and the
Trustee shall authenticate and deliver, a new Bond or Bonds of any authorized
denomination or denominations in an aggregate principal amount equal to the
unmatured and unredeemed principal amount of, and bearing interest at the same
rate and maturing on the same date or dates as, the Bonds presented and
surrendered for transfer.
In all cases in which Bonds shall be exchanged or transferred
hereunder, the Issuer shall execute, and the Trustee shall authenticate and
deliver, Bonds in accordance with the provisions of this Indenture. The exchange
or transfer shall be made without charge; provided that the Issuer or the
Trustee may make a charge for every exchange or transfer of Bonds sufficient to
reimburse them for any tax or excise required to be paid with respect to the
exchange or transfer. The charge shall be paid before a new Bond is delivered.
All Bonds issued upon any transfer or exchange of Bonds shall be the
valid obligations of the Issuer, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Bonds surrendered upon transfer or
exchange. While the Bonds are in a Term Mode, the Trustee shall not be required
to exchange or transfer (i) any Bond during a period beginning at the opening of
business 15 days before the date of the mailing of a notice of redemption of
Bonds and ending at the close of business on the day of such mailing, or (ii)
any Bond selected for redemption, in whole or in part.
In case any Bond is redeemed in part only, on or after the redemption
date and upon presentation and surrender of the Bond, the Issuer, subject to the
provisions of Sections 2.12 and 2.13, shall cause execution of, and the Trustee
shall authenticate and deliver, a new Bond or Bonds in authorized denominations
in an aggregate principal amount equal to the unmatured and unredeemed portion
of, and bearing interest at the same rate and maturing on the same date or dates
as, the Bond redeemed in part.
SECTION 2.10 Mutilated, Lost, Wrongfully Taken or Destroyed
----------------------------------------------
Bonds. If any Bond is mutilated, lost, wrongfully taken or destroyed, in the
-----
absence of written notice to the Issuer or the Trustee that a lost, wrongfully
taken or destroyed Bond has been acquired by a bona fide purchaser, the Issuer
shall execute, and the Trustee shall authenticate and deliver, a new Bond of
like date, maturity, interest rate and denomination and of the same series as
the Bond mutilated, lost, wrongfully taken or destroyed; provided that (i) in
the case of any mutilated Bond, the mutilated Bond first shall be surrendered to
the Trustee, and (ii) in the case of any lost, wrongfully taken or destroyed
Xxxx, there first shall be furnished to the Issuer, the Borrower and the Trustee
evidence of the loss, wrongful taking or destruction satisfactory to the
Trustee, together with indemnity satisfactory to it and to the Authorized
Representative of the Issuer. The Issuer and the Trustee may charge the Holder
of a mutilated, lost, wrongfully taken or destroyed Bond their reasonable fees
and expenses in connection with their actions pursuant to this Section.
20
Notwithstanding the foregoing, the Trustee shall not be required to
authenticate and deliver any substitute Bond for a Bond which has been called
for redemption or which has matured or is about to mature and, in any such case,
the principal or redemption price and interest then due or becoming due shall be
paid by the Trustee with funds available under the Indenture for such purpose in
accordance with the terms of the mutilated, lost, wrongfully taken or destroyed
Bond without substitution therefor.
Any Bond authenticated and delivered under this Section 2.10 in
substitution for a lost, wrongfully taken or destroyed Bond shall, except as
otherwise provided in this Section, be deemed to evidence the same debt as the
lost, wrongfully taken or destroyed Xxxx. Every substituted Bond issued pursuant
to this Section shall constitute an additional contractual obligation of the
Issuer and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Bonds duly issued hereunder unless the
Bond alleged to have been lost, wrongfully taken or destroyed shall be at any
time enforceable by a bona fide purchaser for value without notice. In the event
the Bond alleged to have been lost, wrongfully taken or destroyed shall be
enforceable by anyone, the Issuer may recover the substitute Bond from the
Bondholder to whom it was issued or from anyone taking under such Bondholder
except a bona fide purchaser for value without notice.
All Bonds shall be held and owned on the express condition that the
foregoing provisions of this Section are exclusive with respect to the
replacement or payment of mutilated, lost, wrongfully taken or destroyed Bonds
and, to the extent permitted by law, shall preclude any and all other rights and
remedies with respect to the replacement or payment of negotiable instruments or
other investment securities without their surrender, notwithstanding any law or
statute to the contrary now existing or hereafter enacted.
SECTION 2.11 Cancellation of Bonds. Any Xxxx surrendered pursuant
---------------------
to this Article for the purpose of payment, redemption, retirement, exchange,
replacement or transfer shall be cancelled upon presentation and surrender
thereof to the Trustee. Bonds purchased pursuant to Section 4.01 or 4.02 shall
not be surrendered Bonds and shall be outstanding Bonds, unless otherwise
specifically provided in this Indenture.
The Borrower may deliver at any time to the Trustee for cancellation
any Bonds previously authenticated and delivered hereunder, which the Borrower
may have purchased pursuant to the provisions of this Indenture. All Bonds so
delivered shall be cancelled promptly by the Trustee. Cancelled Bonds shall be
destroyed by the Trustee by shredding, incineration or other method promptly
after their cancellation. Upon written request from the Issuer, the Trustee
shall provide certificates describing the destruction of cancelled Bonds to the
Issuer.
SECTION 2.12 Special Agreement with Holders. Notwithstanding any
------------------------------
provision of this Indenture or of any Bond to the contrary, the Trustee may
enter into an agreement with any Holder providing for making all payments to
that Holder of principal of and interest and any premium on that Bond or any
part thereof at a place and by a method (including wire transfer of federal
funds) other than as provided in this Indenture and in the Bond, without
presentation or surrender of the Bond, upon any conditions which shall be
satisfactory to the Trustee; provided that (i) except as otherwise provided in
Section 2.13, payment of principal shall be made only upon presentation and
surrender of the Bond and (ii) payment in any event shall be made to the Person
in whose name a Bond shall be registered on the Register, with
21
respect to payment of principal and premium, on the date such principal and
premium is due, and, with respect to the payment of interest, as of the
applicable Regular Record Date, Special Record Date or other date agreed upon,
as the case may be. The Trustee will furnish a copy of each such agreement, upon
request, to the Issuer, the Bank and the Borrower. Any payment of principal,
premium or interest pursuant to such an agreement shall constitute payment
thereof pursuant to, and for all purposes of, this Indenture.
SECTION 2.13 Book Entry System for the Bonds.
-------------------------------
(a) Notwithstanding the foregoing provisions of this Article II, the
Bonds shall initially be issued in the form of one fully-registered bond for the
aggregate principal amount of the Bonds of each maturity, which Bonds shall be
registered in the name of Cede & Co., as nominee of DTC. Except as provided in
paragraph (g) below, all of the Bonds shall be registered in the Register in the
name of Cede & Co., as nominee of DTC; provided that if DTC shall request that
the Bonds be registered in the name of a different nominee, the Trustee shall
exchange all or any portion of the Bonds for an equal aggregate principal amount
of Bonds registered in the name of such nominee or nominees of DTC. No Person
other than DTC or its nominee shall be entitled to receive from the Issuer or
the Trustee either a Bond or any other evidence of ownership of the Bonds, or
any right to receive any payment in respect thereof, unless DTC or its nominee
shall transfer record ownership of all or any portion of the Bonds on the
Register in connection with discontinuing the book entry system as provided in
paragraph (g) below or otherwise.
(b) So long as any Bonds are registered in the name of DTC or any
nominee thereof, all payments of the principal, Purchase Price or redemption
price of or interest on such Bonds shall be made to DTC or its nominee in
accordance with the Representation Letter on the dates provided for such
payments under this Indenture. Each such payment to DTC or its nominee shall be
valid and effective to fully discharge all liability of the Issuer or the
Trustee with respect to the principal or redemption price of or interest on the
Bonds to the extent of the sum or sums so paid. In the event of the redemption
of less than all of the Bonds outstanding of any maturity, the Trustee shall not
require surrender by DTC or its nominee of the Bonds so redeemed, but DTC (or
its nominee) may retain such Bonds and make an appropriate notation on the Bond
certificate as to the amount of such partial redemption; provided that DTC shall
deliver to the Trustee, upon request, a written confirmation of such partial
redemption and thereafter the records maintained by the Trustee shall be
conclusive as to the amount of the Bonds of such maturity which have been
redeemed.
(c) The Issuer and the Trustee may treat DTC (or its nominee) as the
sole and exclusive owner of the Bonds registered in its name for the purposes of
payment of the principal, redemption price or purchase price of or interest on
the Bonds, selecting the Bonds or portions thereof to be redeemed, giving any
notice permitted or required to be given to Holders under this Indenture,
registering the transfer of Bonds, obtaining any consent or other action to be
taken by Holders and for all other purposes whatsoever; and neither the Issuer
nor the Trustee shall be affected by any notice to the contrary. Neither the
Issuer nor the Trustee shall have any responsibility or obligation to any
participant in DTC, any Person claiming a beneficial ownership interest in the
Bonds under or through DTC or any such participant, or any other Person which is
not shown on the Register as being a Holder, with respect to either: (1) the
Bonds, (2) the accuracy of any records maintained by DTC or any such
participant, (3) the
22
payment by DTC or any such participant of any amount in respect of the
principal, redemption price or purchase price of or interest on the Bonds, (4)
any notice which is permitted or required to be given to Holders under this
Indenture, (5) the selection by DTC or any such participant of any Person to
receive payment in the event of a partial redemption of the Bonds, and (6) any
consent given or other action taken by DTC as Holder.
(d) So long as any Bonds are registered in the name of DTC or any
nominee thereof, all notices required or permitted to be given to the Holders of
such Bonds under this Indenture shall be given to DTC as provided in the
Representation Letter.
(e) In connection with any notice or other communication to be
provided to Holders pursuant to this Indenture by the Issuer or the Trustee with
respect to any consent or other action to be taken by Holders, DTC shall
consider the date of receipt of notice requesting such consent or other action
as the record date for such consent or other action, provided that the Issuer or
the Trustee may establish a special record date for such consent or other
action. The Issuer or the Trustee shall give DTC notice of such special record
date not less than 15 calendar days in advance of such special record date to
the extent possible.
(f) Any successor Trustee shall, in its written acceptance of its
duties under this Indenture, agree to take any actions necessary from time to
time to comply with the requirements of the Representation Letter.
(g) The book-entry system for registration of the ownership of the
Bonds may be discontinued at any time if either (1) after written notice to the
Issuer and the Trustee, DTC determines to resign as securities depository for
the Bonds, or (2) after written notice to DTC and the Trustee, the Issuer
determines that continuation of the system of book-entry transfers through DTC
(or through a successor securities depository) is not in the best interests of
the Issuer. In either of such events (unless in the case described in clause (2)
above, the Issuer appoints a successor securities depository), the Bonds shall
be delivered in registered certificate form to such Persons, and in such
maturities and principal amounts, as may be designated in writing by DTC, but
without any liability on the part of the Issuer or the Trustee for the accuracy
of such designation. Whenever DTC requests the Issuer and the Trustee to do so,
the Issuer and the Trustee shall cooperate with DTC in taking appropriate action
after reasonable notice to arrange for another securities depository to maintain
custody of certificates evidencing the Bonds.
(h) Anything herein to the contrary notwithstanding, so long as any
Bonds are registered in the name of DTC or any nominee thereof, (i) in
connection with any optional tender of such Bonds bearing interest at a Weekly
Rate, the beneficial owners of such Bonds are responsible for submitting the
Bondholder Tender Notice to the Remarketing Agent only, and (ii) in the
definition of "Determination of Taxability" in Article I, the term "Holder"
shall be deemed to refer to the beneficial owners of such Bonds.
(i) Upon remarketing of Bonds in accordance with Section 4.03 herein,
payment of the purchase price thereof shall be made to DTC and no surrender of
certificates is expected to be required. Such sales shall be made through DTC
participants (which may include the Remarketing Agent) and the new beneficial
owners of such Bonds shall not receive delivery of Bond certificates. DTC shall
transmit payment to DTC participants, and DTC participants shall transmit
payment to beneficial owners whose Bonds were purchased pursuant to a
23
remarketing. Neither the Issuer, the Trustee nor the Remarketing Agent is
responsible for transfers of payment to DTC participants or beneficial owners.
(j) The provisions of this Section 2.13 are subject to the provisions
of Article IV relating to Pledged Bonds.
(End of Article II)
24
ARTICLE III
REDEMPTION OF BONDS
SECTION 3.01 Terms of Redemption. The Bonds are subject to
-------------------
redemption prior to stated maturity as follows:
(a) Mandatory Sinking Fund Redemption. The Bonds are not subject to
---------------------------------
mandatory sinking fund redemption.
(b) Extraordinary Optional Redemption. The Bonds are subject to
---------------------------------
redemption prior to maturity by the Issuer in the event of the exercise by the
Borrower of its option to direct that redemption upon occurrence of any of the
events described in Section 6.2 of the Financing Agreement, at any time in whole
or on any Interest Payment Date in part, in each case, at a redemption price of
100% of the principal amount redeemed plus accrued interest to the redemption
date.
(c) Optional Redemption During Weekly Mode. While the Bonds are in
--------------------------------------
the Weekly Mode, the Bonds may be redeemed by the Issuer, at the direction of
the Borrower, in whole at any time or in part on any Interest Payment Date,
prior to maturity at a redemption price equal to 100% of the principal amount
thereof plus accrued interest to the redemption date.
(d) Optional Redemption During Term Mode. While the Bonds are in a
------------------------------------
Term Mode, the Bonds shall be subject to optional redemption prior to maturity
by the Issuer, at the direction of the Borrower, only (i) in whole or in part on
a Term Rate Period End Interest Payment Date at a redemption price equal to 100%
of the principal amount thereof plus accrued interest to the redemption date or
(ii) prior to the end of the then current Term Rate Period in whole at any time
or in part on any Interest Payment Date, provided that the Bonds shall not be
redeemable during the No Call Period shown below, which shall begin on the first
day of the current Term Rate Period. In each Term Rate Period, after the
applicable No Call Period, the Bonds shall be redeemable at a redemption price
equal to the percentage of their principal amount shown below in the Initial
Redemption Price column, plus accrued interest to the redemption date. The
redemption price (expressed as a percentage of the principal amount of the Bonds
to be redeemed) shall decline annually by the amount shown below in the Annual
Reduction in Premium column until the Bonds shall be redeemable at a redemption
price equal to 100% of the principal amount thereof plus accrued interest,
without premium, after the year indicated in the No Premium column.
25
Term Rate Period
----------------
Equal to or Initial Annual
Greater But Less No Call Redemption Reduction in No Premium
Than Than Period Price Premium After
---------- -------- ------- ----------- ----------- --------
10 Years N/A 8 Years 102% 1/2% 12/th/ Year
5 Years 10 Years 5 Years 101% 1/2% 7/th/ Year
N/A 5 Years 2 Years 101% 1/2% 4/th/ Year
In connection with any conversion to a Term Mode, the Issuer (at the
direction of the Borrower) may, by written stipulation delivered to the Trustee,
the Remarketing Adviser and the Bank, waive or otherwise alter its right to
direct the optional redemption of the Bonds and any redemption premium that may
become payable in connection therewith; provided that, at least 30 days (or such
shorter period as shall be acceptable to the Trustee, the Remarketing Agent and
the Bank) prior to the respective Conversion Date, there is delivered to the
Trustee, the Remarketing Agent and the Bank (1) a notice from the Issuer setting
forth such waiver or alteration and (2) an opinion of Bond Counsel to the effect
that such waiver or alteration is authorized or permitted under this Indenture
and the Act and that (i) such waiver or alteration is not treated as causing a
reissuance of the Bonds and does not adversely affect the exclusion from gross
income of interest on the Bonds for federal income tax purposes or (ii) the
interest on the Bonds is excluded from gross income for federal income tax
purposes.
The Issuer may only call Bonds for optional redemption pursuant to
this Subsection which would require a payment of a premium if (i) the Trustee
can draw under the Letter of Credit moneys sufficient to pay such premium with
respect to all Bonds other than any Pledged Bonds or Borrower Bonds and (ii) the
Bank has consented to such optional redemption.
If optional redemption at a redemption price exceeding 100% of the
principal amount to be redeemed is to take place as of any applicable mandatory
redemption date identified in Subsection 3.01(a), the Bonds, or portions
thereof, to be so redeemed shall be selected pursuant to the provisions of
Section 3.02 prior to the selection of the Bonds to be redeemed on the same date
by operation of the mandatory redemption provisions of Subsection 3.01(a).
(e) Mandatory Redemption Upon Expiration of Letter of Credit Without
----------------------------------------------------------------
Replacement. While the Bonds are in a Term Mode, the Bonds are subject to
-----------
mandatory redemption in whole by the Issuer on the Interest Payment Date next
preceding the Expiration Date of the Letter of Credit unless at least 45 days
(or such shorter period as shall be acceptable to the Trustee) prior to such
Interest Payment Date the Trustee has received notice that the Letter of Credit
has been or will be extended; provided that, if such Interest Payment Date is a
Term Rate Period End Interest Payment Date, then such Bonds shall not be so
redeemed but shall be subject to mandatory purchase as provided in Section 4.02.
The redemption price of Bonds so redeemed shall be equal to the redemption price
that would be applicable to such Bonds if they were redeemed by optional
redemption pursuant to Subsection 3.01(d); provided that if such redemption will
occur during the applicable No Call Period under Subsection 3.01(d), then the
redemption price shall be equal to the optional redemption price that would be
applicable to such Bonds on the first day after the expiration of the applicable
No Call Period plus a supplemental
26
premium in the amount (expressed as a percentage of the principal amount of the
Bonds to be redeemed) that corresponds to the then remaining No Call Period, as
follows:
Remaining No Call Period Supplemental Premium
------------------------ --------------------
Equal to or But Less Than Greater Than
------------------------- ------------
6 Years 3%
3 Years - 6 Years 2%
N/A - 3 Years 1%
In connection with any conversion to a Term Mode, the Issuer (at the
direction of the Borrower) may, by written stipulation delivered to the Trustee,
the Remarketing Agent and the Bank, waive or otherwise alter any redemption
premium or any supplemental premium which may become payable in connection with
a mandatory redemption upon expiration of the Letter of Credit; provided that,
at least 30 days (or such shorter period as shall be acceptable to the Trustee,
the Remarketing Agent and the Bank) prior to the respective Conversion Date,
there is delivered to the Trustee, the Remarketing Agent and the Bank (1) a
notice from the Issuer setting forth such waiver or alteration and (2) an
opinion of Bond Counsel to the effect that such waiver or alteration is
authorized or permitted under this Indenture and the Act and that (i) such
waiver or alteration is not treated as causing a reissuance of the Bonds and
does not adversely affect the exclusion from gross income of interest on the
Bonds for federal income tax purposes or (ii) the interest on the Bonds is
excluded from gross income for federal income tax purposes.
(f) Mandatory Redemption Upon Determination of Taxability. Upon the
-----------------------------------------------------
occurrence of a Determination of Taxability, the Bonds are subject to mandatory
redemption in whole prior to maturity by the Issuer at a redemption price equal
to 100% of the outstanding principal amount thereof plus accrued interest to the
redemption date, at the earliest practicable date selected by the Trustee, after
consultation with the Borrower, but in no event later than 90 days following the
Trustee's receipt of written notification of the Determination of Taxability.
If the Trustee receives written notice that a Determination of
Taxability has occurred, the Trustee shall forthwith consult with the Issuer,
the Borrower and the Bank and thereafter (if a Determination of Taxability has
in fact occurred) proceed to enforce payments under the Financing Agreement in
respect of the necessary redemption price and to redeem the Bonds as soon as
practicable after the date the Trustee first receives written notice of the
Determination of Taxability. In making any determination in respect of the
occurrence of a Determination of Taxability or a redemption relating thereto,
the Trustee may rely on an opinion of counsel.
All of the Bonds outstanding on the redemption date selected shall be
redeemed by the Issuer on that date, except that Bonds for the payment or
redemption of which sufficient moneys or investments are held by the Trustee as
provided in Section 10.02 shall be redeemed on the redemption date in accordance
with that Section and not otherwise.
(g) Use of Certain Funds to Redeem Bonds. The Trustee shall draw on
------------------------------------
the Letter of Credit in the manner provided by Section 5.04 to pay the principal
of and premium (if
27
any) and interest on any Bonds called for redemption pursuant to this Section.
Except as otherwise provided in this Section, the Trustee shall pay the
redemption price on all Bonds redeemed under this Section in the manner and from
the sources set forth in Section 5.04 with respect to the payment of Bond
Service. The Trustee shall only call Bonds for optional redemption pursuant to
subsection 3.01(c) or 3.01(d) if (i) it holds moneys in the Bond Fund available
for payment of the Bonds to be redeemed pursuant to Section 5.04(c) or (ii) the
Bank has consented to such optional redemption.
SECTION 3.02 Partial Redemption. If fewer than all of the Bonds
------------------
are to be redeemed, the selection of Bonds or portions thereof to be redeemed
shall be made by lot or by such other method as the Trustee deems fair and
appropriate; provided that (i) any Pledged Bonds shall be redeemed first and any
Borrower Bonds shall be redeemed second, and (ii) if any Bond is to be redeemed
in part, the principal portion to remain outstanding must be equal to $100,000
or any whole multiple of $5,000 in excess thereof. In the case of a partial
redemption of Bonds when Bonds of denominations greater than $100,000 are then
outstanding, each $100,000 unit (or unit of $100,000 plus an integral multiple
of $5,000 in excess thereof, if applicable) of face value of principal thereof
shall be treated as though it were a separate Bond of the denomination of
$100,000. If it is determined that a portion, but not all, of the face value
represented by a Bond is to be called for redemption, then upon notice of
redemption of the portion to be redeemed, the Holder of that Bond shall, subject
to Section 2.13, surrender the Bond to the Trustee (a) for payment of the
redemption price of the portion called for redemption (including without
limitation the interest accrued to the date fixed for redemption and any
premium) and (b) for issuance, without charge to the Holder thereof, of a new
Bond or Bonds of any authorized denomination or denominations in an aggregate
principal amount equal to the unmatured and unredeemed portion of, and bearing
interest at the same rate and maturing on the same date as, the Bond
surrendered.
SECTION 3.03 Issuer's Election to Redeem. Except in the case of
---------------------------
redemption pursuant to any mandatory redemption provisions of this Indenture,
Bonds shall be redeemed only by written notice from the Borrower on behalf of
the Issuer to the Trustee and the Bank. Such notice shall specify the redemption
date and the principal amount of Bonds to be redeemed, and shall be given at
least 45 days prior to the redemption date or such shorter period as shall be
acceptable to the Trustee.
SECTION 3.04 Notice of Redemption.
--------------------
(a) When required to redeem Bonds under any provision of this
Indenture, or when directed to do so by the Issuer or the Borrower pursuant to
the provisions of this Indenture, the Trustee shall cause notice of the
redemption to be given not more than 60 days and not less than 15 days (30 days
if the Bonds are in a Term Mode) prior to the redemption date, except in the
case of a redemption pursuant to Subsection 3.01(e) in which case the Trustee
shall cause notice to be given not more than 45 days and not less than 15 days
(30 days if the Bonds are in a Term Mode) prior to the redemption date, by
mailing copies of such notice of redemption by first class mail, postage
prepaid, to all Holders of Bonds to be redeemed at their registered addresses,
but failure to mail any such notice or defect in the mailing thereof in respect
of any Bond shall not affect the validity of the redemption of any other Bond
with respect to which notice was properly given. Each such notice shall be dated
and shall be given in the name of the Issuer and shall state the following
information:
28
(i) the identification numbers, as established under this
Indenture, and the CUSIP numbers, if any, of the Bonds being redeemed, provided
that any such notice shall state that no representation is made as to the
correctness of CUSIP numbers either as printed on such Bonds or as contained in
the notice of redemption and that reliance may be placed only on the
identification numbers contained in the notice or printed on such Bonds;
(ii) any other descriptive information needed to identify
accurately the Bonds being redeemed;
(iii) in the case of partial redemption of any Bonds, the
respective principal amounts thereof to be redeemed;
(iv) the redemption date;
(v) the redemption price;
(vi) that on the redemption date the redemption price will
become due and payable upon each such Bond or portion thereof called for
redemption, and that interest thereon shall cease to accrue from and after said
date; and
(vii) the place where such Bonds are to be presented and
surrendered for payment of the redemption price, which place of payment shall be
the Payment Office of the Trustee.
In addition, the Trustee shall at all reasonable times make available to any
interested party complete information as to Bonds which have been redeemed or
called for redemption.
(b) In addition to the foregoing notice, further notice of any
redemption of Bonds hereunder shall be given by the Trustee, at least two
Business Days in advance of the mailed notice to Holders, by registered or
certified mail or overnight delivery service to (i) the Rating Service and to
The Bond Buyer, or their respective successors, if any, and to (ii) Financial
Information, Inc.'s "Daily Called Bond Service", 00 Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Editor; Xxxxx Information
Services' "Called Bond Service", 00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000; Xxxxx'x "Municipal and Government", 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Municipal News Report; and Standard and Poor's
"Called Bond Record", 00 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000; or, in
accordance with then-current guidelines of the Securities and Exchange
Commission, to such other addresses and/or such other services, as the Issuer
may designate in writing with respect to the Bonds, or no such services, as the
Issuer may designate in a certificate of the Issuer delivered to the Trustee. So
long as the Bonds or any portion thereof are held by DTC, the Trustee shall send
each notice of redemption of the Bonds to DTC at 000 Xxxxxxx Xxxxxx, Xxxxxx
Xxxx, Xxx Xxxx, 00000, Attention: Call Notification Department (FAX: 516-227-
4039) or at such other address as may be provided by DTC in writing to the
Trustee from time to time. The foregoing notice of redemption shall be sent to
DTC by legible facsimile transmission, certified or registered mail, overnight
delivery service or another secure method which enables the Trustee subsequently
to verify the transmission of such notice. Such further notice shall contain the
information required in Subsection 3.04(a). Failure to give all or any portion
of such further notice shall not in any manner defeat the effectiveness
29
of a call for redemption if notice thereof is given to the Holders as prescribed
in Subsection 3.04(a).
(c) If at the time of mailing of notice of any optional redemption
there shall not have been deposited moneys in the Bond Fund available for
payment pursuant to Subsection 5.04(c) sufficient to redeem all the Bonds called
for redemption, such notice may state that it is conditional in that it is
subject to the deposit of the redemption moneys in the Bond Fund available for
payment pursuant to Section 5.04 not later than 12:00 noon on the redemption
date, in which case such notice shall be of no effect unless moneys are so
deposited.
SECTION 3.05 Payment of Redeemed Bonds. If (a) unconditional
-------------------------
notice of the redemption has been duly given or duly waived by the Holders of
all Bonds called for redemption or (b) conditional notice of redemption has been
so given or waived and Available Moneys for such redemption have been duly
deposited with the Trustee, then in either such case the Bonds called for
redemption shall be payable on the redemption date at the applicable redemption
price. Payment of the redemption price together with accrued interest shall be
made by the Trustee, out of Revenues or other funds deposited for such purpose,
to or upon the order of the Holders of the Bonds called for redemption upon
surrender of such Bonds, except as otherwise provided in Section 2.13.
Upon the payment of the redemption price of Bonds being redeemed, each
check or other transfer of funds issued for such purpose shall bear the CUSIP
number identifying, by issue and maturity, the Bonds being redeemed with the
proceeds of such check or other transfer.
All moneys deposited in the Bond Fund and held by the Trustee for the
redemption of particular Bonds shall be held in trust for the account of the
Holders thereof and shall be paid to them, respectively, upon presentation and
surrender of those Bonds, except as otherwise provided in Section 2.13.
(End of Article III)
30
ARTICLE IV
PURCHASE AND REMARKETING OF BONDS
SECTION 4.01 Purchase on Demand of Holder During Weekly Mode. While
-----------------------------------------------
the Bonds are in the Weekly Mode, any Bond (or portion thereof in an authorized
denomination) shall be purchased on the demand of the Holder thereof on any
Business Day designated by such Holder in a Bondholder Tender Notice at a
purchase price equal to 100% of the principal amount thereof plus accrued
interest, if any, to the Purchase Date, if there is delivered to the Trustee at
its Designated Office, and to the Remarketing Agent at its Principal Office, a
Bondholder Tender Notice which (i) states the principal amount (or portion
thereof) of such Bond and (ii) states the Purchase Date on which such Bond (or
portion thereof) shall be purchased pursuant to this Section, which date shall
be a Business Day not prior to the seventh day next succeeding the date of the
delivery of such notice to the Trustee and the Remarketing Agent; provided that,
in the case of a Bond to be purchased in part, both the portion of the Bond to
be purchased and the portion which is not to be purchased must be in an
authorized denomination. By delivering the Bondholder Tender Notice, the Holder
irrevocably agrees to deliver such Bond, if not held in book-entry form, duly
endorsed for transfer in blank and with guarantee of signature satisfactory to
the Trustee, to the Delivery Office of the Trustee or any other address
designated by the Trustee at or prior to 10:00 a.m. on the Purchase Date
specified in the Bondholder Tender Notice. The determination by the Trustee of a
Holder's compliance with the Bondholder Tender Notice and Bond delivery
requirements of this Section is in the sole discretion of the Trustee and
binding on the Borrower, the Issuer, the Remarketing Agent, the Bank and the
Holder of the Bonds. Any Bondholder Tender Notice which the Trustee determines
is not in compliance with this Section shall be of no force or effect.
So long as the Bonds are registered to, and held in book-entry form
by, DTC or its nominee, the beneficial owner of Bonds is responsible for
submitting the Bondholder Tender Notice and shall be treated as the Holder of
such Bonds for such purpose, and such notice need only be submitted to the
Remarketing Agent.
Any election by a Holder to tender a Bond (or portion thereof) for
purchase on a Business Day in accordance with this Section shall be irrevocable
and shall be binding on the Holder making such election and on any transferee of
such Holder. Each Bondholder Tender Notice shall automatically constitute (i) an
irrevocable offer to sell the Bond (or portion thereof) to which such notice
relates on the Purchase Date at a price equal to the purchase price of such Bond
(or portion thereof), (ii) an irrevocable authorization and instruction to the
Trustee to effect transfer of such Bond (or portion thereof) upon payment of the
purchase price to the Trustee on the Purchase Date, (iii) with respect to a
tender of a portion of a Bond, an irrevocable authorization and instruction to
the Trustee to effect the exchange of such Bond in part for other Bonds in a
principal amount equal to the retained portion so as to facilitate the sale of
the tendered portion of such Bond, and (iv) an acknowledgment that such Holder
will have no further rights with respect to such Bond (or portion thereof) upon
payment of the purchase price thereof to the Trustee on the Purchase Date,
except for the right of such Holder to receive such purchase price upon
surrender of such Bond, if not held in book-entry form, to the Trustee endorsed
for transfer in blank and with guarantee of signature satisfactory to the
Trustee and that after the Purchase Date such Holder will hold such Bond as
agent for the Trustee. If the Bonds
31
are not held in book-entry form and, after delivery to the Trustee and the
Remarketing Agent of a Bondholder Tender Notice in accordance with this Section,
the Holder making such election shall fail to deliver such Bond or Bonds
described in the Bondholder Tender Notice to the Trustee at its Delivery Office
on or before 10:00 a.m. on the applicable Purchase Date as required by this
Section, then the undelivered Bond or portion thereof (the "Undelivered Bond")
described in such Bondholder Tender Notice shall be deemed to have been tendered
for purchase to the Trustee and, to the extent that there shall be held by the
Trustee on or before the applicable Purchase Date an amount sufficient to pay
the purchase price thereof and available for such purpose pursuant to the terms
of this Section, such Undelivered Bond shall on such Purchase Date cease to bear
interest and no longer shall be considered to be outstanding. Moneys held by the
Trustee for the purchase of the Undelivered Bonds in accordance with the
provisions of this Section shall be held in a special separate trust account for
the Holders of such Undelivered Bonds. Such moneys shall be held by the Trustee
uninvested and without liability for interest pending delivery of such
Undelivered Bonds to the Trustee.
The Trustee shall, as to any Undelivered Bond, promptly place a stop
transfer against an appropriate amount of Bonds registered in the name of the
Holder thereof on the Register. The Trustee shall place such stop transfer
commencing with the lowest serial number Bond registered in the name of such
Holder (until stop transfers have been placed against an appropriate amount of
Bonds) until the appropriate tendered Bonds are delivered to the Trustee. Upon
such delivery, the Trustee shall make any necessary adjustments to the Register.
If the Bonds are not held in book-entry form and if for any reason a
Holder fails to deliver a tendered Bond to the Trustee on the Purchase Date, the
Issuer shall execute and the Trustee shall authenticate and deliver in
accordance with Section 4.03 a new Bond or Bonds in replacement of the
Undelivered Bond. The replacement of any such Undelivered Bond shall not be
deemed to create new indebtedness, but such Bond as is issued in replacement
shall be deemed to evidence the indebtedness previously evidenced by the
Undelivered Bond.
A Holder who gives a Bondholder Tender Notice may repurchase the Bonds
so tendered on the Purchase Date if the Remarketing Agent agrees to remarket
such Bond to such Holder, and if the Remarketing Agent agrees to remarket the
specified Bond to such Holder prior to delivery of such Bonds as set forth
above, the delivery requirement set forth above shall be waived.
Upon surrender of any Bond (which is not held in book-entry form) for
purchase in part only, the Issuer shall execute and the Trustee shall
authenticate and deliver to the Holder thereof a new Bond or Bonds of the same
maturity, of authorized denominations, in an aggregate principal amount equal to
the unpurchased portion of the Bond surrendered.
On the date set for purchase of Bonds to be purchased pursuant to this
Section and upon receipt by the Trustee of 100% of the aggregate purchase price
of such Bonds, the Trustee shall pay the purchase price of such Bonds to the
selling Holders thereof at its Payment Office at or before 3:00 p.m.; provided
that such Bond (if not held in book-entry form) shall have been surrendered to
the Trustee properly endorsed for transfer on such date with all signatures
guaranteed at or prior to 10:00 a.m. on such Purchase Date. Such payment shall
be made in immediately available funds and shall be made only with the following
funds in the following order of availability:
32
(1) moneys held in the Remarketing Proceeds Purchase Account
representing proceeds from the remarketing of such Bonds by the Remarketing
Agent to any Person other than the Issuer, the Borrower or any Affiliate;
(2) moneys constituting Available Moneys held in the Bond Fund
and available to make such payment pursuant to Section 10.02;
(3) proceeds from a drawing on the Letter of Credit deposited
directly into the Letter of Credit Purchase Account (provided that such
proceeds shall not be applied to purchase Pledged Bonds or Borrower Bonds);
and
(4) payments made by the Borrower pursuant to Section 4.3 of the
Financing Agreement.
No purchase of Bonds pursuant to this Section shall be deemed to be a
payment or a redemption of such Bonds or any portion thereof and such purchase
will not operate to extinguish or discharge the indebtedness of such Bonds.
SECTION 4.02 Mandatory Purchase on Conversion Date and at End of
---------------------------------------------------
Term Rate Period; Upon Expiration of Letter of Credit; Upon Issuance of
-----------------------------------------------------------------------
Alternate Letter of Credit; and at Direction of Bank. The Bonds shall be subject
----------------------------------------------------
to mandatory purchase at a purchase price equal to the principal amount thereof
plus, in the case of purchases on a Purchase Date which is not an Interest
Payment Date, accrued interest thereon, as follows:
(a) on each Conversion Date, or if such Conversion Date is not a
Business Day, the first Business Day succeeding such Conversion Date, and on the
first Business Day immediately following the end of each Term Rate Period;
(b) while the Bonds are in the Weekly Mode, on the Interest Payment
Date next preceding by at least two Business Days the Expiration Date of the
Letter of Credit unless at least 45 days (or such shorter period as shall be
acceptable to the Trustee) prior to such Interest Payment Date the Trustee has
received notice that the Letter of Credit has been or will be extended;
(c) on the Interest Payment Date on which an Alternate Letter of
Credit is issued pursuant to Section 5.09; and
(d) while the Bonds are in the Weekly Mode, on the Purchase Date
stipulated by the Bank pursuant to Section 7.03 in the event the Bank directs
the Trustee pursuant to Section 7.03 to call the Bonds for mandatory purchase
pursuant to this clause.
The Trustee shall cause notice of any mandatory purchase to be given not more
than 45 and not less than 15 days prior to the Purchase Date, by mailing copies
of such notice of mandatory purchase by first class mail, postage prepaid, to
all Holders of Bonds to be purchased at their registered addresses, but failure
to mail any such notice or defect in the mailing thereof in respect of any Bond
shall not affect the validity of the mandatory purchase of any other Bond with
respect to which notice was properly given. Each such notice shall be dated and
shall be given in the name of the Issuer and shall state the following
information: (i) the identification numbers, as established under this
Indenture, and the CUSIP numbers, if any, of the Bonds being
33
purchased; (ii) any other descriptive information needed to identify accurately
the Bonds; (iii) the Purchase Date; (iv) the purchase price; (v) that on the
Purchase Date the purchase price will become due and payable upon each Bond;
(vi) the place where the Bonds are to be delivered for payment of the purchase
price, which place of payment shall be the Delivery Office of the Trustee; and
(vii) the Holders of Bonds subject to mandatory purchase shall be required to
deliver their Bonds for purchase to the Trustee at its Delivery Office prior to
10:00 a..m. on the corresponding Purchase Date, and any Bond not so delivered
prior to 10:00 a.m. on the applicable Purchase Date (an "Undelivered Bond")
shall be deemed to have been tendered to the Trustee as of such Purchase Date
and, from and after such Purchase Date, shall cease to bear interest and no
longer shall be considered to be outstanding. In the event of a failure by a
Holder to deliver such Holder's Bond on or before the applicable Purchase Date,
such Holder shall not be entitled to any payment (including any interest to
accrue subsequent to such Purchase Date) other than the purchase price for such
Undelivered Bond, such Undelivered Bond shall no longer be entitled to the
benefits of this Indenture, except for the purpose of payment of the purchase
price therefor, and such Holder shall thereafter hold such Undelivered Bond as
agent for the Trustee. If for any reason a Holder fails to deliver to the
Trustee on or before the applicable Purchase Date any Bond remarketed by the
Remarketing Agent pursuant to Section 4.03, the Issuer shall execute and the
Trustee shall authenticate and deliver to the Remarketing Agent for redelivery
to the purchaser a new Bond or Bonds in replacement of the Undelivered Bond. The
replacement of any such Undelivered Bond shall not be deemed to create new
indebtedness, but such Bond as is issued in replacement shall be deemed to
evidence the indebtedness previously evidenced by the Undelivered Bond.
On the date set for purchase of Bonds to be purchased pursuant to this
Section 4.02 and upon receipt by the Trustee of 100% of the aggregate purchase
price of such Bonds, the Trustee shall pay the purchase price of such Bonds to
the selling Holders thereof at its Delivery Office at or before 3:00 p.m.;
provided that such Bonds shall have been surrendered to the Trustee properly
endorsed for transfer on such date with all signatures guaranteed at or prior to
10:00 a.m. on such date. Such payment shall be made in immediately available
funds and payment for Bonds purchased pursuant to this Section shall be made
only with the following funds in the following order of availability:
(1) moneys held in the Remarketing Proceeds Purchase Account
representing proceeds from the remarketing of such Bonds by the Remarketing
Agent to any Person other than the Issuer, the Borrower or any Affiliate;
(2) moneys constituting Available Moneys held in the Bond Fund
and available to make such payment pursuant to Section 10.02;
(3) proceeds from a drawing on the Letter of Credit deposited
directly into the Letter of Credit Purchase Account (provided that such
proceeds shall not be applied to purchase Pledged Bonds or Borrower Bonds);
and
(4) payments made by the Borrower pursuant to Section 4.3 of the
Financing Agreement.
34
No purchase of Bonds pursuant to this Section shall be deemed to be a
payment or a redemption of such Bonds or any portion thereof and such purchase
will not operate to extinguish or discharge the indebtedness of such Bonds.
SECTION 4.03 Remarketing. Upon delivery of a Bondholder Tender Notice to
-----------
the Trustee and the Remarketing Agent (or to the Remarketing Agent only in the
case of Bonds held in book-entry form) pursuant to Section 4.01 and not later
than the fifth day preceding the Purchase Date for each mandatory purchase
pursuant to Section 4.02, the Remarketing Agent shall use its best efforts to
find purchasers for and arrange for the sale of the Bonds identified in the
Bondholder Tender Notice pursuant to Section 4.01 or all Bonds subject to
mandatory purchase pursuant to Section 4.02 (other than any Bonds purchased in
anticipation of the expiration of the Letter of Credit or at the direction of
the Bank), at a price equal to the principal amount thereof plus, in the case of
purchases on a Purchase Date which is not an Interest Payment Date, accrued
interest thereon, for settlement in immediately available funds at or before
10:30 a.m. on the applicable Purchase Date. Except as otherwise expressly
provided herein, the Remarketing Agent may not remarket to the Issuer, the
Borrower or any Affiliate any Bonds to be purchased pursuant to Section 4.01 or
4.02. In its capacity as a registered broker-dealer, the Remarketing Agent may,
but is not obligated to, acquire for its own account any Bonds to be so
purchased, but not otherwise remarketed, in which case the Remarketing Agent
shall have remarketed such Bonds to itself. The Remarketing Agent may purchase
and sell Bonds for its own account at any time.
At or before 2:00 p.m. on the Business Day preceding the Purchase Date of
Bonds to be purchased pursuant to Section 4.01 or 4.02 and remarketed pursuant
to this Section (or such other time as to which the Trustee and the Remarketing
Agent may agree), the Remarketing Agent shall give notice by telegram, telex,
telecopy or other similar communication to the Trustee of the names, addresses
and taxpayer identification numbers of the purchasers and the denominations of
Bonds to be delivered to each purchaser and, if available, the payment
instructions for regularly scheduled interest payments.
The Remarketing Agent shall, at or before 10:30 a.m. on the Purchase Date
of Bonds to be purchased pursuant to Section 4.01 or 4.02 and remarketed
pursuant to this Section, give telephonic notice, promptly confirmed in writing,
to the Trustee, the Borrower and the Bank specifying the principal amount of
Bonds remarketed and not remarketed, respectively, and the amount representing
the purchase price of Bonds which the Remarketing Agent does not then hold in
trust.
The Remarketing Agent shall cause to be paid to the Trustee in immediately
available funds by 1:00 p.m. on the Purchase Date of Bonds to be purchased
pursuant to Section 4.01 or 4.02 and remarketed pursuant to this Section, all
amounts (if any) then held by the Remarketing Agent representing proceeds of the
remarketing of such Bonds. All such remarketing proceeds received by the Trustee
shall be deposited by the Trustee in the special trust account designated as the
Remarketing Proceeds Purchase Account which the Trustee shall establish and use
as provided in this Article IV and shall not be commingled with other funds held
by the Trustee. All moneys in the Remarketing Proceeds Purchase Account shall be
held in trust, uninvested and without liability for interest thereon, pending
application of such moneys by the Trustee pursuant to this Article.
35
On the Purchase Date of Bonds to be purchased pursuant to Sections 4.01 or
4.02, the Trustee shall register (or hold) all Bonds purchased on such date as
follows:
(a) Bonds remarketed by the Remarketing Agent shall be registered and made
available (at the Delivery Office of the Trustee) to the Remarketing Agent or
the purchasers thereof in accordance with the instructions of the Remarketing
Agent delivered to the Trustee pursuant to this Section 4.03, provided that the
provisions of this clause (a) shall not apply to Bonds purchased pursuant to
Section 4.01 which are held in book-entry form; and
(b) Bonds purchased with proceeds of a drawing on the Letter of Credit
which are Pledged Bonds shall be held as Pledged Bonds in accordance with
Section 4.05.
Any Bond (or portion thereof) with respect to which the Trustee receives a
Bondholder Tender Notice pursuant to Section 4.01 on or after the date notice of
a mandatory purchase pursuant to Section 4.02 or redemption pursuant to Section
3.04 is given and before the corresponding mandatory Purchase Date or redemption
date, respectively, shall not be remarketed except to a buyer who receives and
acknowledges the binding effect of such notice. Bonds purchased on or after the
date notice of mandatory purchase is given and before the corresponding
mandatory Purchase Date and not remarketed, shall not be subject to mandatory
purchase, but shall remain outstanding. In addition, Bonds which are deemed paid
pursuant to Article X shall not be remarketed but shall be canceled upon being
purchased pursuant to Section 4.01 or 4.02 in accordance with the Bond
cancellation provisions of Section 2.11.
Anything in this Indenture to the contrary notwithstanding, the Remarketing
Agent shall have no obligation (i) to remarket any Bonds which are not supported
by the Letter of Credit or an Alternate Letter of Credit as contemplated by this
Indenture or (ii) to determine Term Rates or to find purchasers for and arrange
for the sale of the Bonds on or after a Conversion Date or to make any effort to
such end, except to the extent the Remarketing Agent shall have expressly and
specifically agreed in writing with the Borrower to perform such duties.
SECTION 4.04 Drawings on Letter of Credit for Purchase of Bonds. As
--------------------------------------------------
provided by Section 4.03, the Remarketing Agent shall advise the Trustee of the
amounts not held by the Remarketing Agent which shall be drawn under the Letter
of Credit in order for the Trustee to make timely payments of purchase price of
Bonds from remarketing proceeds or moneys drawn under the Letter of Credit. In
the absence of such notice, the Trustee shall be deemed to have received notice
from the Remarketing Agent specifying that no portion of the purchase price of
such Bonds is held by the Remarketing Agent, in which case the Trustee shall
draw the entire amount thereof under the Letter of Credit. Prior to 11:00 a.m.
on each Purchase Date, the Trustee shall take all action necessary to draw on
the Letter of Credit in accordance with its terms, the amounts specified (or
deemed specified) for receipt by the Trustee on such Purchase Date. The Trustee
shall establish a special trust account designated as the Letter of Credit
Purchase Account into which the Trustee shall deposit and hold in trust,
uninvested and without liability for interest thereon, all such amounts (and
only such amounts) received by the Trustee from drawings on the Letter of Credit
for purchases of Bonds pending application of such amounts by the Trustee
pursuant to this Article IV. Any remaining amounts in the Letter of Credit
Purchase Account after any application required by this Article IV shall be paid
over by the Trustee to the Bank as reimbursement for the drawing on the Letter
of Credit from which such amounts were derived; provided that the Letter of
Credit shall be reinstated to the extent of
36
such reimbursement and the Trustee shall take all necessary action on its part
pursuant to the Letter of Credit to effect such reinstatement. Anything herein
to the contrary notwithstanding, no amounts drawn on the Letter of Credit shall
be applied to the purchase of Pledged Bonds or Borrower Bonds.
Any moneys paid by the Borrower pursuant to Section 4.3 of the Financing
Agreement for purchase of Bonds tendered for purchase pursuant to this Indenture
shall be deposited by the Trustee in a special trust account designated as the
Borrower Purchase Account which the Trustee shall establish and use to (i)
reimburse the Bank for drawings under the Letter of Credit for such purpose or
(ii) if moneys derived from a drawing under the Letter of Credit are
insufficient to pay such purchase price, pay the purchase price of such Bonds.
SECTION 4.05 Bonds Purchased with Proceeds of Letter of Credit.
-------------------------------------------------
(a) Pledged Bonds. Bonds purchased with proceeds of a drawing on the
-------------
Letter of Credit pursuant to this Article shall constitute "Pledged Bonds" and
shall be held by the Trustee as agent for the Bank as pledgee of the Borrower
pursuant to the Reimbursement Agreement (and shall be shown as such on the
Register and, if held in book-entry form, in the ownership records maintained by
DTC and any applicable DTC participant) unless and until (1) the Trustee has
confirmation from the Bank to the extent contemplated by the terms of the Letter
of Credit that the Letter of Credit has been reinstated with respect to such
drawing and (2) the Bank has notified the Trustee by telephone (thereafter
promptly confirmed in writing) that such Bonds have been released from the
pledge pursuant to the Reimbursement Agreement and are no longer Pledged Bonds.
Pending reinstatement of the Letter of Credit and release of such pledge as
aforesaid, the Bank shall be entitled to receive all payments of principal of
and interest on Pledged Bonds as pledgee of the Borrower and such Bonds shall
not be transferable or deliverable to any party (including the Borrower) except
the Bank pursuant to the Reimbursement Agreement.
(b) Remarketing of Pledged Bonds. The Remarketing Agent shall continue to
----------------------------
use its best efforts to arrange for the sale of any Pledged Bonds required to be
remarketed pursuant to Section 4.03, subject to full reinstatement of the Letter
of Credit with respect to the drawings with which such Bonds were purchased, at
a price equal to the principal amount thereof plus accrued interest.
(c) Notice of Remarketing. At or prior to 2:00 p.m. on the Business Day
---------------------
preceding each day on which any Pledged Bonds that are successfully remarketed
by the Remarketing Agent are to be purchased, the Remarketing Agent shall give
telephonic notice, promptly confirmed in writing, to the Trustee, the Borrower
and the Bank specifying:
(i) the Business Day on which such purchase will take place and the
principal amount of Pledged Bonds successfully remarketed by the Remarketing
Agent, and
(ii) to the Trustee only, the names, addresses and tax identification
numbers of the proposed purchasers thereof and the denominations of Bonds to be
delivered to each purchaser and, if available, the payment instructions for
regularly scheduled interest payments.
37
(d) Delivery of Remarketed Pledged Bonds and Proceeds Thereof.
---------------------------------------------------------
Contemporaneously with reinstatement of the Letter of Credit as described in
Subsection 4.05(a) and the sale of Pledged Bonds arranged by the Remarketing
Agent as described in Subsection 4.05(b), (i) such Bonds (if not held in book-
entry form) shall be made available (at the Delivery Office of the Trustee) to
the Remarketing Agent or the purchasers thereof in accordance with the
instructions of the Remarketing Agent and (ii) the proceeds of such sale shall
be delivered to the Bank for the account of the Borrower to be applied to any
unpaid reimbursement obligation under the Reimbursement Agreement with respect
to the prior drawings made on the Letter of Credit in respect of the purchase of
such Bonds.
SECTION 4.06 Borrower Bonds.
--------------
(a) Remarketing of Borrower Bonds. Subject to the provisions and
-----------------------------
limitations of the Remarketing Agreement and Section 4.03, the Remarketing
Advisor shall, if so directed by the Borrower, use its best efforts to arrange
for the sale of any Borrower Bonds, at a price equal to the principal amount
thereof, plus accrued interest.
(b) Notice of Remarketing. On or prior to each Business Day on which any
---------------------
Borrower Bonds that are successfully remarketed by the Remarketing Agent
pursuant to Section 4.06(a) are to be purchased, the Remarketing Agent shall
give telephonic notice, promptly confirmed in writing, to the Trustee, the
Borrower and the Bank specifying:
(i) the Business Day on which such purchase will take place and the
principal amount of Borrower Bonds successfully remarketed by the Remarketing
Agent, and
(ii) to the Trustee only, the names, addresses and tax identification
numbers of the proposed purchasers thereof, the denominations of Bonds to be
delivered to each purchaser and, if available, the payment instructions for
regularly scheduled interest payments.
(c) Delivery of Remarketed Borrower Bonds and Proceeds Thereof. Upon the
----------------------------------------------------------
sale of Borrower Bonds arranged by the Remarketing Agent pursuant to Section
4.06(a), (i) such Bonds (if not held in book-entry form) shall be made available
(at the Delivery Office of the Trustee) to the Remarketing Agent or the
purchasers thereof in accordance with the instructions of the Remarketing Agent
and (ii) the proceeds of such sale shall be delivered to the Borrower.
SECTION 4.07 No Purchases After Acceleration; Inadequate Funds for
-----------------------------------------------------
Purchases. Anything in this Indenture to the contrary notwithstanding, there
---------
shall be no purchases of Bonds pursuant to this Article if the Bonds have been
declared immediately due and payable pursuant to Section 7.03 and such
declaration has not been annulled, stayed or otherwise suspended.
38
If the funds available for purchases of Bonds are inadequate for the
purchase of all Bonds tendered on any Purchase Date pursuant to this Article,
the Trustee shall, after any applicable grace period: (a) return all tendered
Bonds to the Holders thereof; and (b) return all moneys received for the
purchase of such Bonds (other than moneys provided by the Borrower and other
than Letter of Credit proceeds, unless the Letter of Credit is reinstated with
respect thereto) to the Persons providing such moneys; provided that the Holders
shall retain all rights to tender Bonds pursuant to the terms of this Article
IV.
(End of Article IV)
39
ARTICLE V
FUNDS AND LETTER OF CREDIT
SECTION 5.01 Creation of Project Fund. There is hereby established with
------------------------
the Trustee a trust fund designated "Project Fund" for the payment of Project
Costs. There shall be deposited in the Project Fund all proceeds of the sale of
the Bonds and any equity contribution of the Borrower. The Trustee shall
maintain a record of the income on investments and interest earned on amounts
held in the Project Fund and on proceeds of Bonds held in respect of accrued or
capitalized interest held by the Trustee as Revenues. Subject to the provisions
of Section 5.08, such income or interest may be expended at any time or from
time to time to pay the Project Costs in the same manner as the proceeds of
Bonds deposited in the Project Fund are expended.
Pending disbursement pursuant to the Financing Agreement, the moneys and
Eligible Investments to the credit of the Project Fund shall be held as security
for the outstanding Bonds and for the Borrower's obligations under the
Reimbursement Agreement.
SECTION 5.02 Disbursements from and Records of Project Fund. Moneys in
----------------------------------------------
the Project Fund shall be disbursed in accordance with the provisions of the
Financing Agreement. The Trustee shall cause to be kept and maintained adequate
records pertaining to the Project Fund and all disbursements therefrom. The
Trustee shall make such records available for inspection by, or shall provide
copies thereof to, the Issuer, the Borrower and/or the Bank upon prior written
request.
SECTION 5.03 Disposition of Excess Bond Proceeds. The completion of the
-----------------------------------
Project and payment of all Project Costs payable out of the Project Fund (except
for amounts, if any, to be retained by the Trustee as provided under the
Financing Agreement for the payment of Project Costs not then due and payable)
shall be evidenced by the filing with the Trustee of the certificate of the
Authorized Representative of the Borrower required by Section 3.6 of the
Financing Agreement. As soon as practicable after the filing with the Trustee of
such certificate, any balance remaining in the Project Fund (other than the
amounts retained by the Trustee as described in the preceding sentence) shall be
deposited or applied in accordance with the written direction of the Authorized
Representative of the Borrower pursuant to Section 3.4 of the Financing
Agreement. In addition, such balance shall not be invested by the Borrower at a
yield in excess of the yield on the Bonds, unless there shall have been
delivered to the Trustee an opinion of Bond Counsel that such investment will
not cause the interest on the Bonds to be included in the gross income of the
Holders for federal income tax purposes.
SECTION 5.04 Bond Fund.
---------
(a) Revenues to be Paid Over to the Trustee. The Issuer has caused the
---------------------------------------
Revenues to be paid directly to the Trustee. If, notwithstanding these
arrangements, the Issuer receives any payments pursuant to the Financing
Agreement (other than payments to the Issuer in accordance with Section 4.4,
5.10 or 7.4 thereof), the Issuer shall immediately pay over the same to the
Trustee to be held as Revenues or otherwise applied pursuant to this Indenture.
Any moneys received by the Trustee with the written stipulation that they
constitute payments by the
40
Borrower under Subsection 4.3 of the Financing Agreement corresponding to
payments of purchase price of Bonds shall be identified as such and deposited
and applied pursuant to Article IV. Except as provided in the immediately
preceding sentence and as otherwise specifically directed under the terms of
this Indenture, all Revenues received by the Trustee shall be deposited into the
General Account of the Bond Fund.
(b) Creation of Bond Fund and Accounts. There is hereby established
----------------------------------
with the Trustee a trust fund designated as the "Bond Fund", within which there
shall be established a General Account and a Letter of Credit Debt Service
Account. Moneys held by the Trustee in the General Account shall be applied in
accordance with Section 5.04(c)(ii) and the other provisions of this Indenture
(i) to reimburse the Bank with respect to drawings on the Letter of Credit to
pay the principal of, premium, if any, on or interest on Bonds, (ii) to make
payments of principal of, premium, if any, on and interest on the Bonds or (iii)
to pay any amount required pursuant to Section 5.08, to the extent other moneys
are unavailable therefor. All moneys (and only those moneys) received by the
Trustee from drawings under the Letter of Credit to pay principal of, premium,
if any, on and interest on the Bonds shall be deposited in the Letter of Credit
Debt Service Account and applied to such purpose.
(c) Application of Bond Fund. Except as otherwise provided in Section
------------------------
7.06, moneys in the Bond Fund shall be applied as follows:
(i) Moneys in the Letter of Credit Debt Service Account shall be
applied to the payment when due of principal of, premium, if any, on and
interest on the Bonds (other than Pledged Bonds or Borrower Bonds, for which
such moneys shall not be Available Moneys).
(ii) Moneys in the General Account shall be applied to the
following in the order of priority indicated:
(A) the payment of any obligation due under Section 5.08,
to the extent other moneys are unavailable therefor;
(B) the reimbursement of the Bank when due for moneys drawn
under the Letter of Credit and deposited in the Letter of Credit Debt
Service Account for payment of principal of, premium, if any, on and
interest on the Bonds (in applying moneys pursuant to this clause, the
Trustee shall transfer such moneys by wire transfer of immediately
available funds);
(C) when insufficient moneys have been received under the
Letter of Credit for application pursuant to Subsection 5.04(c)(i), the
payment when due of principal of, premium, if any, on and interest on the
Bonds, other than Borrower Bonds or Pledged Bonds;
(D) the payment when due of principal of, premium, if any,
on and interest on Pledged Bonds; and
(E) the payment when due of principal of, premium, if any,
on and interest on Borrower Bonds, provided that if the Trustee shall have
received written notice from the Bank that any amounts are due and owing to
the Bank under the
41
Reimbursement Agreement, such payments shall be made to the Bank for the
account of the Borrower.
(d) Drawings on Letter of Credit. By 12:00 noon on the Business
----------------------------
Day immediately preceding each Interest Payment Date, each redemption date and
the maturity date of the Bonds, the Trustee shall present the requisite draft
and certificate for a drawing on the Letter of Credit so as to comply with the
provisions of the Letter of Credit for payment to be made in sufficient time for
the Trustee to receive the proceeds of such drawing at or before 12:00 noon on
such Interest Payment Date, redemption date or maturity date, as the case may
be, to pay principal of, premium, if any, on and interest on the Bonds due on
such date. In addition, the Trustee shall draw on the Letter of Credit pursuant
to its terms in accordance with and in order to satisfy the requirements of
Section 7.03. By 5:00 p.m. on each date it presents the requisite documents for
a drawing on the Letter of Credit, the Trustee shall give notice to the Borrower
by telephone, promptly confirmed in writing, of the amount so drawn. The Trustee
shall promptly notify the Borrower by facsimile transmission or by oral or
telephonic communication confirmed in writing if the Bank fails to transfer
funds in accordance with the Letter of Credit upon the presentment of the
requisite draft and certificate. In calculating the amount to be drawn on the
Letter of Credit for the payment of principal of and interest on the Bonds,
whether on an Interest Payment Date, at maturity or upon redemption or
acceleration, the Trustee shall not take into account the potential receipt of
funds from the Borrower under the Financing Agreement on such Interest Payment
Date, or the existence of any other moneys in the Bond Fund, but shall draw on
the Letter of Credit for the full amount of principal and interest coming due on
the Bonds.
(e) Payment in Full. Whenever the amount in the Bond Fund
---------------
available for the payment of principal or redemption price and interest in
accordance with Subsection 5.04(c) is sufficient to redeem all of the
outstanding Bonds and to pay interest accrued to the redemption date, the Issuer
will, upon request of the Borrower, cause the Trustee to redeem all such Bonds
on the redemption date specified by the Borrower pursuant to the Bonds and this
Indenture. Any amounts remaining in the Bond Fund after payment in full of the
principal of and premium, if any, and interest on the Bonds (or provision for
payment thereof) and the fees, charges and expenses of the Issuer and the
Trustee shall be paid to the Person entitled thereto in accordance with Section
10.01.
(f) Credits. If at any time the Trustee has funds, including
-------
funds received pursuant to the Letter of Credit, which under the provisions of
this Indenture are to be applied to pay the principal of, premium, if any, on or
interest on the Bonds, the Borrower, to the extent that such funds are to be so
applied, shall be entitled to a credit, equal to the amount of such funds,
against payments due from the Borrower under the Financing Agreement; provided
that, with respect to funds received pursuant to one or more drawings on the
Letter of Credit, the Bank has been reimbursed therefor.
SECTION 5.05 Investment of Bond Fund, Project Fund and Rebate
------------------------------------------------
Fund. All moneys received by the Trustee under this Indenture shall be deposited
----
with the Trustee, until or unless invested or deposited as provided in this
Section. All deposits with the Trustee (whether original deposits or deposits or
redeposits in time accounts) shall be secured as required by applicable law for
such trust deposits.
42
Moneys in the Bond Fund (except moneys in the Letter of Credit
Debt Service Account and except any moneys held to pay principal of, or premium,
if any, or interest on, any Bonds which are deemed paid under Section 10.02) and
the Project Fund shall be invested and reinvested by the Trustee in Eligible
Investments at the written direction of an Authorized Representative of the
Borrower, subject to the requirements of Section 5.12(n) of the Financing
Agreement. Except as otherwise provided in Section 10.02, moneys deposited in
the Letter of Credit Debt Service Account, the Letter of Credit Purchase
Account, the Borrower Purchase Account or the Remarketing Proceeds Purchase
Account shall not be invested but shall be held in their respective accounts
pending application pursuant to Section 5.04 or Article IV, as applicable.
Moneys in the Bond Fund held to pay principal of, or premium, if any, or
interest on, any Bonds which are deemed paid under Section 10.02 shall be
invested only if and as provided in Section 10.02.
Investments pursuant to this Section of moneys in the Bond Fund
shall mature or be redeemable at the written direction of the Borrower at the
times and in the amounts necessary to provide moneys to make Bond Service
payments as they become due on Interest Payment Dates, at stated maturity or by
redemption, or to reimburse the Bank when due for drawings on the Letter of
Credit applied to make Bond Service payments. The Trustee shall sell or redeem
investments credited to the Bond Fund to produce sufficient moneys available
hereunder at the times required for the purpose of paying Bond Service (or
reimbursing the Bank for drawings on the Letter of Credit therefor) when due as
aforesaid, and shall do so without necessity for any order by or on behalf of
the Issuer or the Borrower and without restriction by reason of any order. Each
investment of moneys in the Project Fund shall mature or be redeemable by the
Trustee at the written direction of the Borrower at such time as may be
foreseeably necessary to make payments from the Project Fund. Subject to any
written directions from an Authorized Representative of the Borrower with
respect thereto and subject to the requirements of Section 5.12(n) of the
Financing Agreement, the Trustee may, from time to time, sell investments in the
Project Fund or the Bond Fund made pursuant to this Section and reinvest the
proceeds therefrom in Eligible Investments maturing or redeemable as aforesaid.
Any investment of moneys in any Fund established under this
Indenture may be purchased from or through, or sold to, the Trustee or any
affiliate of the Trustee; and any such investment made through the purchase of
shares in a fund described in clause (i), (ii) or (v) of the definition of
Eligible Investments may be in a fund for which the Trustee or an affiliate of
the Trustee serves as investment manager, administrator, shareholder servicing
agent, and/or custodian or subcustodian, notwithstanding that (i) the Trustee or
an affiliate of the Trustee receives fees from such funds for services rendered,
(ii) the Trustee charges and collects fees for services rendered pursuant to
this Indenture, which fees are separate from the fees received from such funds,
and (iii) services performed for such funds and pursuant to this Indenture may
at times duplicate those provided to such funds by the Trustee or its
affiliates.
Moneys in the Rebate Fund shall be invested and reinvested by the
Trustee at the written direction of the Borrower in Government Obligations
maturing, or subject to redemption by the holder at not less than the principal
amount thereof or the cost of acquisition, whichever is lower, on or before the
date or dates when the payments for which such moneys are held are to become
due.
43
An investment made from moneys credited to the Bond Fund, the
Project Fund or the Rebate Fund shall constitute part of that respective Fund,
and each respective Fund shall be credited with all proceeds of sale and income
from investment of moneys credited thereto. For purposes of this Indenture,
those investments shall be valued at face amount or market value, whichever is
less.
If the Borrower shall not give directions as to investments of
moneys held by the Trustee in the Project Fund or the Bond Fund, or if an Event
of Default has occurred and is continuing hereunder, the Trustee shall make such
investments in Eligible Investments described in clause (i) of the definition
thereof.
SECTION 5.06 Bond Fund Moneys to be Held in Trust. Revenues and
------------------------------------
investments thereof in the Bond Fund shall, until applied as provided in this
Indenture, be held by the Trustee for the benefit of the Holders of all
outstanding Bonds and the Bank in the order of priority set forth in the
granting clauses of this Indenture, except that any portion of the Revenues
representing principal of, and premium, if any, and interest on, any Bonds which
have matured or been called for redemption in accordance with Article III or
which are otherwise deemed paid under Section 10.02, shall be held for the
benefit of the Holders of such Bonds only.
SECTION 5.07 Nonpresentment of Bonds. In the event that any Bond
-----------------------
shall not be presented for payment when the principal thereof becomes due in
whole or in part, either at stated maturity or by redemption or a check or draft
for interest is uncashed, all liability of the Issuer to that Holder for such
Bond or such check or draft thereupon shall cease and be discharged completely;
provided that moneys sufficient to pay the principal and accrued interest then
due of that Bond or such check or draft shall have been made available to the
Trustee for the benefit of its Holder. Thereupon, it shall be the duty of the
Trustee to hold those moneys subject to the provisions of Section 10.03.
SECTION 5.08 Creation of Rebate Fund. There is established with
-----------------------
the Trustee a fund designated "Rebate Fund"; provided that the Trustee shall
only be required to establish the Rebate Fund on its books at such time as it is
first determined that there are Excess Earnings. Any provision hereof to the
contrary notwithstanding, amounts credited to the Rebate Fund shall be free and
clear of any lien hereunder.
The Borrower shall, at its expense, engage and furnish
information to a Financial Consultant to calculate, as soon as is practical
after the end of each Bond Year for the Bonds and as soon as is practical after
the payment in full of all outstanding Bonds, the amount of Excess Earnings as
of the end of that Bond Year or the date of such final payment. The Trustee
shall provide to the Borrower and its Financial Consultant information
maintained by the Trustee necessary for the Financial Consultant to perform its
obligations pursuant to this Section. The Borrower shall promptly notify the
Trustee in writing of (i) the name, address and telephone number of the
Financial Consultant retained by the Borrower pursuant to this Section and (ii)
the amount of Excess Earnings determined by such Financial Consultant as at the
end of each Bond Year and at the date of final payment of the Bonds in full. If
the amount then on deposit in the Rebate Fund is in excess of the Excess
Earnings as determined by the Financial Consultant, the Trustee shall forthwith
pay that excess amount to the Borrower. If the amount then on deposit in the
Rebate Fund is less than such Excess Earnings, the Borrower shall, within five
days after
44
receipt of the Financial Consultant's determination thereof, pay to the Trustee
for deposit in the Rebate Fund an amount sufficient to cause the Rebate Fund to
contain an amount equal to such Excess Earnings. If the Borrower does not pay
that required amount within five days after receipt of the Financial
Consultant's determination of the Excess Earnings, the Trustee shall immediately
transfer that amount from the Project Fund or the General Account of the Bond
Fund to the Rebate Fund to the extent there are moneys available in the Project
Fund or the General Account of the Bond Fund, as the case may be. If the
Borrower shall fail to engage a Financial Consultant as required hereunder, the
Trustee may (but shall not be required to) engage a Financial Consultant at the
Borrower's expense for the purposes hereof, in which case (i) the Trustee shall
notify the Borrower in writing of any determination of the Financial Consultant
with respect to Excess Earnings and (ii) the Borrower shall pay the Trustee any
amounts necessary to make the required deposits to the Rebate Fund within five
days after the Trustee's notification to the Borrower. Within 60 days after the
end of the fifth Bond Year and every fifth Bond Year thereafter, the Trustee,
acting on behalf of the Issuer, shall, at the written direction of the Borrower,
pay to the United States of America in accordance with Section 148(f) of the
Code from the moneys then on deposit in the applicable account in the Rebate
Fund an amount equal to 90% (or such greater percentage not in excess of 100% as
the Borrower in writing may direct the Trustee to pay) of the Excess Earnings
earned from the date of the original delivery of the Bonds to the end of such
fifth Bond Year (less the amount of Excess Earnings, if any, previously paid to
the United States of America pursuant to this Section). Within 60 days after the
payment in full of all outstanding Bonds, the Trustee shall, at the written
direction of the Borrower, pay to the United States of America in accordance
with Section 148(f) of the Code from the moneys then on deposit in the
applicable account in the Rebate Fund an amount equal to 100% of the Excess
Earnings earned from the date of the original delivery of the Bonds to the date
of such payment (less the amount of Excess Earnings, if any, previously paid to
the United States of America pursuant to this Section) and any moneys remaining
in the applicable account in the Rebate Fund following such payment shall be
paid to the Borrower. All computations of Excess Earnings pursuant to this
Section and Section 3.8 of the Financing Agreement shall treat the amount or
amounts, if any, previously paid to the United States of America pursuant to
this Section and Section 3.8 of the Financing Agreement as amounts on deposit in
the Rebate Fund.
The Trustee shall keep records of the computations made pursuant
to this Section provided to it by the Borrower.
If all the gross proceeds of the Bonds, within the meaning of
Section 148(f) of the Code, together with the gross proceeds of any other
obligations treated as part of the same issue for purposes of Section 148(f) of
the Code, are invested solely in tax-exempt obligations or are fully expended
for the governmental purpose for which the Bonds were issued within six months
of the date of issuance of the Bonds, or if the Bonds qualify for the exemption
from rebate pursuant to the 18-month spend-out exception contained in the
regulations promulgated under Section 148(f) of the Code, then the provisions of
this Section and Section 3.8 of the Financing Agreement shall not be applicable
to the investment of original proceeds of the Bonds in the Project Fund and the
Borrower shall not be required to engage a Financial Consultant or otherwise
comply with the foregoing provisions of this Section; provided that the Borrower
shall remain responsible to determine Excess Earnings, if any, and to cause to
be paid to the Trustee for deposit in the Rebate Fund and payment to the United
States of America such amounts, if any, at such times as may be necessary to
comply with the requirements of Section 148(f) of the Code with respect to the
Bonds. The Issuer hereby elects the application of provisions for
45
qualified temporary investments relating to investment of proceeds in
obligations described in subsection (v) of Eligible Investments pursuant to
Treasury regulations under Section 148 of the Code, providing for certain
temporary investments of proceeds which are invested exclusively in tax-exempt
obligations. In determining whether any of the exceptions provided for in this
paragraph to the applicability of this Section and Section 3.8 of the Agreement
apply, the Trustee shall be entitled to receive, at the expense of the Borrower,
an opinion of Bond Counsel.
SECTION 5.09 Letter of Credit.
----------------
(a) Extension or Replacement in Anticipation of Expiration. At least
------------------------------------------------------
45 days (or such shorter period as shall be acceptable to the Trustee) prior to
the Interest Payment Date next preceding the Expiration Date of the current
Letter of Credit, the Borrower may provide for the delivery to the Trustee of
(1) an amendment to the Letter of Credit which extends the Expiration Date to a
date that is not earlier than six months from its then current Expiration Date
and that follows an Interest Payment Date by not less than two Business Days and
not more than 15 calendar days or (2) if the Bonds are in a Weekly Mode or if
the Interest Payment Date next preceding the Expiration Date of the current
Letter of Credit is a Term Rate Period End Interest Payment Date, an Alternate
Letter of Credit issued by a national banking association, a bank, a trust
company or other financial institution or credit provider, which shall have
terms which are the same in all material respects (except the Expiration Date
and except any changes pursuant to this Indenture with respect to interest or
premium coverage in connection with a concurrent interest rate reset or
conversion) as the current Letter of Credit and which shall have an Expiration
Date that is not earlier than one year from the Expiration Date of the Letter of
Credit then in effect and that follows an Interest Payment Date by not less than
two Business Days and not more than 15 calendar days. The Borrower shall be
deemed to have provided for such amendment extending the Letter of Credit or for
such Alternate Letter of Credit if the Borrower shall have delivered to the
Trustee, in form satisfactory to the Trustee, a commitment from the Bank or the
proposed provider of the Alternate Letter of Credit to deliver such amendment or
Alternate Letter of Credit on or before the Interest Payment Date next preceding
the current Expiration Date of the Letter of Credit; provided that if such
amendment or Alternate Letter of Credit is not delivered to the Trustee on or
before such Interest Payment Date, an Event of Default shall be deemed to have
occurred under Subsection 7.01(h).
Any such amended Letter of Credit or Alternate Letter of Credit shall
provide for drawings to pay up to (i) while the Bonds are in the Weekly Mode, an
amount equal to the principal amount of the outstanding Bonds, plus 50 days
interest thereon computed at 12% per annum based on a 365-day year, and (ii)
while the Bonds are in a Term Mode, an amount equal to the principal amount of
the outstanding Bonds, plus 200 days interest thereon at a rate not less than
the applicable Term Rate based on a 360-day year (consisting of twelve 30-day
months), plus an amount equal to the sum of the optional redemption premium (if
any) and supplemental premium (if any) which would become payable on the Bonds
upon mandatory redemption if such amended Letter of Credit or Alternate Letter
of Credit were not extended beyond the Expiration Date set forth therein.
The Trustee shall not accept an Alternate Letter of Credit under this
Subsection unless there shall have been delivered to the Trustee (1) an opinion
of counsel to the Bank satisfactory to the Trustee with respect to the validity,
binding effect and enforceability of such Alternate Letter of Credit and (2) an
opinion of Bond Counsel to the effect that either (i) such
46
action is not treated as causing a reissuance of the Bonds and does not
adversely affect the exclusion from gross income of interest on the Bonds for
federal income tax purposes or (ii) the interest on the Bonds is excluded from
gross income for federal income tax purposes.
If the Letter of Credit is extended as described above, the mandatory
redemption pursuant to Subsection 3.01(e), or the mandatory purchase pursuant to
Section 4.02(b), shall not occur. If an Alternate Letter of Credit is delivered,
the Bonds will be subject to mandatory purchase pursuant to Section 4.02(c).
Unless all of the conditions of this Subsection which are required to be met 45
days (or such shorter period as shall be acceptable to the Trustee) preceding
the Interest Payment Date next preceding the Expiration Date of the Letter of
Credit have been satisfied, the Trustee shall take all action necessary to call
the Bonds for mandatory redemption pursuant to Section 3.01(e), or mandatory
purchase pursuant to clause (b) of Section 4.02, as applicable, on the Interest
Payment Date next preceding such Expiration Date; provided that if the Borrower
shall have notified the Trustee in writing that it expects to meet all the
conditions for the delivery of an amendment extending the existing Letter of
Credit on or before the Interest Payment Date next preceding the Expiration Date
of the existing Letter of Credit, then the notice of mandatory redemption
pursuant to Subsection 3.01(e), or mandatory purchase pursuant to clause (b) of
Section 4.02, shall state that it is subject to rescission, and the Trustee
shall rescind such notice, if such conditions are so met (in which case such
mandatory redemption or mandatory purchase shall not occur).
The provisions of this Subsection with respect to the substitution of
an Alternate Letter of Credit in the event that the Expiration Date of the
Letter of Credit is not extended shall apply equally to the substitution of
another Alternate Letter of Credit in the event that the Expiration Date of an
existing Alternate Letter of Credit is not extended.
(b) Other Replacement. The delivery of an Alternate Letter of Credit
-----------------
in anticipation of the expiration of the current Letter of Credit shall be
governed by Subsection 5.09(a). In addition, except as provided in the following
sentence, the Borrower may at any time provide for the delivery to the Trustee
of an Alternate Letter of Credit which shall have terms which are the same in
all material respects (except as to Expiration Date and except any changes
pursuant to this Indenture with respect to interest or premium coverage in
connection with a concurrent interest rate reset or conversion) as the current
Letter of Credit. Notwithstanding the foregoing, if the Bonds are in a Term
Mode, an Alternate Letter of Credit may be substituted for the then current
Letter of Credit only on a Term Rate Period End Interest Payment Date. Any
Alternate Letter of Credit delivered pursuant to this paragraph (b) shall (1)
replace the then existing Letter of Credit on an Interest Payment Date, (2) have
an Expiration Date that is not less than one year from the date of its delivery
and not sooner than the Expiration Date of the current Letter of Credit then in
effect and that follows an Interest Payment Date by not less than two Business
Days and not more than 15 calendar days, (3) be issued by a national banking
association, a bank, a trust company or other financial institution or credit
provider, and (4) be accompanied by an opinion of counsel to the Bank with
respect to the validity, binding effect and enforceability of such Alternate
Letter of Credit, and an opinion of Bond Counsel to the effect that either (i)
the issuance of such Alternate Letter of Credit is not treated as causing a
reissuance of the Bonds and does not adversely affect the exclusion from gross
income of interest on the Bonds for federal income tax purposes or (ii) the
interest on the Bonds is excluded from gross income for federal income tax
purposes. The Borrower shall deliver to the Trustee at least 45 days (or such
shorter period as shall be acceptable to the Trustee) prior to the proposed
47
replacement of a Letter of Credit, the Alternate Letter of Credit or a
commitment, in form satisfactory to the Trustee, from the Bank to deliver such
Alternate Letter of Credit on the effective date thereof, together with the
opinions referred to above.
Any Alternate Letter of Credit shall provide for drawings to pay up to
(i) while the Bonds are in the Weekly Mode, an amount equal to the principal
amount of the outstanding Bonds, plus 50 days interest thereon computed at 12%
per annum based on a 365-day year, and (ii) while the Bonds are in a Term Mode,
an amount equal to the principal amount of the outstanding Bonds, plus 200 days
interest thereon at a rate not less than the applicable Term Rate based on a
360-day year (consisting of twelve 30-day months). The Trustee shall take all
action necessary to call the Bonds for mandatory purchase pursuant to Section
4.02(c) in connection with the delivery of an Alternate Letter of Credit.
If the requirements set forth in this Subsection are met, then the
Trustee shall accept such Alternate Letter of Credit and promptly surrender for
cancellation the previously held Letter of Credit to the issuer thereof in
accordance with the terms of such Letter of Credit; provided, however, that such
Letter of Credit shall not be so surrendered until after the Trustee has drawn
upon such Letter of Credit with respect to any amount necessary to pay principal
of or interest on the Bonds then due and the purchase price of Bonds subject to
mandatory purchase pursuant to Section 4.02(c), and any amounts so drawn have
been received by the Trustee.
(c) Reduction. In each case that Bonds are redeemed or deemed to have
---------
been paid pursuant to Section 10.01, the Trustee shall take such action as may
be permitted under the Letter of Credit to reduce the amount available
thereunder to an amount equal to the principal amount of the outstanding Bonds,
plus (i) while the Bonds are in the Weekly Mode, 50 days interest on such
principal amount computed at 12% per annum based on a 365-day year, and (ii)
while the Bonds are in Term Mode, 200 days interest on such principal amount
computed at a rate not less than the applicable Term Rate based on a 360-day
year (consisting of twelve 30-day months); provided that such action by the
Trustee shall not be required if the Letter of Credit so reduces automatically
pursuant to its terms.
(d) Substitution by Bank. Upon reduction of the amount available
--------------------
under the Letter of Credit pursuant to the terms of the Letter of Credit and
Subsection 5.09(c) as a result of redemption of Bonds, the Bank shall have the
right, at its option, to require the Trustee to promptly surrender the
outstanding Letter of Credit to the Bank and to accept in substitution therefor
a substitute Letter of Credit in the same form, dated the date of such
substitution, for an amount equal to the amount available under the Letter of
Credit as so reduced, but otherwise having terms identical to the then
outstanding Letter of Credit.
(e) Other Credit Enhancement; No Credit Enhancement. After a
-----------------------------------------------
mandatory purchase of the Bonds pursuant to clause (b) or (d) of Section 4.02,
nothing in this Section shall limit the Borrower's right to provide other credit
enhancement (such as a letter of credit not meeting the requirements of this
Section or bond insurance) or no credit enhancement as security for the Bonds;
provided that any such credit enhancement shall have administrative provisions
reasonably satisfactory to the Trustee and the Borrower shall have furnished to
the Trustee with respect thereto an opinion of Bond Counsel to the effect that
either (i) such action does not adversely effect the exclusion from gross income
of interest on the Bonds for federal income tax
48
purposes or (ii) the interest on the Bonds is excluded from gross income for
federal income tax purposes.
(End of Article V)
49
ARTICLE VI
COVENANTS AND REPRESENTATIONS OF ISSUER
SECTION 6.01 Corporate Existence; Compliance with Laws. The Issuer
-----------------------------------------
shall maintain its corporate existence; shall use its best efforts to maintain
and renew all its rights, powers, privileges and franchises; and shall comply
with all valid and applicable laws, rules, regulations, orders, requirements and
directions of any legislative, executive, administrative or judicial body
relating to the Issuer's participation in the Project or the issuance of the
Bonds.
SECTION 6.02 Payment of Bond Service. The Issuer will pay all Bond
-----------------------
Service, or cause it to be paid, solely from the sources provided herein, on the
dates, at the places and in the manner provided in this Indenture.
SECTION 6.03 No Further Assignment of Revenues. The Issuer will not
---------------------------------
assign the Revenues or create any debt, lien or charge thereon, other than the
assignment thereof under this Indenture.
SECTION 6.04 Filings. The Issuer shall cause this Indenture or
-------
financing statements relating hereto to be filed, in such manner and at such
places as may be required by law fully to protect the security of the Holders
and the right, title and interest of the Trustee in and to the Trust Estate or
any part thereof, all as may be reasonably requested by the Trustee. From time
to time, the Trustee may, but shall not be required to, obtain an opinion of
counsel setting forth what, if any, actions by the Issuer or the Trustee should
be taken to preserve such security. The Issuer shall execute or cause to be
executed any and all further instruments as shall reasonably be requested by the
Trustee for such protection of the interests of the Holders, and shall furnish
satisfactory evidence to the Trustee of the filing and refiling of such
instruments and of every additional instrument which shall be necessary to
preserve the lien of this Indenture upon the Trust Estate or any part thereof
until the principal of and interest on the Bonds issued hereunder shall have
been paid. The Trustee shall execute or join in the execution of any such
further or additional instrument and file or join in the filing thereof at such
time or times and in such place or places as it may be advised by an opinion of
counsel will preserve the lien of this Indenture upon the Trust Estate or any
part thereof until the aforesaid principal and interest shall have been paid.
SECTION 6.05 Rights and Enforcement of Financing Agreement. The
---------------------------------------------
Trustee may enforce, in its name or in the name of the Issuer, all rights of the
Issuer for and on behalf of the Holders, except for Unassigned Issuer's Rights,
and may enforce all covenants, agreements and obligations of the Borrower under
and pursuant to the Financing Agreement, regardless of whether the Issuer is in
default in the pursuit or enforcement of those rights, covenants, agreements or
obligations. The Issuer will take all actions within its authority to keep the
Financing Agreement in effect in accordance with the terms thereof. So long as
no Event of Default hereunder shall have occurred and be continuing, the Issuer
may exercise all its rights under the Financing Agreement, including the right
to amend the same pursuant to the provisions thereof and hereof. The Issuer
shall give prompt notice to the Trustee of any default known to the Issuer under
the Financing Agreement.
50
SECTION 6.06 Further Assurances. Except to the extent otherwise
------------------
provided in this Indenture, the Issuer shall not enter into any contract or take
any action by which the rights of the Trustee or the Holders may be impaired and
shall, from time to time, execute and deliver such further instruments and take
such further action as may be required to carry out the purposes of this
Indenture.
SECTION 6.07 Issuer Not to Adversely Affect Tax-Exempt Status. The
------------------------------------------------
Issuer covenants that it shall take, or cause to be taken, all actions that may
be required of the Issuer for the interest on the Bonds to be and remain
excluded from the gross income of the Holders for federal income tax purposes,
and shall not take any actions which would adversely affect that exclusion under
the provisions of federal tax laws that apply to the Bonds.
SECTION 6.08 Bonds Not to Become Arbitrage Bonds. The Issuer
-----------------------------------
covenants for the benefit of the Holders from time to time of the Bonds that it
will not act so as to cause the proceeds of the Bonds, any moneys derived,
directly or indirectly, from the use or investment thereof and any other moneys
on deposit in any fund or account maintained in respect of the Bonds (whether
such moneys were derived from the proceeds of the sale of the Bonds or from
other sources) to be used in a manner which could cause the Bonds to be treated
as "arbitrage bonds" within the meaning of the Code. The Borrower by its
execution of the Financing Agreement has covenanted to restrict the investment
or other use of money in the Funds created under this Indenture in such manner
and to such extent, if any, as may be necessary, after taking into account
reasonable expectations at the time the Bonds are delivered to their original
purchaser, so that the Bonds will not constitute "arbitrage bonds" under the
Code, and the Trustee hereby agrees to comply with the Borrower's written
instructions to such end with respect to the investment of money in the Funds
and Accounts created under this Indenture.
SECTION 6.09 Observance and Performance Agreements. The Issuer will
-------------------------------------
observe and perform faithfully at all times covenants, agreements, authority,
actions, undertakings, stipulations and provisions to be observed or performed
on its part under the Financing Agreement, this Indenture and the Bonds, and
under all proceedings of the Issuer pertaining thereto.
SECTION 6.10 Representations and Warranties. The Issuer represents and
------------------------------
warrants that:
(a) It is duly authorized by the Constitution and laws of the
Commonwealth of Pennsylvania, including the Act, to issue the Bonds, to execute
and deliver this Indenture and the Financing Agreement and to provide the
security for payment of the Bond Service in the manner and to the extent set
forth in this Indenture.
(b) All actions required on its part to be performed for the
issuance, sale and delivery of the Bonds and for the execution and delivery of
this Indenture and the Financing Agreement have been or will be taken duly and
effectively.
(c) The Bonds will be valid and binding limited obligations of the
Issuer according to their terms.
(End of Article VI)
51
ARTICLE VII
DEFAULT AND REMEDIES
SECTION 7.01 Defaults; Events of Default. The occurrence of any of
---------------------------
the following events is defined as and declared to be and to constitute an Event
of Default hereunder:
(a) Failure to pay the principal of or any premium on any Bond when
such principal or premium shall become due and payable, whether at stated
maturity, by redemption, by acceleration or otherwise;
(b) Failure to pay any interest on any Bond within one Business Day of
when such interest shall become due and payable;
(c) Failure to pay the purchase price due to the Holder of any Bond
who has tendered such Bond for purchase pursuant to Article IV within one
Business Day of when such purchase price shall have become due and payable;
(d) Failure by the Issuer to comply with the provisions of the Act
relating to the Bonds or the Project or to observe or perform any other
covenant, agreement or obligation on its part to be observed or performed and
which is contained in this Indenture or in the Bonds, which failure shall have
continued for a period of 90 days after written notice, by registered or
certified mail, to the Issuer, the Bank and the Borrower specifying the failure
and requiring that it be remedied, which notice may be given by the Trustee in
its discretion and shall be given by the Trustee at the written request of the
Holders of not less than 25% in principal amount of the Bonds outstanding;
(e) The occurrence and continuance of an Event of Default as defined
in Section 7.1 of the Financing Agreement;
(f) Receipt by the Trustee of a written notice from the Bank stating
that an event of default has occurred under the Reimbursement Agreement and
directing the Trustee to call the Bonds for mandatory purchase (if the Bonds are
in the Weekly Mode) or to declare the principal of the outstanding Bonds
immediately due and payable;
(g) Receipt by the Trustee of a written notice from the Bank, prior to
the tenth calendar day following payment of a drawing under the Letter of Credit
for interest on Bonds which remain outstanding after the application of the
proceeds of such drawing, stating that the Letter of Credit will not be
reinstated with respect to such interest; or
(h) Failure by the Borrower to cause an amendment extending the
Expiration Date of the current Letter of Credit on or before the Interest
Payment Date next preceding such Expiration Date, unless the Bonds have been
called for mandatory redemption or mandatory purchase on such Interest Payment
Date pursuant to Subsection 3.01(e) or clause (b) of Section 4.02.
The term "default" or "failure" as used in this Article means a
default or failure by the Issuer in the observance or performance of any of the
covenants, agreements or obligations
52
on its part to be observed or performed contained in this Indenture or in the
Bonds or a default or failure by the Borrower under the Financing Agreement,
exclusive of any period of grace or notice required to constitute an Event of
Default as provided above or in the Financing Agreement.
SECTION 7.02 Notice of Default. If an Event of Default shall occur,
-----------------
the Trustee shall give written notice of the Event of Default, by registered or
certified mail, to the Issuer, the Borrower, the Bank and the Remarketing Agent
within five (5) days after the Trustee acquires actual knowledge of the Event of
Default. If an Event of Default occurs of which the Trustee has notice pursuant
to this Indenture, the Trustee shall give written notice thereof, within 30 days
after the Trustee's receipt of notice of its occurrence, to the Holders of all
Bonds outstanding as shown by the Register at the close of business one Business
Day prior to the mailing of that notice; provided that except in the case of a
default in the payment of the principal or Purchase Price of or any premium or
interest on any Bond, the Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive committee or a trust
committee of directors or responsible officers of the Trustee in good faith
determine that the withholding of notice to the Holders is in the best interests
of the Holders.
SECTION 7.03 Acceleration. Upon the occurrence of any Event of
------------
Default under Subsection 7.01(d), (e) or (f), the Trustee shall, upon the
written direction of the Bank (or, in the case of an Event of Default under
Subsection 7.01(d), upon the written request of the Holders of 100% in principal
amount of the Bonds outstanding), declare, by a notice in writing delivered to
the Issuer and the Borrower, the principal of all Bonds outstanding (if not then
already due and payable), together with interest accrued thereon, to be due and
payable immediately; provided that, if the Bonds are in the Weekly Mode, the
Bank may, at its option, but subject to the following provisions of this
paragraph, direct the Trustee in writing to call (in which case the Trustee
shall call) the Bonds for mandatory purchase pursuant to clause (d) of Section
4.02 on a Business Day stipulated by the Bank in such direction, which Business
Day shall not be earlier than 20 days (or such shorter period as shall be
acceptable to the Trustee) after the date the Trustee receives such direction.
Irrespective of whether an Event of Default has occurred under Section 7.01(d),
(e) or (f) for which the Bank has directed the Trustee to call the Bonds for
mandatory purchase, upon the occurrence of an Event of Default under Subsection
7.01(g) or (h), the Trustee shall, and upon the occurrence of an Event of
Default under Subsection 7.01(a), (b) or (c) the Trustee may and upon the
written request of the Holders of a majority in principal amount of the Bonds
outstanding shall, declare the principal of all Bonds outstanding (if not then
already due and payable), and the interest accrued thereon, to be due and
payable immediately, such declaration to be made by a notice in writing
delivered to the Issuer and the Borrower. Upon any declaration that the
principal of and interest on the Bonds are due and payable immediately, such
principal and interest shall become and be due and payable immediately, and, in
addition, in the case of any such declaration as a result of an Event of Default
under Subsection 7.01(e), (f), (g) or (h) while the Bonds are in a Term Mode,
there shall also become due and payable immediately a premium equal to the sum
of the optional redemption premium and supplemental premium which would become
payable with respect to the Bonds if they were redeemed pursuant to a mandatory
redemption under Subsection 3.01(e) on the Interest Payment Date next preceding
the Expiration Date of the Letter of Credit.
Written notice of any such declaration shall be given concurrently to
the Bank and the Remarketing Agent. The Trustee immediately upon such
declaration shall give notice
53
thereof in the same manner as provided in Section 3.04 with respect to
redemption of the Bonds, except that there shall be no minimum period of notice
prior to the date of payment. Such notice shall specify the date on which
payment of principal and interest shall be tendered to the Holders of the Bonds.
Upon any such declaration hereunder, the Trustee shall (i) immediately
exercise such rights as it may have under the Financing Agreement to declare all
payments thereunder to be immediately due and payable and (ii) immediately draw
upon the Letter of Credit to the full extent permitted by the terms thereof
(such drawing to provide for payment by the Bank to be due at the earliest time
which the Trustee may require under the Letter of Credit and in no case later
than two Business Days after the date of declaration of acceleration and to
include amounts in respect of interest accruing on the Bonds through the date
payment of such drawing by the Bank is due). Upon receipt by the Trustee of
payment of the full amount drawn on the Letter of Credit and provided sufficient
moneys are available in the Bond Fund to pay pursuant to Section 5.04 all sums
due on the Bonds, (i) interest on the Bonds shall cease to accrue as provided in
Section 10.03 and (ii) the Bank shall succeed to and be subrogated to the right,
title and interest of the Trustee and the Holders in and to the Financing
Agreement, all funds held under this Indenture (except any funds held in the
Bond Fund or any account with respect to Undelivered Bonds which are identified
for the payment of the Bonds or of the purchase price of Undelivered Bonds and
any funds held in the Rebate Fund) and any other security held for the payment
of the Bonds, all of which, upon payment of any fees and expenses due and
payable to the Trustee pursuant to the Financing Agreement or this Indenture,
shall be assigned by the Trustee to the Bank.
If, after the principal of the Bonds has been so declared to be due
and payable, all arrears of principal of and interest on the Bonds outstanding
are paid, and the Issuer and the Borrower also perform all other things in
respect of which either of them may have been in default hereunder or under the
Financing Agreement and pay the reasonable charges of the Trustee, the Holders
and any trustee appointed under the Act, including reasonable attorney's fees
and expenses, then, and in every such case, the Trustee or the Holders of a
majority in principal amount of the Bonds outstanding, by written notice to the
Issuer and the Borrower (and to the Holders or the Trustee, as the case may be),
may annul such declaration and its consequences, and such annulment shall be
binding upon the Trustee and all Holders; provided that there shall be no
annulment of any declaration resulting from (1) any Event of Default specified
in Subsection 7.01(f) or (g) without the prior written consent of the Bank or
(2) any Event of Default which has resulted in a drawing under the Letter of
Credit unless the Trustee has received written notice from the Bank that the
Letter of Credit has been reinstated (i) while the Bonds are in the Weekly Mode,
to an amount equal to the principal amount of the Bonds outstanding, plus 50
days interest thereon at the Maximum Rate, and (ii) while the Bonds are in a
Term Mode, to an amount equal to the principal amount of the Bonds outstanding,
plus 200 days interest thereon at a rate not less than the current Term Rate. No
annulment shall extend to or affect any subsequent Event of Default or shall
impair any rights consequent thereon.
SECTION 7.04 Other Remedies; Rights of Holders. With or without
---------------------------------
taking action under Section 7.03, upon the occurrence and continuance of an
Event of Default, the Trustee may pursue any available remedy to enforce the
payment of Bond Service or the observance and performance of any other covenant,
agreement or obligation under this
54
Indenture, the Financing Agreement or the Letter of Credit or any other
instrument providing security, directly or indirectly, for the Bonds.
If any Event of Default has occurred and is continuing, the Trustee in
its discretion may, and upon the written request of Holders of a majority in
principal amount of the Bonds outstanding and receipt of indemnity to its
satisfaction shall, in its own name:
(a) By xxxxxxxx, or other suit, action or proceeding at law or in
equity, enforce all rights of the Holders, including the right to require the
Issuer to enforce any rights under the Financing Agreement and to require the
Issuer to carry out any other provisions of this Indenture for the benefit of
the Holders and to perform its duties under the Act;
(b) Bring suit upon the Bonds;
(c) By action or suit in equity require the Issuer to account as if
it were the trustee of an express trust for the Holders; and
(d) By action or suit in equity enjoin any acts or things which may
be unlawful or in violation of the rights of the Holders.
If an Event of Default under Subsection 7.01(e) occurs and is continuing, the
Trustee in its discretion may, and upon the written request of Holders of a
majority in principal amount of the Bonds outstanding or of the Bank and receipt
of indemnity to its satisfaction shall, enforce each and every right granted to
it as assignee of the Financing Agreement.
No remedy conferred upon or reserved to the Trustee (or to the
Holders) by this Indenture is intended to be exclusive of any other remedy. Each
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or otherwise to the Trustee or to the Holders now or hereafter
existing.
No delay in exercising or omission to exercise any remedy, right or
power accruing upon any default or Event of Default shall impair that remedy,
right or power or shall be construed to be a waiver of any default or Event of
Default or acquiescence therein. Every remedy, right and power may be exercised
from time to time and as often as may be deemed to be expedient.
No waiver of any default or Event of Default hereunder, whether by the
Trustee or by the Holders, shall extend to or shall affect any subsequent
default or Event of Default or shall impair any remedy, right or power
consequent thereon.
As the grantee of a security interest in the Financing Agreement
(except for the Unassigned Issuer's Rights), the Trustee is empowered to enforce
each remedy, right and power granted to the Issuer under the Financing
Agreement. In exercising any remedy, right or power thereunder or hereunder, the
Trustee shall take any action which would best serve the interests of the
Holders in the judgment of the Trustee, applying the standards described in
Sections 8.01 and 8.02.
SECTION 7.05 Right of Holders to Direct Proceedings. The Holders of a
--------------------------------------
majority in aggregate principal amount of Bonds outstanding shall have the right
to direct, by an
55
instrument or document in writing executed and delivered to the Trustee, the
method and place of conducting all remedial proceedings hereunder; provided that
(i) any direction shall be in accordance with the provisions of law and of this
Indenture, (ii) the Trustee shall be indemnified as provided in Sections 8.01
and 8.02, (iii) the Trustee may take any other action which it deems to be
proper and which is not inconsistent with the direction, and (iv) if the Letter
of Credit is in effect and no default has occurred and is continuing thereunder,
then the Bank shall have the right to give such direction in lieu of such
Holders.
SECTION 7.06 Application of Moneys. All moneys received by the
---------------------
Trustee pursuant to any drawing made upon the Letter of Credit pursuant to
Section 7.03 shall be applied by the Trustee to and only to the payment of
principal of or premium, if any, or interest on the Bonds (other than Borrower
Bonds and Pledged Bonds). All other moneys received or collected by the Trustee
pursuant to any right given or action taken under the provisions of this Article
or the provisions of the Financing Agreement, after payment of any amount
required pursuant to Section 5.08 and any costs, expenses, liabilities and
advances paid, incurred or made by the Trustee (including, without limitation,
reasonable attorneys' fees and expenses, except as limited by law or judicial
order or decision entered in any action taken under this Article), shall be
applied as follows, subject to Sections 3.05, 5.06 and 5.07:
(a) Unless the principal of all of the Bonds shall have become, or
shall have been declared to be, due and payable, all of those moneys shall be
deposited in the Bond Fund and shall be applied:
First -- To the payment to the Holders entitled thereto of all
-----
installments of interest then due on the Bonds (other than Pledged Bonds and
Borrower Bonds), in the order of the dates of maturity of the installments of
that interest, beginning with the earliest date of maturity and, if the amount
available is not sufficient to pay in full any particular installment, then to
the payment thereof ratably, according to the amounts due on that installment,
to the Holders entitled thereto, without any discrimination or privilege, except
as to any difference in the respective rates of interest specified in the Bonds;
Second -- To the payment to the Holders entitled thereto of the unpaid
------
principal of any of the Bonds which shall have become due (other than Pledged
Bonds and Borrower Bonds and other than Bonds previously called for redemption
for the payment of which moneys are held pursuant to the provisions of this
Indenture), whether at stated maturity or by redemption, in the order of their
due dates, beginning with the earliest due date, with interest on those Bonds
from the respective dates upon which they became due at the rates specified in
those Bonds, and if the amount available is not sufficient to pay in full all
Bonds due on any particular date, together with that interest, then to the
payment thereof ratably, according to the amounts of principal due on that date,
to the Holders entitled thereto, without any discrimination or privilege; and
Third, -- To the payment of the principal of and interest on Pledged
-----
Bonds and Borrower Bonds, in that order.
The surplus, if any, remaining after the application of the moneys as
set forth above shall to the extent of any unreimbursed drawing under the Letter
of Credit, or other obligations owing to the Bank under the Reimbursement
Agreement, as certified by the Bank to
56
the Trustee, be paid to the Bank. Any remaining moneys shall be paid to the
Borrower or the Person lawfully entitled to receive the same as a court of
competent jurisdiction may direct.
(b) If the principal of all of the Bonds shall have become due or
shall have been declared to be due and payable pursuant to this Article, all of
those moneys shall be deposited into the Bond Fund and shall be applied, first,
-----
to the payment of the principal, premium (if any) and interest then due and
unpaid upon the Bonds (other than Pledged Bonds and Borrower Bonds), without
preference or priority of principal over interest, of interest over principal,
of any installment of interest over any other installment of interest, or of any
Bond over any other Bond, ratably, according to the amounts due respectively for
principal and interest, to the Holders entitled thereto, without any
discrimination or privilege, except as to any difference in the respective rates
of interest specified in the Bonds, and second, to the payment of principal of
------
and interest on the Pledged Bonds and the Borrower Bonds, if any, in that order.
(c) If the principal of all of the Bonds shall have been declared to
be due and payable pursuant to this Article, and if that declaration thereafter
shall have been rescinded and annulled under the provisions of Section 7.03 or
7.10, subject to the provisions of paragraph (b) of this Section in the event
that the principal of all of the Bonds shall become due and payable later, the
moneys shall be deposited in the Bond Fund and shall be applied in accordance
with the provisions of Article V.
(d) Whenever moneys are to be applied pursuant to the provisions of
this Section, those moneys shall be applied at such times, and from time to
time, as the Trustee shall determine, having due regard to the amount of moneys
available for application and the likelihood of additional moneys becoming
available for application in the future. Whenever the Trustee shall direct the
application of those moneys, it shall fix the date upon which the application is
to be made (and with respect to acceleration such date shall be fixed in
accordance with Section 7.03), and upon that date, interest shall cease to
accrue on the amounts of principal, if any, to be paid on that date, provided
the moneys are available therefor. The Trustee shall give notice of the deposit
with it of any moneys and of the fixing of that date, all consistent with the
requirements of Section 2.08 for the establishment of, and for giving notice
with respect to, a Special Record Date for the payment of overdue interest.
Except as otherwise provided in Section 2.13, the Trustee shall not be required
to make payment of principal of and any premium on a Bond to the Holder thereof,
until the Bond shall be presented to the Trustee for appropriate endorsement or
for cancellation if it is paid fully.
SECTION 7.07 Remedies Vested in Trustee. All rights of action
--------------------------
(including without limitation, the right to file proof of claims) under this
Indenture or under any of the Bonds may be enforced by the Trustee without the
possession of any of the Bonds or the production thereof in any trial or other
proceeding relating thereto. Any suit or proceeding instituted by the Trustee
shall be brought in its name as Trustee without the necessity of joining any
Holders as plaintiffs or defendants. Any recovery of judgment shall be for the
benefit of the Holders of the outstanding Bonds and the Bank, subject to the
provisions of this Indenture.
SECTION 7.08 Rights and Remedies of Holders. A Holder shall not have
------------------------------
any right to institute any suit, action or proceeding for the enforcement of
this Indenture, for the execution of any trust hereof, or for the exercise of
any other remedy hereunder, unless:
57
(a) there has occurred and is continuing an Event of Default of which
the Trustee has been notified, as provided in Subsection 8.02(f), or of which it
is deemed to have notice under that Subsection,
(b) the Holders of at least a majority in aggregate principal amount
of Bonds then outstanding shall have made written request to the Trustee and
shall have afforded the Trustee reasonable opportunity to proceed to exercise
the remedies, rights and powers granted herein or to institute the suit, action
or proceeding in its own name, and shall have offered indemnity to the Trustee
as provided in Sections 8.01 and 8.02, and
(c) the Trustee thereafter shall have failed or refused to exercise
the remedies, rights and powers granted herein or to institute the suit, action
or proceeding in its own name.
At the option of the Trustee, such notification (or notice), request,
opportunity and offer of indemnity are conditions precedent in every case, to
the institution of any suit, action or proceeding described above.
No one or more Holders shall have any right to affect, disturb or
prejudice in any manner whatsoever the security or benefit of this Indenture by
its or their action, or to enforce, except in the manner provided herein, any
remedy, right or power hereunder. Any suit, action or proceedings shall be
instituted, had and maintained in the manner provided herein for the benefit of
the Holders of all Bonds outstanding. Notwithstanding the foregoing provisions
of this Section or any other provision of this Indenture, the obligation of the
Issuer shall be absolute and unconditional to pay hereunder, but solely from the
Revenues and other funds pledged under this Indenture, the principal or
redemption price of, and interest on, the Bonds to the respective Holders
thereof on the respective due dates thereof, and nothing herein shall affect or
impair the right of action, which is absolute and unconditional, of such Holders
to enforce such payment; provided that no Holder shall have a right to draw upon
the Letter of Credit.
SECTION 7.09 Termination of Proceedings. In case the Trustee shall
--------------------------
have proceeded to enforce any remedy, right or power under this Indenture in any
suit, action or proceeding, and the suit, action or proceeding shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Trustee, the Issuer, the Trustee, the Bank and the Holders
shall be restored to their former positions and rights hereunder, respectively,
and all rights, remedies and powers of the Trustee shall continue as if no suit,
action or proceeding had been taken.
SECTION 7.10 Waivers of Events of Default. Except as hereinafter
----------------------------
provided, at any time, in its discretion, the Trustee, but only with the express
prior consent of the Bank, may (and, upon the written request of the Holders of
a majority in aggregate principal amount of all Bonds outstanding, shall) waive
any Event of Default hereunder and its consequences and annul any corresponding
acceleration of maturity of principal of the Bonds. There shall not be so
waived, however, any Event of Default described in Subsection 7.01(a), (b), (c),
(f), (g) or (h) nor shall any acceleration in connection therewith be annulled,
except with written consent of the Bank and unless at the time of that waiver or
annulment payments of the amounts and satisfaction of the other conditions
provided in Section 7.03 for annulment have been made or provision has been made
therefor. No waiver shall extend to any subsequent or other Event of Default or
impair any right consequent thereon.
58
SECTION 7.11 Trustee's Right to Appointment of Receiver. Upon the
------------------------------------------
occurrence and continuance of an Event of Default and as provided by law
(including the Act), the Trustee shall be entitled as of right to the
appointment of a receiver; and the Trustee, the Holders and any receiver so
appointed shall have such rights and powers and be subject to such limitations
and restrictions as are provided by law (including in the Act).
SECTION 7.12 Trustee and Holders Entitled to All Benefits Under Act.
------------------------------------------------------
It is the purpose of this Article to provide such remedies to the Trustee and
the Holders as may be lawfully granted under the provisions of the Act, but
should any remedy herein granted be held unlawful, the Trustee and the Holders
shall nevertheless be entitled to every remedy provided by the Act. It is
further intended that, insofar as lawfully possible, the provisions of this
Article shall apply to and be binding upon any trustee or receiver appointed
under this Indenture or the Act.
SECTION 7.13 Trustee's Obligation to Bank Upon Payment of All Amounts
--------------------------------------------------------
Due Holders. Once the principal of and premium, if any, and interest on all
-----------
Bonds issued hereunder have been paid, or provision has been made pursuant to
Article X for payment of the same and any purchase price of Bonds that is
payable pursuant to Article IV, together with the compensation and expenses of
the Trustee and all other sums payable hereunder by the Issuer or the Borrower,
the Trustee's sole obligation hereunder shall be to assign promptly and turn
over to the Bank, as successor, subrogee or otherwise, (i) all of the Trustee's
right, title and interest under this Indenture, (ii) all balances held hereunder
not required for the payment of the Bonds and such other obligations (except the
Rebate Fund) and (iii) the Trustee's right, title and interest in, to and under
the Financing Agreement.
(End of Article VII)
59
ARTICLE VIII
TRUSTEE AND REMARKETING AGENT
SECTION 8.01 Trustee's Acceptance and Responsibilities.
-----------------------------------------
(a) The Trustee accepts the trusts imposed upon it by this Indenture,
and agrees to observe and perform those trusts, but only upon and subject to the
terms and conditions set forth in this Article, to all of which the parties
hereto and the Holders agree. In its capacity as Trustee hereunder, the Trustee
shall authenticate the Bonds and shall act as Bond registrar, transfer agent,
tender agent and paying agent, all as provided herein.
(b) Prior to the occurrence of a default or an Event of Default of
which the Trustee has been notified, as provided in Subsection 8.02(f), or of
which by that Subsection the Trustee is deemed to have notice, and after the
cure or waiver of all defaults or Events of Default which may have occurred,
(i) the Trustee undertakes to perform only those duties and
obligations which are set forth specifically in this Indenture, and no duties or
obligations shall be implied to the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
rely conclusively, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates, opinions or other writings
furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates, opinions or other writings which by
any provision hereof are required specifically to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(c) In case a default or an Event of Default has occurred and is
continuing hereunder (of which the Trustee has been notified, or is deemed to
have notice), the Trustee shall exercise those rights and powers vested in it by
this Indenture and shall use the same degree of care and skill in their exercise
as a prudent Person would exercise or use under the circumstances in the conduct
of its own affairs.
(d) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act, or its own willful misconduct, except that
(i) this Subsection shall not be construed to affect the
limitation of the Trustee's duties and obligations provided in Subsection
8.01(b)(i) or the Trustee's right to rely on the truth of statements and the
correctness of opinions as provided in Subsection 8.01(b)(ii);
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by any of its officers, unless it shall be established that
the Trustee was grossly negligent in ascertaining the pertinent facts;
60
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of the
Bonds then outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any of its
rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it; provided that this clause (iv) shall not relieve
the Trustee of its duties to take actions required to be taken under Section
7.03 and with respect to drawings to be made under the Letter of Credit and
making payments on the Bonds when due.
(e) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
(f) The Trustee accepts and agrees to perform any and all duties
which are imposed upon the Trustee or the Issuer under the Representation
Letter.
(g) The Trustee will promptly notify the Holders upon receiving
written notice from the Borrower pursuant to Section 5.13 of the Financing
Agreement or from the Bank to the effect that a transaction is expected to occur
which would result in the Borrower controlling or being controlled by the Bank.
SECTION 8.02 Certain Rights and Obligations of Trustee. Except as
-----------------------------------------
otherwise provided in Section 8.01:
(a) The Trustee (i) may execute any of the trusts or powers hereof
and perform any of its duties by or through attorneys, agents, receivers or
employees (but shall be answerable therefor only in accordance with the standard
specified above), (ii) shall be entitled to the advice of counsel concerning all
matters of trusts hereof and duties hereunder, and (iii) may pay reasonable
compensation in all cases to all of those attorneys, agents, receivers and
employees reasonably employed by it in connection with the trusts hereof. The
Trustee may act or refrain from acting upon the opinion or advice of any
attorney (who may be the attorney or attorneys for the Issuer or the Borrower)
approved by the Trustee in the exercise of reasonable care. The Trustee shall
not be responsible for any loss or damage resulting from any action taken or
omitted to be taken in good faith in reliance upon that opinion or advice.
(b) Except for its certificate of authentication on the Bonds, the
Trustee shall not be responsible for (i) any recital in this Indenture or in the
Bonds, (ii) the validity, priority, recording, rerecording, filing or refiling
of this Indenture or any Supplemental Indenture, (iii) any instrument or
document of further assurance or collateral assignment, (iv) the preparation,
filing or refiling any financing statements, amendments thereto or continuation
statements, (v) the validity of the execution by the Issuer of this Indenture,
any Supplemental Indenture or instruments or documents of further assurance,
(vi) the sufficiency of the security for the Bonds issued hereunder or intended
to be secured hereby, (vii) the value of or title to the Project, or insurance
of the Project or collection of insurance moneys, (viii) the maintenance of the
security hereof, or (ix) the use of any funds disbursed by the Trustee in
accordance with the
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provisions of this Indenture and the Financing Agreement. The Trustee shall not
be bound to ascertain or inquire as to the observance or performance of any
covenants, agreements or obligations on the part of the Issuer or the Borrower
under the Financing Agreement except as set forth hereinafter; but the Trustee
may require of the Issuer or the Borrower full information and advice as to the
observance or performance of those covenants, agreements and obligations. Except
as otherwise provided in Section 7.04, the Trustee shall have no obligation to
observe or perform any of the duties of the Issuer under the Financing
Agreement.
(c) The Trustee shall not be accountable for the application by the
Borrower or any other Person of the proceeds of any Bonds authenticated or
delivered hereunder.
(d) The Trustee may, in the absence of bad faith on its part, act
upon any notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document reasonably believed by it to be genuine and
correct and to have been signed or sent by the proper Person or Persons, and
shall not be bound to investigate the facts or matters stated therein, but, in
its discretion, may make such further inquiry or investigation as to such facts
or matters as it deems appropriate. Any action taken by the Trustee pursuant to
this Indenture upon the request or authority or consent of any Person who is the
Holder of any Bonds at the time of making the request or giving the authority or
consent, shall be conclusive and binding upon all future Holders of the same
Bond and of Bonds issued in exchange therefor or in place thereof.
(e) As to the existence or nonexistence of any fact for which the
Issuer, the Bank or the Borrower may be responsible or as to the sufficiency or
validity of any instrument, document, report, paper or proceeding, the Trustee,
in the absence of bad faith on its part, shall be entitled to rely upon a
certificate signed on behalf of the Issuer, the Bank or the Borrower by an
Authorized Representative or authorized officer thereof, as applicable, as
sufficient evidence of the facts recited therein. Prior to the occurrence of a
default or Event of Default hereunder of which the Trustee has been notified, as
provided in Subsection 8.02(f), or of which by that Subsection the Trustee is
deemed to have notice, the Trustee may accept a similar certificate to the
effect that any particular dealing, transaction or action is necessary or
expedient; provided that the Trustee in its discretion may require and obtain
any further evidence which it deems to be necessary or advisable; and provided
further that the Trustee shall not be bound to secure any further evidence. The
Trustee may accept a certificate of the officer, or an assistant thereto, having
charge of the appropriate records, to the effect that a resolution has been
adopted by the Issuer in the form recited in that certificate, as conclusive
evidence that the resolution has been duly adopted and is in full force and
effect.
(f) The Trustee shall not be required to take notice, and shall not
be deemed to have notice, of any default or Event of Default hereunder, except
Events of Default described in Subsections 7.01(a), (b), (c), (f), (g) and (h),
unless the Trustee shall be notified specifically of the default or Event of
Default in a written instrument or document delivered to it by the Issuer, the
Bank or by the Holders of at least 10% of the aggregate principal amount of
Bonds outstanding. In the absence of delivery of a notice satisfying those
requirements, the Trustee may assume conclusively that there is no default or
Event of Default, except as noted above.
(g) At any reasonable time, the Trustee and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives (i) may
inspect and copy fully all
62
books, papers and records of the Issuer pertaining to the Project and the Bonds,
and (ii) may make any memoranda from and in regard thereto as the Trustee may
desire.
(h) The Trustee shall not be required to give any bond or surety with
respect to the execution of these trusts and powers or otherwise in respect of
the premises.
(i) Notwithstanding anything contained elsewhere in this Indenture to
the contrary, the Trustee may demand any showings, certificates, reports,
opinions (including, without limitation, opinions of Bond Counsel that any
actions proposed to be taken by the Trustee will not adversely affect any
applicable exemption from taxes imposed by the United States of America or the
Commonwealth of Pennsylvania with respect to the Bonds), appraisals and other
information, and any corporate action and evidence thereof, in addition to that
required by the terms hereof, as a condition to the authentication of any Bonds
or the taking of any action whatsoever within the purview of this Indenture, if
the Trustee deems it to be desirable for the purpose of establishing the right
of the Issuer to the authentication of any Bonds or the right of any Person to
the taking of any other action by the Trustee; provided that the Trustee shall
not be required to make any such demand.
(j) Before taking action hereunder pursuant to Section 8.04 or
Article VII (with the exception of any action required to be taken under Section
7.03 and except with respect to drawings made under the Letter of Credit and
with respect to payment on the Bonds when due), the Trustee may require that a
satisfactory indemnity bond be furnished to it for the reimbursement of all
expenses which it may incur and to protect it against all liability by reason of
any action so taken, except liability which is adjudicated to have resulted from
its gross negligence or willful misconduct; provided that no such bond shall be
required from the Issuer. The Trustee may take action without that indemnity,
and in that case, the Issuer shall cause the Borrower to reimburse the Trustee
for all of the Trustee's expenses pursuant to Section 8.03.
(k) Unless otherwise provided herein, all moneys received by the
Trustee under this Indenture shall be held in trust for the purposes for which
those moneys were received, until those moneys are used, applied or invested as
provided herein; provided that those moneys need not be segregated from other
moneys, except to the extent required by this Indenture or by law. The Trustee
shall not have any liability for interest on any moneys received hereunder,
except to the extent expressly provided herein or agreed with the Issuer or the
Borrower.
(l) Any resolution of the Issuer, and any opinions, certificates and
other instruments and documents for which provision is made in this Indenture,
may be accepted by the Trustee, in the absence of bad faith on its part, as
conclusive evidence of the facts and conclusions stated therein and shall be
full warrant, protection and authority to the Trustee for its actions taken
hereunder.
(m) The Trustee may construe any ambiguous or inconsistent provisions
of this Indenture in such manner as it deems reasonable, and any such
construction of such provisions by the Trustee shall be binding upon the Issuer,
the Borrower, the Bank, the Remarketing Agent and the Holders.
(n) Notwithstanding any provision of this Indenture to the contrary,
the Trustee shall not be liable or responsible for any calculation or
determination which may be
63
required in connection with or for the purpose of complying with Section 148 of
the Code, including, without limitation, the calculation of amounts required to
be paid to the United States of America under the provisions of Section 148 of
the Code, the maximum amount which may be invested in "nonpurpose obligations"
as defined in the Code and the fair market value of any investments made
hereunder, and the sole obligation of the Trustee with respect to the
investments of funds hereunder shall be to invest the moneys received by the
Trustee as provided herein pursuant to the written instructions of the Borrower.
(o) Except as otherwise expressly provided hereunder, the Trustee
shall not be required to give or furnish any notice, demand, report, reply,
statement, advice or opinion to any Holder, the Issuer or any other Person, and
the Trustee shall not incur any liability for its failure or refusal to give or
furnish the same unless obligated or required to do so by express provisions
hereof.
(p) The permissive rights of the Trustee to take actions enumerated
in this Indenture shall not be construed as duties.
(q) In acting or omitting to act pursuant to the Financing Agreement,
the Trustee shall be entitled to all of the rights and immunities accorded to it
under this Indenture, including but not limited to this Article VIII.
(r) The Trustee shall have no responsibility with respect to any
information in any offering memorandum or other disclosure material distributed
with respect to the Bonds or for compliance with securities laws in connection
with the issuance and sale of the Bonds.
(s) No provision of this Indenture or the Financing Agreement shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties.
SECTION 8.03 Fees, Charges and Expenses of Trustee. The Trustee shall
-------------------------------------
be entitled to payment or reimbursement by the Borrower, as provided in the
Financing Agreement, for reasonable fees for the Ordinary Services of the
Trustee and its agents rendered hereunder and for all advances, counsel fees and
other Ordinary Expenses reasonably and necessarily paid or incurred by it and
its agents in connection with the provision of Ordinary Services. For purposes
hereof, fees for Ordinary Services provided for by their respective standard fee
schedule or other fee arrangement shall be considered reasonable. In the event
that it should become necessary for any of them to perform Extraordinary
Services, they shall be entitled to reasonable extra compensation therefor and
to reimbursement for reasonable and necessary Extraordinary Expenses incurred in
connection therewith. The Trustee shall not be entitled to compensation or
reimbursement for Extraordinary Services or Extraordinary Expenses occasioned by
its gross negligence or willful misconduct.
The fees for the Trustee's Ordinary Services and Ordinary Expenses and
Extraordinary Service and Extraordinary Expenses shall be entitled to payment
and reimbursement only from (i) the Project Fund, (ii) Additional Payments made
by the Borrower pursuant to the Financing Agreement, or (iii) from other moneys
available therefor. Any amounts payable to the Trustee pursuant to this Section
shall be payable upon demand and shall bear interest from five Business Days
following the date of demand therefor at the Interest Rate for Advances. The
initial or acceptance fees of the Trustee and the fees, charges and expenses of
64
the Trustee and its agents described above, may be paid by the Trustee from the
Project Fund as and when due to the extent that those fees, charges and expenses
become due during the Construction Period (as defined in the Financing
Agreement).
SECTION 8.04 Intervention by Trustee. The Trustee may intervene on
-----------------------
behalf of the Holders, and shall intervene if requested to do so in writing by
the Holders of at least 25% in the principal amount of Bonds outstanding, in any
judicial proceeding to which the Issuer or the Borrower is a party and which in
the opinion of the Trustee and its counsel has a substantial bearing on the
interests of Holders of the Bonds. The rights and obligations of the Trustee
under this Section are subject to the approval of that intervention by a court
of competent jurisdiction. The Trustee may require that a satisfactory indemnity
bond be provided to it in accordance with Sections 8.01 and 8.02 before it takes
action hereunder.
SECTION 8.05 Successor Trustee. Anything herein to the contrary
-----------------
notwithstanding,
(a) any corporation or association (i) into which the Trustee may be
converted or merged, (ii) with which the Trustee or any successor to it may be
consolidated, or (iii) to which the Trustee may sell or transfer its corporate
trust business as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, merger, consolidation, sale or
transfer, ipso facto, shall be and become successor Trustee hereunder and shall
---- -----
be vested with all of the title to the whole property or trust estate hereunder;
and
(b) that corporation or association, as successor Trustee, shall be
vested further, as was its predecessor, with each and every trust, property,
remedy, power, right, duty, obligation, discretion, privilege, claim, demand,
cause of action, immunity, estate, title, interest and lien expressed or
intended by this Indenture to be exercised by, vested in or conveyed to the
Trustee, without the execution or filing of any instrument or document or any
further act on the part of any of the parties hereto.
Any successor Trustee, however, (i) shall be a trust company or a bank having
the powers of a trust company, (ii) shall be in good standing within the
Commonwealth of Pennsylvania, (iii) shall be duly authorized to exercise trust
powers within the Commonwealth of Pennsylvania, and (iv) shall have a reported
capital and surplus of not less than $50,000,000 and a rating assigned to its or
its parent entity's or primary commercial banking affiliate's long-term
unsecured debt by Xxxxx'x at least equal to "Baa3" (if the Bonds are then rated
by Xxxxx'x) and by Standard & Poor's at least equal to "BBB-" (if the Bonds are
then rated by Standard & Poor's) unless the Issuer receives written confirmation
from the respective Rating Service that the appointment of a particular
successor trustee not meeting such rating requirement will not result in a
reduction or withdrawal of its rating of the Bonds.
SECTION 8.06 Resignation by Trustee. The Trustee may resign at any
----------------------
time from the trusts created hereby by giving written notice of the resignation
to the Issuer, the Borrower, the Bank and the Remarketing Agent and by mailing
written notice of the resignation to the Holders as their names and addresses
appear on the Register at the close of business one Business Day prior to the
mailing. The resignation shall take effect only upon the appointment of a
successor Xxxxxxx and transfer of the Letter of Credit to such successor.
65
SECTION 8.07 Removal of Trustee. The Trustee may be removed at any
------------------
time by an instrument or document or concurrent instruments or documents
delivered to the Trustee at least five Business Days prior to the date of
removal, with copies thereof mailed to the Issuer, the Borrower, the Bank and
the Remarketing Agent, and signed by or on behalf of the Holders of not less
than a majority in principal amount of the Bonds outstanding.
The Trustee also may be removed at any time for any breach of trust or
for acting or proceeding in violation of, or for failing to act or proceed in
accordance with, any provision of this Indenture with respect to the duties and
obligations of the Trustee by any court of competent jurisdiction upon the
application of the Issuer or the Holders of not less than 25% in principal
amount of the Bonds outstanding.
The removal of the Trustee pursuant to this Section shall take effect
only upon the appointment of a successor Trustee and transfer of the Letter of
Credit to such successor.
SECTION 8.08 Appointment of Successor Trustee. If (i) the Trustee
--------------------------------
shall resign, shall be removed, shall be dissolved, or shall become otherwise
incapable of acting hereunder, (ii) the Trustee shall be taken under the control
of any public agency, or (iii) a receiver shall be appointed for the Trustee by
a court, then a successor Trustee shall be appointed by the Issuer, with the
written consent of the Borrower and the Bank; provided that if a successor
Trustee is not so appointed within 10 days after (a) a notice of resignation or
an instrument or document of removal is received by the Issuer, as provided in
Sections 8.06 and 8.07, respectively, or (b) the Trustee is dissolved, taken
under control, becomes otherwise incapable of acting or a receiver is appointed,
in each case, as provided above, then, so long as the Issuer shall not have
appointed a successor Trustee, the Holders of a majority in aggregate principal
amount of Bonds outstanding may designate a successor Trustee by an instrument
or document or concurrent instruments or documents in writing signed by or on
behalf of those Holders. If no appointment of a successor Trustee shall be made
pursuant to the foregoing provisions of this Section, the Holder of any Bond
outstanding or any retiring Trustee, at the Borrower's expense, may apply to any
court of competent jurisdiction to appoint a successor Trustee. Such court may
thereupon, after such notice, if any, as such court may deem proper and
prescribe, appoint a successor Trustee.
Every successor Trustee appointed pursuant to this Section (i) shall
be a trust company or a bank having the powers of a trust company, (ii) shall be
in good standing within the Commonwealth of Pennsylvania, (iii) shall be duly
authorized to exercise trust powers within the Commonwealth of Pennsylvania,
(iv) shall have a reported capital and surplus of not less than $50,000,000 and
a rating assigned to its or its parent entity's or primary commercial banking
affiliate's long-term unsecured debt by Xxxxx'x at least equal to "Baa3" (if the
Bonds are then rated by Xxxxx'x) and by Standard & Poor's at least equal to
"BBB-" (if the Bonds are then rated by Standard & Poor's) unless the Issuer
receives written confirmation from the Rating Service that the appointment of a
particular successor trustee not meeting such rating requirement will not result
in a reduction or withdrawal of its rating of the Bonds, and (v) shall be
willing to accept the trusteeship under the terms and conditions of this
Indenture.
Every successor Trustee appointed hereunder shall execute and
acknowledge, and shall deliver to its predecessor, the Issuer, the Borrower, the
Bank and the Remarketing Agent, an instrument or document in writing accepting
the appointment. Thereupon, without any
66
further act, the successor shall become vested with all of the trusts,
properties, claims, demands, causes of action, immunities, estates, titles,
interests and liens of its predecessor. Upon the written request of its
successor, the Issuer, the Borrower, the Bank or the Remarketing Agent, the
predecessor Trustee (i) shall execute and deliver an instrument or document
transferring to its successor all of the trusts, properties, remedies, powers,
rights, duties, obligations, discretions, privileges, claims, demands, causes of
action, immunities, estates, titles, interests and liens of the predecessor
Trustee hereunder, and (ii) shall take any other action necessary to duly
assign, transfer and deliver to its successor all property (including, without
limitation, all securities and moneys and the Letter of Credit) held by it as
Trustee, but shall not be required to pay any Letter of Credit transfer fee.
Should any instrument or document in writing from the Issuer be requested by any
successor Trustee for vesting and conveying more fully and certainly in and to
that successor the trusts, properties, remedies, powers, rights, duties,
obligations, discretions, privileges, claims, demands, causes of action,
immunities, estates, titles, interests and liens vested or conveyed or intended
to be vested or conveyed hereby in or to the predecessor Trustee, the Issuer
shall execute, acknowledge and deliver that instrument or document.
In the event of a change in the Trustee, the predecessor Trustee shall
cease to be custodian of any moneys which it may hold pursuant to this Indenture
and shall cease to be Bond registrar, transfer agent, tender agent,
authenticating agent and paying agent for the Bonds. The successor Trustee shall
become custodian for moneys held under this Indenture and Xxxx registrar,
transfer agent, tender agent, authenticating agent and paying agent as and to
the extent provided herein.
SECTION 8.09 Adoption of Authentication. In case any of the Bonds
--------------------------
shall have been authenticated, but shall not have been delivered, any successor
Trustee may adopt the certificate of authentication of any predecessor Trustee
and may deliver those Bonds so authenticated as provided herein. In case any
Bonds shall not have been authenticated, any successor Trustee may authenticate
those Bonds either in the name of any predecessor or in its own name. In all
cases, the certificate of authentication shall have the same force and effect as
provided in the Bonds or in this Indenture with respect to the certificate of
authentication of the predecessor Trustee.
SECTION 8.10 Designation and Succession of Authenticating Agent, Bond
--------------------------------------------------------
Registrar, Transfer Agent, Tender Agent and Paying Agent. The Trustee may, with
--------------------------------------------------------
the consent of the Issuer, appoint an agent or agents, with power to act on the
Trustee's behalf and subject to the Trustee's direction in the authentication,
registration, transfer and exchange and tender of Bonds and payment of Bond
Service under the provisions of this Indenture; provided that any tender agent
or paying agent so appointed shall have and maintain a rating assigned to its or
its parent entity's or primary commercial banking affiliate's long-term
unsecured debt by Xxxxx'x at least equal to "Baa3" (if the Bonds are then rated
by Xxxxx'x) and by Standard & Poor's at least equal to "BBB-" (if the Bonds are
then rated by Standard & Poor's) unless the Issuer receives written confirmation
from the Rating Service that the appointment of a tender agent or paying agent
not meeting such rating requirement will not result in a reduction or withdrawal
of its rating of the Bonds. For all purposes of this Indenture, the
authentication, registration and delivery of Bonds by any such agent pursuant to
this Section shall be deemed to be authentication, registration and delivery of
those Bonds by the Trustee.
67
Any corporation or association with or into which any such agent may
be merged or converted or with which it may be consolidated, or any corporation
or association resulting from any merger, consolidation or conversion to which
any such agent shall be a party, or any corporation or association succeeding to
all or substantially all of the corporate trust business of any such agent,
shall be the successor of that agent hereunder, if that successor corporation or
association is otherwise eligible hereunder, without the execution or filing of
any paper or any further act on the part of the parties hereto or the such agent
or such successor corporation.
Any such agent may at any time resign by giving written notice of
resignation to the Trustee and to the Issuer, the Borrower and the Remarketing
Agent. The Trustee may at any time terminate the agency of any such agent by
giving written notice of termination to such agent and to the Issuer, the
Borrower and the Remarketing Agent. Upon receiving such a notice of resignation
or upon such a termination, or in the case at any time any such agent shall
cease to be eligible under this Section, the Trustee may appoint a successor
agent. The Trustee shall give written notice of appointment of a successor agent
to the Issuer, the Borrower and the Remarketing Agent and shall mail, within 10
days after that appointment, notice thereof to all Holders as their names and
addresses appear on the Register one Business Day prior to the mailing of such
notice.
The Trustee shall pay to any such agent from time to time reasonable
compensation for its services, and the Trustee shall be entitled to be
reimbursed for such payments as Ordinary Expenses, subject to Section 8.03.
The pertinent provisions of Subsections 8.02(b), (c), (d), (h) and (i)
shall be applicable to any such agent.
SECTION 8.11 Dealing in Bonds. The Trustee, the Bank and the
----------------
Remarketing Agent, their affiliates, and any directors, officers, employees or
agents thereof, in good faith, may become the owners of Bonds secured hereby
with the same rights which it or they would have hereunder if the Trustee, the
Bank or the Remarketing Agent did not serve in those capacities. The Trustee may
be, or be affiliated with, the Remarketing Agent or the Bank. The Trustee may
also engage in or be interested in any financial or other transaction with the
Issuer, the Borrower, the Bank, the Remarketing Agent or any related party.
SECTION 8.12 Representations, Agreements and Covenants of Trustee.
----------------------------------------------------
Chase Manhattan Trust Company, National Association hereby represents and
covenants that it is a national banking association duly organized and validly
existing under the laws of the United States of America, with all requisite
corporate trust powers to undertake and perform its obligations under this
Indenture, and that it, or its parent entity or primary commercial banking
affiliate, has a rating assigned to its long-term unsecured debt by Xxxxx'x at
least equal to "Baa3" (if the Bonds are then rated by Xxxxx'x) and by Standard &
Poor's at least equal to "BBB-" (if the Bonds are then rated by Standard &
Poor's). All federal, state and local governmental, public and regulatory
authority, approvals, consents, notices, authorizations, registrations,
licenses, exemptions and filings that are required to have been obtained or made
by Trustee with respect to the authorization, execution, delivery and
performance by, or the enforcement against or by, the Trustee of this Indenture
have been obtained and are in full force and effect and all conditions of such
approvals, consents, notices, authorizations, registrations, licenses,
exemptions and filings have been fully complied with.
68
SECTION 8.13 Appointment of Remarketing Agent. The Issuer shall, with
--------------------------------
the consent of the Borrower, appoint the Remarketing Agent for the Bonds,
subject to the conditions set forth in Section 8.14. The Remarketing Agent shall
designate to the Trustee its Principal Office and signify its acceptance of the
duties and obligations imposed upon it hereunder by a written instrument of
acceptance delivered to the Issuer, the Borrower and the Trustee under which the
Remarketing Agent will agree, particularly:
(a) to hold all Bonds delivered to it by the Trustee for delivery to
the Holders of such Bonds;
(b) to hold all moneys representing the purchase price of Bonds for
the benefit of the Person or entity entitled to receive the payment of such
purchase price pursuant to this Indenture until transfer to the Trustee as
provided in this Indenture;
(c) to determine the Weekly Rate and the Term Rate in accordance with
Sections 2.03 and 2.04 of this Indenture, and to give notice to the Trustee of
the Weekly Rate, and to the Trustee, the Issuer, the Borrower and the Bank of
the Term Rate, on the date of the determination thereof; and
(d) to keep such books and records as shall be consistent with
prudent industry practice and to make such books and records available for
inspection by the Issuer, the Trustee, the Borrower and the Bank at all
reasonable times.
In addition, the Remarketing Agent will enter into the Remarketing Agreement
with the Borrower in form and substance mutually satisfactory to them. The
Remarketing Agent shall be entitled to advice of legal counsel on any matter
relating to the Remarketing Agent's obligations hereunder and shall be entitled
to act upon the opinion of such counsel in the exercise of reasonable care in
fulfilling such obligations.
SECTION 8.14 Qualifications of Remarketing Agent. The Remarketing
-----------------------------------
Agent shall be a national banking association or a bank or trust company or a
member of the National Association of Securities Dealers, Inc., authorized by
law to perform all the duties imposed upon it by this Indenture and under the
Remarketing Agreement and shall have a rating assigned to its long-term
unsecured debt by Xxxxx'x at least equal to "Baa3" (if the Bonds are then rated
by Xxxxx'x) and by Standard & Poor's at least equal to "BBB-" (if the Bonds are
then rated by Standard & Poor's) unless the Issuer receives written confirmation
from the Rating Service that the appointment of a particular Remarketing Agent
not meeting such rating requirement will not result in a reduction or withdrawal
of its rating of the Bonds. The Remarketing Agent may at any time resign and be
discharged of the duties and obligations created by this Indenture by giving at
least 30 days' prior written notice by registered or certified mail to the
Trustee, the Issuer, the Borrower and the Bank. The Remarketing Agent may be
removed at any time by the Issuer, with the consent of the Borrower (provided
that the Borrower shall be deemed to have consented to the removal of a
Remarketing Agent which has ceased to meet the foregoing qualifications), upon
30 days' notice which shall be in writing, signed by the Issuer and delivered to
the Remarketing Agent, the Borrower, the Trustee and the Bank.
In the event of the resignation or removal of the Remarketing Agent,
the Issuer, with the consent of the Borrower and the Bank, shall appoint a
successor Remarketing Agent meeting the qualifications set forth in this Section
and the Remarketing Agent shall pay over,
69
assign and deliver any moneys and Bonds held by it in such capacity to its
successor or, if there be no successor, to the Trustee as hereinafter provided.
In the event that the Remarketing Agent shall resign or be removed, or
be dissolved, or if the property or affairs of the Remarketing Agent shall be
taken under the control of any state or federal court or administrative body
because of bankruptcy or insolvency, or for any other reason, and the Issuer
shall not have appointed its successor as Remarketing Agent, the Trustee,
notwithstanding the provisions of the first paragraph of this Section, shall
ipso facto be deemed to be the Remarketing Agent for all purposes of this
Indenture until the appointment by the Issuer of the successor Remarketing
Agent; provided that the Trustee, in its capacity as Remarketing Agent, shall
not be required to remarket Bonds nor to establish the Weekly Rate or the Term
Rate.
SECTION 8.15 Compensation and Expenses of Remarketing Agent. Pursuant
----------------------------------------------
to Section 4.4 of the Financing Agreement, the Borrower is obligated to pay
directly reasonable compensation to and the reasonable expenses of the
Remarketing Agent. The terms of such obligation may be set forth in the
Remarketing Agreement.
(End of Article VIII)
70
ARTICLE IX
SUPPLEMENTS AND AMENDMENTS
SECTION 9.01 Supplemental Indentures Not Requiring Consent of
------------------------------------------------
Holders. Without the consent of or notice to any Holders, the Issuer and the
-------
Trustee may enter into indentures supplemental to this Indenture for any one or
more of the following purposes:
(a) To cure any ambiguity, inconsistency or formal defect or omission
in this Indenture;
(b) To grant to or confer upon the Trustee for the benefit of the
Holders any additional rights, remedies, powers or authority;
(c) To confirm any pledge of or lien on the Revenues, to assign
additional revenues under this Indenture or to accept additional security or
instruments of further assurance;
(d) To add to the covenants, agreements and obligations of the Issuer
under this Indenture, other covenants, agreements and obligations to be observed
for the protection of the Holders, or to surrender or limit any right, power or
authority reserved to or conferred upon the Issuer in this Indenture;
(e) To permit the use of a book entry system to identify the owner of
an interest in an obligation issued by the Issuer under this Indenture, whether
that obligation was formerly, or could be, evidenced by a tangible security;
(f) To permit the Trustee to comply with any obligations imposed upon
it by law;
(g) To specify further the duties and responsibilities of, and to
define further the relationship between, the Trustee and the Remarketing Agent;
(h) To achieve compliance of this Indenture with any applicable
federal securities or tax laws;
(i) To make amendments to the provisions hereof relating to arbitrage
matters under Section 148 of the Code, if, in the opinion of Bond Counsel
selected by the Issuer and approved by the Trustee, those amendments would not
cause the interest on the Bonds outstanding to become included in the gross
income of the Holders thereof for federal income tax purposes, which amendments
may, among other things, change the responsibility for making the relevant
arbitrage calculations;
(j) To evidence the appointment of a new Trustee or a new Remarketing
Agent;
(k) To provide for an Alternate Letter of Credit or any other credit
enhancement permitted by the terms of this Indenture;
71
(l) To make any amendments required to secure a rating on the Bonds
from a Rating Service equal to the rating of the Bank's unsecured indebtedness;
(m) To implement a conversion to a Term Mode Rate; or
(n) To permit any other amendment which is not materially adverse to
the interests of the Trustee or the Holders.
Before the Issuer and the Trustee shall enter into any Supplemental Indenture
pursuant to this Section, there shall have been delivered to the Trustee and the
Issuer an opinion of Bond Counsel to the effect that such Supplemental Indenture
is authorized or permitted by this Indenture and the Act, will, upon the
execution and delivery thereof, be valid and binding upon the Issuer in
accordance with its terms, and does not adversely affect the exclusion from
gross income of interest on the Bonds for federal income tax purposes.
SECTION 9.02 Supplemental Indentures Requiring Consent of Holders.
----------------------------------------------------
In addition to the Supplemental Indentures permitted by Section 9.01, this
Indenture may be amended or supplemented from time to time by a Supplemental
Indenture consented to by the Borrower and approved by Holders of a majority in
aggregate principal amount of the Bonds then outstanding, except that, other
than as permitted by Section 9.01, this Indenture may not be amended with
respect to (1) the principal or redemption price or interest payable upon any
Bonds, (2) the Interest Payment Dates, the dates of maturity or the redemption
or purchase provisions of any Bonds, and (3) this Article. This Indenture may be
amended with respect to the matters enumerated in clauses (1) to (3) of the
preceding sentence only with the unanimous consent of all Holders. Before the
Issuer and the Trustee may enter into such Supplemental Indenture, there shall
have first been delivered to the Trustee (a) the required consents, in writing,
of Holders and (b) an opinion of Bond Counsel to the effect that such
Supplemental Indenture is authorized or permitted by this Indenture and the Act,
will, upon the execution and delivery thereof, be valid and binding upon the
Issuer in accordance with its terms, and does not adversely affect the exclusion
from gross income of interest on the Bonds for federal income tax purposes.
SECTION 9.03 Consent of Borrower. Anything contained herein to the
-------------------
contrary notwithstanding, a Supplemental Indenture executed and delivered in
accordance with this Article which affects any rights of the Borrower shall not
become effective unless and until the Borrower shall have consented in writing
to the execution and delivery of that Supplemental Indenture.
SECTION 9.04 Authorization to Trustee; Effect of Supplement. The
----------------------------------------------
Trustee is authorized to join with the Issuer in the execution and delivery of
any Supplemental Indenture in accordance with this Article and to make the
further agreements and stipulations which may be contained therein. Thereafter,
(a) such Supplemental Indenture shall form a part of this Indenture; (b) all
terms and conditions contained in that Supplemental Indenture as to any
provision authorized to be contained therein shall be deemed to be a part of the
terms and conditions of this Indenture for any and all purposes; (c) this
Indenture shall be deemed to be modified and amended in accordance with the
Supplemental Indenture; and (d) the respective rights, duties and obligations
under this Indenture of the Issuer, the Borrower, the Trustee, the Remarketing
Agent, the Bank and all Holders of Bonds outstanding shall be determined,
72
exercised and enforced hereunder in a manner which is subject in all respects to
those modifications and amendments made by the Supplemental Indenture. The
Trustee shall not be required to execute any Supplemental Indenture containing
provisions adverse to the Trustee.
SECTION 9.05 Modification by Unanimous Consent. Notwithstanding
---------------------------------
anything contained elsewhere in this Indenture, the rights and obligations of
the Issuer and of the Holders, and the terms and provisions of the Bonds and
this Indenture or any Supplemental Indenture, may be modified or altered in any
respect with the consent of (i) the Issuer, (ii) the Holders of all of the Bonds
outstanding, (iii) the Bank and (iv) the Borrower.
SECTION 9.06 Amendment of Financing Agreement. If the Issuer and the
--------------------------------
Borrower propose to amend the Financing Agreement, the Trustee may consent
thereto; provided that if such proposal would amend the Financing Agreement in
such a way as would materially adversely affect the interests of the Holders,
the Trustee shall notify Holders of the proposed amendment and may consent
thereto with the consent of Holders of a majority in aggregate principal amount
of the Bonds then outstanding, except that no amendment materially adversely
affecting the interests of the Holders shall be consented to by the Trustee
without the unanimous consent of all Holders if such materially adverse
amendment would (1) decrease the amounts payable under the Financing Agreement
constituting Revenues, (2) change the date of payment or prepayment provisions
under the Financing Agreement, or (3) change any provisions with respect to
amendment of the Financing Agreement. Before the Issuer shall enter into, and
the Trustee shall consent to, any modification, alteration, amendment or
supplement to the Financing Agreement pursuant to this Section, there shall have
been delivered to the Issuer and the Trustee an opinion of Bond Counsel to the
effect that such amendment is authorized or permitted by this Indenture and the
Act and does not adversely affect the exclusion from gross income of interest on
the Bonds for federal income tax purposes.
SECTION 9.07 Amendment of Letter of Credit. If the Bank proposes to
-----------------------------
amend the Letter of Credit, the Trustee may consent thereto, provided that (a)
if such proposal would amend the Letter of Credit in such a way as would
materially adversely affect the interests of the Holders, the Trustee shall
notify the Holders and the Rating Service (if the Bonds are then rated by a
Rating Service) of the proposed amendment and may consent thereto only with (i)
the prior written consent of Holders of a majority in aggregate principal amount
of the Bonds then outstanding and (ii) the confirmation by such Rating Service
that such amendment will not result in a withdrawal or reduction of its rating
of the Bonds, and (b) the Trustee shall not, without the unanimous consent of
all Holders, consent to any amendment materially adversely affecting the
interests of the Holders which would decrease or delay the amounts payable under
the Letter of Credit in respect of outstanding Bonds on any Interest Payment
Date or on any date of redemption, acceleration, payment at maturity or purchase
of the Bonds, or advance the Expiration Date of the Letter of Credit to an
earlier date. No consent of the Holders shall be required for amendments to the
Letter of Credit which are provided for or contemplated by this Indenture.
SECTION 9.08 Trustee Authorized to Join in Supplements and
---------------------------------------------
Amendments; Reliance on Counsel. The Trustee is authorized to join with the
-------------------------------
Issuer in the execution and delivery of any Supplemental Indenture or amendment
permitted by this Article and in so doing shall be fully protected by an opinion
of Counsel that such Supplemental Indenture or amendment is so permitted.
73
SECTION 9.09 Consent of Bank. Notwithstanding anything herein
---------------
contained, so long as a Letter of Credit is held by the Trustee, no supplement
or amendment shall be made to this Indenture or the Financing Agreement without
the prior written consent of the Bank.
SECTION 9.10 Notice to Rating Service. The Trustee shall promptly
------------------------
notify the Rating Service (if the Bonds are then rated by a Rating Service) of
(i) any material supplement or amendment to this Indenture, the Financing
Agreement, the Remarketing Agreement, the Letter of Credit or the Reimbursement
Agreement of which it has actual knowledge; (ii) changes in the identity of the
Trustee, Paying Agent or Remarketing Agent; and (iii) any acceleration of the
Bonds pursuant to Section 7.03.
(End of Article IX)
74
ARTICLE X
DEFEASANCE
SECTION 10.01 Defeasance. When the principal of, and premium (if any)
----------
and interest on, all Bonds issued hereunder have been paid, or provision has
been made for payment of the same and any tender purchase price which may become
payable pursuant to Article IV, together with the compensation and expenses of
the Trustee and all other sums payable hereunder by the Issuer or the Borrower
have been paid or provision has been made for such payment, the right, title and
interest of the Trustee in and to the Trust Estate shall thereupon cease and the
Trustee, on the written demand of the Issuer or the Borrower, shall release this
Indenture and shall execute such documents to evidence such release as may be
reasonably required by the Issuer or the Borrower and shall turn over to the
Borrower or to such Person as may be entitled to receive the same all balances
then held by it hereunder not required for the payment of the Bonds and such
other sums and shall surrender the Letter of Credit to the Bank; provided that
(a) any proceeds of the Letter of Credit not required for payment of the Bonds
shall be turned over to the Bank and (b) in the event there has been a drawing
under the Letter of Credit for which the Bank has not been fully reimbursed
pursuant to the Reimbursement Agreement or any other obligations are then due
and owing to the Bank under the Reimbursement Agreement, the Trustee shall
assign and turn over to the Bank, as successor, subrogee or otherwise, all of
the Trustee's right, title and interest under this Indenture, all balances held
hereunder (excluding the Rebate Fund) not required for the payment of the Bonds
and such other sums and the Trustee's right, title and interest in, to and under
the Financing Agreement and any other property comprising the Trust Estate. If
payment or provision therefor is made with respect to less than all of the
Bonds, the particular Bonds (or portions thereof) for which provision for
payment shall have been considered made shall be selected by lot or by such
other method as the Trustee deems fair and appropriate, and thereupon the
Trustee shall take similar action for the release of this Indenture with respect
to such Bonds.
SECTION 10.02 Provision for Payment.
---------------------
(a) Provision for the payment of Bonds shall be deemed to have been
made when the Trustee holds in the Bond Fund (1) cash in an amount sufficient to
make all payments (including principal, premium, if any, interest and tender
purchase price payments, if any, with respect to the Bonds) specified in Section
10.01, or (2) noncallable, direct obligations issued by the United States of
America, maturing on or before the date or dates when the payments specified
above shall become due, the principal amount of which and the interest thereon,
when due, is or will be, in the aggregate, sufficient without reinvestment to
make all such payments, or (3) any combination of cash and such obligations the
amounts of which and interest thereon, when due, are or will be, in the
aggregate, sufficient without reinvestment to make all such payments; provided
that (i) such amount on deposit shall be deemed sufficient only if (A) while the
Bonds bear interest at a Weekly Rate, it provides for payment of interest at the
Maximum Rate and the Issuer shall have surrendered any power hereunder to
thereafter change the Maximum Rate, or (B) while the Bonds bear interest at a
Term Rate, it provides for payment of interest at such Term Rate and the Bonds
have been irrevocably called or designated for redemption in accordance with
Subsection 10.02(c) on or before the Term Rate Period End Interest Payment Date
of the Term Period for which such Term Rate has been set, (ii) the Trustee shall
have received an opinion of Bond Counsel to the effect that a deposit of
obligations
75
described in clause (2) or (3) above does not adversely affect the exclusion
from gross income for federal income tax purposes of the interest on any of the
Bonds or cause any of the Bonds to be classified as "arbitrage bonds" within the
meaning of Section 148 of the Code, and (iii) provision for payment of Bonds
shall be deemed to be made only if (A) the Trustee holds in the Bond Fund cash
constituting Available Moneys and/or such obligations purchased with Available
Moneys for payment of such Bonds pursuant to Section 5.04 in amounts sufficient
to make all payments specified above with respect to such Bonds, as verified by
an accountant's certification in form and by an accountant acceptable to the
Trustee and the Rating Service (if any), and (B) in the case of Bonds in the
Weekly Mode, the Bonds have been called for redemption on a date not more than
60 days from the date provision for payment is being made pursuant to this
Section and, in determining the sufficiency of amounts held to make payments
with respect to the Bonds, there shall be excluded any and all interest expected
to be earned on obligations held by the Trustee.
(b) Neither the moneys nor the obligations deposited with the Trustee
pursuant to this Article for the payment of principal, redemption price or
purchase price of or interest on the Bonds shall be withdrawn or used for any
purpose other than, and such moneys and obligations shall be segregated and held
in trust for, the payment of the principal or redemption price of, premium, if
any, on and interest on, the Bonds (or portions thereof), or for the payment of
the purchase price of such Bonds in accordance with Article IV. While the Bonds
are in the Weekly Mode, such moneys, if not then needed for such purpose, shall,
but only to the extent practicable, be invested and reinvested in direct
obligations issued by the United States of America maturing on or prior to the
earlier of (i) the date moneys may be required for the purchase of Bonds
pursuant to Article IV and (ii) the Interest Payment Date next succeeding the
date of investment or reinvestment.
(c) Whenever moneys or obligations shall be deposited with the
Trustee for the payment or redemption of Bonds more than 60 days prior to the
date that such Bonds are to mature or be redeemed, the Trustee shall mail a
notice to the Holders of Bonds for the payment of which such moneys or
obligations are being held at their registered addresses stating that such
moneys or obligations have been deposited. Such notice shall also be sent by the
Trustee to the Rating Service. Notwithstanding the foregoing, no delivery to the
Trustee under this Section shall be deemed a payment of any Bonds which are to
be redeemed prior to their stated maturity until such Bonds shall have been
irrevocably called or designated for redemption on a date thereafter on which
such Bonds may be redeemed in accordance with the provisions of this Indenture
and proper notice of such redemption shall have been given in accordance with
Article III or the Issuer shall have given the Trustee, in form satisfactory to
the Trustee, irrevocable instructions to give, in the manner and at the times
prescribed by Article III, notice of redemption.
SECTION 10.03 Deposit of Funds for Payment of Bonds. If the principal
-------------------------------------
or tender purchase price of any Bonds becoming due, either at maturity or by
call for redemption or tender or otherwise, together with the premium (if any)
thereon and all interest accruing thereon to the due date, has been paid or
provision therefor made in accordance with Section 10.02, all interest on such
Bonds shall cease to accrue on the due date and all liability of the Issuer with
respect to such Bonds shall likewise cease, except as hereinafter provided.
Thereafter, (a) any surplus balance held by the Trustee with respect to such
Bonds over the principal of, premium (if any) on and actual interest accrued on
such Bonds shall be paid to the Bank as a return of excess
76
funds drawn under the Letter of Credit (or, if the Rating Service shall have
confirmed its rating of the Bonds in connection with the provision for payment
of the Bonds, such surplus shall be paid as may otherwise be approved by the
Rating Service in connection with such confirmation) and (b) the Holders of such
Bonds shall be restricted exclusively to the funds so deposited for any claim of
whatsoever nature with respect to such Bonds, and the Trustee shall hold such
funds in trust for such Holders uninvested and without liability for interest
thereon. Moneys so deposited with the Trustee which remain unclaimed five years
after the date payment thereof becomes due shall, at the written request of the
Borrower (or the Bank) and if neither the Issuer nor the Borrower is at the time
to the knowledge of the Trustee in default with respect to any covenant
contained in this Indenture, the Bonds or the Financing Agreement, be paid to
the Borrower (or to the Bank as provided in Section 10.01 with respect to
surplus balances), and the Holders of the Bonds for which the deposit was made
shall thereafter be limited to a claim against the Borrower; provided that (i)
such moneys shall not be remitted to the Borrower unless the Trustee shall have
received an opinion of counsel experienced in matters pertaining to the United
States Bankruptcy Code to the effect that the contemplated delivery of such
moneys to the Borrower will not cause any other moneys paid to the Holders to be
transfers of property voidable under Section 547 of the United States Bankruptcy
Code should the Issuer or the Borrower become a debtor under the United States
Bankruptcy Code, and (ii) the Trustee, before making payment to the Borrower,
may, at the expense of the Borrower, cause a notice to be given to the Holders
at their registered addresses, stating that the moneys remaining unclaimed will
be returned to the Borrower after a specified date. Upon any such disposition to
the Borrower, all liability of the Trustee with respect to such funds shall
cease, and the Holders of the Bonds shall thereafter look to the Borrower for
payment of any amounts then due. In the absence of any such written request of
the Borrower, the Trustee shall from time to time deliver such unclaimed funds
to or as directed by any pertinent escheat authority, as identified by the
Trustee in its sole discretion, pursuant to and in accordance with applicable
unclaimed property laws, rules or regulations. Any such delivery shall be in
accordance with the customary practices and procedures of the Trustee and
escheat authority. All moneys held by the Trustee and subject to this Section
shall be held uninvested and without liability for interest thereon.
SECTION 10.04 Survival of Certain Provisions. Notwithstanding the
------------------------------
foregoing, any provisions of this Indenture which relate to the maturity of
Bonds, interest payments and dates thereof, optional and mandatory redemption
provisions, exchange, transfer and registration of Bonds, replacement of
mutilated, lost, wrongfully taken or destroyed Bonds, safekeeping and
cancellation of Bonds, nonpresentment of Bonds, holding of moneys in trust,
payment of moneys to the Borrower and the Bank, the rebate of moneys to the
United States of America in accordance with Section 5.08, and the duties of the
Trustee in connection with all of the foregoing, shall remain in effect and be
binding upon the Trustee and the Holders notwithstanding the release and
discharge of this Indenture. The provisions of this Article shall survive the
release, discharge and satisfaction of this Indenture.
(End of Article X)
77
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Limitation of Rights; No Personal Recourse. With the
------------------------------------------
exception of rights conferred expressly in this Indenture, nothing expressed or
mentioned in or to be implied from this Indenture or the Bonds is intended or
shall be construed to give to any Person other than the parties hereto, the
Borrower, the Remarketing Agent, the Bank and the Holders of the Bonds any legal
or equitable right, remedy, power or claim under or with respect to this
Indenture or any covenants, agreements, conditions and provisions contained
herein.
This Indenture does not pledge the general credit nor the taxing power
of the Commonwealth of Pennsylvania or any political subdivision thereof. The
liability of the Issuer hereunder and under the Bonds and the Financing
Agreement shall be limited to its interest in the Trust Estate.
No covenant or agreement contained in this Indenture, the Bonds or the
Financing Agreement shall be deemed to be the covenant or agreement of any
member, director, officer, attorney, agent or employee of the Issuer in an
individual capacity. No recourse shall be had for the payment of any claim based
thereon against any member, director, officer, agent, attorney or employee of
the Issuer past, present or future, or its successors or assigns, as such,
either directly or through the Issuer, or any such successor corporation,
whether by virtue of any constitutional provision, statute or rule of law, or by
the enforcement of any assessment or penalty, or otherwise.
SECTION 11.02 Severability. In case any section or provision of this
------------
Indenture, or any covenant, agreement, stipulation, obligation, act or action,
or part thereof, made, assumed, entered into or taken under this Indenture, or
any application thereof, is held to be illegal or invalid for any reason, or is
inoperable at any time, such illegality, invalidity or inoperability shall not
affect the remainder thereof or any other section or provision of this Indenture
or any other covenant, agreement, stipulation, obligation, act or action, or
part thereof, made, assumed, entered into or taken under this Indenture, all of
which shall be construed and enforced at the time as if the illegal, invalid or
inoperable portion were not contained therein.
SECTION 11.03 Notices. Except as provided in Sections 3.04 and 7.02,
-------
it shall be sufficient service or giving of any notice, request, complaint,
demand or other instrument or document, if it is duly mailed by first class mail
or hand delivered or sent by express delivery service or telecopy (with
transmission confirmed). Notices to the Issuer, the Trustee, the Borrower, the
Bank and the Remarketing Agent shall be addressed as follows:
(a) If to the Issuer, at Xxxxxxx County Industrial Development
Authority, 000 Xxxxx Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx, 00000 Attention:
Executive Director (Telephone: (000) 000-0000; Fax: (000) 000-0000);
(b) If to the Trustee, at Chase Manhattan Trust Company, National
Association, Trustee, 0000 Xxxxxx Xxxxxx, 00/xx/ Xxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx, 00000, Attention: Capital Markets Fiduciary Services (Telephone:
(000) 000-0000; FAX: (000) 000-0000);
78
(c) If to the Borrower, at Innovative Solutions and Support, LLC, 000
Xxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, Attention: Mr. Xxxxx Xxxxxxxx
(Telephone: (000) 000-0000, FAX: (000) 000-0000);
(d) If to the Bank, at PNC Bank, National Association, 0000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxx 00000, Attention: Xx. Xxxx X. Xxxxxxx
(Telephone: (000) 000-0000; FAX: (000) 000-0000);
(e) If to the Remarketing Agent, at PNC Capital Markets, Inc., One
PNC Plaza, 26/th/ Floor, 000 Xxxxx Xxxxxx, Xxxxxxxxxx, XX 00000-0000, Attention:
Xx. Xxxxxxx Xxxxxxx (Telephone: (000) 000-0000, FAX: (000) 000-0000).
The foregoing parties may designate, by notice given hereunder, any further or
different addresses to which any subsequent notice, request, demand or other
instrument or document shall be sent. The Trustee shall designate, by notice to
the Issuer, the Borrower, the Bank and the Remarketing Agent addresses to which
notices or copies thereof shall be sent to the Trustee's agents hereunder.
In connection with any notice mailed pursuant to the provisions of
this Indenture, a certificate of the Trustee, the Issuer, the Borrower, the
Bank, the Remarketing Agent or the Holders, whichever mailed that notice, that
the notice was so mailed shall be conclusive evidence of the proper mailing of
the notice.
The Trustee hereby agrees to send written notice to the Rating Service
upon its receipt of actual notice of the occurrence of any of the following
events: (1) any change in the Trustee or the Remarketing Agent or any tender
agent or paying agent; (2) any amendment to this Indenture, the Financing
Agreement, the Reimbursement Agreement or the Letter of Credit; (3) any
termination, expiration or extension of the Letter of Credit; (4) each
conversion of the interest rate on the Bonds; and (5) payment of all principal,
interest and premium, if any, on all of the Bonds.
The Designated Office of the Trustee is Chase Manhattan Trust Company,
National Association, 0000 Xxxxxx Xxxxxx, 00/xx/ Xxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 Attention: Capital Markets Fiduciary Services. Such
Designated Office is subject to change as provided in this Indenture.
The Payment Office and the Transfer Office of the Trustee are Chase
Manhattan Trust Company, National Association, c/o Chase Bank of Texas, 0000
Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attention: Corporate Trust Services.
The Delivery Office of the Trustee is Chase Manhattan Trust Company,
National Association, Corporate Trust Window, Room 234, Building N, 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Capital Markets Fiduciary Services.
Such Delivery Office is subject to change as provided in this Indenture.
SECTION 11.04 Suspension of Mail. If because of the suspension of
------------------
delivery of first class mail or, for any other reason, the Trustee shall be
unable to mail by first class of mail any notice required to be mailed by the
provisions of this Indenture, the Trustee shall give such notice in such other
manner as in the judgment of the Trustee shall most
79
effectively approximate first class mailing thereof, and the giving of that
notice in that manner for all purposes of this Indenture shall be deemed to be
in compliance with the requirement for the mailing thereof. Except as otherwise
provided herein, the mailing of any notice shall be deemed complete upon deposit
of that notice in the mail and the giving of any notice by any other means of
delivery shall be deemed complete upon receipt of the notice by the delivery
service.
SECTION 11.05 Payments Due on Saturdays, Sundays and Holidays. If any
-----------------------------------------------
Interest Payment Date, date of maturity of any Bonds, or date fixed for
redemption or purchase of any Bonds is a Saturday, Sunday or a day on which the
Trustee or any paying agent is required, authorized or not prohibited, by law
(including without limitation executive orders) to close and is closed, then
payment of interest, principal, redemption price and purchase price need not be
made by the Trustee or any paying agent on that date, but that payment may be
made on the next succeeding Business Day on which the Trustee or any paying
agent is open for business with the same force and effect as if that payment
were made on the Interest Payment Date, date of maturity or date fixed for
redemption or purchase, and no interest shall accrue for the period after that
date; provided that if the Trustee is open for business on the applicable
Interest Payment Date, date of maturity or date fixed for redemption or
purchase, it shall make any payment required hereunder with respect to payment
of interest on outstanding Bonds and payment of principal, redemption price or
purchase price of Bonds presented to it for payment or purchase, regardless of
whether any paying agent shall be open for business or closed on the applicable
Interest Payment Date, date of maturity or date fixed for redemption.
SECTION 11.06 Instruments of Holders. Any writing, including without
----------------------
limitation any consent, request, direction, approval, objection or other
instrument or document, required under this Indenture to be executed by any
Holder may be in any number of concurrent writings of similar tenor and may be
executed by that Xxxxxx in person or by an agent or attorney appointed in
writing. Proof of (i) the execution of any such writing, (ii) the execution of
any writing appointing any agent or attorney, and (iii) the ownership of Bonds,
shall be sufficient for any of the purposes of this Indenture, if made in the
following manner, and if so made, shall be conclusive in favor of the Trustee
with regard to any action taken thereunder, namely:
(a) The fact and date of the execution by any Person of any writing
may be proved by the certificate of any officer in any jurisdiction, who has
power by law to take acknowledgments within that jurisdiction, that the Person
signing the writing acknowledged that execution before that officer, or by
affidavit of any witness to that execution; and
(b) The fact of ownership of Bonds shall be proved by the Register
maintained by the Trustee.
Nothing contained herein shall be construed to limit the Trustee to
the foregoing proof, and the Trustee may accept any other evidence of the
matters stated therein which it deems to be sufficient. Any writing, including
without limitation any consent, request, direction, approval, objection or other
instrument or document, of the Holder of any Bond shall bind every future Holder
of the same Bond, with respect to anything done or suffered to be done by the
Issuer, the Trustee or the Remarketing Agent pursuant to that writing.
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SECTION 11.07 Binding Effect. This Indenture shall inure to the
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benefit of and shall be binding upon the Issuer and the Trustee and their
respective successors and assigns, subject, however, to the limitations
contained herein.
SECTION 11.08 Counterparts. This Indenture may be executed in any
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number of counterparts, each of which shall be regarded as an original and all
of which shall constitute but one and the same instrument.
SECTION 11.09 Governing Law. This Indenture and the Bonds shall be
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deemed to be contracts made under the laws of the Commonwealth of Pennsylvania
and for all purposes shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
SECTION 11.10 Certain References to Bank. If a Letter of Credit (or
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an Alternate Letter of Credit) has terminated, no Alternate Letter of Credit has
been delivered to the Trustee and no amounts are due and owing to the Bank under
the Reimbursement Agreement, then, if and so long as no Alternate Letter of
Credit is thereafter delivered to the Trustee, any provision of this Indenture
pertaining to the Bank or maintenance of the Letter of Credit or giving the Bank
rights under this Indenture, including without limitation the right to consent
to certain actions, shall be deemed deleted from this Indenture.
(End of Article XI)
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IN WITNESS WHEREOF, the Issuer has caused this Indenture to be
executed and delivered on its behalf by one of its duly authorized officers and
its corporate seal to be hereunto affixed and attested by one of its duly
authorized officers and the Trustee has caused this Indenture to be executed and
delivered on its behalf by one of its duly authorized officers and its corporate
seal to be hereunto affixed and attested by one of its duly authorized officers
all as of the day and year first above written.
[SEAL] XXXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
Attest: ________________________ By: ______________________________
Name: Name:
Title: Title:
[SEAL] CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
Attest: ________________________ By: ______________________________
Name: Name:
Title: Title:
This execution page is part of the Trust Indenture dated as of August
1, 2000 between Xxxxxxx County Industrial Development Authority and Chase
Manhattan Trust Company, National Association, as Trustee, providing for the
issuance of Industrial Development Revenue Bonds, 2000 Series A (Innovative
Solutions and Support, LLC Project).
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EXHIBIT A
[BOND FORM]
REGISTERED United States of America REGISTERED
NO. Commonwealth of Pennsylvania $
XXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
Industrial Development Revenue Bonds,
2000 Series A
(Innovative Solutions and Support, LLC Project)
SERIES ISSUE DATE MATURITY DATE CUSIP
August 8, 2000 August 1, 2015
INTEREST RATE:
REGISTERED OWNER:
PRINCIPAL AMOUNT:
Xxxxxxx County Industrial Development Authority (the "Issuer"), a
public instrumentality and body corporate and politic of the Commonwealth of
Pennsylvania, for value received, promises to pay to the registered owner
specified above, or registered assigns, upon surrender hereof, but solely from
the sources and in the manner referred to herein, the Principal Amount specified
above on August 1, 2015, unless this Bond has been called for earlier redemption
and payment of the redemption price shall have been duly made or provided for,
and to pay from those sources interest thereon from the most recent Interest
Payment Date (hereinafter defined) to which interest has been paid or duly
provided for or from the Series Issue Date specified above if no interest has
been paid, at the rates determined as provided herein, until the Principal
Amount is paid or duly provided for, commencing on the first Interest Payment
Date after the Date of Authentication hereof.
So long as this Bond bears interest at a Weekly Rate (hereinafter
defined) as specified above, this Bond shall be purchased on demand of the
registered owner hereof as hereinafter described.
The principal of and any premium on this Bond are payable upon
presentation and surrender hereof at the Payment Office of Chase Manhattan Trust
Company, National Association (the "Trustee"), or at the duly designated payment
office of any duly appointed alternate or successor trustee. Interest on this
Bond is payable on each Interest Payment Date by check or draft mailed on such
Interest Payment Date to the registered owner of this Bond (the "Holder") in
whose name ownership of this Bond is registered, at such Holder's address as it
appears on the registration books (the "Register") for this issue maintained by
the Trustee at the close of business on the Regular Record Date which shall be
(i) while this Bond bears interest at a Weekly Rate, the last Business Day
preceding an Interest Payment Date and (ii) while this Bond bears interest at a
Term Rate (hereinafter defined), the fifteenth day of the calendar month next
preceding the Interest Payment Date (the "Regular Record Date"). Any interest
which is not timely paid or duly provided for shall cease to be payable to the
Holder as of the Regular Record
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Date, and shall be payable to the Holder in whose name this Bond is registered
at the close of business on a Special Record Date to be fixed by the Trustee for
the payment of such overdue interest. Notice of the Special Record Date shall be
mailed to Holders not less than ten days prior thereto. The interest and the
principal or redemption price and purchase price becoming due with respect to
the Bonds (hereinafter defined) shall, at the written request of the Holder of
at least $1,000,000 aggregate principal amount of such Bonds, be paid by wire
transfer within the continental United States in immediately available funds to
the bank account number of such Holder appearing on the Register, but, in the
case of principal or redemption price and purchase price, only upon presentation
and surrender of such Bonds at the Payment Office of the Trustee. The principal
or purchase price of and interest and any premium on this Bond are payable in
lawful money of the United States of America.
This Bond is one of a duly authorized issue of Industrial Development
Revenue Bonds, 2000 Series A (Innovative Solutions and Support, LLC Project)
(the "Bonds"), issued under and secured by a Trust Indenture dated as of August
1, 2000 (the "Indenture") between the Issuer and the Trustee, in the aggregate
principal amount of $4,335,000. The Issuer has entered into a Loan Agreement
dated as of August 1, 2000 (the "Financing Agreement") with Innovative Solutions
and Support, LLC (the "Borrower") providing for the use of the proceeds of the
Bonds to finance certain costs of the acquisition, construction and installation
of an approximately 44,800 square foot manufacturing facility and related
equipment to be located on approximately 7.5 acres of land in the Township of
Upper Uwchlan, Xxxxxxx County, Pennsylvania, as more fully described in the
Financing Agreement (the "Project") to be owned and operated by the Borrower in
fee, and providing for loan payments by the Borrower in amounts sufficient to
pay, when due, the principal of, premium, if any, on and interest on the Bonds.
The Bonds have been issued by the Issuer pursuant to the Pennsylvania Economic
Development Financing Law, as amended (the "Act") to aid in the financing of the
Project to accomplish the public purposes of the Act. The Issuer has assigned to
the Trustee as security for the Bonds under and pursuant to the Indenture all of
the Issuer's right, title and interest in and to (i) the Financing Agreement and
all amounts payable thereunder (except for payments with respect to certain
expenses, indemnification and excess investment earnings) and (ii) all moneys
and investments held by the Trustee from time to time in certain funds and
accounts established under the Indenture.
THIS BOND IS A LIMITED OBLIGATION OF THE ISSUER AND IS PAYABLE SOLELY
FROM THE SOURCES REFERRED TO HEREIN. NEITHER THE COMMONWEALTH OF PENNSYLVANIA
NOR ANY POLITICAL SUBDIVISION THEREOF IS OR SHALL BE OBLIGATED TO PAY THE
PRINCIPAL OF OR PREMIUM, IF ANY, OR INTEREST ON THIS BOND, AND THIS BOND SHALL
NOT BE OR BE DEEMED AN OBLIGATION OF THE COMMONWEALTH OF PENNSYLVANIA OR ANY
POLITICAL SUBDIVISION THEREOF. NEITHER THE FAITH AND CREDIT NOR THE TAXING POWER
OF THE COMMONWEALTH OF PENNSYLVANIA OR ANY POLITICAL SUBDIVISION THEREOF IS
PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF OR PREMIUM, IF ANY, OR THE INTEREST
ON THIS BOND. THE ISSUER HAS NO TAXING POWER.
No recourse shall be had for the payment of the principal of or
interest or any premium on this Bond, or for any claim based hereon or on the
Indenture, against any member, director, officer or employee, past, present or
future, of the Issuer or of any successor body, as such, either directly or
through the Issuer or any such successor body, under any constitutional
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provision, statute or rule of law, or by the enforcement of any assessment or by
any legal or equitable proceeding or otherwise.
The Bonds are payable solely from payments to be made by the Borrower
to the Trustee pursuant to the Financing Agreement and from any other moneys
pledged to or held by the Trustee under the Indenture for such purpose, and
there shall be no other recourse against the Issuer or any other property now or
hereafter owned by it. Except as otherwise specified in the Indenture, this Bond
is entitled to the benefits of the Indenture equally and ratably as to
principal, premium, if any, and interest with all other Bonds issued under the
Indenture. No additional Bonds may be issued under the Indenture. Reference is
made to the Indenture and the Financing Agreement for a description of the
rights of the Holders of the Bonds; the rights and obligations of the Issuer and
the Borrower; the rights, duties and obligations of the Trustee; and the
provisions relating to amendments and modifications thereof. The acceptance of
the terms and conditions of such documents and the Letter of Credit described
below, copies of which are on file at the Designated Office of the Trustee, is
an explicit and material part of the consideration of the Issuer's issuance
hereof, and each Holder by acceptance of this Bond accepts and assents to all
such terms and conditions as if fully set forth herein. The Holder shall have no
right to enforce the provisions of the Indenture, the Financing Agreement or the
Letter of Credit or the rights and remedies thereunder, except as provided in
the Indenture. Capitalized terms used in this Bond which are not defined herein
but which are defined in the Indenture shall have the respective meanings set
forth in the Indenture.
The Borrower has caused to be issued and delivered to the Trustee by
PNC Bank, National Association an irrevocable letter of credit pursuant to which
the Trustee is authorized, subject to the terms and conditions thereof, to draw
up to (a) an amount equal to the principal amount of the Bonds (i) to enable the
Trustee to pay the principal amount of the Bonds when due at maturity or upon
redemption or acceleration and (ii) to enable the Trustee to pay the portion of
the purchase price of Bonds tendered to it and not remarketed corresponding to
the principal amount of such Bonds, plus (b) an amount equal to 50 days accrued
interest on the outstanding Bonds at 12% per annum while the Bonds bear interest
at the Weekly Rate, (i) to enable the Trustee to pay interest on the Bonds when
due and (ii) to enable the Trustee to pay the portion of the purchase price of
Bonds tendered to it and not remarketed corresponding to the accrued interest on
such Bonds. Such irrevocable letter of credit or any alternate letter of credit
delivered to the Trustee in accordance with the terms of the Indenture is herein
called the "Letter of Credit". The Indenture provides that, while the Bonds bear
interest at a Term Rate, the Letter of Credit must be increased to provide for
(i) 200 days accrued interest on the outstanding Bonds at a rate not less than
the applicable Term Rate and (ii) coverage of premium in an amount equal to the
sum of the optional redemption premium (if any) and supplemental premium (if
any) which would become payable on the Bonds upon mandatory redemption if such
Letter of Credit were not extended beyond the Expiration Date set forth therein.
As used herein, the term "Bank" shall mean PNC Bank, National Association as
issuer of the Letter of Credit or the bank issuing any Alternate Letter of
Credit. The Letter of Credit expires on August ___, 2003, unless terminated
earlier pursuant to its terms or extended. Subject to the provisions of the
Indenture, the Issuer may, but is not required to, cause the Letter of Credit to
be extended or replaced with an Alternate Letter of Credit having substantially
the same terms. The Bank is under no obligation to extend the Letter of Credit.
Unless the Letter of Credit is extended or replaced in accordance with the terms
of the Indenture, this Bond will become subject to mandatory purchase or
redemption, as described below. The Letter of Credit is being issued pursuant to
a
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Reimbursement Agreement (as the same may be amended or replaced, the
"Reimbursement Agreement") between the Bank and the Borrower. The Borrower is
obligated, among other things, to reimburse the Bank for all drawings under the
Letter of Credit.
INTEREST ON BONDS
General. This Bond shall bear interest at a Weekly Rate or a Term
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Rate, as specified above and described below. The Bonds shall initially bear
interest at a Weekly Rate, subject to conversion to a Term Rate, as described
herein. A "Weekly Rate" is an interest rate for a Weekly Rate Period determined
and adjusted weekly as described below. A "Term Rate" is an interest rate for a
Term Rate Period determined as described below. The Bonds are in the "Weekly
Mode" if they bear interest at a Weekly Rate and a "Term Mode" if they bear
interest at a Term Rate. The Weekly Mode and each Term Mode are each a "Rate
Mode". All computations of interest at a Weekly Rate shall be based on a year of
365 or 366 days, as appropriate; and all computations of interest at a Term Rate
shall be based on a 360-day year of twelve 30-day months. As used in this Bond,
the term "Interest Payment Date" means (i) with respect to Weekly Rate Interest,
the first Business Day of each calendar month commencing September 1, 2000 and
(ii) with respect to Term Rate Interest, each February 1 and August 1.
Weekly Rate. A Weekly Rate shall be determined for each Weekly Rate
-----------
Period as described below. On each Weekly Rate Calculation Date, the Remarketing
Agent under the Indenture (the "Remarketing Agent"), initially PNC Capital
Markets, Inc., shall determine the Weekly Rate (for the Weekly Rate Period
commencing on the next Thursday) as the rate which if borne by the Bonds would,
in the judgment of the Remarketing Agent, taking into account prevailing
financial market conditions, be the lowest interest rate necessary to enable the
Remarketing Agent to arrange for the sale of all of the outstanding Bonds at a
price equal to the principal amount thereof plus accrued interest thereon.
Anything herein to the contrary notwithstanding, in no event shall any Weekly
Rate exceed 12% per annum. As used in this Bond, "Weekly Rate Calculation Date"
means Wednesday in each calendar week or, if any Wednesday is not a Business
Day, the first Business Day preceding such Wednesday, and "Weekly Rate Period"
means the seven-day period commencing on the first Thursday following the
corresponding Weekly Rate Calculation Date and running through Wednesday of the
following calendar week, except that (i) the first Weekly Rate Period shall
commence on the Series Issue Date and end on and include the first Wednesday
occurring after the Series Issue Date, (ii) the first Weekly Rate Period
following a conversion from a Term Mode to the Weekly Mode shall commence on the
date of such conversion and end on and include the first Wednesday occurring
after such conversion date and (iii) the last Weekly Rate Period prior to a
conversion from the Weekly Mode to a Term Mode shall end on and include the last
day immediately preceding the date of such conversion.
If for any reason the Remarketing Agent does not determine a Weekly
Rate for any Weekly Rate Period as aforesaid, or if a court holds a rate for any
Weekly Rate Period to be invalid or unenforceable, the Weekly Rate for that
Weekly Rate Period shall be equal to the Weekly Rate in effect for the
immediately preceding Weekly Rate Period. The Weekly Rate for any consecutive
Weekly Rate Period for which the Remarketing Agent does not determine a Weekly
Rate, or a court holds a rate to be invalid or unenforceable, shall be the 30-
day tax-exempt commercial paper rate published for that Weekly Rate Period by
Munifacts Wire System, Inc. (or a replacement publisher of a tax-exempt
commercial paper rate designated in
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writing by the Issuer to the Trustee and Remarketing Agent in the event
Munifacts Wire System, Inc. no longer publishes such rate), representing, as of
the publication date, the average of 30-day yield evaluations at par of tax-
exempt securities rated by each Rating Service in its highest commercial paper
rating category; provided that if Munifacts Wire System, Inc. or such
replacement publisher does not publish such a tax-exempt commercial paper rate
on a day on which a Weekly Rate is to be set, the Weekly Rate shall be 85% of
the interest rate for 30-day taxable commercial paper (prime paper placed
through dealers) announced on such day by the Federal Reserve Bank of New York.
No notice of Weekly Rates will be given to the Holders of the Bonds;
however, the Holders may obtain Weekly Rates from the Trustee or the Remarketing
Agent. The determination of the Weekly Rate by the Remarketing Agent shall be
conclusive and binding upon the Issuer, the Trustee, the Borrower, the
Remarketing Agent, the Bank and the Holders.
Term Rate. A Term Rate shall be determined for each Term Rate Period
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as described below. Upon conversion to a Term Mode, a Nominal Term Rate Period
shall be fixed by the Borrower as a term of two or more consecutive Semiannual
Periods constituting the nominal length of each Term Rate Period thereafter
until the date of a conversion to another Rate Mode. A Term Mode based on one
Nominal Term Rate Period and a Term Mode based on another Nominal Term Rate
Period are different Term Modes. Each Term Rate shall be determined by the
Remarketing Agent, on the Term Rate Calculation Date, as the lowest rate of
interest that, in the judgment of the Remarketing Agent taking into account
prevailing financial market conditions, would be necessary to enable the
Remarketing Agent to arrange for the sale of the Bonds in the respective Term
Mode in a secondary market sale at a price equal to the principal amount thereof
on the first Business Day of the respective Term Rate Period; provided that (1)
if the Remarketing Agent fails for any reason to determine the Term Rate for any
Term Rate Period, such Term Rate shall be equal to 80% of the average of the
annual bond equivalent yield evaluations at par as of the first day of the
corresponding Term Rate Period or, if such day is not a Business Day, the next
preceding Business Day of United States Treasury obligations having a term to
maturity similar to such Term Rate Period, and (2) no Term Rate shall exceed the
lesser of (i) the maximum interest rate at which the Letter of Credit then in
effect provides coverage for at least 200 days interest and (ii) 25% per annum.
Determinations of Term Rates shall be conclusive and binding upon the Issuer,
the Borrower, the Trustee, the Bank and the Holders. As used in this Bond,
"Nominal Term Rate Period" means, with respect to a Term Mode, a period of two
or more consecutive Semiannual Periods (expressed in years and half years);
"Semiannual Date" means each February 1 and each August 1; "Semiannual Period"
means a six month period commencing on a Semiannual Date and ending on and
including the day immediately preceding the next Semiannual Date; "Term Rate
Calculation Date" means a Business Day not more than 15 days and not less than
one day prior to the first day of the corresponding Term Rate Period; "Term Rate
Period" means a period of two or more consecutive Semiannual Periods equal to
the applicable Nominal Term Rate Period commencing on the Semiannual Date
immediately following the last day of the immediately preceding Term Rate Period
and running through and ending on the day immediately preceding the Semiannual
Date which follows such commencement date by a period equal to such Nominal Term
Rate Period, except that the first Term Rate Period after conversion from a
Weekly Rate to a Term Rate shall commence on the date of conversion and end on
and include the day immediately preceding the Semiannual Date which follows the
Semiannual Date occurring on or immediately preceding such conversion date by a
period equal to such Nominal Term Rate Period.
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Conversion. The Indenture provides that the Borrower shall have the
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option to convert the Bonds from the Weekly Mode to a Term Mode, from a Term
Mode to the Weekly Mode and from one Term Mode to another Term Mode on any
Conversion Date the Borrower shall select; provided that (i) each Conversion
Date shall be an Interest Payment Date and (ii) Bonds in a Term Mode cannot be
converted to another Rate Mode prior to the date on or after which the Bonds may
first be redeemed at a redemption price of par pursuant to their terms. The
Borrower may exercise such option by giving written notice to the Issuer, the
Trustee, the Remarketing Agent and the Bank, stating its election to convert the
Rate Mode of the Bonds to another Rate Mode specified in such notice and stating
the Conversion Date therefor, not less than 45 days (or such shorter period as
shall be acceptable to the Trustee) prior to such Conversion Date. In connection
with each conversion to a Term Mode, the Nominal Term Rate Period shall be
selected by the Borrower and designated in such notice. Notice of the exercise
of an option to convert from one Rate Mode to another Rate Mode shall not be
effective unless certain conditions set forth in the Indenture are satisfied
with respect to such conversion. In the case of a conversion from one Rate Mode
to another Rate Mode, the Trustee shall give notice by first class mail to the
Holders of the Bonds not less than 30 days prior to the proposed Conversion Date
stating (i) that, in the case of a conversion to a Term Mode, the interest rate
on the Bonds is scheduled to be converted to a Term Rate and the Nominal Term
Rate Period on which such Term Rate will be based, or in the case of a
conversion to the Weekly Mode, the interest rate on the Bonds is scheduled to be
converted to a Weekly Rate, (ii) the proposed Conversion Date, (iii) that the
Borrower may determine not to convert the Bonds in which case the Trustee shall
notify the Holders in writing to such effect, and (iv) that all outstanding
Bonds will be subject to a mandatory purchase on the Conversion Date, or if such
Conversion Date is not a Business Day, the first Business Day immediately
following such Conversion Date, at a price of par plus accrued interest. Upon
each conversion the Bonds shall be subject to mandatory purchase on the
Conversion Date, or if such Conversion Date is not a Business Day, the first
Business Day immediately following such Conversion Date. As used in this Bond,
"Conversion Date" means any Interest Payment Date on which the Rate Mode of the
Bonds is converted to another Rate Mode.
OPTIONAL AND MANDATORY TENDER
Optional Tender for Purchase in Weekly Mode. While the Bonds bear
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interest at a Weekly Rate, any Bond shall be purchased on the demand of the
Holder thereof on any Business Day designated by such Holder in a Bondholder
Tender Notice (hereinafter defined) at a purchase price equal to 100% of the
principal amount thereof plus accrued interest, if any, to the date of purchase,
if there is delivered to the Trustee at its Designated Office, and to the
Remarketing Agent at its Principal Office, a written notice (the "Bondholder
Tender Notice") which (i) states the principal amount (or portion thereof) of
such Bond and (ii) states the date on which such Bond (or portion thereof) shall
be purchased, which date shall be a Business Day not prior to the seventh day
next succeeding the date of the delivery of such notice to the Trustee and the
Remarketing Agent; provided that, in the case of a Bond to be purchased in part,
both the portion to be purchased and the portion which is not to be purchased
must be in an authorized denomination. By delivering the Bondholder Tender
Notice, the Holder irrevocably agrees to deliver such Bond, if held in
certificated form, duly endorsed for transfer in blank and with guarantee of
signature satisfactory to the Trustee, to the Delivery Office of the Trustee or
any other address designated by the Trustee at or prior to 10:00 a.m. eastern
time on the Business Day specified in the Bondholder Tender Notice. The
determination by the Trustee of a Holder's
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compliance with such Bondholder Tender Notice and Bonds delivery requirements is
in the sole discretion of the Trustee and binding on the Borrower, the Issuer,
the Remarketing Agent, the Bank and the Holder. Any Bondholder Tender Notice
which the Trustee determines is not in compliance with the provisions of this
paragraph shall be of no force or effect.
Any election by a Holder to tender a Bond (or portion thereof) for
purchase on a Business Day shall be irrevocable and shall be binding on the
Holder making such election and on any transferee of such Holder. Each
Bondholder Tender Notice shall automatically constitute (i) an irrevocable offer
to sell the Bond (or portion thereof) to which such notice relates on the
Purchase Date at a price equal to the purchase price of such Bond (or portion
thereof) described above, (ii) an irrevocable authorization and instruction to
the Trustee to effect transfer of such Bond (or portion thereof) upon payment of
the purchase price to the Trustee on the Purchase Date, (iii) with respect to a
tender of a portion of a Bond, an irrevocable authorization and instruction to
the Trustee to effect the exchange of such Bond in part for other Bonds in a
principal amount equal to the retained portion so as to facilitate the sale of
the tendered portion of such Bond, and (iv) an acknowledgment that such Holder
will have no further rights with respect to such Bond (or portion thereof) upon
payment of the purchase price thereof to the Trustee on the Purchase Date,
except for the right of such Holder to receive such purchase price upon
surrender of such Bond, if held in certificated form, to the Trustee endorsed
for transfer in blank and with guarantee of signature satisfactory to the
Trustee and that after the Purchase Date such Holder will hold such Bond as
agent for the Trustee. If the Bonds are not held in book-entry form and, after
delivery to the Trustee and the Remarketing Agent of such Bondholder Tender
Notice, the Holder making such election shall fail to deliver such Bond or Bonds
described in the Bondholder Tender Notice to the Trustee at its Delivery Office
on or before 10:00 a.m. eastern time on the applicable Purchase Date as
described herein, then the undelivered Bond or portion thereof (the "Undelivered
Bond") described in such Bondholder Tender Notice shall be deemed to have been
tendered for purchase to the Trustee and, to the extent that there shall be held
by the Trustee on or before the applicable Purchase Date an amount sufficient to
pay the purchase price thereof and available for such purpose pursuant to the
Indenture, such Undelivered Bond (or portion thereof) shall on such Purchase
Date cease to bear interest and no longer shall be considered to be outstanding
under the Indenture. Moneys held by the Trustee for the purchase of the
Undelivered Bonds in accordance with the foregoing shall be held in a special
separate trust account for the Holders of such Undelivered Bonds. Such moneys
shall be held by the Trustee uninvested and without liability for interest
pending delivery of such Undelivered Bonds to the Trustee.
Mandatory Tender. This Bond is subject to mandatory tender for
----------------
purchase, at a price equal to the principal amount hereof plus accrued interest,
(a) on each Conversion Date, or if such Conversion Date is not a Business Day,
the first Business Day immediately following such Conversion Date, in the event
of a conversion of the Bonds from one Rate Mode to another Rate Mode, and the
first Business Day immediately following the end of each Term Rate Period; (b)
while the Bonds are in the Weekly Mode, on the Interest Payment Date next
preceding by at least two Business Days the Expiration Date of the Letter of
Credit unless at least 45 days (or such shorter period as shall be acceptable to
the Trustee) prior to such Interest Payment Date the Trustee has received notice
that the Letter of Credit has been or will be extended; (c) on the Interest
Payment Date on which an Alternate Letter of Credit is issued pursuant to the
Indenture; and (d) while the Bonds are in the Weekly Mode, on the Purchase Date
stipulated by the Bank pursuant to the Indenture in the event the Bank directs
the Trustee pursuant to the Indenture to
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call the Bonds for mandatory purchase. Any Bond which is not delivered for
purchase prior to 10:00 a.m. eastern time on the applicable Purchase Date shall
be deemed to have been tendered to the Trustee as of such Purchase Date and
interest on such Undelivered Bond shall cease to accrue on such Purchase Date.
Thereafter, the Holder of such Undelivered Bond shall not be entitled to any
payment other than the purchase price for such Undelivered Bond upon surrender
thereof to the Trustee endorsed for transfer in blank and with guaranty of
signature satisfactory to the Trustee. Except for payment of such purchase price
from moneys held by the Trustee for such purpose, such Undelivered Bond shall no
longer be outstanding and entitled to the benefits of the Indenture.
BY ACCEPTANCE OF THIS BOND, THE HOLDER HEREOF AGREES THAT THIS BOND
WILL BE PURCHASED, WHETHER OR NOT SURRENDERED, ON ANY DATE SPECIFIED BY THE
HOLDER HEREOF IN THE EXERCISE OF THE OPTIONAL TENDER FOR PURCHASE DESCRIBED
ABOVE AND ON THE PURCHASE DATE IN CONNECTION WITH ANY MANDATORY TENDER FOR
PURCHASE. IN SUCH EVENT, THE HOLDER OF THIS BOND SHALL NOT BE ENTITLED TO
RECEIVE FURTHER INTEREST HEREON, SHALL HAVE NO FURTHER RIGHTS UNDER THIS BOND OR
THE INDENTURE EXCEPT FOR PAYMENT OF THE PURCHASE PRICE HELD THEREFOR, AND, IF
THIS BOND IS NOT SURRENDERED ON SUCH DATE, SHALL THEREAFTER HOLD THIS BOND AS
AGENT FOR THE TRUSTEE.
OPTIONAL REDEMPTIONS
Weekly Rate Bonds. While the Bonds bear interest at a Weekly Rate, the
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Bonds are subject to redemption prior to maturity at the option of the Issuer,
at the direction of the Borrower, in whole at any time or in part on any
Interest Payment Date, at a redemption price equal to 100% of the principal
amount thereof plus accrued interest to the redemption date.
Term Rate Bonds. While the Bonds bear interest at a Term Rate, the
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Bonds shall be subject to optional redemption by the Issuer, at the direction of
the Borrower, in whole at any time or in part on any Interest Payment Date;
provided that the Bonds shall not be redeemable during the No Call Period set
forth in or stipulated pursuant to the Indenture. After such No Call Period, the
Bonds shall be redeemable at the redemption price set forth in or stipulated
pursuant to the Indenture, plus accrued interest to the redemption date.
Extraordinary Optional Redemption. The Bonds are subject to
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extraordinary optional redemption by the Issuer, at the Borrower's option, upon
the occurrence of certain events as provided in Section 6.2 of the Financing
Agreement at any time in whole or on any Interest Payment Date in part, in each
case, at a redemption price of 100% of the principal amount redeemed plus
accrued interest to the redemption date.
MANDATORY REDEMPTIONS
Mandatory Redemption Upon Expiration of Letter of Credit During Term
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Mode. While the Bonds are in a Term Mode, the Bonds are subject to mandatory
----
redemption by the Issuer on the Interest Payment Date next preceding the
Expiration Date of the Letter of Credit, unless at least 45 days (or such
shorter period as shall be acceptable to the Trustee) prior to such Interest
Payment Date the Trustee has received notice that the Letter of Credit has been
or will be extended; provided that, if such Interest Payment Date is a Term Rate
Period End Interest
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Payment Date, then such Bonds shall not be so redeemed but shall be subject to
mandatory purchase as provided in the Indenture. As used in this Bond, "Term
Rate Period End Interest Payment Date" means the Interest Payment Date
immediately following the last day of a Term Rate Period. The redemption price
of Bonds so redeemed shall be equal to the redemption price that would be
applicable to such Bonds if they were redeemed by optional redemption; provided
that if such redemption will occur during the applicable No Call Period set
forth in or stipulated pursuant to the Indenture, then the redemption price
shall be equal to the optional redemption price that would be applicable to such
Bonds on the first day after the expiration of the applicable No Call Period
plus a supplemental premium in the amount set forth in or stipulated pursuant to
the Indenture.
Mandatory Redemption Upon Determination of Taxability. The Bonds are
-----------------------------------------------------
subject to mandatory redemption upon the occurrence of a Determination of
Taxability, as defined in the Indenture, at a redemption price equal to 100% of
the principal amount thereof plus accrued interest to the redemption date, at
the earliest practicable date selected by the Trustee, after consultation with
the Borrower, but in no event later than 90 days following the Trustee's receipt
of notification of the Determination of Taxability.
GENERAL PROVISIONS
If less than all Bonds are to be redeemed at one time, the selection
of the Bonds to be redeemed shall be made by lot or by such other method as the
Trustee deems fair and appropriate; provided that any Bonds pledged to the Bank
shall be redeemed first and any Bonds owned by the Borrower shall be redeemed
second.
If Bonds or portions thereof are called for redemption and if on the
redemption date moneys for the redemption thereof are held by the Trustee,
thereafter those Bonds or portions thereof to be redeemed shall cease to bear
interest, and shall cease to be secured by, and shall not be deemed to be
outstanding under, the Indenture.
Any notice of redemption shall be given not more than 60 days and at
least 15 days (30 days if the Bonds are in a Term Mode) prior to the date fixed
for redemption, by mailing a copy of the redemption notice by first class mail,
postage prepaid, to the Holder of each Bond to be redeemed in whole or in part
at the address shown on the Register. Notice of optional redemption may be
conditioned upon the deposit of moneys in the Bond Fund established under the
Indenture, in an amount sufficient for such redemption not later than the close
of business on the Business Day prior to the date fixed for redemption and such
notice shall be of no effect and the redemption shall be deemed cancelled unless
such moneys are so deposited.
If an Event of Default as defined in the Indenture occurs, the
principal of all Bonds issued under the Indenture may be declared due and
payable upon the conditions and in the manner and with the effect provided in
the Indenture.
If at any time the Trustee holds moneys or securities as described in
the Indenture sufficient to pay at redemption or maturity the principal or
redemption price of and premium, if any, and interest on all Bonds outstanding
under the Indenture and any purchase price payable pursuant to the Indenture in
respect thereof, and if all other sums then payable by the Issuer under the
Indenture have been paid, then subject to the provisions of the Indenture the
lien of the
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Indenture and other security held by the Trustee for the benefit of the Holders
will be discharged. After such discharge, Holders must look only to the
deposited moneys and securities for payment.
The Indenture permits certain amendments or supplements to the
Financing Agreement and the Indenture not materially prejudicial to the Holders
to be made without the consent of or notice to the Holders, and other amendments
or supplements thereto to be made with the consent of the Holders of not less
than a majority in aggregate principal amount of the Bonds outstanding.
The Holder of each Bond has only those remedies provided in the
Indenture.
The Bonds are issuable only as fully registered bonds in the
denominations of $100,000 and any whole multiple of $5,000 in excess thereof and
are exchangeable for Bonds of other authorized denominations in equal aggregate
principal amounts at the Transfer Office of the Trustee, but only in the manner
and subject to the limitations provided in the Indenture. This Xxxx is
transferable at the Transfer Office of the Trustee, by the Holder in person or
by his attorney, duly authorized in writing, upon presentation and surrender
hereof to the Trustee. While the Bonds bear interest at a Term Rate, the Trustee
is not required to transfer or exchange (i) any Bond during a period beginning
at the opening of business 15 days before the day of the mailing of a notice of
redemption of Bonds and ending at the close of business on the day of such
mailing or (ii) any Bonds selected for redemption in whole or in part.
This Bond shall not be entitled to any security or benefit under the
Indenture or be valid or become obligatory for any purpose until the Certificate
of Authentication hereon shall have been signed.
Unless this Bond is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Trustee or its
agent for registration of transfer, exchange or payment, and any bond issued is
registered in the name of Cede & Co. or in such other name as is required by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
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IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed in
its name by the manual or facsimile signature of its Chairman or Vice Chairman
and its corporate seal or a facsimile thereof to be affixed, imprinted,
lithographed or reproduced hereon and attested by the manual or facsimile
signature of its Secretary or Assistant Secretary.
[SEAL] XXXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
Attest:______________________ By:_____________________________
Title: Title:
[FORM OF CERTIFICATE OF AUTHENTICATION]
This Bond is one of the Bonds described in the within-mentioned
Indenture. Attached hereto is the complete text of the opinion of Xxxxxxx & Xxx,
a professional corporation, Reading, Pennsylvania, Bond Counsel, dated the date
of initial delivery of and payment for the Bonds, a signed original of which is
on file with the Trustee.
Date of Authentication: CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:_____________________________
Authorized Signature
A-11
[FORM OF ASSIGNMENT]
Assignment
For value received, the undersigned sells, assigns and transfers unto
__________________ the within Bond and irrevocably constitutes and appoints
__________________ attorney to transfer that Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Assignor's Signature:_______________________________
Dated:___________________
Signature Guaranteed:_______________________________
Social Security
Number or Other Identifying
Number of Assignee: ________________
Notice: The assignor's signature to this assignment must correspond with the
name as it appears upon the face of the within bond in every particular,
without alteration or any change whatever.
[FORM OF ABBREVIATIONS]
The following abbreviations, when used in the inscription on the face
of the within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
XX XXX - as joint tenants with the right of
survivorship and not as tenants in common
UNIFORM TRANS MIN ACT - _________________ Custodian___________________
(Cust) (Minor
under Uniform Transfers to Minors
Act ____________________
(State)
Additional abbreviations may also be used though not in the above list.
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EXHIBIT B
Blanket Letter of Representations
B-1
"WORD"
Long Document Name: TRUST INDENTURE - XXXXXXX COUNTY - INNOVATIVE
SOLUTIONS
System Document Number: 54617 PTE
Additional Information: converted
================================================================================
You will have line numbers down the side of each draft document unless you
indicate otherwise. 1.5 line spacing will be used on all drafts unless you
indicate otherwise.
Return To:___________________________ Location:_____________________________
Return: _____ draft _____ final _____ redlined _____ stapled
Line Spacing: _____ same _____ 1.0 _____ 1.5 _____ 2.0
Duplicate: _____ yes _____ no (New Client/Matter No:________________________)
Save New Version For Redlining Prior To Revisions: _____ yes _____ no
Caret Method _____ Standard Method __X___
================================================================================
Notes: Doc. in final format (dsh)
Origination Date: March 23, 2000
Author's Initials: PTE
Last Revised By: nc&kad/pte/iez;/kmc(@tr145)/pte/iez/dsh/nb/nb/pte
Last Edit Date: 3-24;3-24;3-28;4-27;7/20;7-21;7-28;7-31
Quick Fill No.: ARTICLE I, SECTION 1.0, (a), (i), (1), (A)
101
