Exhibit 4.27
EXECUTION COPY
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TRUST INDENTURE
Dated June 1, 0000
Xxxxxxx
XXXXXXXXXXX XXXXXXXXX XX XXXXXXXX XXXXXX
and
SOUTHTRUST BANK, NATIONAL ASSOCIATION
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Regarding
Industrial Development Revenue Bonds
(Color Image, Inc. Project), Series 1999
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This Trust Indenture was prepared by King & Spalding, 000 Xxxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000-0000
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TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is not a part of this Indenture and is only for
convenience of reference)
PAGE
RECITALS.......................................................................1
ARTICLE I
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions .................................................... 3
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SECTION 1.02. Actions of Bondholders .........................................13
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SECTION 1.03. Form and Contents of Documents Delivered to Trustee ............14
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SECTION 1.04. Compliance Certificates and Opinions ...........................14
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SECTION 1.05. Effect of Headings and Table of Contents .......................15
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SECTION 1.06. Date of Indenture ..............................................15
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SECTION 1.07. Enforceability .................................................15
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SECTION 1.08. Governing Law ..................................................15
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SECTION 1.09. Counterparts ...................................................16
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SECTION 1.10. Notices ........................................................16
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SECTION 1.11. Notices to Bondholders: Waiver .................................17
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SECTION 1.12. Concerning the Credit Obligor and the Letter of Credit .........18
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SECTION 1.13. Notice to Rating Agencies ......................................18
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SECTION 1.14. Successors and Assigns .........................................18
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SECTION 1.15. Benefits of Indenture ..........................................18
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ARTICLE II
GRANTING CLAUSES
ARTICLE III
LIMITED LIABILITY
SECTION 3.01. Source of Payment of Bonds and Other Obligations: Disclaimer
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of General Liability ..............................21
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SECTION 3.02. Covenants of Issuer not Covenants of Officials Individually ....21
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SECTION 3.02. Limited Liability of Issuer: No Personal Liability .............21
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ARTICLE IV
THE BONDS
SECTION 4.01. General Terms ..................................................22
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SECTION 4.02. Variable Rate ..................................................23
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SECTION 4.03. Fixed Rate .....................................................24
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SECTION 4.04. Optional Tender ................................................26
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SECTION 4.05. Mandatory Tender ...............................................29
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SECTION 4.06. Procedures for Purchase and Remarketing of Bonds; Delivery of
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Purchased and Remarketed Bonds ..............................31
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SECTION 4.07. Form of Bonds ..................................................34
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SECTION 4.08. Execution, Authentication, Delivery and Dating .................50
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SECTION 4.09. Temporary Bonds ................................................50
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SECTION 4.10. Authentication and Delivery of Bonds to Original Purchasers ....51
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SECTION 4.11. Letter of Credit ...............................................51
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SECTION 4.12. Additional Credit Enhancement ..................................53
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ARTICLE V
REGISTRATION, BOOK-ENTRY SYSTEM, AND
GENERAL PROVISIONS REGARDING THE BONDS
SECTION 5.01. Registration of Bonds ..........................................54
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SECTION 5.02. Book-Entry System ..............................................54
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SECTION 5.03. Discontinuation of Book-Entry System; Registration, Transfer,
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and Exchange of Bonds, Replacement of Mutilated, Lost,
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Destroyed or Stolen Bonds ....................................56
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SECTION 5.04. Payment of Interest on Bonds; Interest Rights Preserved ........58
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SECTION 5.05. Persons Deemed Owners ..........................................59
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SECTION 5.06. Paving Agent ...................................................59
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SECTION 5.07. Payments Due on Non-Business Days ..............................59
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SECTION.5.08. Cancellation ...................................................59
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ARTICLE VI
REDEMPTION OF BONDS
SECTION 6.01. When Bonds Are Subject to Redemption ...........................60
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SECTION 6.02. Election to Redeem; Notice to Securities Depository and Trustee 60
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SECTION 6.03. Selection of Bonds to be Redeemed ..............................60
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SECTION 6.04. Notice of Redemption ...........................................61
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SECTION 6.05. Deposit of Redemption Price ....................................62
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SECTION 6.06. Bonds Payable on Redemption Date ...............................62
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SECTION 6.07. Bonds Redeemed in Part .........................................62
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ARTICLE VII
APPLICATION OF PROCEEDS OF BONDS
SECTION 7.01. Application of Proceeds of Bonds ...............................64
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SECTION 7.02. Acquisition/Construction Fund: Disbursements ...................64
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SECTION 7.03. Completion of the Project ......................................64
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ARTICLE VIII
REVENUES
SECTION 8.01. Bond Fund and Letter of Credit Draws ...........................65
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SECTION 8.02. Bond Purchase Fund .............................................66
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SECTION 8.03. Money for Bond Payments to be Held in Trust; Repayment
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of Unclaimed Money ................................67
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ARTICLE IX
SECURITY FOR AND INVESTMENT OF SPECIAL FUNDS
SECTION 9.01. Security for Trust Estate Money ................................69
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SECTION 9.02. Investment of Special Funds ....................................69
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SECTION 9.03. Arbitrage ......................................................70
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ARTICLE X
REPRESENTATIONS AND COVENANTS
SECTION 10.01. General Representations .......................................71
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SECTION 10.02. No Encumbrance on Trust Estate ................................72
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SECTION 10.03. General Covenants .............................................72
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SECTION 10.04. The Loan Agreement ............................................72
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SECTION 10.05. Inspection of Records .........................................72
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SECTION 10.06. Advances by Trustee ...........................................73
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SECTION 10.07. Corporate Existence ...........................................73
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SECTION 10.08. Appointment of Successor Trustee ..............................74
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SECTION 10.09. Tax Exempt Status of Bonds ....................................74
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SECTION 10.10. Performance by Users ..........................................74
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SECTION 10.11. Further Assurances ............................................75
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ARTICLE XI
THE PROJECT
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
SECTION 12.01. Events of Default .............................................77
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SECTION 12.02. Acceleration of Maturity: Rescission and Annulment:
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Exercise of Remedies ........................................78
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SECTION 12.03. Rights and Remedies of Trustee on Default under
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Loan Agreement ..............................................79
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SECTION 12.04. Rights and Remedies of Trustee in the Event of Bankruptcy,
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and the Occurrence of Similar Events Regarding the Users ....80
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SECTION 12.05. Rights of Users in Event of Default under Section 12.01(8) by
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Issuer under this Indenture .................................80
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SECTION 12.06. Subrogation Rights of Credit Obligor ..........................80
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SECTION 12.07. Application of Money Collected ................................81
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SECTION 12.08. Trustee May Enforce Claims without Possession of Bonds ........82
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SECTION 12.09. Limitation on Suits by Holders ................................82
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SECTION 12.10. Unconditional Right of Bondholders to Receive Principal,
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Premium and Interest ........................................83
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SECTION 12.11. Restoration of Positions ......................................83
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SECTION 12.12. Rights and Remedies Cumulative ................................83
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SECTION 12.13. Delay or Omission Not Waiver ..................................83
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SECTION 12.14. Control by Credit Obligor and Bondholders .....................84
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SECTION 12.15. Waiver of Past Defaults .......................................84
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SECTION 12.16. Waiver of Appraisement and Other Laws .........................85
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SECTION 12.17. Suits to Protect the Trust Estate .............................85
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SECTION 12.18. Remedies Subject to Applicable Law ............................86
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ARTICLE XIII
THE TRUSTEE
SECTION 13.01. Certain Duties and Responsibilities ...........................87
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SECTION 13.02. Notice of Defaults ............................................88
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SECTION 13.03. Certain Rights of Trustee .....................................88
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SECTION 13.04. Not Responsible for Recitals ..................................89
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SECTION 13.05. May Hold Bonds ................................................89
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SECTION 13.06. Money Held in Trust ...........................................90
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SECTION 13.07. Compensation and Reimbursement ................................90
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SECTION 13.08. Corporate Trustee Required; Eligibility .......................90
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SECTION 13.09. Resignation and Removal; Appointment of Successor .............91
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SECTION 13.10. Acceptance of Appointment by Successor ........................92
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SECTION 13.11. Merger, Conversion, Consolidation or Succession to Business ...92
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ARTICLE XIV
SUPPLEMENTAL INDENTURES, AMENDMENTS TO
LOAN AGREEMENT AND AMENDMENTS OF LETTER OF CREDIT
SECTION 14.01. Supplemental Indentures Without Consent of Bondholders ........94
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SECTION 14.02. Supplemental Indentures With Consent of Bondholders ...........95
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SECTION 14.03. Amendments and Supplements to Loan Agreement Without
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Consent of Bondholders ......................................96
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SECTION 14.04. Amendments and Supplements to Loan Agreement With
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Consent of Bondholders ......................................97
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SECTION 14.05. Discretion of Trustee; Actions of Bondholders .................97
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SECTION 14.06. Consent of Credit Obligor .....................................98
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SECTION 14.07. Execution of Supplemental Indentures ..........................98
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SECTION 14.08. Effect of Supplemental Indentures .............................98
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SECTION 14.09. Reference in Bonds to Supplemental Indentures .................98
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SECTION 14.10. Amendment of Letter of Credit .................................98
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SECTION 14.11. Opinion of Bond Counsel .......................................99
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ARTICLE XV
THE REMARKETING AGENT AND THE TENDER AGENT
SECTION 15.01. Remarketing Agent ............................................100
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SECTION 15.02. Tender Agent .................................................101
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ARTICLE XVI
DEFEASANCE
SECTION 16.01. Payment of Indebtedness; Satisfaction and Discharge
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of Indenture ...............................................103
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SECTION 16.02. Trust for Payment of Debt Service ............................104
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ARTICLE XVII
FEDERAL REBATE PAYMENTS
SECTION 17.01. Computations and Payments of Rebate ..........................105
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SECTION 17.02. Accounting Records and Reports ...............................105
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EXHIBIT A - FORM OF REQUISITION
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TRUST INDENTURE
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THIS TRUST INDENTURE dated June 1, 1999 is entered into by the DEVELOPMENT
AUTHORITY OF GWINNETT COUNTY, a public body corporate and politic created and
existing under the laws of the State of Georgia (the "Issuer"), and SOUTHTRUST
BANK, NATIONAL ASSOCIATION, a national banking association with its principal
corporate trust office in Birmingham, Alabama (the "Trustee").
RECITALS
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The Issuer has been duly created under the provisions of the Development
Authorities Law of Georgia (O.C.G.A. Section 36-62-l et seq.), as amended (the
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"Act"), and an activating resolution of the Board of Commissioners of Gwinnett
County, duly adopted on June 13, 1972, and, pursuant to the Act, in accordance
with the applicable provisions of the Revenue Bond Law of the State of Georgia
(O.C.G.A. Sections 36-82-60 - 36-32-85), the Issuer has duly authorized,
executed and delivered this Indenture and has duly authorized the execution and
delivery of its Industrial Development Revenue Bonds (Color Image, Inc.
Project), Series 1999 dated the date of delivery and payment therefor (the
"Bonds") pursuant to this Indenture to finance a "project" within the meaning of
the Act, as more particularly described herein and in the Loan Agreement
hereinafter referenced (the "Project").
Simultaneously with the issuance of the Bonds the Issuer, Color Image, Inc.
and King Brothers, LLC (Color Image, Inc. and Kings Brothers, LLC, collectively,
the "Users") will enter into a Loan Agreement dated June 1, 1999 (the "Loan
Agreement"), whereby the Issuer will loan the Bond proceeds to finance the
Project to the Users and the Users will make loan payments to the Issuer at such
times and in such amounts as shall be sufficient to pay when due the principal
of, premium (if any) and interest on the Bonds and the purchase price of Bonds
tendered for purchase pursuant to the mandatory or optional tender provisions of
this Indenture.
The Bonds shall be limited obligations of the Issuer payable solely out of
the loan payments payable by the Users pursuant to the Loan Agreement and any
other revenues or receipts derived by the Issuer from the Project.
As additional security for the payment of the Bonds, the Users will cause
SouthTrust Bank, National Association to issue an irrevocable letter of credit
in favor of the Trustee in the amount of (i) the aggregate principal amount of
the Bonds, to enable the Trustee to pay the principal amount of the Bonds when
due and to pay the principal portion of the purchase price of Bonds tendered (or
deemed tendered) for purchase, plus (ii) interest on the Bonds for a period of
56 days at the Maximum Rate per annum for the Bonds, to enable the Trustee to
pay interest on the Bonds when due and to pay the interest portion of the
purchase price of Bonds tendered (or deemed tendered) for purchase. The initial
letter of credit to be delivered to the Trustee and any substitute letter of
credit delivered to the Trustee pursuant to this Indenture are herein
collectively referred to as the "Letter of Credit".
The Letter of Credit is initially issued pursuant to various credit and
security agreements among the Credit Obligor, the Issuer, the Users, and persons
related to the Users, which evidence or provide security for the obligations of
the Users to reimburse the Credit Obligor for draws under the Letter of Credit
and the observance and performance of various agreements related thereto
(collectively the "Credit Documents").
All things have been done which are necessary to make the Bonds, when
executed by the Issuer and authenticated and delivered by the Trustee hereunder,
the valid obligations of the Issuer, and to constitute this Indenture a valid
trust indenture for the security of the Bonds, in accordance with the terms of
the Bonds and this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is hereby covenanted and declared that all the bonds are to be
authenticated and delivered and the property subject to this Indenture is to be
held and applied by the Trustee, subject to the covenants, conditions and trusts
hereinafter set forth, and the Issuer does hereby covenant and agree to and with
the Trustee, for the equal and proportionate benefit (except as otherwise
expressly provided herein) of all Holders (as hereinafter defined) of the Bonds,
as follows:
2
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions
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For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to them
in this Article. Singular terms shall include the plural as well as the
singular, and vice versa. Any pronoun shall include both singular and plural and
cover all genders.
(2) All accounting terms not otherwise defined herein have the meanings
assigned to them, and all computations herein provided for shall be made, in
accordance with generally accepted accounting principles. All references herein
to "generally accepted accounting principles" refer to such principles as they
exist at the date of application thereof.
(3) All references in this instrument to designated "Articles", "Sections"
and other subdivisions are to the designated Articles, Sections and subdivisions
of this instrument as originally executed.
(4) The terms "herein", "hereof' and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
(5) The term "person" shall include any individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization and any government or any agency or political
subdivision thereof.
Act shall mean the provisions of the Development Authorities Law of Georgia
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(O.C.G.A. 36-62-l et seq.), as amended, under which the Issuer was created.
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Action, when used with respect to any Bondholder, has the meaning stated in
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Section 1.02.
Act of Bankruptcy shall mean the filing of a petition in bankruptcy (or the
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other commencement of a bankruptcy or similar proceeding) by or against the
Users or the Issuer under any applicable bankruptcy, insolvency, reorganization,
or similar law, now or hereafter in effect.
Additional Payments shall mean the Additional Payments payable pursuant to
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Section 5.03 of the Loan Agreement.
3
Affiliate of any specified person shall mean any other person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For purposes of this definition, "control"
when used with respect to any specified person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Authorized Denominations means with respect to all Bonds (i) during any
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Variable Rate Period the amount of $100,000 and any integral multiple of $5,000
in excess thereof for each maturity and (ii) during any Fixed Rate Period the
amount of $5,000 and any integral multiple thereof for each maturity.
Authorized Issuer Representative shall mean the Chairman or Vice-Chairman
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of the Issuer or the Secretary of the Issuer or any other officer or agent of
the Issuer authorized to act as "Authorized Issuer Representative" for purposes
of this Indenture and the Loan Agreement without further action.
Authorized User Representative shall mean any officer of either of the
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Users or any agent of either of the Users authorized by the Users to act as
"Authorized User Representative" for purposes of this Indenture and the Loan
Agreement and identified as such in writing delivered to the Trustee.
Basic Payments shall mean the Basic Payments payable pursuant to Section
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5.02 of the Loan Agreement.
Beneficial Owner shall have the meaning set forth in Section 5.02.
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Bond shall mean any bond authenticated and delivered pursuant to this
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Indenture.
Bonds shall mean the $4,100,000 Industrial Development Revenue Bonds (Color
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Image, Inc. Project), Series 1999 authorized to be issued pursuant to Section
4.01,
Bond Counsel shall mean counsel with experience in matters relating to the
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issuance of obligations by or on behalf of governmental units who shall be
acceptable to the Issuer, the Users and the Trustee.
Bond Fund shall mean the fund established pursuant to Section 8.01.
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Bondholder when used with respect to any Bond shall mean (i) during the
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time the Book-Entry System is in effect for the Bonds, the Securities Depository
or the Securities Depository Nominee, and (ii) during the time the Book-Entry
System is not in effect for the Bonds, the person in whose name such Bond is
registered in the Bond Register.
4
Bond Payment Date shall mean each date (including any date fixed for
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optional or mandatory redemption or tender of Bonds) on which Debt Service is
payable on the Bonds.
Bond Purchase Fund shall mean the fund established pursuant to
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Section 8.02.
Bond Register shall mean the register or registers for the registration and
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transfer of Bonds maintained by the Issuer pursuant to Section 5.01.
Bond Registrar shall mean the agent of the Issuer appointed as such
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pursuant to Section 5.01 for the purpose of registering Bonds and transfers of
Bonds.
Book-Entry System means a book-entry only system of evidence of purchase
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and transfer of beneficial ownership interests in the Bonds.
Business Day shall mean any day other than (1) a Saturday, a Sunday or (2)
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a day on which the payment system of the Federal Reserve System is not
operational, or (3) a day on which banking institutions are required or
authorized to remain closed in any of the following locations: (i) the city in
which the Principal Office of the Trustee is located, (ii) the city in which the
principal office of the Remarketing Agent is located, (iii) the city in which
the office of the Credit Obligor where drawings under the Letter of Credit are
to be made is located, or (iv) the City of New York, New York.
Acquisition/Construction Fund shall-mean the fund established pursuant to
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Section 7.02.
Conversion Date shall mean the first day of any Fixed Rate Period.
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County shall mean Gwinnett County, Georgia.
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Credit Documents shall mean collectively that certain Credit and Security
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Agreement dated June 1, 1999 between the Credit Obligor and the Users and all
agreements, documents, guaranties, instruments, notes, notices, and other
writings executed and delivered by the Users or any other person or persons
which evidence or provide security for the obligations of the Users with respect
to the Letter of Credit, including any amendments or supplements to any thereof
from time to time entered into pursuant to the applicable provisions thereof,
until a Substitute Letter of Credit shall have been accepted by the Trustee, and
thereafter "Credit Documents" shall mean collectively all agreements,
documents, guaranties, instruments, notes, notices, and other writings which
evidence or provide security for the obligations of the Users with respect to
such Substitute Letter of Credit.
Credit Obligor shall mean SouthTrust Bank, National Association, a national
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banking association, and its successors and assigns, until a Substitute Letter
of Credit shall have been accepted by the Trustee, and thereafter "Credit
Obligor" shall mean the issuer of such Substitute Letter of Credit.
5
Credit Obligor Indebtedness shall mean all indebtedness or obligations of
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the Users to the Credit Obliger under the Credit Documents including without
limitation (i) the Users' obligation to reimburse the Credit Obliger for draws
made under the Letter of Credit and (ii) the Users' obligation to pay fees and
charges for the issuance and continuation of the Letter of Credit.
Credit Obligor Insolvency Date shall mean the date on which the Credit
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Obliger notifies the Trustee in writing or the date on which the Trustee is
notified in writing by the Issuer, the Users, or any Governmental Authority,
that (i) a receiver or conservator of the Credit Obligor or of any of the
respective properties or assets thereof shall have been appointed by any
Governmental Authority, or (ii) possession of the property and business of the
Credit Obligor shall have been taken by any Governmental Authority, or (iii) the
Credit Obliger shall have taken advantage of any reorganization, liquidation or
dissolution law or statute or if corporate action shall have been taken by the
Credit Obliger for the purpose of effecting any of the foregoing.
Debt Service shall mean the principal of, premium (if any) and interest
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payable on the Bonds.
Defaulted Interest shall have the meaning stated in Section 5.04.
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Determination of Taxability shall mean, and shall occur when, (i) the
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Trustee receives written notice from the Users, supported by an Opinion of Bond
Counsel, that interest on the Bonds is Taxable or (ii) the Internal Revenue
Service shall claim in writing that interest on the Bonds is Taxable; provided,
that such a claim shall not be deemed a Determination of Taxability unless the
Users are afforded reasonable opportunity (at their sole expense and for a
period not to exceed 2 years) to pursue any judicial or administrative remedy
available to the Users with respect to such claim and avail themselves of such
opportunity by appropriate proceedings diligently pursued.
Direct Participant or Direct Participant means securities brokers and
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dealers, banks, trust companies and clearing corporations which have access to
the Book-Entry System.
Event of Default shall have the meaning stated in Article XII. An Event of
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Default shall "exist" if an Event of Default shall have occurred and be
continuing.
Existing Letter of Credit means the Letter of Credit held by the Trustee
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at the time a Substitute Letter of Credit is delivered to the Trustee.
Federal Securities shall mean any of the following so long as the same are
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not subject to prepayment or redemption at the option of the issuer: direct
obligations of, or obligations the timely payment of the principal of and
interest on which is fully guaranteed by, the United States of America.
Financing Documents shall mean the Bonds, Indenture, the Lsan Agreement,
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the Credit Documents, the Remarketing Agreement and the Letter of Credit.
6
Fixed Rate shall mean the fixed interest rate borne by the Bonds during a
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Fixed Rate Period. more particularly described in Section 4.03.
Fixed Rate Interest Payment Date shall mean a date on which interest
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calculated according to the Fixed Rate is payable on the Bonds, more
particularly described in Section 4.01(i).
Fixed Rate Period shall mean a period specified by the User during which
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the Bonds shall bear interest at a fixed rate per annum, more particularly
described in Section 4.03.
Fully Paid, (i) when used with respect to Indenture Indebtedness, shall
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have the meaning stated in Section 16.01, and (ii) when used with respect to
Credit Obligor Indebtedness, shall mean that all indebtedness under the Credit
Documents has been paid.
Governmental Authority shall mean any federal, state, county, municipal, or
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other government, domestic or foreign, and any agency, authority, department,
commission, bureau, board, court or other instrumentality thereof, having
jurisdiction in the premises.
Holder when used with respect to any Bond shall mean the Bondholder with
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respect to such Bond.
Indebtedness shall mean collectively Indenture Indebtedness and Credit
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Obligor Indebtedness.
Indenture shall mean this instrument as originally executed or as it may
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from time to time be supplemented, modified or amended by one or more indentures
or other instruments supplemental hereto entered into pursuant to the applicable
provisions hereof.
Indenture Indebtedness shall mean all indebtedness of the Issuer at the
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time secured by this Indenture, including without limitation (i) all Debt
Service and (ii) all reasonable and proper fees, charges, expenses, and
disbursements of the Trustee and the Issuer for services performed and
disbursements made under this Indenture.
Independent, when used with respect to any person, shall mean a person who
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(i) is in fact independent, (ii) does not have any direct financial interest or
any material indirect financial interest in either of the Users, the Issuer, the
Credit Obligor, or in any other obligor wim respect to.the Bonds or in any
Affiliate of either of the Users, the Issuer, the Credit Obligor, or of such
other obligor, and (iii) is not connected with either of the Users, the Issuer,
the Credit Obligor, or such other obligor as an officer, in-house attorney,
employee, promoter, underwriter, trustee, partner, director or person performing
similar functions.
Indirect Participant means a broker, dealer, bank or other financial
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institution for which the Securities Depository holds Bonds as securities
depository through a Direct Participant.
7
Interest Payment Date, when used with respect to any installment of
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interest on a Bond. means the date specified in such Bond as the fixed date on
which such installment of interest is due and payable.
Internal Revenue Code shall mean whichever of the following shall be
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applicable in the context: the Internal Revenue Code of 1954, as amended; the
Internal Revenue Code of 1986, as amended; and the transition rules of related
legislation.
Issuer shall mean the Development Authority of Gwinnett County, a public
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body corporate and politic created pursuant to the Act, and its successors and
assigns.
Loan Agreement shall mean that certain Loan Agreement dated June 1, 1999,
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between the Issuer and the Users including any amendments or supplements to such
instrument from time to time entered pursuant to the applicable provisions
thereof.
Loan Default shall have the meaning stated in Article 10 of the Loan
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Agreement. A Loan Default shall "exist" if a Loan Default shall have occurred
and be continuing.
Letter of Credit shall mean the initial letter of credit delivered to the
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Trustee on the date of delivery of the Bonds, and, unless the context or use
indicates another or different meaning of intent, any Substitute Letter of
Credit accepted by the Trustee.
Letter of Representation shall mean and include (i) the Blanket Letter of
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Representation with respect to the Bonds submitted to the Securities Depository
and (ii) any other or subsequent agreement with respect to the Bonds among said
parties by whatever name or identification.
Mandatory Tender shall mean a tender of Bonds required by Section 4.05.
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Mandatory Tender Date shall mean a date on which any Mandatory Tender is
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required, more particularly described in Section 4.05.
Maximum Rate shall mean the lesser of(i) the rate of 12% per annum or (ii)
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for any period during which the Bonds are supported by a Letter of Credit, the
maximum rate per annum, specified therein, upon which there has been calculated
the amount available to be drawn on such Letter of Credit to pay interest on the
Bonds.
Opinion of Counsel shall mean a written opinion of counsel who may (except
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as otherwise expressly provided in this Indenture) be counsel for the Users or
the Credit Obligor and which opinion shall be acceptable to the Trustee.
Opinion of Bond Counsel shall mean a written opinion of Bond Counsel, which
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opinion is acceptable to the Trustee and the Issuer.
8
Optional Tender shall mean a tender of Bonds at the option of the Holder
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thereof pursuant to Section 4.04.
Optional Tender Date shall mean any date on which Bonds are to be purchased
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pursuant to an Optional Tender.
Outstanding when used with respect to Bonds shall mean, as of the date of
-----------
determination, all Bonds authenticated and delivered under this Indenture,
except:
(1) Bonds canceled by the Trustee or delivered to the Trustee for
cancellation,
(2) Bonds for whose payment or redemption money in the necessary
amount has been deposited with the Trustee in trust for the Holders of such
Bonds, provided that, if such Bonds are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made,
(3) Unsurrendered Bonds for the purchase of which money in the
necessary amount has been deposited in the Bond Purchase Fund and is held
in trust for the Holders of such Unsurrendered Bonds, and
(4) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered under this Indenture;
provided, however, that in determining whether the Holder of the requisite
principal amount of Bonds Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Bonds owned by
the Users, the Issuer or any other obligor with respect to the Bonds or any
Affiliate of the Users, the Issuer or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Bonds which the
Trustee knows to be so owned shall be disregarded. Bonds so owned which have
been pledged in good faith (including Pledged Bonds) may be regarded as
Outstanding for such purposes if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such Bonds and that
the pledgee is not the Users, the Issuer, or any other obligor with respect to
the Bonds or any Affiliate of the Issuer, the Users or of such other obligor.
Paying Agent shall mean the Trustee and any other person authorized by the
------------
Issuer to pay Debt Service on any Bonds on behalf of the Issuer.
Pledged Bonds shall mean Bonds purchased pursuant to the Optional Tender or
-------------
Mandatory Tender provisions of this Indenture with money drawn under the Letter
of Credit and held by the Tender Agent or Trustee for the benefit of, or
registered in the name of, the Credit Obligor, as pledgee, pursuant to Section
4.06 of this Indenture and pursuant to any provision of the Credit Documents
with respect thereto.
9
Post-Default Rate shall mean (i) when used with respect to any payment of
-----------------
Debt Service on any Bond, the rate specified in such Bond for overdue
installments of Debt Service on such Bond, computed as provided in such Bond,
and (ii) when used with respect to all other payments due under this Indenture
or the Loan Agreement, the rate of 12% per annum (computed on the basis of a
360-day year with 12 months of 30 days each).
Principal Office of the Tender Agent shall mean the office where the Tender
------------------------------------
Agent maintains its principal office.
Principal Office of the Trustee shall mean the office which the Trustee
-------------------------------
maintains its principal corporate trust office for purposes of this Bond issue,
currently in Birmingham, Alabama, or such other office as shall be designated by
the Trustee by written notice to the Issuer, the Users, the Credit Obligor and
the Holders of the Bonds.
Project shall have the meaning assigned in the Loan Agreement.
-------
Project Costs shall have the meaning assigned in the Loan Agreement.
-------------
Oualified Investments shall mean:
---------------------
(1) the local government investment pool created in Chapter 83 of
Title 36 of the Official Code of Georgia Annotated;
(2) bonds or obligations of the Issuer or bonds or obligations of the
State of Georgia or counties, municipal corporations, and political
subdivisions of the State rated in one of the two highest categories by any
Rating Agency (without regard to subcategories);
(3) bonds or other obligations of the United States or of subsidiary
corporations of the United States government which are fully guaranteed by
such government;
(4) obligations of agencies of the United States government issued by
the Federal Land Bank, the Federal Home Loan Bank, the Federal Intermediate
Credit Bank, and the Central Bank for Cooperatives;
(5) bonds or other obligations issued by any public housing agency
or municipal, corporation in the United States, which such bonds or
obligations are fully secured as to the payment of both principal and
interest by a pledge of annual contributions under an annual contributions
contract or contracts with the United States government, or project notes
issued by any public housing agency, urban renewal agency, or municipal
corporation in the United States which are fully secured as to payment of
both principal and interest by a requisition, loan, or payment agreement
with the United States government;
10
(6) certificates of deposit of national or state banks located within
the State of Georgia which have deposits insured by the Federal Deposit
Insurance Corporation and certificates of deposit of federal savings and
loan associations and state building and loan or savings and loan
associations located within the State of Georgia which have deposits
insured by the Savings Association Insurance Fund of the Federal Deposit
Insurance Corporation or the Georgia Credit Union Deposit Insurance
Corporation, including the certificates of deposit of any bank, savings and
loan association, or building and loan association acting as depository,
custodian, or trustee for any such bond proceeds, provided the portion of
the certificates of deposit in excess of the amount insured by the Federal
Deposit Insurance Corporation, the Savings Association Insurance Fund of
the Federal Deposit Insurance Corporation, or the Georgia Credit Union
Deposit Insurance Corporation, if any, must be secured by deposit, with the
Federal Reserve Bank of Atlanta, Georgia, or with any national or state
bank or with any national or state bank or federal savings and loan
association or state building and loan or savings and loan association
located within the State of Georgia, of one or more of the following
securities in an aggregate principal amount equal at least to the amount of
such excess: direct and general obligations of the State of Georgia or of
any county or municipal corporation in the State of Georgia, obligations of
the United States or subsidiary corporations described in (3) above,
obligations of the agencies of the United States government described in
(4) above, or bonds, obligations, or project notes of public housing
agencies, urban renewal agencies, or municipalities described in (5) above;
and
(7) securities of or other interests in any no-load, open-end
management type investment company or investment trust registered under the
Investment Company Act of 1940, as from time to time amended, or any common
trust fund maintained by any bank or trust company which holds such
proceeds as trustee or by an affiliate thereof so long as:
(a) the portfolio of such investment company or investment trust
or common trust fund is limited to the obligation described in
paragraph (3) above and repurchase agreements fully collateralized by
any such obligations,
(b) such investment company or investment trust or common trust
fund takes delivery of such collateral either directly or through an
authorized custodian,
(c) such investment company or investment trust or common trust
fund is managed so as to maintain its share at a constant net asset
value, and
(d) securities of or other interests in such investment company
or investment trust or common trust fund are purchased and redeemed
only through the use of national or state banks having corporate trust
powers and located within the State of Georgia.
Rating Agency shall mean any nationally recognized securities rating
-------------
agency.
11
Regular Record Date shall mean (i) with respect to any Variable Rate
-------------------
Interest Payment Date, the day immediately prior to such Interest Payment Date,
(ii) with respect to any Fixed Rate Interest Payment Date for a Fixed Rate
Period of less than 6 months, the day immediately prior to such Fixed Rate
Interest Payment Date, and (iii) with respect to any Fixed Rate Interest Payment
Date for a Fixed Rate Period of 6 months or more, the 15th day (whether or not a
Business Day) next preceding such Fixed Rate Interest Payment Date.
Remarketing Agent shall mean the person appointed as "Remarketing Agent"
-----------------
pursuant to Section 15.01, until a successor Remarketing Agent shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Remarketing Agent" shall mean such successor.
Remarketing Agreement shall mean that certain Remarketing and Interest
---------------------
Service Agreement, dated as of June 1, 1999 among the Users, the Issuer and the
Remarketing Agent.
Securities Depository means The Depository Trust Company, a limited purpose
---------------------
trust company organized under the laws of the State of New York, and the
successors and assigns thereof, and any substitute securities depository
therefor that maintains a Book-Entry System for the Bonds.
Securities Depository Nominee means the Securities Depository or the
-----------------------------
nominee of such Securities Depository in whose name there shall be registered on
the Bond Register the Bonds to be delivered to such Securities Depository during
a period in which the Bonds are held pursuant to the Book-Entry System.
Special Funds shall mean the Bond Fund, the Bond Purchase Fund, the
-------------
Acquisition/Construction Fund, and any other fund or account established
pursuant to this Indenture.
Special Record Date for the payment of any Defaulted Interest on the Bonds
-------------------
means a date fixed by the Trustee pursuant to Section 5.04.
Stated Expiration Date shall mean the date on which the Letter of Credit
----------------------
will, by its terms, expire unless the Letter of Credit is terminated on an
earlier date in accordance with its terms.
Substitute Letter of Credit shall mean a letter of credit delivered to the
---------------------------
Trustee in substitution for an Existing Letter. of Credit then held by the
Trustee, as more particularly described in Section 4.11 hereof.
Taxable shall mean that interest on the Bonds is includible in the gross
-------
income of any Holder thereof in the computation of federal income tax liability
for any reason other than the fact that such Holder is a "substantial user" of
the Project or a "related person" within the meaning of Section 147(a) of the
Internal Revenue Code. Interest on the Bonds shall not be deemed "Taxable"
because interest is includible in any calculation of income for purposes of an
alternative minimum tax or any other type of taxation other than the regular
federal tax imposed on income.
12
Tender Agent shall mean any person appointed as "Tender Agent" pursuant to
------------
Section 15.02, until a successor Tender Agent shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Tender Agent" shall
mean such successor.
Tender Date shall mean an Optional Tender Date or a Mandatory Tender Date,
-----------
as the case may be.
Tendered Bonds shall mean Bonds tendered (or deemed tendered) for purchase
--------------
pursuant to the Optional Tender or Mandatory Tender provisions of this
Indenture.
Trust Estate shall have the meaning stated in the habendum to the granting
------------
clauses to this instrument.
Trustee shall mean SouthTrust Bank, National Association, a national
-------
banking association with its designated corporate trust office in Birmingham,
Alabama, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor.
Unsurrendered Bond shall mean Bonds (or portions thereof in authorized
------------------
denominations) which are deemed purchased pursuant to Optional Tender or
Mandatory Tender provisions hereof, but which have not been presented to the
Trustee by the Holders thereof; provided, any Bond which the Holder thereof
elects to retain under Section 4.05(c) shall not be an Unsurrendered Bond for
purposes of this Indenture.
Users shall mean, collectively, Color Image, Inc. and Kings Brothers, LLC,
-----
and the respective successors and assigns thereof, and thereafter "Users" shall
mean such persons.
Variable Rate shall mean the variable interest rate borne by the Bonds
-------------
during a Variable Rate Period, more particularly described in Section 4.02.
Variable Rate Interest Payment Date shall mean a date on which interest
-----------------------------------
calculated at the Variable Rate is payable on the Bonds, more particularly
described in Section 4.01(h), the first such date being August 1, 1999.
Variable Rate Period shall mean a period during which the Bonds bear
--------------------
interest at the Variable Rate, more particularly described in Section 4.02.
SECTION 1.02. Actions of Bondholders
----------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given, made or taken by
Bondholders may be embodied in and evidenced by one or more substantially
concurrent instruments of substantially similar tenor signed by such Bondholders
in person or by an agent duly appointed in writing; and, except as herein
13
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Issuer or the Users. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Actions" of the Bondholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent, or of the holding by any person of Bonds, shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Issuer and (subject to Section 13.01) in favor of the Trustee, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by the certificate of any notary public or other officers
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution
thereof. Whenever such execution is by an officer of a corporation or a member
of a partnership on behalf of such corporation or partnership, such certificate
or affidavit shall also constitute sufficient proof of his authority.
(c) The ownership of Bonds shall be proved by the Bond Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Bond shall bind every future Holder of the
same Bond and the Holder of every Bond issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done or suffered to
be done by the Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Bond.
SECTION 1.03. Form and Contents of Documents Delivered to Trustee
---------------------------------------------------
(a) Whenever several matters are required to be certified by, or covered
by an opinion of, any specified person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such person, or
that they be so certified or covered by only one document, but one such person
may certify or give an opinion with respect to some matters and one or more
other such persons as to other matters, and any such person may certify or give
an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of either of the Users or of
an officer of the Issuer may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such
person knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an officer of either of the Users or an officer or
officers of the Issuer stating that the information with respect to such factual
matters is in the possession of the Issuer or such User, as the case may be,
unless such
14
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
(c) Whenever any person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Wherever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer or the
Users shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's or Users' compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer or Users to have
such application or to the sufficiency of such certificate or report.
SECTION 1.04. Compliance Certificates and Opinions
------------------------------------
(a) Upon any application or request by the Issuer or Users to the Trustee
to take any action under any provision of this Indenture, the Issuer or the
Users, as the case may be, shall furnish to the Trustee a certificate signed by
an Authorized Issuer Representative or Authorized User Representative, as the
case may be, stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such condition or covenant
has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
15
SECTION 1.05. Effect of Headings and Table of Contents
----------------------------------------
The Article and Section headings herein and in the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.06. Date of Indenture
-----------------
The date of this Indenture is intended as and for a date for the convenient
identification of this Indenture and is not intended to indicate that this
Indenture was executed and delivered on said date.
SECTION 1.07. Enforceability
--------------
If any provision in this Indenture or in the Bonds shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.08. Governing Law
-------------
This Indenture shall be construed in accordance with and governed by the
laws of the State of Georgia.
SECTION 1.09. Counterparts
------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 1.10. Notices
-------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or Action of Bondholders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Issuer, the
Trustee, the Tender Agent, the Remarketing Agent, the Users, or the Credit
Obligor shall be sufficient for every purpose hereunder if in writing and
(except as otherwise provided in this Indenture) (i) delivered personally to the
party or, if such party is not an individual, to an officer or other legal
representative of the party to whom the same is directed, at the address
specified below, (ii) mailed by first-class, registered or certified mail,
postage prepaid, addressed as specified below, or (iii) sent by telex or
telecopy or other facsimile transmission system to the number specified below.
The hand delivery and mailing address and telex or telecopy number for the
parties are as follows:
16
Issuer
------
Development Authority of Gwinnett County
c/o Mr. W. Xxxxxx Xxxxxx
Attorney at Law
(P.O. Box 653 - 30046-0653)
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxx, Xxxxxxx
Telephone Number: 770/000-0000
Telecopy Number: 770/962-2412
Trustee
-------
SouthTrust Bank, National Association
Attention: Corporate Trust Department
000 Xxxxxx Xxxx Xxxxx - 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone Number: 205/000-0000
Telecopy Number: 205/254-4180
Remarketing Agent
-----------------
SouthTrust Securities, Inc.
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone Number: 205/000-0000
Telecopy Number: 205/254-4989
Users
-----
Color Image, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxx
Telephone Number: 770/000-0000
Telecopy Number: 770/840-7029
17
Credit Obliger
--------------
SouthTrust Bank, National Association
00000 Xxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone Number: 770/000-0000
Telecopy Number: 770/569-4024
Any of such parties may change the address or number for receiving any such
notice or other document by giving notice of the change to the other parties
named in this Section.
(b) Any notice or other document shall be deemed delivered when actually
received by the party to whom directed (or, if such party is not an individual,
to an officer or other legal representative of the party) at the address or
number specified pursuant to this Section, or, if sent by mail, 3 days after
such notice or document is deposited in the United States mail, first class
postage prepaid, addressed as provided above.
SECTION 1.11. Notices to Bondholders; Waiver
------------------------------
(a) Where this Indenture provides for publication of notice to Bondholders
of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or
sent by telecopy or other facsimile transmission system, to each Holder of such
Bonds, at the address of such Holder as it appears in the Bond Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the first publication of such notice.
(b) In any case where notice to Bondholders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Bondholder shall affect the sufficiency of such notice with respect
to other Bondholders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Bondholders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 1.12. Concerning the Credit Obligor and the Letter of Credit
------------------------------------------------------
(a) No consent or direction or other exercise of discretion or control by
the Credit Obligor hereunder shall be required or permitted if the Letter of
Credit is no longer in effect or if the Credit Obligor has dishonored a draw
under the Letter of Credit or a Credit Obligor Insolvency Date has occurred.
(b) Nothing contained in this Indenture shall be construed to require or
permit any consent or approval by the Credit Obligor for the performance by the
Trustee of its obligations under Sections 8.01, 8.02 or 12.02, with respect to
draws under the Letter of Credit and acceleration of the
18
maturity of the Bonds, except where such consent or approval of the Credit
Obligor is expressly required or permitted in any of such Sections.
SECTION 1.13. Notice to Rating Agencies
-------------------------
The Trustee shall promptly furnish to each Rating Agency (if any) that
maintains a rating with respect to the Bonds a notice of (i) any change of the
Trustee, the Remarketing Agent or the Tender Agent, (ii) any change or amendment
of the Indenture, Loan Agreement or the Letter of Credit, (iii) the expiration
or renewal or extension or termination of the term of the Letter of Credit, or
substitution of the Letter of Credit, (iv) the conversion of the interest rate
on the Bonds to a Fixed Rate, (v) the acceleration of payment of principal and
interest on the Bonds pursuant to Section 12.02, (vi) the payment in full, or
the redemption prior to maturity, of all Bonds Outstanding hereunder, or (vii)
receipt of notice of the Issuer's intent to establish a trust for the payment of
the Bonds in accordance with Section 16.02.
SECTION 1.14. Successors and Assigns
----------------------
All covenants and agreements in this Indenture by the Issuer shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.15. Benefits of Indenture
---------------------
Nothing in this Indenture or in the Bonds, express or implied, shall give
to any person, other than the parties hereto and their successors hereunder, the
Holders of the Outstanding Bonds, the Users and the Credit Obligor, any benefit
or any legal or equitable right, remedy or claim under this Indenture.
19
ARTICLE II
GRANTING CLAUSES
To secure the payment of Debt Service on the Bonds and all other Indenture
Indebtedness and the performance of the covenants contained herein and in the
Bonds, and to declare the terms and conditions on which the Bonds are secured,
and in consideration of the premises and of the purchase of the Bonds by the
Holders thereof, the Issuer by these presents does grant, bargain, sell, alien,
remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, set
over and confirm unto the Trustee, and grant to the Trustee security title to
and a continuing security interest in, all and singular, the following described
property and all proceeds and products thereof:
I.
All right, title and interest of the Issuer in and to the Loan Agreement
(except for the right to indemnification and reimbursement of expenses granted
to the Issuer pursuant to the Loan Agreement) together with all powers,
privileges, options and other benefits of the Issuer contained in the Loan
Agreement; provided, however, that nothing contained in this clause shall
impair, diminish or otherwise affect the Issuer's obligations under the Loan
Agreement or, except as otherwise provided in this Indenture, impose any such
obligations on the Trustee.
II.
Money and investments from time to time on deposit in, or forming a part
of, the Special Funds, subject to the provisions of this Indenture permitting
the application thereof for the purposes and on the terms and conditions set
forth herein.
III.
Any and all property of every kind or description which may, from time to
time hereafter, by delivery or by writing of any kind, be subjected to the lien
of this Indenture as additional security by the Issuer or anyone on its part or
with its written consent, or which pursuant to any of the provisions hereof or
of the Loan Agreement may come into the possession or control of the Trustee or
a receiver appointed pursuant to this Indenture; and the Trustee is hereby
authorized to receive any and all such property as and for additional security
for the Bonds and to hold and apply all such property subject to the terms
hereof;
TO HAVE AND TO HOLD all said property, rights and privileges of every kind
and description, real, personal or mixed, hereby and hereafter (by supplemental
indenture or otherwise) granted, bargained, sold, aliened, remised, released,
conveyed, assigned, transferred, mortgaged, hypothecated, pledged, set over or
confirmed as aforesaid, or intended, agreed or covenanted so to be, together
with all the appurtenances thereto appertaining (said property, rights and
privileges being herein called the "Trust Estate") unto the Trustee and its
------------
successors and assigns forever;
20
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the Holders from time to time of the Bonds without any priority of
any such Bond over any other such Bond;
PROVIDED, HOWEVER, that money collected by the Trustee pursuant to the
Letter of Credit shall be used solely for the purpose of paying Debt Service on
the Bonds or the purchase price of Bonds tendered for purchase pursuant to the
Optional Tender or Mandatory Tender provisions hereof.
21
ARTICLE III
LIMITED LIABILITY
SECTION 3.01. Source of Payment of Bonds and Other Obligations: Disclaimer
-------------------------------------------------------------
of General Liability
--------------------
(a) The Debt Service on the Bonds and any other payments required by this
Indenture shall be secured by the Trust Estate. The covenants and agreements
contained herein and in the Bonds do not and shall never constitute or give rise
to a personal or pecuniary liability or charge against the general credit of the
Issuer or Gwinnett County, Georgia, and in the event of a breach of any such
covenant or agreement, no personal or pecuniary liability or charge payable
directly or indirectly from the general assets or revenues of the Issuer or
Gwinnett County, Georgia (other than the Trust Estate), shall arise therefrom.
Nothing contained in this Section, however, shall relieve the Issuer from the
observance and performance of the covenants and agreements on its part contained
herein or in the Bonds.
(b) The Bonds and any other payments required by this Indenture shall
never constitute an indebtedness, pecuniary liability, or charge against the
general credit or taxing powers of the State of Georgia or any political
subdivision thereof, including without limitation Gwinnett County, Georgia,
within the meaning of any constitutional provision or statutory limitation
whatsoever.
SECTION 3.02. Covenants of Issuer Not Covenants of Officials Individually
----------------------------------------------------------
All covenants, stipulations, obligations and agreements of the Issuer
contained in this Indenture shall be deemed to be covenants, stipulations,
obligations and agreements of the Issuer to the full extent permitted by the
Constitution and laws of the State. No covenant, stipulation, obligation or
agreement contained herein, shall be deemed to be a covenant, stipulation,
obligation or agreement of any present or future officer, member, agent or
employee of the Issuer in his individual capacity, and no offer of the Issuer
executing the Bonds shall be liable personally on the Bonds or be subject to any
personal liability or accountability be reason of the issuance thereof. No
officer, agent or employee of the Issuer shall incur any personal liability in
acting or proceeding or in not acting or not proceeding in accordance with the
terms of this Indenture.
SECTION 3;03. Limited Liability of Issuer: No Personal Liability
--------------------------------------------------
No recourse shall be had for the enforcement of any obligation, promise or
agreement of the Issuer contained herein or in the Bonds or other documents to
which the Issuer is a party or for any claim based hereon or thereon or
otherwise in respect hereof or thereof against any director, member officer,
agent, attorney or employee, as such in his/her individual capacity, past,
present or future, of the Issuer or of any successor entity, either directly or
through the Issuer or any successor entity, under or by reason of any of the
obligations, promises or agreements entered into in the Bonds or between the
Issuer and the Trustee, whether herein contained or to be implied here from as
being
22
supplemental hereto; and all personal liability of that character against every
such director, member. officer, agent, attorney and employee is, by the
execution of this Indenture and as a condition of, and as part of the
consideration for, the execution of this Indenture, expressly waived and
released.
The Bonds shall be limited obligations of the Issuer. The Bonds and the
interest thereon and redemption premium, if any shall not be deemed to
constitute or create an indebtedness, liability or obligation of the Issuer, the
State or any political subdivision or agency thereof with the meaning of any
State constitutional provision or statutory limitation or pledge of the faith
the credit or the taxing power of the State or any such political subdivision or
agency. The Bonds and the interest thereon are payable solely from and secured
by the Trust Estate, including the moneys available to be drawn by the Trustee
under the Letter of Credit that may be in effect from time to time to support
payments due on or with respect to the Bonds, all as described in and subject to
limitations set forth in the Indenture, for the equal and ratable benefit of the
Holders, from time to time. of the Bonds. Nothing in the Bonds or in the
Indenture or the proceedings of the Issuer to create a debt of the Issuer, the
state. or any political subdivision thereon within the meaning of any
constitutional or statutory provision of the state. No member, director or
officer, agent attorney or employee of the Issuer, including any person
executing the Indenture or the Bonds, shall be liable personally on the Bonds or
subject to any personal liability for any reason relating to the issuance of the
Bonds. The Bonds and interest due thereon shall not be a general obligation,
debt or liability of the Issuer and do not constitute or give rise to any
pecuniary liability or charge against the general credit of the Issuer.
23
ARTICLE IV
THE BONDS
SECTION 4.01. General Terms
-------------
(a) There is hereby authorized to be issued under and secured by this
Indenture a series of Bonds in aggregate principal amount of $4,100,000 and
designated "Industrial Development Revenue Bonds (Color Image, Inc. Project),
Series 1999" (herein the "Bonds").
(b) No additional bonds may be issued hereunder.
(c) The Bonds shall be issuable as registered bonds without coupons in
Authorized Denominations. The Bonds shall be numbered separately from 1 upward.
(d) The Bonds shall mature on June 1, 202O subject to the provisions of
Section 6.01(b).
(e) The Bonds shall be dated as of the date of initial delivery thereof
and shall bear interest from such date, or the most recent date to which
interest has been paid or duly provided for, at the applicable rate per annum
set forth in this Article.
(f) The Bonds shall bear interest at the Variable Rate or at the Fixed
Rate, as provided in Sections 4.02 and 4.03.
(g) Interest at the Variable Rate and interest at a Fixed Rate for each
Fixed Rate Period of less than 6 months shall be computed on the basis of a 360
day year for the actual number of days elapsed. Interest at the Fixed Rate for
each Fixed Rate Period of 6 months or more shall be computed on the basis of a
360-day year with 12 months of 30 days each.
(h) Interest shall be payable on overdue principal on the Bonds and (to
the extent legally enforceable) on any overdue installment of interest on the
Bonds at the Post-Default Rate.
(i) Interest shall be payable in arrears on the following dates:
(1) with respect to interest payable at the Variable Rate, on (i) the
first day of each month of each year during the Variable Rate Period and
(ii) the day immediately following any Variable Rate Period;
(2) with respect to interest payable at a Fixed Rate for any Fixed
Rate Period of less than 6 months, on the day immediately following such
Fixed Rate Period; and
(3) with respect to interest payable at a Fixed Rate for any Fixed
Rate Period of 6 months or more, (i) on the first day of the calendar month
that is 6 months after the first
24
day of the calendar month in which such Fixed Rate Period began, (ii)
semiannually thereafter, and (iii) on the day immediately following such
Fixed Rate Period.
(j) Payment of interest on the Bonds due on any Interest Payment Date
shall be made by check or draft mailed by the Trustee to the Bondholder or
Bondholders at the address thereof appearing in the Bond Register. Such payments
of interest shall be deemed timely made if so mailed on the Interest Payment
Date (or, if such Interest Payment Date is not a Business Day, on the Business
Day next following such Interest Payment Date). Payment of principal of (and
premium, if any, on) the Bond and payment of accrued interest on the Bonds due
upon redemption on any date other than an Interest Payment Date shall be made
only upon surrender thereof at the Principal Office of the Trustee or at the
office of any other Paying Agent therefor. This subsection (j) and the following
subsection (k) are subject to the provisions of Section 5.02 hereof in that
payments shall be made by the Trustee through the Securities Depository while
the Bonds are in the Book Entry System.
(k) Upon the written request of the Holder of any Bond in a principal
amount of not less than $100,000, the Trustee will make payment of the Debt
Service due on such Bond by wire transfer to an account of such Holder
maintained at a bank in the continental United States or by any other method
providing for payment in same-day funds that is acceptable to the Trustee,
provided that:
(1) such written request contains adequate instructions for the
method of payment, and
(2) payment of the principal of (and redemption premium, if any, on)
such Bond and payment of the accrued interest on such Bond due upon
redemption on any date other than an Interest Payment Date shall be made
only upon surrender of such Bond to the Trustee.
SECTION 4.02. Variable Rate
-------------
(a) The Bonds shall initially bear interest at a Variable Rate. Upon the
expiration of any Fixed Rate Period for the Bonds, such Bonds shall bear
interest at the Variable Rate (unless the day immediately following such Fixed
Rate Period is a Conversion Date), and once the Variable Rate becomes effective,
it shall remain in effect until and including the day immediately prior to the
earlier of(i) a Conversion Date or (ii) the final maturity of the Bonds.
(b) The Variable Rate shall be a fluctuating rate per annum determined by
the Remarketing Agent periodically during a Variable Rate Period as provided
below in this Section.
(c) The Variable Rate shall be determined on the first day of each
Variable Rate Period (beginning upon initial issuance of the Bonds and following
a Fixed Rate Period) and on each Thursday during a Variable Rate Period (or, if
such Thursday is not a Business Day, on the
25
immediately preceding Business Day). The Variable Rate so determined shall
become effective (i) on the date of determination, if such date is the first day
of the Variable Rate Period, or (ii) if such date is not the first day of a
Variable Rate Period, on the day immediately following the date of
determination, and once effective shall remain in effect until and including the
next determination date or, if sooner, the end of such Variable Rate Period;
provided, however, that if the Remarketing Agent fails to determine the Variable
Rate on any such determination date, the last Variable Rate in effect shall
remain in effect until and including the next determination date, and provided
further, if the Remarketing Agent fails to determine the Variable Rate on two
consecutive determination dates therefor, the Variable Rate shall be equal to
the Maximum Rate until such determination date as the Remarketing Agent shall
determine the Variable Rate in accordance with the terms hereof.
(d) The Variable Rate shall be determined by the Remarketing Agent and
shall be the lowest interest rate that would, in the opinion of the Remarketing
Agent, result in the market value of the Bonds being 100% of the principal
amount thereof on the date of such determination, taking into account relevant
market conditions and credit rating factors as they exist on such date;
provided, however, that the Variable Rate may never exceed the Maximum Rate. On
each Variable Rate determination date the Remarketing Agent shall deliver
written notice of the Variable Rate so determined to the Trustee and the Users.
Upon the written request of any Bondholder, the Trustee shall confirm (by
telephone and in writing, if so requested) the Variable Rate then in effect.
(e) The Variable Rate determined from time to time by the Remarketing
Agent shall be conclusive and binding on the Issuer, the Users, the Trustee and
the Bondholders.
SECTION 4.03. Fixed Rate
----------
(a) The Bonds shall bear interest at a Fixed Rate during each period of
time specified by the Users as provided below in this Section; provided that for
each Fixed Rate Period there has first been delivered to the Trustee, the Users
and the Remarketing Agent an Opinion of Bond Counsel with respect to the Bonds
to the effect that converting the interest rate on the Bonds to a Fixed Rate, or
establishing a new Fixed Rate Period immediately following another Fixed Rate
Period, as the case may be, will not, whether solely or in conjunction with any
other fact or circumstance, cause the interest on such Bonds to be or to become
Taxable. Upon the expiration of a Fixed Rate Period, interest on the Bonds will
automatically convert to a Variable Rate unless and until the Users elect to
have the interest rate converted to another Fixed Rate for a Fixed Rate Period
designated by the Users.
(b) The Fixed Rate shall be a fixed rate per annum which shall be
applicable during the entire Fixed Rate Period and, for each Fixed Rate Period
other than the initial Fixed Rate Period, shall be determined by the Remarketing
Agent as provided below in this Section.
(c) The Users may elect that the Bonds bear interest at a Fixed Rate for
any period after the initial Variable Rate Period by delivery of written notice
of such election to the Trustee not less than 20 days prior to the proposed
Conversion Date. Such notice shall specify the first day and the
26
last day of the Fixed Rate Period elected; provided, however, that (i) if such
election is made during a Fixed Rate Period, the specified Conversion Date may
not be sooner than the first day immediately following the Fixed Rate Period
then in effect, (ii) the Conversion Date may not be less than 45 days prior to
the Stated Expiration Date of the Letter of Credit (if any) then in effect,
(iii) the designated Fixed Rate Period may not be less than 15 days, and (iv)
the fixed Rate Period may not extend beyond the day immediately prior to the
final maturity of the Bonds. The Trustee shall deliver a copy of such notice to
the Remarketing Agent, the Tender Agent and the Credit Obligor on or before the
third following Business Day. Any such election by the Users shall be
irrevocable after 10:00 a.m. (Birmingham, Alabama time) on the last Business Day
immediately prior to the proposed Conversion Date.
(d) Not less than 1 nor more than 10 days prior to the proposed Conversion
Date the Remarketing Agent shall determine the interest rate for such Fixed Rate
Period, which shall be the lowest interest rate that would, in the opinion of
the Remarketing Agent, result in the market value of the Bonds being 100% of the
principal amount thereof on the date of such determination, taking into account
relevant market conditions and credit rating factors as they exist on such date,
and assuming that the Fixed Rate Period begins on such date; provided, however,
that the Fixed Rate may not exceed the Maximum Rate. The Remarketing Agent shall
deliver written notice of the Fixed Rate or Rates to the Trustee on the date the
same are determined. The Trustee shall deliver a copy of such notice and the
Users on or before the following Business Day.
(e) Notwithstanding the foregoing, a Fixed Rate or Fixed Rates shall not
be established if (i) the Users deliver to the Trustee written notice of
revocation of its election to establish the Fixed Rate before 10:00 a.m.
(Birmingham, Alabama time) on the last Business Day immediately prior to the
proposed Conversion Date or (ii) prior to 10:00 a.m. (Birmingham, Alabama time)
on the Conversion Date the Trustee does not receive
(1) the Opinion of Bond Counsel referred to in Section 4.03(a) and
meeting the requirements thereof, and
(2) the Substitute Letter of Credit (if any) that was to be effective
on such Conversion Date.
If all conditions to the establishment of a Fixed Rate or Fixed Rates are not
satisfied, the Bonds shall continue (or, if a Fixed Rate Period ended on the
preceding day, shall begin) to bear interest at the Variable Rate from the
proposed Conversion Date.
(f) The Fixed Rate or Rates determined by the Remarketing Agent shall be
conclusive and binding on the Issuer, the Users, the Trustee and the
Bondholders.
27
SECTION 4.04. Optional Tender
---------------
(a) The Holder of any Bond shall have the right to tender such Bond to the
Trustee or Tender Agent for purchase in whole or in part (if in part, only in an
Authorized Denomination) on any Business Day during any Variable Rate Period,
but not during any Fixed Rate Period, at a purchase price equal to 100% of the
principal amount of Bonds (or portions thereof) tendered plus accrued interest
to the specified purchase date. In order to exercise such option with respect to
any Bond, the Holder thereof must deliver notice thereof to the Trustee, as
provided below in this Section, at the Principal Office of the Trustee at least
7 days prior to the proposed Optional Tender Date.
(b) Any such notice of Optional Tender must be duly executed by the
Bondholder and must specify (i) the name of the registered Holder of the Bond to
be tendered for purchase, (ii) the Optional Tender Date, (iii) the certificate
number (if applicable) and principal amount of such Bond, and (iv) the principal
amount of such Bond to be purchased (if such amount is less than the entire
principal amount, the amount to be purchased must be in an Authorized
Denomination). Such notice shall be given to the Trustee in writing or by
telephone, but no such telephonic notice shall be effective unless confirmed in
writing delivered to the Trustee not more than 2 Business Days after such
telephonic notice. The written notice of Optional Tender must be substantially
in the following form or in such other form as shall be acceptable to the
Trustee:
Optional Tender Notice
----------------------
SouthTrust Bank, National Association
Attention: Corporate Trust Department
000 Xxxxxx Xxxx Xxxxx - 0xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Re: Variable/Fixed Rate Industrial Development Revenue Bonds (Color Image,
Inc. Project), Series 1999, issued by the Development Authority of
Gwinnett County pursuant to a Trust Indenture dated June 1, 1999
The undersigned is the registered owner of the following Bond, which is
part of the above-referenced issue of Bonds:
Certificate Number:
------------------------
Principal Amount:
------------------------
28
The undersigned hereby elects to have (check one as appropriate, and be certain
to designate the principal amount tendered, if less than the entire amount):
________ the entire principal amount
________ $__________ (must be an authorized multiple of the smallest
Authorized Denomination) of the principal amount of such Bond
purchased on the following date (specify a Business Day that is at least 7 days
after notice of tender is delivered to the Trustee):
--------------------------
[Optional Tender Date]
THE UNDERSIGNED ACKNOWLEDGES THAT THIS ELECTION IS IRREVOCABLE AND BINDING
ON THE UNDERSIGNED AND CANNOT BE WITHDRAWN.
Dated:
---------------------
Print or Type
------------------------------------
Name of Bondholder
------------------------------------
Address
------------------------------------
Telephone Number
Signature
------------------------------------
(The name and signature must correspond
exactly to the name appearing on the
registration books maintained by the Trustee)
Medallion Number:
--------------------
*Signature(s) must be guaranteed by an eligible guarantor institution which is
a member of the recognized signature guarantee program, i.e., Securities
Transfer Agents Medallion Program (STAMP), Stock Exchanges Medallion Program
(SEMP), or New York Stock Exchange Medallion Signature Program (MSP).
(c) If any notice of Optional Tender specifies an Optional Tender Date
that is not a Business Day, then such notice shall be deemed to specify the next
following Business Day as the Optional Tender Date. Unless a notice of Optional
Tender indicates that less than the entire principal
29
amount of the Bond is being tendered for purchase, the Holder will be deemed to
have tendered the Bond in its entire principal amount for purchase.
(d) Not later than 3:00 p.m. (Birmingham, Alabama time) on the Business
Day after receipt of any such telephonic or written notice of Optional Tender
the Trustee shall deliver written notice to the Tender Agent, the Remarketing
Agent, the Users and the Credit Obligor specifying (i) the principal amount of
Bonds for which a notice of Optional Tender has been given and (ii) the proposed
Optional Tender Date therefor.
(e) Upon delivery of a written notice of Optional Tender, the election to
tender shall be irrevocable and binding upon such Holder and may not be
withdrawn. The Trustee shall, in its sole discretion, determine whether, with
respect to any Bond, the Holder thereof shall have properly exercised the option
to have his Bond or any authorized part thereof purchased pursuant to this
Section.
(f) If a written notice of tender shall have been duly given with respect
to any Bond or any authorized part thereof, the Holder of such Bond shall
deliver such Bond to the Trustee at the Principal Office of the Trustee or to
the Tender Agent at the Principal Office of the Tender Agent at or before 10:00
a.m. (Birmingham, Alabama time) on the Optional Tender Date, together with an
instrument of assignment or transfer duly executed in blank (which instrument of
assignment or transfer shall be in the form provided on such Bond or in such
other form as shall be acceptable to the Trustee or the Tender Agent). During a
period in which the Book-Entry System is in effect for the Bonds, transfers of
the beneficial ownership interests in the Bonds on such date shall be effected
on the records of the Securities Depository by the Securities Depository in
accordance with rules and procedures therefor and any requirement for physical
delivery of Bonds on an Optional Tender Date shall be deemed satisfied thereby.
Any Bond or any authorized part thereof for which a notice of Optional Tender
has been given but which is not so delivered to the Trustee or Tender Agent or
transferred on the records of the Securities Depository shall nevertheless be
deemed to have been tendered by the Holder thereof on the Optional Tender Date.
(g) On each Optional Tender Date the Trustee shall purchase, or cause to
be purchased, all Bonds or any authorized part thereof as to which written
notices of Optional Tender for purchase have been received at a purchase price
equal to 100% of the principal amount thereof plus accrued interest, if any, to
the Optional Tender Date. Funds for payment of the purchase price of such Bonds
or such parts shall be drawn by the Trustee from the Bond Purchase Fund as
provided in Section 8.02.
(h) If there has been irrevocably deposited in the Bond Purchase Fund an
amount sufficient to pay the purchase price of all Bonds or authorized parts
thereof tendered or deemed to be tendered for purchase on an Optional Tender
Date, any Unsurrendered Bonds shall be deemed to have been tendered for purchase
and purchased from the Holder thereof on such Optional Tender Date and the
Holder of any Unsurrendered Bond shall not be entitled to receive interest on
such Unsurrendered Bond for any period on and after the Optional Tender Date.
The Trustee shall issue
30
a new Bond or Bonds in the same aggregate principal amount for any Unsurrendered
Bonds which are not tendered for purchase on any Optional Tender Date and, upon
receipt by the Trustee or Tender Agent of any such Unsurrendered Bonds from the
Holders thereof, shall pay, or cause to be paid, the purchase price of such
Unsurrendered Bonds to the Holders thereof and cancel such Unsurrendered Bonds.
(i) Anything in this Indenture to the contrary notwithstanding, no
Optional Tender of Bonds shall be permitted for Pledged Bonds or for any Bond
which is deemed Fully Paid.
SECTION 4.05. Mandatory Tender
----------------
(a) The Holder of each Bond other than a Pledged Bond or a Bond that has
been deemed Fully Paid shall be required to tender such Bond to the Trustee or
Tender Agent for purchase on the following dates; provided each such Holder may
elect to retain the Bond or Bonds thereof by written notice meeting the
requirements of subsection 4.05(c) delivered to the Principal Office of the
Trustee not less than five days prior to the Mandatory Tender Date:
(1) each proposed Conversion Date,
(2) the date immediately following the expiration of a Fixed Rate
Period,
(3) the first day of the calendar month in which the Stated
Expiration Date of the Letter of Credit occurs, unless a Substitute Letter
of Credit and Related Documentation (as defined in Section 4.11 hereof) all
meeting the requirements of this Indenture therefor is delivered to the
Trustee in accordance with the terms of Section 4.11 of this Indenture,
(4) a Credit Obligor Insolvency Date,
(5) that date which is 15 days prior to the effective date of any
change in the frequency with which or the formula by which the interest
rate on the Bonds is established during, a Variable Rate Period, and
(6) that date which is 15 days prior to the effective date of any
change in the optional tender terms of the Bonds during a Variable Rate
Period.
If any of such dates is not a Business Day, the Mandatory Tender Date shall be
deemed to be the next succeeding Business Day.
(b) Not less than 15 days prior to the Mandatory Tender Date, notice of a
Mandatory Tender shall be given by the Trustee in writing to the Tender Agent,
the Remarketing Agent, the Users, and the Credit Obligor and in writing by
registered or certified mail to the Bondholder or Bondholders at the address
thereof appearing on the Bond Register. Such notice of Mandatory Tender shall
31
(1) specify the Mandatory Tender Date,
(2) state the reason for the Mandatory Tender (being the applicable
event listed in subsection (a) of this Section),
(3) state that all Bonds shall be tendered by the Holders thereof on
such Mandatory Tender Date by appropriate transfer on the records of the
Securities Depository or by delivery to the Trustee at the Principal Office
of the Trustee or to the Tender Agent at the Principal Office of the Tender
Agent at or before 10:00 a.m. (Birmingham, Alabama time) together with an
instrument of assignment or transfer duly executed in blank (which
instrument of assignment or transfer shall be in the form provided in the
Bonds or such other form as shall be acceptable to the Trustee or Tender
Agent),
(4) state that all Bonds shall be purchased on the Mandatory Tender
Date at a purchase price equal to 100% of the principal amount thereof plus
accrued interest, if any, to the Mandatory Tender Date, and any Bond that
is not so transferred on the records of the Securities Depository or so
delivered to the Trustee or Tender Agent shall be deemed to have been
tendered for purchase by the Holder thereof on the Mandatory Tender Date,
(5) state that any Holder may elect to retain the Bond or Bonds
thereof by written notice meeting the requirements of subsection 4.05(c) (a
description of which requirements shall be included in such notice)
delivered to the Principal office of the Trustee not less than five days
prior to the Mandatory Tender Date.
(c) (1) The Holder of any Bond subject to a Mandatory Tender may elect to
retain the Bond or Bonds thereof by written notice delivered to the Principal
Office of the Trustee not less than five days prior to the Mandatory Tender
Date, which notice shall be effective upon receipt and shall:
(i) state that the person delivering the same is a Holder and
the principal amount of the Bonds such Holder is electing to retain,
(ii) state that the Holder has received notice of the Mandatory
Tender and the reason therefor,
(iii) direct the Trustee not to purchase the specified principal
amount of the Bonds of the Holder.
(2) Any notice delivered to the Trustee by an Holder pursuant to
this subsection 4.05(c) shall be irrevocable and binding upon the Holder
delivering the same and upon all subsequent Holders of the Bonds so retained
(including any Bonds issued in exchange therefor or upon transfer thereof).
32
(3) Any Bond which the Holder thereof elects to retain under this
subsection 4.05(c) shall not be an "Unsurrendered Bond" for purposes of this
Indenture.
(d) All Bonds to be tendered by the Holders thereof for purchase shall be
delivered at or before 10:00 a.m. (Birmingham, Alabama time) on the Mandatory
Tender Date, to the Trustee at the Principal Office of the Trustee or to the
Tender Agent at the Principal Office of the Tender Agent, together with an
instrument of assignment or transfer duly executed in blank (which instrument of
assignment or transfer shall be in the form provided in the Bonds or such other
form as shall be acceptable to the Trustee or Tender Agent). During a period in
which the Book-Entry System is in effect for the Bonds, transfers of the
beneficial ownership interests in the Bonds on such date shall be effected on
the records of the Securities Depository by the Securities Depository in
accordance with rules and procedures therefor and any requirement for physical
delivery of Bonds on a Mandatory Tender Date shall be deemed satisfied thereby.
All Unsurrendered Bonds shall nevertheless be deemed to have been tendered for
purchase by the Holders thereof on the Mandatory Tender Date.
(e) On the Mandatory Tender Date, the Trustee shall purchase, or cause to
be purchased, all Bonds tendered or deemed tendered for purchase on such date at
a purchase price equal to 100% of the principal amount thereof plus accrued
interest, if any, to the Mandatory Tender Date. Funds for payment of the
purchase price of such Bonds shall be drawn by the Trustee from the Bond
Purchase Fund as provided in Section 8.02.
(f) If there has been irrevocably deposited in the Bond Purchase Fund an
amount sufficient to pay the purchase price of all Bonds tendered or deemed
tendered for purchase on the Mandatory Tender Date, any Unsurrendered Bonds
shall be deemed to be tendered for purchase and purchased from the Holder
thereof on such Mandatory Tender Date and the Holder of any Unsurrendered Bond
shall not be entitled to receive interest on such Unsurrendered Bond for any
period on and after the relevant Mandatory Tender Date. The Trustee shall issue
a new Bond or Bonds in the same aggregate principal amount for any Unsurrendered
Bonds which are not tendered for purchase on any Mandatory Tender Date and, upon
receipt by the Trustee or Tender Agent of any such Unsurrendered Bonds from the
Holders thereof, shall pay, or ,cause to be paid, the purchase price of such
Unsurrendered Bonds to the Holders thereof and cancel such Unsurrendered Bonds.
(g) After notice of a Mandatory Tender has been given by the Trustee, the
Bonds shall be subject to Mandatory Tender (except with respect to Bonds which
the Holders thereof have elected to retain as provided in subsection 4.05(c))
notwithstanding the fact that the reasons for giving such notice cease to exist
or are not longer applicable.
33
SECTION 4.06. Procedures for Purchase and Remarketing of Bonds; Delivery of
-------------------------------------------------------------
Purchased and Remarketed Bonds
------------------------------
(a) Anything in this Indenture to the contrary notwithstanding, for
purposes of this Section 4.06 during a period in which the Book-Entry System is
in effect for the Bonds:
(1) the term "Bond" and "Bonds" when used in this Section 4.06 shall
mean and include the interests of the Beneficial Owners therein all or a
portion of which are tendered or deemed tendered for purchase pursuant to
this Indenture, and
(2) the term "Holder" and "Holders" when used in this Section 4.06
shall mean and include any Beneficial Owner or Beneficial Owners who shall
have tendered the interests (or a portion) thereof in the Bonds for
purchase pursuant to this Indenture, and
(3) delivery, transfer, and registration of ownership and pledge of
the beneficial ownership interests in the Bonds shall be effected on the
records of the Securities Depository by the Securities Depository in
accordance with rules and procedures therefor and any requirement for
physical delivery of Bonds in connection with such tender shall be deemed
satisfied thereby.
(b) The Remarketing Agent will use its best efforts to remarket all Bonds
tendered or deemed to be tendered for purchase pursuant to the Optional Tender
or Mandatory Tender provisions hereof, subject to the provisions of subsection
(h) of this Section. The Users may at any time, upon written direction to the
Remarketing Agent, direct the Remarketing Agent to cease or resume the
remarketing of some or all of the Bonds.
(c) At or prior to 10:00 a.m. (Birmingham, Alabama time) on any Tender
Date (or at such other time to which the Trustee shall agree), the Remarketing
Agent shall give telegraphic or telephonic notice, promptly confirmed in
writing, to the Trustee specifying or confirming the names, addresses, and
taxpayer identification numbers of the purchasers of, and the principal amount
and denominations of, such Bonds, if any, remarketed by it pursuant to this
Section. The Remarketing Agent shall make appropriate settlement arrangements
between the purchasers of such remarketed Bonds and the Trustee, and shall
direct such purchasers by appropriate instructions to pay the purchase price of
such Bonds to the Trustee at or before 12:00 noon (Birmingham, Alabama time) on
the Tender Date. The Trustee shall deposit the proceeds of any such remarketing
in the Bond Purchase Fund.
(d) At or before 1:00 p.m. (Birmingham, Alabama time) on each Tender Date
the Trustee shall pay the purchase price to each Holder of a Bond (or portion
thereof) tendered for purchase. The Trustee shall pay the purchase price of each
Bond tendered by check or draft mailed by the Trustee to the Holder of such Bond
at his address appearing in the Bond Register or, upon the written request of
such Holder accompanied by adequate instructions, by wire transfer to an account
of such Holder maintained at a bank in the continental United States or by any
other method providing for payment
34
in same-day funds that is acceptable to the Trustee. The Trustee shall pay such
purchase price from money on deposit in the Bond Purchase Fund in strict
compliance with the provisions thereof; provided, that the Trustee shall not pay
the purchase price of any Unsurrendered Bond, unless and until the Holder of
such Unsurrendered Bond presents such Unsurrendered Bond to the Trustee or
Tender Agent. All Bonds so purchased by the Trustee shall be delivered by the
Trustee or Tender Agent in accordance with this Section, provided, however, that
during any period which the Bonds are in Book-Entry System the terms and
provisions of Section 5.02 hereof shall apply.
(e) The Trustee and the Tender Agent shall hold all Bonds delivered to
them pursuant to the Optional Tender or Mandatory Tender provisions hereof in
trust solely for the benefit of the respective Holders who shall have so
delivered such Bonds until money representing the purchase price of such Bonds
shall have been delivered to or for the account of such Holder.
(f) Pledged Bonds shall be held subject to the following terms and
conditions:
(1) If, on the Tender Date, the Trustee receives written notice (a
"Reimbursement Notice") from the Credit Obligor stating that it has been
reimbursed for the drawing made under the Letter of Credit to pay the
purchase price of such Pledged Bonds and that the Letter of Credit has been
reinstated to the extent of the amount so drawn to pay the purchase price
of such Pledged Bonds (except as limited by the provisions of the Letter of
Credit relating to the "Maximum Interest Coverage"), then such Bonds shall
no longer be considered "Pledged Bonds" and the Trustee shall register such
Bonds as follows: (i) if such Bonds have been remarketed by the Remarketing
Agent, as directed by the Remarketing Agent, or (ii) if such Bonds have not
been remarketed, in the name of the Users. Bonds registered as directed by
the Remarketing Agent shall be delivered by the Trustee or Tender Agent to,
or upon the direction of, the Remarketing Agent. Bonds registered in the
name of the Users shall be held by the Trustee or Tender Agent for the
account of the Users or, upon written request of the Users, shall be
delivered to the Users.
(2) If the Trustee does not receive a Reimbursement Notice by the
close of business on the Tender Date, then the Trustee shall register such
Pledged Bonds in the name of the Credit Obligor, as pledgee. Any Pledged
Bonds held by the Tender Agent shall be transmitted to the Trustee. Such
Pledged Bonds shall be held by the Trustee on behalf of the Credit Obligor,
as pledgee, until the Trustee receives a Reimbursement Notice with respect
to such Bonds or, upon written request of the Credit Obligor, shall be
delivered to the Credit Obligor. Upon receipt by the Trustee of a
Reimbursement Notice with respect to any Pledged Bonds, such Bonds shall no
longer be considered "Pledged Bonds" and shall, subject to the provisions
of subsection (h) of this Section, be disposed of as provided in paragraph
(1) of this subsection (f). The Trustee shall give prompt notice to the
Tender Agent of the receipt of any Reimbursement Notice.
(g) Bonds purchased by the Trustee with money from any source other than
money drawn under the Letter of Credit shall be registered as follows: (i) if
such Bonds have been remarketed by
35
the Remarketing Agent, as directed by the Remarketing Agent, or (ii) if such
Bonds have not been remarketed, in the name of the Users. Bonds registered as
directed by the Remarketing Agent shall be delivered by the Trustee or Tender
Agent to, or upon the direction of, the Remarketing Agent. Bonds registered in
the name of the Users shall be held by the Trustee or Tender Agent for the
account of the Users or, upon written request of the Users, shall be delivered
to the Users.
(h) Any provision of this Indenture to the contrary notwithstanding, if
the Bonds are purchased pursuant to the Optional Tender or Mandatory Tender
provisions of this Indenture and the Letter of Credit has expired or terminated
(or will expire or terminate within 30 days), the Bonds may not be sold or
remarketed unless (i) the Trustee receives an Opinion of Bond Counsel with
respect to the Bonds which states in effect that the expiration or termination
of the Letter of Credit, whether solely or in conjunction with any other fact or
circumstance, will not cause interest on the Bonds to become Taxable and (ii)
the Trustee and Issuer receive an Opinion of Counsel stating in effect that the
remarketing of the Bonds under such circumstances will not be in violation of
any federal or state laws regarding registration of, or other filing in
connection with the issuance or sale of, securities.
(i) Any Bond remarketed by the Remarketing Agent that has been called for
prior redemption shall be delivered with a copy of the redemption notice, and
any Bond as to which notice of Mandatory Tender has been given shall be
delivered with a copy of the notice of Mandatory Tender and any Bond remarketed
by the Remarketing Agent that is subject to prepayment by acceleration under
Article XII hereof shall be delivered with a notice thereof, and in connection
with each such delivery the Remarketing Agent shall obtain an acknowledgment in
writing that each purchaser of such Bonds understands the contents of such
notice.
(j) Bonds purchased pursuant to the Optional Tender or Mandatory Tender
provisions of this Indenture shall not, by virtue of such purchase, be deemed
paid or canceled, but shall remain Outstanding until Fully Paid.
SECTION 4.07. Form of Bonds
The Bonds and the Trustee's certificate of authentication shall be
substantially in the form below with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture:
36
The principal of and interest on the Bonds are payable from payments to be made
under the irrevocable, direct-pay letter of credit issued by SouthTrust Bank,
National Association, referenced herein, which constitutes a binding and
enforceable obligation thereof, or under any irrevocable, direct-pay letter of
credit issued in substitution therefor in accordance with the Indenture
referenced herein. The Bonds are not deposits or obligations of SouthTrust Bank,
National Association, or any affiliate thereof, or of any issuer of any
substitute letter of credit. The Bonds and the said letters of credit are not
insured by the Federal Deposit Insurance Corporation. The Bonds are subject to
investment risks, including loss of principal amount invested.
UNITED STATES OF AMERICA
STATE OF GEORGIA
DEVELOPMENT AUTHORITY OF GWINNETT COUNTY
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(COLOR IMAGE, INC. PROJECT) SERIES 1999
No. R-
--
Dated Date: June __, 1999 Maturity Date: June 1,202O CUSIP:
----------
THE DEVELOPMENT AUTHORITY OF GWINNETT COUNTY, a public body corporate and
politic created and existing under the laws of the State of Georgia (the
"Issuer", which term includes any successor corporation under the Indenture
hereinafter referenced), for value received, hereby promises to pay solely from
the source hereinafter described to
CEDE & CO.
or registered assigns, the principal amount of FOUR MILLION ONE HUNDRED THOUSAND
MILLION DOLLARS
($4,100,000)
on the Maturity Date specified above and to pay solely from the source
hereinafter described interest on said principal amount from the date hereof or
the most recent date to which interest has been paid or duly provided for, until
the principal amount hereof shall become due and payable, at the Variable Rate
or the Fixed Rate, as hereinafter provided.
Authority for Issuance
----------------------
This bond is one of a duly authorized issue of bonds of the Issuer,
aggregating $4,100,000 in principal amount and of the above designation (the
"Bonds"), issued pursuant to and for the
37
purposes expressed in the provisions of an act of the General Assembly of the
State of Georgia (O.C.G.A. Section 36-62-1, et seq.), as amended (the "Act")
-- ---
under and pursuant to a Trust Indenture dated June 1, 1999 (the "Indenture")
between the Issuer and SouthTrust Bank, National Association, a national banking
association with its Principal Office in Birmingham, Alabama (the "Trustee",
which term includes any successor trustee under the Indenture) to finance a
"project" within the meaning of the Act (the "Project") for Color Image, Inc.
and King Brothers, LLC (collectively, the "Users"), pursuant to a Loan Agreement
dated June 1, 1999 (the "Loan Agreement").
Capitalized terms used herein without definition shall have the meanings
assigned in the Indenture.
Security
--------
The Bonds are limited obligations of the Issuer secured by the Trust
Estate. The covenants and agreements contained herein and in the Bonds do not
and shall never constitute or give rise to a personal or pecuniary liability or
charge against the general credit of the Issuer or Gwinnett County, Georgia, and
in the event of a breach of any such covenant or agreement, no personal or
pecuniary liability or charge payable directly or indirectly from the general
assets or revenues of the Issuer or Gwinnett County, Georgia (other than the
Trust Estate), shall arise therefrom.
The Bonds shall never constitute an indebtedness, pecuniary liability, or
charge against the general credit or taxing powers of the State of Georgia or
any political subdivision thereof, including without limitation Gwinnett
County, Georgia, within the meaning of any constitutional provision or statutory
limitation whatsoever.
Pursuant to the Loan Agreement, the Users have agreed to pay amounts
sufficient to pay Debt Service when due on the Bonds and to pay the purchase
price of Bonds tendered for purchase pursuant to the Mandatory Tender and
Optional Tender provisions of the Indenture. Pursuant to the Indenture the
Issuer has assigned the Loan Agreement and Trust Estate to the Trustee to secure
payment of the Bonds.
As additional security for the payment of the Bonds, the Users will cause
SouthTrust Bank, National Association (in its capacity as issuer of the initial
Letter of Credit referred to below, the "Credit Obligor") to issue an
irrevocable letter of credit in favor of the Trustee in the amount of (i) the
aggregate principal amount of the Bonds, to enable the Trustee to pay the
principal amount of Bonds when due and to pay the principal portion of the
purchase price of Bonds tendered (or deemed tendered) to the Trustee for
purchase, plus (ii) interest on the Bonds at the Maximum Rate for a period of 56
days, to enable the Trustee to pay interest on the Bonds when due and to pay the
interest portion of the purchase price of Bonds tendered (or deemed tendered) to
the Trustee for purchase. The said letter of credit will expire, unless earlier
terminated or extended, on June 15, 2002. Subject to the terms and conditions of
the Indenture, the Users may, at their option, replace such letter of credit and
any subsequent letter of credit with a substitute letter of credit meeting the
requirements of the Indenture with respect thereto. The initial letter of credit
so delivered to the Trustee and any
38
substitute letter of credit delivered to the Trustee pursuant to the Indenture
are herein referred to as the "Letter of Credit". The initial Letter of Credit
is issued pursuant to various credit and security agreements among the Credit
Obligor, the Issuer, the Users, and persons related to the Users, which evidence
or provide security for the obligations to the Users to reimburse the Credit
Obligor for draws under the Letter of Credit and the observance and performance
of various agreements related thereto (collectively the "Credit Documents").
Copies of the Indenture, the Loan Agreement, the initial Letter of Credit
and the Credit Documents are on file at the Principal Office of the Trustee and
reference is hereby made to such documents for the provisions, among others,
with respect to the respective rights, duties, obligations and security of the
Issuer, the Users, the Trustee, the Credit Obligor and the owners of beneficial
interests in the Bonds and the terms and conditions upon which the purchase,
transfer and exchange of beneficial ownership interests in the Bonds are to be
made by means of a Book-Entry System administered by the Securities Depository,
to and by all of which terms, conditions and provisions of said documents the
owner of any beneficial interest in this bond, by the acquisition hereof, hereby
assents and agrees to be bound.
Payment of Interest
-------------------
Interest at the Variable Rate and interest at the Fixed Rate for a Fixed
Rate Period of less than 6 months shall be computed on the basis of a 360 day
year for the actual number of days elapsed. Interest at the Fixed Rate for each
Fixed Rate Period of 6 months or more shall be computed on the basis of a
360-day year with 12 months of 30 days each. Interest shall be payable, solely
from the source hereinafter described, on overdue principal of this bond and (to
the extent legally enforceable) on any overdue installment of interest on this
bond at the rate of interest last applicable to this bond when such overdue
principal or interest became delinquent.
Interest on this bond shall be payable in arrears on the following dates
(each such date being herein called an "Interest Payment Date"): (1) with
respect to interest payable at the Variable Rate, on (i) the first day of each
month in each year during the Variable Rate Period provided, however, that the
first such date shall be August 1, 1999 and (ii) on the day immediately
following any Variable Rate Period (each such date being herein called a
"Variable Rate Interest Payment Date"); (2) with respect to interest payable at
a Fixed Rate for any Fixed Rate Period of less than 6 months, on the day
immediately following such Fixed Rate Period (each such date being herein called
a "Fixed Rate Interest Payment Date"); and (3) with respect to interest payable
at a Fixed Rate for any Fixed Rate Period of 6 months or more, (i) on the first
day of the calendar month that is 6 months after the first day of the calendar
month in which such Fixed Rate Period began, (ii) semiannually thereafter, and
(iii) on the day immediately following such Fixed Rate Period (each such date
being herein called a "Fixed Rate Interest Payment Date").
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture hereinafter referenced,
be paid to the person in whose name this bond is registered at the close of
business on the Regular Record Date for such interest, which
39
shall be the day next preceding any Variable Rate Interest Payment Date or any
Fixed Rate Interest Payment Date with respect to a Fixed Rate Period of less
than 6 months, or the 15th day (whether or not a Business Day) next preceding
any Fixed Rate Interest Payment Date with respect to a Fixed Rate Period of 6
months or more. Any such interest not so punctually paid or duly provided for
shall forthwith cease to be payable to the registered Holder on such Regular
Record Date, and shall be paid to the person in whose name this bond is
registered at the close of business on a Special Record Date for the payment of
such defaulted interest to be fixed by the Trustee; notice of such Special
Record Date to be given to Holders of the Bonds not less than 10 days prior to
such Special Record Date.
Payment of interest on this bond due on any Interest Payment Date shall be
made by check or draft mailed by the Trustee to the person entitled thereto at
his address appearing in the Bond Register maintained by the Trustee. Such
payments shall be deemed timely made if so mailed on the Interest Payment Date
(or, if such Interest Payment Date is not a Business Day, on the Business Day
next following such Interest Payment Date). Payment of the principal of (and
premium, if any, on) this bond and payment of accrued interest on this bond due
upon redemption on any date other than an Interest Payment Date shall be made
only upon surrender of this bond at the Principal Office of the Trustee. Upon
the terms and conditions of the Indenture the Holder of any Bond in a principal
amount of not less than $100,000 may request that payment of Debt Service on
such Bond be made by wire transfer to an account of such Holder maintained at a
bank in the continental United States or by any other method providing for
payment in same-day funds that is acceptable to the Trustee. All payments of
principal of, premium, if any, and interest on this bond shall be made in such
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts.
Variable Rate
-------------
The Bonds shall initially bear interest at a Variable Rate. Upon the
expiration of any Fixed Rate Period, the Bonds shall again bear interest at the
Variable Rate, unless the day immediately following such Fixed Rate Period is
the effective date of a continuation or conversion of the interest rate to a
Fixed Rate (such date being herein called a "Conversion Date"). Once the
Variable Rate becomes effective, it shall remain in effect until and including
the day immediately prior to the earlier of (i) a Conversion Date or (ii) the
final maturity of the Bonds. Each period during which the Variable Rate is in
effect is herein called a "Variable Rate Period".
The Variable Rate shall be a fluctuating rate per annum determined by the
Remarketing Agent periodically during a Variable Rate Period as follows. The
Variable Rate shall be determined on the first day of each Variable Rate Period
(beginning upon initial issuance of the Bonds and following a Fixed Rate Period)
and on each Thursday during a Variable Rate Period (or, if such Thursday is not
a Business Day, on the immediately preceding Business Day). The Variable Rate so
determined shall become effective (i) on the date of determination, if such date
is the first day of the Variable Rate Period, or (ii) if such date is not the
first day of a Variable Rate Period, on the day immediately following the date
of determination, and once effective shall remain in effect until and
40
including the next determination date or, if sooner, the end of such Variable
Rate Period; provided, however, that if the Remarketing Agent fails to determine
the Variable Rate on any such determination date, the last Variable Rate in
effect shall remain in effect until and including the next determination date,
and provided further, if the Remarketing Agent fails to determine the Variable
Rate on two consecutive determination dates therefor, the Variable Rate shall be
equal to the Maximum Rate until such determination date as the Remarketing Agent
shall determine the Variable Rate in accordance with the terms hereof.
The Variable Rate shall be determined by the Remarketing Agent and shall be
the lowest interest rate that would, in the opinion of the Remarketing Agent,
result in the market value of the Bonds being 100% of the principal amount
thereof on the date of such determination, taking into account relevant market
conditions and credit rating factors as they exist on such date; provided,
however, that the Variable Rate may never exceed the Maximum Rate. The Maximum
Rate is the lesser of (i) the rate of 12% per annum or (ii) for any period
during which the Bonds are supported by a Letter of Credit, the maximum rate per
annum, specified therein, upon which there has been calculated the amount
available to be drawn on such Letter of Credit to pay interest on the Bonds.
Upon the request of any Bondholder, the Trustee shall confirm (by telephone and
in writing, if so requested) the Variable Rate then in effect. SouthTrust
Securities, Inc., Birmingham, Alabama, has been appointed as "Remarketing Agent"
pursuant to the Indenture. The Indenture permits the Users; with the consent of
the Credit Obligor, to remove such Remarketing Agent and appoint a successor,
subject to certain terms and conditions specified in the Indenture.
Fixed Rate
----------
The Bonds shall bear interest at a Fixed Rate during each period of time
specified by the Users as provided below. Each period during which a Fixed Rate
is in effect is herein called a "Fixed Rate Period". The Fixed Rate shall be a
fixed rate per annum which shall be applicable during the entire Fixed Rate
Period and for each Fixed Rate Period shall be determined by the Remarketing
Agent as provided below.
The Users may elect that the Bonds bear interest at a Fixed Rate for any
period after the initial Variable Rate Period by delivery of written notice of
such election to the Trustee not less than 20 days prior to the proposed
Conversion Date. Such notice shall specify the first day and the last day of the
Fixed Rate Period elected; provided, however, that (i) if such election is made
during a Fixed Rate Period, the specified Conversion Date may not be sooner
than the first day immediately following the Fixed Rate Period then in effect,
(ii) the Conversion Date may not be less than 45 days prior to the Stated
Expiration Date of the Letter of Credit (if any) then in effect, (iii) the
designated Fixed Rate Period may not be less than 15 days, and (iv) the Fixed
Rate Period may not extend beyond the day immediately prior to the final
maturity of the Bonds. Any such election by the Users shall be irrevocable after
10:00 a.m. (Birmingham, Alabama time) on the last Business Day immediately prior
to the proposed Conversion Date.
41
Not less than 1 nor more than 10 days prior to the proposed Conversion
Date, the Remarketing Agent shall determine the interest rate for such Fixed
Rate Period (the "Fixed Rate"), which shall be the lowest interest rate that
would, in the opinion of the Remarketing Agent, result in the market value of
the Bonds being 100% of the principal amount thereof on the date of such
determination, taking into account relevant market conditions and credit rating
factors as they exist on such date, and assuming that the Fixed Rate Period
began on such date; provided, however, that the Fixed Rate may not exceed the
Maximum Rate.
Notwithstanding the foregoing, a Fixed Rate shall not be established if(i)
the Users deliver to the Trustee written notice of revocation of its election to
establish the Fixed Rate before 10:00 a.m. (Birmingham, Alabama time) on the
last Business Day immediately prior to the proposed Conversion Date or (ii)
prior to 10:00 a.m. (Birmingham, Alabama time) on the Conversion Date the
Trustee does not receive an Opinion of Bond Counsel stating in effect that such
conversion to a Fixed Rate is lawful under applicable law and, whether solely or
in conjunction with any other fact or circumstance, will not cause interest on
the Bonds to be Taxable and the Substitute Letter of Credit (if any) that was to
be effective on such Conversion Date. If all conditions to the establishment of
a Fixed Rate are not satisfied, the Bonds shall continue (or, if a Fixed Rate
Period ended on the preceding day, shall begin) to bear interest at the Variable
Rate from the proposed Conversion Date.
This Bond may bear interest at either a fixed rate or a variable rate, and
if at a fixed rate, for varying periods of time, with such consequences as are
specified in the Indenture, without any notation being made hereon. Each owner
of this Bond takes it subject to the terms then applicable hereto, and may
obtain from the Trustee verification of the then applicable provisions hereof.
Optional Tender
---------------
The Holder of any Bond shall have the right to tender such Bond to the
Trustee or to any Tender Agent appointed pursuant to the Indenture for purchase
in whole or in part (if in part, only in an authorized denomination) on any
Business Day during any Variable Rate Period, but not during any Fixed Rate
Period, at a purchase price equal to 100% of the principal amount of Bonds (or
portions thereof) tendered plus accrued interest to the specified purchase date
(an "Optional Tender Date"). In order to exercise such option with respect to
any Bond, the Holder thereof must deliver notice thereof to the Trustee, as
provided below, at the Principal Office of the Trustee at least 7 days prior to
the proposed Optional Tender Date.
Any such notice of Optional Tender must be duly executed by the Bondholder
and must specify (i) the name of the registered Holder of the Bond to be
tendered for purchase, (ii) the Optional Tender Date, (iii) the certificate
number (if applicable) and principal amount of such Bond, and (iv) the principal
amount of such Bond to be purchased (if such amount is less than the entire
principal amount, the amount to be purchased must be in an Authorized
Denomination). Such notice may be given to the Trustee in writing or by
telephone, but no such telephonic notice shall be effective unless confirmed in
writing delivered to the Trustee not more than 2 Business Days after
42
such telephonic notice. A form of the Optional Tender Notice may be obtained
from the Trustee upon request. If any notice of Optional Tender specifies an
Optional Tender Date that is not a Business Day, then such notice shall be
deemed to specify the next following Business Day as the Optional Tender Date.
Unless a notice of Optional Tender indicates that less than the entire principal
amount of the Bond is being tendered for purchase, the Holder will be deemed to
have tendered the Bond in its entire principal amount for purchase. Upon
delivery of a written notice of Optional Tender, the election to tender shall be
irrevocable and binding upon such Holder and may not be withdrawn.
If a written notice of Optional Tender shall have been duly given with
respect to any Bond or any authorized part thereof, the Holder of such Bond
shall deliver such Bond to the Trustee at the Principal Office of the Trustee or
to the Tender Agent at the Principal Office of the Tender Agent at or before
10:00 a.m. (Birmingham, Alabama time) on the Optional Tender Date, together with
an instrument of assignment of transfer duly executed in blank. During a period
in which the Book-Entry System is in effect for the Bonds, transfers of the
beneficial ownership interests in the Bonds on such date shall be effected on
the records of the Securities Depository by the Securities Depository in
accordance with rules and procedures therefor and any requirement for physical
delivery of Bonds on an Optional Tender Date shall be deemed satisfied thereby.
Any Bond or any authorized part thereof for which a notice of Optional Tender
has been given but which is not so delivered to the Trustee or Tender Agent or
transferred on the records of the Securities Depository (an "Unsurrendered
Bond") shall nevertheless be deemed to have been tendered by the Holder thereof
on the Optional Tender Date. If there has been irrevocably deposited in the Bond
Purchase Fund an amount sufficient to pay the purchase price of all Bonds or any
authorized part thereof tendered or deemed to be tendered for purchase on an
Optional Tender Date, any Unsurrendered Bond shall be deemed to have been
tendered for purchase and purchased from the Holder thereof on such Optional
Tender Date and the Holder of any Unsurrendered bond shall not be entitled to
receive interest on such Unsurrendered Bond for any period on and after the
Optional Tender Date.
Anything in this Bond or the Indenture to the contrary notwithstanding, no
Optional Tender of Bonds shall be permitted for Pledged Bonds, or for any Bond
which is deemed Fully Paid within the meaning of the Indenture.
Mandatory Tender
----------------
The Holder of each Bond (other than a Pledged Bond or a Bond that has been
deemed Fully Paid) who has not elected to retain the Bond or Bonds thereof in
the manner provided in the Indenture therefor shall be required to tender such
Bond to the Trustee or Tender Agent for purchase on the following dates (each
such date being herein called a "Mandatory Tender Date"): (i) each proposed
conversion Date, (ii) the date immediately following the expiration of a Fixed
Rate Period, (iii) the first day of the calendar month in which the Stated
Expiration Date of the Letter of Credit occurs, unless a Substitute Letter of
Credit and Related Documentation all meeting the requirements of the Indenture
therefor is delivered to the Trustee in accordance with the terms of Section
4.11 of the Indenture, (iv) a Credit Obligor Insolvency Date, (v) that date
which is 15 days prior to the
43
effective date of any change in the frequency with which or the formula by which
the interest rate on the Bonds is established during a Variable Rate Period, and
(vi) that date which is 15 days prior to the effective date of any change in the
optional tender terms of the Bonds during a Variable Rate Period. If any of such
dates is not a Business Day, the Mandatory Tender Date shall be deemed to be the
next succeeding Business Day.
Notice of a Mandatory Tender shall be given by the Trustee by registered or
certified mail to the Bondholder or Bondholders at the address thereof appearing
on the Bond Register not less than 15 days prior to the Mandatory Tender Date.
Such notice of Mandatory Tender shall, among other things, specify the Mandatory
Tender Date and the procedure by which a Holder may elect to retain the Bond or
Bonds thereof.
The Holder of any Bond subject to a Mandatory Tender may elect to retain
the Bond or Bonds thereof by written notice delivered to the Principal Office of
the Trustee not less than five days prior to the Mandatory Tender Date, which
notice shall be effective upon receipt, shall meet the requirements of the
Indenture therefor, and shall be irrevocable and binding upon the Holder
delivering the same and upon all subsequent Holders of the Bonds so retained
(including any Bonds issued in exchange therefor or upon transfer thereof).
All Bonds to be tendered by the Holders thereof for purchase shall be
delivered at or before 10:00 a.m. (Birmingham, Alabama time) on the Mandatory
Tender Date to the Trustee at the Principal Office of the Trustee or to the
Tender Agent at the Principal Office of the Tender Agent, together with an
instrument of assignment or transfer duly executed in blank. During a period in
which the Book-Entry System is in effect for the Bonds, transfers of the
beneficial ownership interests in the Bonds on such date shall be effected on
the records of the Securities Depository by the Securities Depository in
accordance with rules and procedures therefor and any requirement for physical
delivery of Bonds on a Mandatory Tender Date shall be deemed satisfied thereby.
All Bonds so to be purchased that are not so delivered to the Trustee or Tender
Agent on the Mandatory Tender Date or so transferred on the records of the
Securities Depository ("Unsurrendered Bonds") shall nevertheless be deemed to
have been tendered for purchase by the Holders thereof on the Mandatory Tender
Date. If there has been irrevocably deposited in the Bond Purchase Fund an
amount sufficient to pay the purchase price of all Bonds tendered or deemed
tendered for purchase on the Mandatory Tender Date, any Unsurrendered Bond shall
be deemed to be tendered for purchase and purchased from the Holder thereof on
such Mandatory Tender Date and the Holder of any Unsurrendered Bond shall not be
entitled to receive interest on such Unsurrendered Bond for any period on and
after the relevant Mandatory Tender Date.
After notice of a Mandatory Tender has been given by the Trustee, the Bonds
shall be subject to Mandatory Tender (except with respect to Bonds which the
Holders thereof have elected to retain as provided in the Indenture)
notwithstanding the fact that the reasons for giving such notice cease to exist
or are no longer applicable.
Redemption
----------
44
In the manner and with the effect provided in the Indenture, the Bonds will
be subject to redemption prior to maturity as follows:
(1) Extraordinary Redemption. The Bonds are subject to redemption, at the
------------------------
direction of the Users as to maturities, prior to maturity on the earliest
Business Day for which the required notice maybe given, in part in the case of
redemption pursuant to (a), (b), and (c) below, at a redemption price equal to
100% of the principal amount thereof, plus accrued interest to the date of
redemption, without premium or penalty, in the event:
(a) any amounts remain in the Acquisition/Construction Fund created
under the Indenture on the date on which completion of the Project is
evidenced to the Trustee; or
(b) there shall be available to the Trustee excess Net Proceeds (as
defined in the Loan Agreement) of insurance of or condemnation awards after
repair or restoration of the Project following damage to or condemnation of
the Project or any part thereof, as provided in the Loan Agreement; or
(c) there shall be available to the Trustee title insurance proceeds,
as provided in the Loan Agreement.
In case of partial redemption pursuant to any of (a), (b), and (c) above, Bonds
in an aggregate principal amount equal to such remaining or available amounts,
rounded upwards to the nearest Authorized Denomination, shall be redeemed.
(2) Optional Redemption. The Bonds are subject to optional redemption by
-------------------
the Issuer (exercised upon direction of the Users with consent of the Credit
Obligor and if no Loan Default exists) as follows:
(A) during any Variable Rate Period, in whole or in part, in
authorized multiples of an Authorized Denomination on any Business Day at a
redemption price equal to 100% of the principal amount thereof plus accrued
interest to the date of redemption, without premium or penalty; and
(B) during any Fixed Rate Period, in whole or in part in authorized
multiples of an Authorized Denomination on any Business Day during the
applicable redemption period set forth in the table below at the applicable
redemption price (expressed as a percentage of principal amount) set forth
in the table below plus accrued interest to the date of redemption:
45
Redemption Period Redemption
----------------- Price
----------
Fixed Rate Period of 4 years or less:
Not subject to redemption N/A
Fixed Rate Period of more than 4 years but not more than 7 years:
Not subject to redemption prior
to 4th anniversary of Conversion Date N/A
4th anniversary of Conversion
Date through any day prior to
5th anniversary of Conversion Date 102%
5th anniversary of Conversion Date
through any day prior to
6th anniversary of Conversion Date 101%
6th anniversary of Conversion
Date and any day thereafter 100%
provided that there shall be no optional redemption which requires the payment
of a redemption premium unless there is then in effect a Letter of Credit which
may and shall be drawn on to pay such premium. If less than all Bonds
Outstanding are called for redemption, the Bonds or interests of the Beneficial
Owners thereon to be redeemed shall be selected as provided in the Indenture and
herein.
Unless Bonds have been preselected for mandatory redemption, as described below,
not less than 45 or more than 60 days prior to each such scheduled mandatory
redemption date Bonds, or interests of the Beneficial Owners in the Bonds, shall
be selected for redemption, in the manner provided in the indenture, in an
aggregate principal amount equal to the amount required to be redeemed and such
Bonds or interests therein (or portions thereof) shall be called for redemption
on such scheduled mandatory redemption date and notice thereof given as provided
in the Indenture; provided, however, that if Bonds have not been preselected for
mandatory redemption, as described below, the Users may, upon written direction
delivered to the Trustee not less than 60 days prior to such scheduled mandatory
redemption date, direct that any or ail of the following amounts be credited
against the principal amount of Bonds scheduled for redemption on such date: (i)
the principal amount of Bonds delivered by the Users to the Trustee for
cancellation and not previously claimed
46
as a credit; and (ii) the principal amount of Bonds previously redeemed pursuant
to the optional redemption provisions of the Bonds and not previously claimed as
a credit.
If a Determination of Taxability is made, the Bonds are subject to
mandatory redemption as a whole on any date selected by the Trustee within 90
days after such Determination of Taxability at a redemption price for each Bond
redeemed equal to 100% of the principal amount thereof plus accrued interest to
the redemption date. If, in the event of the occurrence of a Determination of
Taxability, the Issuer redeems the Bonds in compliance with the provisions of
the Indenture and the Bonds requiring such redemption as a result of the
occurrence of such Determination of Taxability, then (any provision of the
Indenture or of the Bonds to the contrary notwithstanding) the inaccuracy of any
representation or warranty contained in the Indenture, the Loan Agreement, or in
the Bonds or the failure by the Issuer or the Users to observe or perform any
covenant or agreement contained in the Indenture, the Loan Agreement, or in the
Bonds that resulted in such Determination of Taxability shall not be considered
a default or an Event of Default by the Issuer under the Indenture or a default
by the Users under the Loan Agreement and such mandatory redemption by the
Issuer shall constitute a full and complete satisfaction to the Holder of each
Bond of all claims, and for all damages, costs and expenses, arising out of or
based on any such inaccuracy or failure.
The rights of the Holders to tender the Bonds thereof for Optional Tender
shall not be affected or impaired in any respect by the preselection of any of
such Bonds for mandatory redemption.
Any redemption shall be made in the manner, upon the notice, and on the
terms and conditions provided in the Indenture. If less than all of the
Outstanding Bonds are to be redeemed during a period in which the Book-Entry
System is in effect for the Bonds, the Securities Depository shall determine the
amount of the interest of each Direct Participant in the Bonds to be redeemed,
on the basis of the smallest Authorized Denomination of the Bonds, by lot or by
such other method as the Securities Depository shall deem fair and appropriate.
The Securities Depository shall so determine the amount of the interest of each
Direct Participant in the Bonds to be redeemed in such manner so as to assure
that after such redemption no Beneficial Owner shall retain a beneficial
ownership interest in the Bonds in an aggregate amount less than an Authorized
Denomination. If less than all the Outstanding Bonds are to be redeemed during a
period in which the Bonds are not held pursuant to a Book-Entry System, the
Trustee shall select the particular Bonds to be redeemed not less than 30 nor
more than 60 days prior to the redemption date from the Outstanding Bonds
which have not previously been called for redemption, on the basis of the
smallest Authorized, Denomination of the Bonds, by lot or by such method as the
Trustee shall deem fair and appropriate. The Trustee shall so select Bonds for
redemption in such manner so as to assure that after such redemption no
Bondholder shall retain Bonds in an aggregate amount less than an Authorized
Denomination. Bonds (or portions thereof) for the redemption and payment of
which provision has been made and notice thereof given all in accordance with
the Indenture shall thereupon cease to be entitled to the benefits of the
Indenture and shall cease to bear interest from and after the date fixed for
redemption unless default be made in payment of the redemption price.
47
Default, Remedies, Rights of Holders, Amendments
------------------------------------------------
If an "Event of Default", as defined in the Indenture, shall occur, the
principal of all Bonds then Outstanding may become or be declared due and
payable in the manner and with the effect provided in the Indenture.
The Indenture contains provisions permitting the Holders of specified
percentages in principal amount of Bonds at the time Outstanding, on behalf of
the Holders of all the Bonds, to waive compliance by the Issuer or the Users
with certain provisions of the Indenture or the Loan Agreement and certain past
defaults under such documents and their consequences. Any such consent or waiver
by the Holder of this bond shall be conclusive and binding upon such Holder and
upon all future Holders of this bond and of any bond issued in exchange therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this bond. The Indenture provides that if the Letter of Credit is in effect
and the Credit Obligor has not dishonored any draws thereunder and there has not
otherwise been instituted insolvency proceedings with respect to the Credit
Obligor then (i) no amendment to the Indenture or Loan Agreement may be made
without the consent of the Credit Obligor and (ii) that any remedies available
under the Indenture (other than mandatory acceleration of the Bonds and
mandatory draws under the Letter of Credit) may be exercised only with the
consent of the Credit Obligor.
The Holder of this bond shall have no right to enforce the provisions of
the Indenture, or to institute any action to enforce the covenants therein, or
to take any action with respect to any default thereunder; or to institute,
appear in or defend any suit or other proceeding with respect thereto, except as
provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and of the Loan Agreement and the modification of the rights
and obligations of the Issuer and the Users and the rights of the Holders of the
Bonds at any time with the consent of a majority in principal amount of the
Bonds at the time Outstanding affected by such modification.
Registration, Transfer and Exchange
-----------------------------------
The Bonds are initially issued in Authorized Denominations pursuant to a
Book-Entry System to be administered by the Securities Depository and registered
in the name of and held by the Securities Depository Nominee all as more
particularly provided in the Indenture. In the event the Book-Entry System for
the Bonds is discontinued, Bonds in certificated form in Authorized
Denominations will be physically distributed to the Beneficial Owners thereof,
the Bonds will be registered in the names of the owners thereof on the
registration books of the Trustee pertaining thereto, the Trustee shall make
payments of principal of, purchase price of, premium (if any) and interest on
the Bonds to the registered owners thereof as provided in the Bonds and the
Indenture, and the provisions of this bond and of the Indenture with respect to
registration, transfer and exchange of Bonds by the registered owners thereof
shall apply.
48
As provided in the Indenture and subject to certain limitations therein set
forth, this bond is transferable on the Bond Register maintained at the
Principal Office of the Trustee, upon surrender of this bond for transfer at
such office or at the Principal Office of the Tender Agent, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Trustee or Tender Agent duly executed by, the registered Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Bonds of the
same maturity, of any Authorized Denominations and for a like aggregate
principal amount, will be issued to the designated transferee or transferees. As
provided in the Indenture and subject to certain limitations therein set forth,
the Bonds are exchangeable for other Bonds of the same maturity of any
Authorized Denominations and of a like aggregate principal amount, as requested
by the Holder surrendering the same. No service charge shall be made for any
transfer or exchange hereinbefore referenced, but the Holder hereof shall pay a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the person in whose name this bond is registered as the owner hereof for
the purpose of receiving payment as herein provided and for all other purposes,
whether or not this bond is overdue, and neither the Issuer, the Trustee nor any
agent shall be affected by notice to the contrary.
General
-------
No covenant or agreement contained in this bond or the Indenture shall be
deemed to be a covenant or agreement of any officer, agent or employee of the
Issuer, and neither any member of the Board of Directors of the Issuer nor any
officer executing this bond shall be liable personally on this bond or be
subject to any personal liability or accountability by reason of the issuance of
this bond.
It is hereby certified, recited and declared that all acts, conditions and
things required to exist, happen and be performed precedent to and in the
execution and delivery of the Indenture and issuance of this bond do exist, have
happened and have been performed in due time, form and manner as required by
law.
Unless the certificate of authentication hereon has been executed by the
Trustee or by the Tender Agent by the manual signature of a duly authorized
officer thereof, this bond shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
49
IN WITNESS WHEREOF, the Issuer has caused this bond to be executed in its
name (which may be by facsimile signature) by the Chairman of the Issuer, and
has caused its corporate seal to be hereunto imprinted, and the foregoing to be
attested by the Secretary of the Issuer (which may be by facsimile signature),
both of said officers being duly authorized thereunto.
DEVELOPMENT AUTHORITY OF GWINNETT COUNTY
By:
----------------------------------------
Name:
--------------------------------------
Title: Chairman
[SEAL]
Attest:
By:
----------------------------------------
Name:
--------------------------------------
Title: Secretary
Certificate of Authentication
-----------------------------
Date of Authentication: June __, 1999.
This is one of the Bonds referred to in the within mentioned Trust
Indenture.
SOUTHTRUST BANK, NATIONAL
ASSOCIATION, as Trustee
By:
----------------------------------------
Its: Authorized Signatory
[Note: If a Tender Agent is appointed, Bonds providing for authentication
by the Tender Agent shall be printed.]
50
FORM OF
VALIDATION CERTIFICATE
STATE OF GEORGIA
COUNTY OF GWINNETT
The undersigned Clerk of the Superior Court of Gwinnett County, State
of Georgia, keeper of the records and seal thereof, DOES HEREBY CERTIFY that
this bond was confirmed and validated by judgment of the Superior Court of
Gwinnett County, Georgia, on the ____ day of June, 1999, that no intervention or
objection was filed opposing the validation of said bond and that no appeal of
said judgment of validation has been taken.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal
of the Superior Court of Gwinnett County, Georgia.
This ____ day of June, 1999
----------------------------------------
Clerk, Superior Court of Gwinnett County
(SEAL)
51
Assignment
----------
For value received, _________ hereby sell(s), assign(s) and transfer(s)
unto ___________ this bond and hereby irrevocably constitute(s) and appoint(s)
___________ attorney to transfer this bond on the books of the within named
Issuer at the office of the within named Trustee, with full power of
substitution in the premises.
Dated:
---------------
---------------------------------------------
NOTE: The name signed to this assignment
----
must correspond with the name of the
payee written on the face of the
within bond in all respects, without
alteration, enlargement or change whatsoever.
Signature Guaranteed:*
---------------------------
(Bank or Trust Company)
By
-------------------------
(Authorized Officer)
Medallion Number:
-------------------------
*Signature(s) must be guaranteed by an eligible guarantor institution which is a
member of the recognized signature guarantee program, i.e., Securities Transfer
Agents Medallion Program (STAMP), Stock Exchanges Medallion Program (SEMP), or
New York Stock Exchange Medallion Signature Program (MSP).
Notice by Securities Depository
-------------------------------
Unless the within Bond is presented by an authorized representative of the
Securities Depository (as defined in the Indenture referenced in the within
Bond), to the Issuer or its agent for registration of transfer, exchange, or
payment, and any Bond issued is registered in the name of the Securities
Depository or the Securities Depository Nominee (as defined in the Indenture
referenced in the within Bond), as the case may be, or in such other name as is
requested by an authorized representative of the Securities Depository (and any
payment is made to the Securities Depository or the Securities Depository
Nominee or to such other entity as is requested by an authorized representative
of the Securities Depository), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, the Securities Depository or Securities Depository Nominee, as the
case may be, has an interest herein.
52
SECTION 4.08. Execution, Authentication, Delivery and Dating
----------------------------------------------
(a) The Bonds shall be executed on behalf of the Issuer by its Chairman or
Vice-Chairman of the Issuer under its corporate seal affixed or reproduced
thereon and attested by its Secretary. The signature of any or all of these
officers on the Bonds may be manual or, to the extent permitted by law, by
facsimile. In case any officer whose signature or a facsimile of whose signature
shall appear on the Bonds shall cease to be such officer before the
authentication and delivery of such Bonds, such signature or such facsimile
shall nevertheless be valid and sufficient for all purposes, the same as if such
officer had remained in office until authentication and delivery.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Bonds executed by the Issuer to the
Trustee for authentication and the Trustee or the Tender Agent shall
authenticate and deliver such Bonds as in this Indenture provided and not
otherwise.
(c) No Bond shall be secured by, or be entitled to any lien, right or
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Bond a certificate of authentication substantially in the
form provided for herein, executed by the Trustee or Tender Agent by the manual
signature of a duly authorized officer thereof, and such certificate upon any
Bond shall be conclusive evidence, and the only evidence, that such Bond has
been duly authenticated and delivered hereunder.
SECTION 4.09. Temporary Bonds
---------------
(a) Pending the preparation of definitive Bonds, the Issuer may execute,
and upon request of the Issuer the Trustee shall authenticate and deliver,
temporary Bonds which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any denomination, substantially of the tenor of the
definitive Bonds in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Bonds may determine, as evidenced by their execution of such
Bonds.
(b) If temporary Bonds are issued, the Issuer will cause definitive Bonds
to be prepared without unreasonable delay. After the preparation of definitive
Bonds, the temporary Bonds shall be exchangeable for definitive Bonds upon
surrender of the temporary Bonds at the Principal Office of the Trustee, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Bonds the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Bonds of
authorized denominations. Until so exchanged, temporary Bonds shall in all
respects be entitled to the security and benefits of this Indenture.
53
SECTION 4.10. Authentication and Delivery of Bonds to Original Purchasers
-----------------------------------------------------------
Upon the execution and delivery of this Indenture, Bonds in the aggregate
principal amount authorized in this article may be executed by the Issuer and
delivered by the Trustee for authentication, and such Bonds shall thereupon be
authenticated and delivered by the Trustee to the original purchaser or
purchasers thereof.
SECTION 4.11. Letter of Credit
----------------
(a) Simultaneously with the delivery of the Bonds to the original
purchasers thereof, the Issuer has caused the Users to deliver to the Trustee
the Letter of Credit. The Letter of Credit will terminate on the Stated
Expiration Date, subject to extension by the Credit Obligor.
(b) The Users may at any time and from time to time deliver a Substitute
Letter of Credit to the Trustee in substitution for the Existing Letter of
Credit, provided that
(1) such Substitute Letter of Credit complies with the applicable
conditions set forth in subsection (f) of this Section and
(2) simultaneously with the delivery of such Substitute Letter of
Credit the Users deliver to the Trustee any related documentation required
by subsection (g) of this Section (the "Related Documentation").
(c) The Users may, but shall not be required to, deliver a Substitute
Letter of Credit to the Trustee prior to the expiration of the Letter of Credit
then in effect; provided, however, that if a Substitute Letter of Credit and the
Related Documentation are not delivered to the Trustee at least 45 days prior to
the Stated Expiration Date of the then Existing Letter of Credit, the Bonds
shall be subject to a Mandatory Tender.
(d) The Users shall deliver to the Trustee and the Issuer not less than 45
days prior to the effective date of a Substitute Letter of Credit written notice
of its intention to deliver a Substitute Letter of Credit and the proposed
issuer and effective date thereof (unless a shorter period shall be satisfactory
to the Trustee).
(e) The Trustee shall deliver to the Holders not less than 30 days prior
to the effective date of a Substitute Letter of Credit written notice of the
intent of the Users to deliver such Substitute Letter of Credit and the proposed
issuer and effective date thereof.
(f) Each Substitute Letter of Credit delivered to the Trustee pursuant to
this Section must meet the following criteria:
(1) such Substitute Letter of Credit must be substantially in the
same form and of the same tenor as the Letter of Credit, and such
Substitute Letter of Credit must provide
54
for the payment of interest on the Bonds (or the interest portion of the
purchase price of Bonds tendered, or deemed tendered, for purchase) at the
Maximum Rate computed on the interest rate basis then applicable as
provided in Section 4.01(g), for not less than 56 days,
(2) if such Substitute Letter of Credit is being delivered in
connection with a conversion of the interest rate on the Bonds to a Fixed
Rate, the effective date shall be not later than the Conversion Date,
(3) if such Substitute Letter of Credit will be effective during a
Fixed Rate Period when the Bonds are subject to optional redemption, such
Substitute Letter of Credit must provide for payment of the maximum
redemption premium payable with respect to the Bonds, and
(4) such Substitute Letter of Credit must have a Stated Expiration
Date that is (i) the same as the expiration date of the then Existing
Letter of Credit being replaced and (ii) not sooner than one year after its
effective date; provided, however, that any Substitute Letter of Credit
that is to be substituted for an Existing Letter of Credit that is
effective during a Fixed Rate Period must have a Stated Expiration Date not
sooner than the Stated Expiration Date of such Existing Letter of Credit.
(g) Each Substitute Letter of Credit delivered to the Trustee must be
accompanied by the following, to the extent applicable:
(1) if any Rating Agency maintains a rating with respect to the Bonds
at the time of delivery of such Substitute Letter of Credit to the Trustee,
written evidence from each such Rating Agency to the effect that the
substitution of the proposed Substitute Letter of Credit will not, by
itself, result in a reduction or withdrawal of its rating then assigned to
the Bonds,
(2) an Opinion of Bond Counsel with respect to the Bonds which states
in effect that the delivery of such Substitute Letter of Credit, whether
solely or in conjunction with any other fact or circumstance, will not
cause interest on the Bonds to become Taxable, and
(3) an Opinion of Counsel for the issuer of such Substitute Letter of
Credit stating in effect that such Substitute Letter of Credit (1) is a
valid and binding obligation of the issuer thereof and (2) is exempt from
registration under the Securities Act of 1933, as amended.
(h) At the close of business on the effective date of any Substitute
Letter of Credit, the Trustee shall return the Existing Letter of Credit to the
issuer thereof, provided that any draws on such Existing Letter of Credit made
on or prior to such date have been honored. Any draws that, under the terms of
the Indenture, are to be made on the Letter of Credit on or prior to the
effective date of a Substitute Letter of Credit shall be made under the Existing
Letter of Credit. Not later than
55
the close of business on the effective date of a Substitute Letter of Credit,
the Users shall deliver to the Trustee written evidence that all obligations of
the Users to the issuer of the Existing Letter of Credit for reimbursement of
amounts drawn thereunder have been satisfied, and upon receipt of such evidence
any Pledged Bonds held by the Trustee or the Tender Agent for the benefit of the
issuer of the Existing Letter of Credit shall be delivered to, or upon the order
of, the Users.
(i) If the Trustee accepts a Substitute Letter of Credit as herein
provided, then, unless such Substitute Letter of Credit was described in a
notice of Mandatory Tender, the Trustee shall send written notice of such
substitution to the Bondholders.
(j) If Bonds are redeemed prior to maturity, the Trustee shall take any
action necessary to reduce the interest portion of the Letter of Credit to the
Maximum Interest Coverage, as therein defined.
SECTION 4.12. Additional Credit Enhancement
-----------------------------
(a) At the cost and expense of the Users, the Users may deliver to the
Trustee, and the Trustee shall accept, security for the payment of the Bonds in
addition to the Letter of Credit then in effect, in the form of a confirmation
of such Letter of Credit, an additional standby letter of credit, insurance,
surety bonds, or otherwise ("Additional Credit Enhancement").
(b) The Users shall deliver to the Trustee not less than 45 days prior to
the effective date of such Additional Credit Enhancement written notice of their
intention to obtain the Additional Credit Enhancement.
(c) The Trustee shall deliver to the Holders, via first class mail, not
less than 30 days prior to the effective date of the Additional Credit
Enhancement written notice of the intent of the Users to deliver such Additional
Credit Enhancement and the proposed issuer and effective date thereof.
56
ARTICLE V
REGISTRATION, BOOK-ENTRY SYSTEM, AND
GENERAL PROVISIONS REGARDING THE BONDS
SECTION 5.01. Registration of Bonds
---------------------
The Issuer shall cause to be kept at the Principal Office of the Trustee a
register (the "Bond Register") in which, subject to such reasonable regulations
-------------
as it may prescribe, the Issuer shall provide for the registration of Bonds and
registration of transfers of Bonds entitled to be registered or transferred as
herein provided. The Trustee is hereby appointed "Bond Registrar" for the
--------------
purpose of registering Bonds and transfers of Bonds as herein provided.
SECTION 5.02. Book-Entry System
-----------------
(a) The Bonds shall be initially issued pursuant to a Book-Entry System
administered by the Securities Depository with no physical distribution of any
Bond to any person. One Bond for the maturity will be issued, registered in the
name of the Securities Depository Nominee, and immobilized in the custody of the
Securities Depository. Beneficial ownership interests in the Bonds may be
purchased by or through Direct Participants. The holders of these beneficial
ownership interests in the Bonds are referred to as the "Beneficial Owners". The
-----------------
Beneficial Owners will not receive certificated bonds representing their
beneficial ownership interests. Ownership of the interests in Bonds in
Authorized Denominations will be evidenced, and transfers of interests in the
Bonds will be effected, on the records of the Securities Depository and the
Direct Participants and Indirect Participants pursuant to rules and procedures
established by the Securities Depository. During a period in which the
Book-Entry System is in effect for the Bonds the Issuer, the Trustee, the Users
and the Remarketing Agent shall treat the Securities Depository or the
Securities Depository Nominee as the only registered owner of the Bonds for all
purposes under this Indenture including receipt of all principal of, purchase
price of, premium (if any) and interest on the Bonds, receipt of notices,
voting, and requesting or directing the Trustee or Issuer to take or not to
take, or consenting to, certain actions under this Indenture. In the event the
Securities Depository or the Securities Depository Nominee assigns its rights to
consent or vote under this Indenture to any Direct Participant or Indirect
Participant, the Issuer, the Trustee, the Users, and the Remarketing Agent shall
treat such assignee or assignees as the only registered owner or owners of the
Bonds for the purpose of exercising such rights so assigned.
(b) During a period in which the Book-Entry System is in effect for the
Bonds, payments of principal, purchase price, interest, and redemption premium,
if any, with respect to the Bonds will be paid by the Trustee directly to the
Securities Depository, or the Securities Depository Nominee, as provided in the
Letter of Representation; provided, that payment of the principal of (premium,
if any) and interest on such Bonds due at final maturity or upon redemption in
whole of any of such Bonds shall be made only upon surrender thereof at the
Principal Office of the Trustee. The Securities Depository and the Direct
Participants and the Indirect Participants shall be responsible
57
for the disbursement of such payments to the Beneficial Owners. The Securities
Depository will disburse such payments to Direct participants and such payments
will in turn be remitted by Direct Participants and, where appropriate, Indirect
Participants, to the Beneficial Owners. All such payments to the Securities
Depository or the Securities Depository Nominee of principal of, purchase price
of, premium (if any) and interest on the Bonds on behalf of the Issuer or the
Trustee shall be valid and effectual to satisfy and discharge the liability of
the Issuer and the Trustee to the extent of the amounts so paid, and the Issuer,
the Users, the Remarketing Agent and the Trustee shall not be responsible or
liable for payment to any Beneficial Owner by the Securities Depository or by
any Direct Participant or by any Indirect Participant, or for sending
transaction statements or for maintaining, supervising or reviewing records
maintained by the Securities Depository or Direct Participants or Indirect
Direct Participants.
(c) Transfers of ownership interests in the Bonds by the Beneficial Owners
thereof. conveyance of notices and other communications by the Securities
Depository to Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect Participants to Beneficial
Owners of the Bonds, will be governed by arrangements among the Securities
Depository, Direct Participants, Indirect Participants and the Beneficial
Owners, subject to any statutory and regulatory requirements as may be in effect
from time to time. For every transfer and exchange of beneficial ownership in
the Bonds, the Beneficial Owners may be charged a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in relation thereto.
(d) Redemption notices respecting the Bonds held by the Securities
Depository shall be sent to the Securities Depository Nominee by the Trustee and
redemption of Bonds shall be effected as provided in Article VI.
(e) A Beneficial Owner shall give notice of its election to have its
interests in the Bonds purchased through its Direct Participant or Indirect
Participant to the Trustee as provided in this Indenture and shall effect
delivery of such interest by causing said Direct participant or Indirect
Participant to transfer the interest of such Beneficial Owner in the Bonds to
the Trustee (or Tender Agent) on the records of the Securities Depository. The
requirement for physical delivery of Bonds in connection with an Optional Tender
or a Mandatory Tender will be satisfied when the ownership rights in the Bonds
are transferred on the records of the Securities Depository.
(f) In the event that (1) the Securities Depository ceases to act as the
securities depository for the Bonds or (2) the Users provide information to the
Issuer of a determination that the continuation of the Book-Entry System for the
Bonds would adversely affect the interests of the' Beneficial Owners of the
Bonds, the Issuer shall discontinue the Book-Entry System. If the Issuer fails
to appoint another qualified securities depository to replace the then acting
Securities Depository, the Issuer will cause the Trustee to authenticate and
deliver fully registered certificated Bonds to each Beneficial Owner in evidence
of the ownership interests thereof. If the Book-Entry System is discontinued,
payments to and transfers by the Beneficial Owners shall be governed by the
provisions set forth in this Indenture with respect thereto.
58
(g) The Issuer and the Remarketing Agent may enter into a custody
agreement with any bank or trust company serving as custodian (which may be the
Trustee serving in the capacity of custodian) to provide for a Book-Entry System
or similar method for the registration and transfer of the Bonds.
(h) During the period in which a Book-Entry System is in effect for the
Bonds in accordance herewith, the provisions of this Indenture and the Bonds
shall be construed in accordance with the Letter of Representation and to give
full effect to such Book-Entry System.
(i) The Beneficial Owners of all the Bonds, by their acquisition of any
beneficial interest in a Bond or Bonds, and the Securities Depository, the
Securities Depository Nominee, and all Direct Participants and all Indirect
Participants severally agree that the Issuer, the Users, the Remarketing Agent,
and the Trustee shall not have any responsibility or obligation to any Direct
Participant or any Indirect Participant or any Beneficial Owner with respect to
(1) the accuracy of any records maintained by the Securities Depository or any
Direct Participant or any Indirect Participant; (2) the payment by the
Securities Depository or any Direct Participant or any Indirect Participant of
any amount due to any Beneficial Owner in respect of the principal of, purchase
price of, premium (if any) and interest on the Bonds; (3) the delivery or
timeliness of delivery by the Securities Depository or any Direct Participant or
any Indirect Participant of any notice due to any Beneficial Owner which is
required or permitted under the terms of this Indenture to be given to
Beneficial Owners; or (4) any consent given or other action taken by the
Securities Depository, or the Securities Depository Nominee, as owner.
SECTION 5.03. Discontinuation of Book-Entry System;: Registration,
----------------------------------------------------
Transfer, and Exchange of Bonds: Replacement of Mutilated, Lost, Destroyed or
-----------------------------------------------------------------------------
Stolen Bonds
------------
(a) The Securities Depository may determine to discontinue the Book-Entry
System with respect to the Bonds at any time upon notice to the Issuer, the
Remarketing Agent, the Users, and the Trustee and upon discharge of its
responsibilities with respect thereto under applicable law. Upon such notice and
compliance with law the Book-Entry System for the Bonds will be discontinued
unless a successor securities depository is appointed by the Issuer at the
request of the Users. In addition, the Issuer may discontinue the Book-Entry
System for the Bonds at the request of the Users at any time by reasonable
notice to the Securities Depository and to the Beneficial Owners.
(b) In the event the Book-Entry System for the Bonds is discontinued,
Bonds in certificated form in Authorized Denominations will be physically
distributed to the Beneficial Owners thereof and the Bonds will be registered in
the names of the owners thereof on the registration books of the Trustee
pertaining thereto, the Trustee will make payments of principal of, purchase
price of, premium (if any) and interest on the Bonds to the registered owners
thereof as provided in the Bonds and the Indenture, and the following provisions
with respect to registration, transfer and exchange of Bonds by the registered
owners of the Bonds shall apply:
59
(1) Upon surrender for transfer of any Bond at the Principal Office
of the Trustee or the Principal Office of the Tender Agent, the Issuer
shall execute, and the Trustee or Tender Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more new Bonds of the same maturity, of any Authorized Denominations and of
a like aggregate principal amount.
(2) At the option of the Holder, Bonds may be exchanged for other
Bonds of the same maturity, of any Authorized Denominations and of a like
aggregate principal amount, upon surrender of the Bonds to be exchanged at
the Principal Office of the Trustee or at the Principal Office of the
Tender Agent. Whenever any Bonds are so surrendered for exchange, the
Issuer shall execute, and the Trustee or the Tender Agent shall
authenticate and deliver, the Bonds which the Bondholder making the
exchange is entitled to receive.
(3) All Bonds surrendered upon any exchange or transfer provided for
in this Indenture shall be promptly canceled by the Trustee or the Tender
Agent.
(4) All Bonds issued upon any transfer or exchange of Bonds shall be
the valid obligations of the Issuer and entitled to the same security and
benefits under this Indenture as the Bonds surrendered upon such transfer
or exchange.
(5) Every Bond presented or surrendered for transfer or exchange
shall (if so required by the Trustee or the Tender Agent) be duly endorsed,
or be accompanied by a written instrument of assignment or transfer in form
satisfactory to the Trustee or the Tender Agent duly executed, by the
Holder thereof or his attorney duly authorized in writing.
(6) No service charge shall be made for any transfer or exchange of
Bonds, but the Holder must pay a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Bonds.
(7) The Issuer shall not be required (i) to transfer or exchange 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) to transfer or
exchange any Bond so selected for redemption in whole or in part, or (iii)
to exchange any Bond during a period beginning at the opening of business
on any Regular Record Date for such Bond and ending at the close of
business on the relevant Interest Payment Date therefor.
(8) If (i) any mutilated Bond is surrendered to the Trustee, or the
Issuer and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Bond, and (ii) there is delivered to the
Issuer and the Trustee such security or indemnity as may be required by
them to save each of them harmless, then, in the absence of notice to the
Issuer or the Trustee that such Bond has been acquired by a bona fide
purchaser, the Issuer shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in
60
lieu of any such mutilated, destroyed, lost or stolen Bond, a new Bond of
like tenor, principal amount, maturity, and bearing a number not
contemporaneously outstanding.
(9) Upon the issuance of any new Bond under this Section, the Holder
shall pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses connected
therewith.
(10) Every new Bond issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Bond shall constitute an original
additional contractual obligation of the Issuer, whether or not the
mutilated, destroyed, lost or stolen Bond shall be at any time enforceable
by anyone, and shall be entitled to all the security and benefits of this
Indenture equally and ratably with all other Outstanding Bonds.
(11) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Bonds.
SECTION 5.04. Payment of Interest on Bonds; Interest Rights Preserved
-------------------------------------------------------
(a) Interest on any Bond which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Bond is registered at the close of business on the Regular Record Date
for such Interest Payment Date.
(b) Any interest on any Bond which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date solely by virtue of such Holder having been such Holder; and
such Defaulted Interest shall be paid to the persons in whose names such Bonds
are registered at the close of business on a Special Record Date for the payment
of such Defaulted Interest, which shall be fixed in the following manner. The
Issuer shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Bond and the date of the proposed payment (which
date shall be such as will enable the Trustee to comply with the provisions
hereof), and at the same time the Issuer shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this subsection provided and not to be deemed part of
the Trust Estate. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 nor less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Issuer of such Special Record Date and, in the
name of the Issuer, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class postage
prepaid, to the Bondholder or bondholders at the address thereof appearing in
the Bond Register not less than 10 days prior to such Special Record Date.
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Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the persons in whose names the Bonds are registered on such Special
Record Date.
(c) Subject to the foregoing provisions of this Section, each Bond
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Bond shall carry all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Bond and each such Bond shall bear
interest from such date that neither gain nor loss in interest shall result from
such transfer, exchange or substitution.
SECTION 5.05. Persons Deemed Owners
---------------------
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the person in whose name any Bond is registered as the owner of such Bond
for the purpose of receiving payment of Debt Service on such Bond and for all
other purposes whatsoever whether or not such Bond is overdue, and, to the
extent permitted by law, neither the Issuer, the Trustee nor any such agent
shall be affected by notice to the contrary.
SECTION 5.06. Paying Agent
------------
The Trustee is hereby appointed as Paying Agent for the purpose of paying
Debt Service on the Bonds on behalf of the Issuer.
SECTION 5.07. Payments Due on Non-Business Days
---------------------------------
If any payment on the Bonds is due on a day which is not a Business Day,
such payment may be made on the first succeeding day which is a Business Day
with the same effect as if made on the original due date.
SECTION 5.08. Cancellation
------------
All Bonds surrendered for payment, redemption, transfer or exchange shall
be promptly canceled or destroyed by the Trustee. No Bond shall be authenticated
in lieu of or in exchange for any Bond canceled as provided in this Section,
except as expressly provided by this Indenture.
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ARTICLE VI
REDEMPTION OF BONDS
SECTION 6.01. When Bonds Are Subject to Redemption
------------------------------------
(a) The Bonds shall be subject to extraordinary, optional and mandatory
redemption as provided in the form thereof set forth in Section 4.07.
(b) Bonds shall be redeemed in accordance with the mandatory redemption
provisions of the Bonds without any direction from or consent by the Issuer or
the Users.
(c) If no Loan Default exists, Bonds shall be redeemed in accordance with
the optional redemption provisions of the Bonds only with the consent of the
Users and the Credit Obligor.
SECTION 6.02. Election to Redeem; Notice to Securities Depository and
-------------------------------------------------------
Trustee
-------
The election of the Issuer to exercise any right of optional redemption
shall be given by written notice to the Trustee from an Authorized Issuer
Representative not more than 60 and not less than 30 days prior to the proposed
redemption date and, if required by this Indenture, shall be accompanied by the
written consent of the Users (if no Loan Default exists), executed on its behalf
by an Authorized User Representative and the written consent of the Credit
Obligor. In case of any redemption at the option of the Issuer of less than all
of the principal amount of the Outstanding Bonds, the Authorized Issuer
Representative shall, at least 60 days prior to the date fixed by the Issuer for
redemption of Bonds (unless a shorter notice shall be satisfactory to the
Trustee) notify the Trustee of such redemption date and of the principal amount
of Bonds to be redeemed.
SECTION 6.03. Selection of Bonds to be Redeemed
---------------------------------
(a) If less than all of the Outstanding Bonds are to be redeemed during a
period in which the Book-Entry System is in effect for the Bonds, the Securities
Depository shall determine the amount of the interest of each Direct Participant
in the Bonds to be redeemed, on the basis of the smallest Authorized
Denomination of the Bonds, by lot or by such other methods as the Securities
Depository shall deem fair and appropriate. The Securities Depository shall so
determine the amount of the interest of each Direct Participant in. the Bonds to
be redeemed in such manner as to assure that after such redemption no
Beneficial Owner shall retain a beneficial ownership interest in the Bonds in an
aggregate amount less than an Authorized Denomination.
(b) If less than all the Outstanding Bonds are to be redeemed during a
period in which the Book-Entry System is not in effect for the Bonds, the
Trustee shall select the particular Bonds to be redeemed not less than 30 nor
more than 60 days prior to the redemption date from the Outstanding Bonds which
have not previously been called for redemption, on the basis of the smallest
Authorized Denomination of the Bonds, by lot or by such method as the Trustee
shall deem
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fair and appropriate. The Trustee shall so select Bonds for redemption in such
manner so as to assure that after such redemption no Bondholder shall retain
Bonds in an aggregate amount less than an Authorized Denomination.
(c) The Trustee shall promptly notify the Issuer and the Users in writing
of the Bonds selected for redemption and, in the case of any Bond selected for
partial redemption, the principal amount thereof to be redeemed.
(d) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Bonds shall relate, in
the case of any Bond redeemed or to be redeemed only in part, to the portion of
the principal of such Bond which has been or is to be redeemed.
SECTION 6.04. Notice of Redemption
--------------------
(a) Notice of any intended redemption shall be given by the Trustee to the
Holder of each Bond, all or a portion of the principal of which is to be
redeemed, not less than 30 days prior to the proposed redemption date by United
States first class mail or, if the Securities Depository or Securities
Depository Nominee is the Holder, at the times and in the manner as provided in
the Letter of Representation, at the address of such Holder appearing in the
Bond Register; provided, however; any Holder may waive the requirement of notice
as to the redemption (in whole or in part) of the Bond or Bonds thereof. During
a period,in which the Book-Entry System is in effect for the Bonds, notice of
any intended redemption may be given to each Beneficial Owner, all or any
portion of the interest of which in the Bonds is to be redeemed, by the Direct
Participants and, where appropriate, by the Indirect Participants, pursuant to
arrangements among said parties, subject to statutory and regulatory
requirements in effect from time to time; provided, however, any Beneficial
Owner may waive the requirement of notice as to the redemption of the interest
thereof in the Bonds.
(b) All notices of redemption shall state:
(1) the redemption date,
(2) the redemption price,
(3) the principal amount of Bonds to be redeemed, and, if less than
all Outstanding Bonds are to be redeemed,the respective principal amounts
of the Bonds to be redeemed,
(4) that on the redemption date the redemption price of each of the
Bonds to be redeemed will become due and payable and that the interest
thereon shall cease to accrue from and after said date, and
(5) the place or places where the Bonds to be redeemed are to be
surrendered for payment of the redemption price.
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(c) Notice of redemption of Bonds to be redeemed shall be given by the
Trustee in the name of the Issuer and at the expense of the Users.
(d) The Issuer and the Trustee shall, to the extent practical under the
circumstances, comply with the standards set forth in Securities and Exchange
Commission's Exchange Act Release No. 23856 regarding redemption notices,
provided that their failure to do so shall not in any manner defeat the
effectiveness of a call for redemption if notice thereof is given as prescribed
in this Section.
SECTION 6.05. Deposit of Redemption Price
---------------------------
Prior to any redemption date, there shall be deposited with the Trustee and
deposited by the Trustee in the Bond Fund, pursuant to Section 8.01 an amount of
money provided by the Users sufficient to pay the redemption price of all the
Bonds which are to be redeemed on that date. Such money shall be held in trust
for the benefit of the persons entitled to such redemption price and shall not
be deemed to be part of the Trust Estate.
SECTION 6.06. Bonds Payable on Redemption Date
--------------------------------
(a) Notice of redemption having been given as aforesaid, the Bonds to be
redeemed shall, on the redemption date, become due and payable at the redemption
price therein specified and from and after such date (unless the Issuer shall
default in the payment of the redemption price) such Bonds shall cease to bear
interest. Upon presentation of any such Bond for redemption, or compliance with
the requirements of the Securities Depository with respect to redemption in
part, in accordance with said notice such Bond shall be paid by the Issuer at
the redemption price. Installments of interest due on or prior to the redemption
date shall be payable to the Holders of the Bonds registered as such on the
relevant Record Dates according to the terms of such Bonds and the provisions of
Section 5.03.
(b) If any Bond called for redemption shall not be paid upon redemption,
the principal (and premium, if any) shall, until paid, bear interest from the
redemption date at the Post-Default Rate.
SECTION 6.07. Bonds Redeemed in Part
----------------------
(a) During a period in which the Book-Entry System is in effect for the
Bonds, the recordation and evidence of any reduction in the aggregate principal
amount of the Bonds as a result of the redemption of a portion thereof shall be
made in accordance with the Letter of Representation and the rules and
procedures of the Securities Depository with respect thereto from time to time
in effect.
(b) During a period in which the Book-Entry System is not in effect for
the Bonds, unless otherwise provided herein, any Bond which is to be redeemed
only in part shall be surrendered at
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the Principal Office of the Trustee (with, if the Issuer or the Trustee
requires, due endorsement by, or a written instrument of assignment or transfer
in form satisfactory to the Issuer and the Trustee duly executed by the Holder
thereof or his attorney duly authorized in writing) and the Issuer shall execute
and the Trustee shall authenticate and deliver to the Holder of such Bond,
without service charge, a new Bond or Bonds of any authorized denomination or
denominations as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Bond
surrendered.
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ARTICLE VII
APPLICATION OF PROCEEDS OF BONDS
SECTION 7.01. Application of Proceeds of Bonds. On the date of issuance of
--------------------------------
the Bonds, the proceeds of the Bonds (such amount being equal to $4,100,000)
shall be deposited in the Acquisition/Construction Fund pursuant to Section 7.02
and applied as provided therefor.
SECTION 7.02. Acquisition/Construction Fund; Disbursements.
--------------------------------------------
(a) There is hereby established with the Trustee a trust fund for the
account of the Issuer to be designated the "Acquisition/Construction Fund".
(b) The moneys in the Acquisition/Construction Fund shall be paid out by
the Trustee from time to time for the purpose of paying the Project Costs or
complying with the provisions of Article XVII of this Indenture but only upon
receipt of a requisition or payment request substantially in the form of Exhibit
A hereto appropriately completed and signed for any Authorized User
Representative and approved by the Credit Obligor by endorsement thereon. Any
payment requested to be made for the Project Costs paid by either of the Users
prior to sixty days before March 1, 1999, the Users shall file with the Trustee
an Opinion of Bond Counsel with respect to the Bonds which states that such
payment will not cause the Bonds referenced in said Opinion to be or become
Taxable.
(c) In addition to the documents required by this Section, the Trustee may
require as a condition precedent to any payment or withdrawal further evidence
with respect thereto or with respect to the application of any moneys previously
disbursed or as to the correctness of any statement made in any requisition,
payment request or endorsement. Upon the written request of the Holders of at
least ten percent of the Bonds, the Trustee shall require such evidence. The
Trustee shall, however, be under no duty to require such evidence unless so
requested.
(d) The Trustee shall not be liable for any misapplication of moneys in
the Acquisition/Construction Fund if disbursed pursuant to the provisions of
this Section and without actual knowledge that such disbursement constitutes a
misapplication of funds.
SECTION 7.03. Completion of the Project.
-------------------------
The completion of the Project and the payment of all Project Costs shall be
evidenced by the filing with the Trustee of the certificate required by the
provisions of the Loan Agreement. Upon receipt of such certificate by the
Trustee, any balance remaining in the Acquisition/Construction Fund shall be
held in escrow by the Trustee and shall be applied, subject to Article XVII of
this Indenture to the redemption of as many of the Bonds as possible on the
earliest Business Day for which the required notice of redemption may be given,
and the balance remaining, if any, after such redemption shall be applied to the
payment of the principal of the Bonds.
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ARTICLE VIII
REVENUES
SECTION 8.01. Bond Fund and Letter of Credit Draws
------------------------------------
(a) There is hereby established a special trust fund in the name of the
Issuer which shall be designated the "Industrial Development Revenue Bonds
(Color Image, Inc. Project) Bond Fund". The Trustee shall be the depository,
custodian and disbursing agent for the Bond Fund. The Bond Fund shall contain
two accounts: (i) the "Letter of Credit Account" and (ii) the "General Account."
The money in the Bond Fund shall be used (i) to pay Debt Service on the Bonds as
the same shall become due and payable or (ii) to reimburse the Credit Obligor
for amounts drawn under the Letter of Credit, as provided in subsection (d) of
this Section.
(b) There shall be deposited in the Bond Fund; as and when received:
(1) in the manner provided in subsection 8.01(c), all money drawn by
the Trustee under the Letter of Credit for the purpose of paying the
principal amount of the Bonds and the premium (if any) on the Bonds, and
the interest due thereon on any Bond Payment Date; which shall be deposited
in the Letter of Credit Account,
(2) All Basic Payments under the Loan Agreement with respect to Debt
Service on the Bonds, which shall be deposited in the General Account,
(3) All other money required to be deposited in the Bond Fund
pursuant to the Loan Agreement or this Indenture, which shall be deposited
in the General Account, and
(4) All other money received by the Trustee when accompanied by
written directions that such money is to be deposited in the Bond Fund,
which shall be deposited in the General Account.
(c) If the Letter of Credit is then in effect, on each Bond Payment Date,
the Trustee shall, without making any prior claim or demand upon the Users for
the payment of Basic Payments, submit a draft under the Letter of Credit in
accordance with the terms thereof(i) in an amount equal to the amount of Debt
Service due on such Bond Payment Date on Bonds other than Pledged Bonds and (ii)
by such time (as stated in the Letter of Credit) in advance as shall enable the
Trustee to pay said Debt Service from the proceeds of such draft on said Bond
Payment Date in accordance with the provisions of this Indenture with respect
thereto. Any such money drawn under the Letter of Credit shall be deposited and
held in the Letter of Credit Account, which shall be a separate, segregated
account in the Bond Fund, and shall not be commingled with other money in the
Bond Fund and no investment thereof shall be made. If money from any source
other than the Letter of Credit was, at the time of such draw, on deposit in the
Bond Fund and available for the payment of Debt Service on Bonds other than
Pledged Bonds, the Trustee shall nevertheless draw under the
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Letter of Credit to make such payment of Debt Service in the amount of the Debt
Service to be so paid, and the money available from such other source shall, to
the extent of the amount paid by the Credit Obligor against such draw, be paid
to the Credit Obligor. All money so drawn under the Letter of Credit shall be
used to pay Debt Service on Bonds other than Pledged Bonds; Debt Service on
Pledged Bonds shall be paid from the General Account with money deposited in the
Bond Fund from any source other than the Letter of Credit.
(d) The Issuer hereby authorizes and directs the Trustee to withdraw
sufficient money from the Bond Fund to pay Debt Service on the Bonds as the same
become due and payable. whether at maturity, by call for redemption,
acceleration, or otherwise, which authorization and direction the Trustee hereby
accepts. Funds for such payments of Debt Service on the Bonds shall be derived
from the sources specified above.
(e) Debt Service due on all Pledged Bonds shall be paid to the Credit
Obligor.
SECTION 8.02. Bond Purchase Fund
------------------
(a) There is hereby established a special trust fund in the name of the
Issuer which shall be designated the "Industrial Development Revenue Bonds
(Color Image, Inc. Project) Bond Purchase Fund, Series 1999". The Bond Purchase
Fund shall contain three accounts: (i) the "Letter of Credit Account," (ii) the
"Remarketing Proceeds Account" and (iii) the "General Account." The Trustee
shall be the custodian for the Bond Purchase Fund, and money in such Fund may be
disbursed by the Trustee as hereinafter provided. The money in the Bond Purchase
Fund shall be used (i) to pay the purchase price of Bonds due on any Tender Date
or (ii) to reimburse the Credit Obligor for amounts drawn under the Letter of
Credit, as provided in subsection (c) of this Section.
(b) There shall be deposited in the Bond Purchase Fund, as and when
received:
(1) in the manner provided in subsection 8.02(c), all money drawn by
the Trustee under the Letter of Credit for the purpose of paying the
purchase price of Bonds due on any Tender Date, which shall be deposited in
the Letter of Credit Account,
(2) the proceeds of any remarketing of Bonds by the Remarketing
Agent, shall be deposited in the Remarketing Proceeds Account,
(3) all other money required to be deposited in the Bond Purchase
Fund pursuant to the Loan Agreement or this Indenture, which shall be
deposited in the General Account, and
(4) all other money received by the Trustee when accompanied by
directions that such money is to be deposited in the Bond Purchase Fund,
which shall be deposited in the General Account.
69
(c) If the Letter of Credit is then in effect, on each Tender Date, the
Trustee shall, without making any prior claim or demand upon the Users for Basic
Payments with respect to the purchase price of Tendered bonds, and without
taking into account any proceeds anticipated (but not then received) from the
remarketing of Bonds by the Remarketing Agent, submit a draft under the Letter
of Credit in accordance with the terms thereof(i) in an amount equal to the
purchase price of all Bonds to be purchased on such Tender Date and (ii) by such
time (as stated in the Letter of Credit) in advance as shall enable the Trustee
to pay said purchase price from the proceeds of such draft on said Tender Date
in accordance with the provisions of this Indenture with respect thereto. Any
such money drawn under the Letter of Credit shall be deposited and held in the
Letter of Credit Account, which is a separate, segregated account in the Bond
Purchase Fund and shall not be commingled with other money in the Bond Purchase
Fund and no investment thereof shall be made. Any such money derived from
proceeds of remarketing of the Bonds by the Remarketing Agent shall be deposited
and held in the Remarketing Proceeds Account, which shall be a separate,
segregated account in the Bond Purchase Fund, and shall not be commingled with
other money in the Bond Purchase Fund and no investment thereof shall be made.
If money from any source other than the Letter of Credit was, at the time of
such draw, on deposit in the Bond Purchase Fund and available for the payment of
such purchase price, the Trustee shall nevertheless draw under the Letter of
Credit to make the payment of such purchase price in the amount of such purchase
price to be so paid, and any money available in the Bond Purchase Fund on such
Tender Date from such other sources (including without limitation, proceeds of
remarketing of Bonds) shall, to the extent of the amount paid by the Credit
Obligor against such draw, be paid to the Credit Obligor. If proceeds from the
remarketing of Bonds are deposited in the Bond Purchase Fund after such Tender
Date, the Trustee shall pay such proceeds to the Credit Obligor.
(d) The Trustee is hereby authorized and directed to withdraw sufficient
money from the Bond Purchase Fund to pay the purchase price of Bonds due on any
Tender Date. Funds for such payments shall be derived from the following sources
indicated above.
(e) Anything in this Indenture to the contrary notwithstanding, the
Trustee shall not purchase any Bonds under Section 4.06 with proceeds received
from remarketing of Bonds to the Users, the Issuer or any Affiliate of either
thereof.
SECTION 8.03. Money for Bond Payments to be Held in Trust: Repayment of
---------------------------------------------------------
Unclaimed Money
---------------
(a) If money is on deposit in the Bond Fund on any Bond Payment Date
sufficient to pay Debt Service on the Bonds due and payable on such Bond Payment
Date, but the Holder of any Bond that matures on such Date or that is subject to
redemption on such Date fails to surrender such Bond to the Trustee for payment
of Debt Service due and payable on such Date, the Trustee shall segregate and
hold in trust for the benefit of the person entitled thereto money sufficient to
pay the Debt Service due and payable on such Bond on such Date. Money so
segregated and held in trust shall not be a part of the Trust Estate and shall
not be invested, but shall constitute a separate trust fund for the benefit of
the persons entitled to such Debt Service.
70
(b) If money is on deposit in the Bond Purchase Fund on any Tender Date
sufficient to pay the purchase price on the Bonds to be paid on such Tender
Date, but the Holder of any Bond fails to deliver such Bond to the Trustee or
Tender Agent for payment of such purchase price on such Tender Date, the Trustee
shall segregate and hold in trust for the benefit of the person entitled thereto
money sufficient to pay such purchase price due and payable on such
Unsurrendered Bond on such Tender Date. Money so segregated and held in trust
shall not be a part of the Trust Estate and shall not be invested, but shall
constitute a separate trust fund for the benefit of the persons entitled to such
purchase price.
(c) Any money held in trust by the Trustee for the payment of Debt Service
on or the purchase price of any Bond pursuant to subsections (a) and (b) of this
Section and remaining unclaimed for 3 years after such Debt Service has become
due and payable shall be paid to the Users upon request of an Authorized User
Representative; and the Holder of such Bond shall thereafter, as an unsecured
general creditor, look only to the Users for payment thereof, and all liability
of the Trustee with respect to such trust money, and all liability of the Issuer
with respect thereto, shall thereupon cease; provided, however, that the
Trustee, before being required to make any such payment to the Users, may at the
expense of the Users cause to be published once, in a newspaper of general
circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication; any unclaimed balance of such money then remaining
will be paid to the Users.
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ARTICLE IX
SECURITY FOR AND INVESTMENT OF SPECIAL FUNDS
SECTION 9.01. Security for Trust Estate Money
-------------------------------
Any money on deposit in the Special Funds or otherwise held by the Trustee
as part of the Trust Estate shall be impressed with the trust established by
this Indenture and shall, unless invested as provided in this Indenture or
secured by the Federal Deposit Insurance Corporation (or any successor agency of
the United States), be secured for the benefit of the Holders of the Bonds,
either
(1) by holding on deposit, as collateral security, Federal Securities
or other marketable securities eligible as security for the deposit of
trust funds under regulations of the Comptroller of the Currency, United
States Treasury, having a market value (exclusive of accrued interest) not
less than the amount of money being secured, or
(2) if the furnishing of security in the manner provided by the
foregoing paragraph (1) is not permitted by the then applicable law and
regulations, then in such other manner as may be required or permitted by
the then applicable state and federal laws and regulations respecting the
security for, or granting a preference in the case of, the deposit of trust
funds.
SECTION 9.02. Investment of Special Funds
---------------------------
(a) Except as provided herein, any money held as part of a Special Fund
shall be invested or reinvested in Qualified Investments by the Trustee in
accordance with the written instructions of the Users if no Loan Default exists,
to the extent that such investment is feasible and consistent with the purposes
for which such Fund was created; provided, however, that, except as provided
below, money in the Bond Fund and Bond Purchase Fund shall be invested only in
Federal Securities with a maturity not later than the earlier of(i) 30 days
after the date of such investment, or (ii) the date such money will be needed
for the payment of Debt Service on, or the purchase price of, Bonds. Any
investment made with money on deposit in a Special Fund shall he held by or
under control of the Trustee and shall be deemed at all times a part of the
Special Funds where such money was on deposit, and the interest and profits
realized from such investment shall be credited to such Fund and any loss
resulting from such investment shall be charged to such Fund.
(b) The proceeds of a draw under the Letter of Credit shall not be
invested.
(c) Any investment of money in the Special Funds may be made by the
Trustee through its own bond department, investment department or other
commercial banking department providing investment services. Any certificate of
deposit issued by, or other interest-bearing deposit with, the Trustee shall be
deemed an investment rather than a deposit requiring security in the manner
specified in Section 9.01.
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SECTION 9.03. Arbitrage
---------
(a) The Users will not cause or permit any investment to be made of any
money on deposit in the Special Funds that would cause any Bond to be an
"arbitrage bond" within the meaning of Section 148 or successor provision of the
Internal Revenue Code.
(b) The Trustee shall follow the written instructions of the Users or, if
a Loan Default exists, the Credit Obligor, with respect to investments of the
Special Funds as provided in Section 9.02, but the Trustee shall not be
responsible for (i) determining that any such investment complies with the
arbitrage limitations imposed by Section 148 of the Internal Revenue Code, or
(ii) calculating the amount of, or making payment of, any rebate due to the
United States under Section 148(f) or successor provision of the Internal
Revenue Code except as provided in Article XVII.
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ARTICLE X
REPRESENTATIONS AND COVENANTS
SECTION 10.01. General Representations
-----------------------
The Issuer makes the following representations and warranties as the basis
for the undertakings on its part herein contained:
(1) It is a public body corporate and politic created pursuant to the
Act.
(2) Under the provisions of the Act, the Issuer has the power to
consummate the transactions contemplated by the Financing Documents to
which it is a party.
(3) By proper action the Issuer has duly authorized the issuance,
execution and delivery of the Financing Documents to which it is a party
and the consummation of the transactions contemplated therein.
(4) It has obtained all consents, approvals, authorizations and
orders of governmental authorities that are required to be obtained by it
as a condition to the issuance of the Bonds and the execution and delivery
of the Financing Documents to which it is a Party.
(5) The execution and delivery by it of the Financing Documents to
which it is a party and the consummation by it of the transactions
contemplated therein will not (i) conflict with, be in violation of, or
result in a default under any material agreement, instrument, order or
judgment to which it is a party or is subject or (ii) result in or require
the creation or imposition of any lien of any nature with respect to the
Project or the Trust Estate, except as contemplated by the Financing
Documents.
(6) The Financing Documents to which it is a party constitute legal,
valid and binding obligations and are enforceable against it in accordance
with the terms of such instruments, except as enforcement thereof may be
limited by (i) the exercise of judicial discretion and (ii) bankruptcy,
insolvency, or other similar laws affecting the enforcement of creditors'
rights, to the extent constitutionally applicable.
(7) The Issuer has not created or to its knowledge permitted the
creation of any mortgage, pledge, encumbrance, security interest,
assignment or other charge of any kind with respect to the Trust Estate,
except as effected or contemplated by the Financing Documents.
(8) There is no action, suit, proceeding, inquiry or investigation
pending before any court or governmental authority, or threatened against
or affecting it or its properties,
74
that involves (i) the consummation of the transactions contemplated by, or
the validity or enforceability of, the Financing Documents, (ii) its
organization, (iii) the election or qualification of its directors or
officers, or (iv) its powers.
SECTION 10.02. No Encumbrance on Trust Estate
------------------------------
The Issuer will not create, and will use its best efforts not to permit,
the creation of any mortgage, pledge, lien, charge or encumbrance of any kind on
the Trust Estate or any part thereof prior to or on a parity of lien with this
Indenture, except pursuant to the Financing Documents or with the prior written
consent of the Trustee, Users and Credit Obligor.
SECTION 10.03. General Covenants
-----------------
(a) Subject to the provisions of Article III hereof, the Issuer will duly
and punctually pay, or cause to be paid, the Debt Service on the Bonds as and
when the same shall become due and will duly and punctually deposit, or cause to
be deposited, in the Special Funds the amounts required to be deposited therein,
all in accordance with the terms of the Bonds and this Indenture, but only from
the monies provided by the Users.
(b) The Issuer will not extend or consent to the extension of the time for
payment of Debt Service on the Bonds, unless such extension is consented to by
the Holder or Holders of the Bond or Bonds affected.
SECTION 10.04. The Loan Agreement
------------------
(a) The Issuer will perform, observe and comply with all agreements,
covenants and obligations required to be performed, observed and complied with
by it under the Loan Agreement. Without relieving the Issuer from the
responsibility for such performance and observance, the Trustee, on behalf of
the Issuer, may (but shall have no obligation to) perform and observe any such
agreement or covenant, all to the end that the Issuer's rights under the Loan
Agreement may be unimpaired and free from default.
(b) The Issuer will promptly notify the Trustee in writing of the
occurrence of any Loan Default under the Loan Agreement or the occurrence of any
event which, upon notice or lapse of time (or both); would become such a Loan
Default, provided that the Issuer has actual knowledge of such event.
SECTION 10.05. Inspection of Records
---------------------
The Issuer will at any and all times, upon the written request of the
Trustee, afford and procure a reasonable opportunity for the Trustee by its
representatives to inspect any books, records, reports and other papers of the
Issuer relating to the Project, and to make copies therefrom, and the
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Issuer will furnish to the Trustee any and all information as the Trustee may
reasonably request with respect to the performance by the Issuer of its
covenants in this Indenture.
SECTION 10.06. Advances by Trustee
-------------------
Subject to the provision of Section 13.01(c)(4), if the Issuer shall fail
to perform any of its covenants in this Indenture, the Trustee may, but shall
not be required, at any time and from time to time, after written notice to the
Users if no Loan Default exists under the Loan Agreement, make advances to
effect performance of any such covenant on behalf of the Issuer, but no money
advanced by the Trustee shall be used to pay Debt Service. Any money so advanced
by the Trustee, together with interest at the Default Rate provided and defined
in the Credit Documents shall be paid (subject to the provisions of Article III)
upon demand and such advances shall be secured under this Indenture prior to the
Bonds, but no such reimbursement shall be made from moneys drawn under the
Letter of Credit. The Issuer shall not be required to expend monies under the
terms of the Indenture, unless such funds are provided by or on behalf of the
Users for such purpose.
SECTION 10.07. Corporate Existence
-------------------
(a) Except as otherwise provided in subsection (b) of this Section, the
Issuer will do or cause to be done all things necessary to preserve and keep in
full force and effect its existence.
(b) The Issuer shall not consolidate with or merge into any other
corporation or transfer its interest in the Project or the Trust Estate
substantially as an entirety to any person other than Gwinnett County, Georgia,
unless:
(1) such consolidation, merger, conveyance or transfer shall be on
such terms as shall fully preserve the lien and security hereof and the
rights and powers of the Trustee and the Holders of the Bonds;
(2) the entity formed by such consolidation or into which the Issuer
is merged or the person which acquires by conveyance or transfer the
Issuer's said property substantially as an entirety (the "Successor") shall
be organized under the laws of the State of Georgia;
(3) such Successor shall execute and deliver to the Trustee an
instrument in form recordable and acceptable to the Trustee containing an,
assumption by such Successor of the due and punctual payment of the debt
Service and the performance and observance of every covenant and condition
of this Indenture and the Loan Agreement to be performed or observed by the
Issuer;
(4) immediately after giving effect to such transaction, no Event of
Default or any event which, upon notice or lapse of time (or both), would
constitute such an Event of Default shall have occurred and be continuing;
and
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(5) the Issuer shall have delivered to the Trustee a certificate
executed by an Authorized Issuer Representative stating that such
consolidation, merger, conveyance or transfer complies with this Section
and that all conditions precedent herein provided relating to such
transactions have been satisfied.
(c) Upon any consolidation or merger or any conveyance or transfer of the
Issuer's property substantially as an entirety in accordance with this Section,
the Successor shall succeed to, and be substituted for, and may exercise every
right and power of, the Issuer under this Indenture with the same effect as if
such Successor had been named as the Issuer herein.
SECTION 10.08. Appointment of Successor Trustee
--------------------------------
Whenever necessary to avoid or fill a vacancy in the office of the Trustee,
the Issuer will appoint a successor Trustee in the manner provided in Article
XIII.
SECTION 10.09. Tax Exempt Status of Bonds
--------------------------
(a) The Issuer covenants and agrees that it will not take any action, or
fail to take any action, if such action, or failure to act would cause the
interest on the Bonds to be Taxable; provided, however, that if, in the event of
the occurrence of a Determination of Taxability, the Issuer, at the direction of
the Users, redeems the Bonds in compliance with the provisions of the Indenture
and the Bonds requiring such redemption as a result of the occurrence of such
Determination of Taxability, then (any provision of the Indenture or of the
Bonds to the contrary notwithstanding) the inaccuracy of any representation or
warranty contained in the Indenture, the Loan Agreement or in the Bonds or the
failure by the Issuer or the Users to observe or perform any covenant or
agreement contained in the Indenture, the Loan Agreement or in the Bonds that
resulted in such Determination of Taxability shall not be considered a default
or an Event of Default by the Issuer under the Indenture or by the Users under
the Loan Agreement and such mandatory redemption by the Issuer shall constitute
a full and complete satisfaction to the Holder of each Bond of all claims, and
for all damages, costs and expenses, arising out of or based on any such
inaccuracy or failure.
(b) Any provision of this Indenture to the contrary notwithstanding, if a
trust is established for the payment or redemption of Bonds pursuant to Section
16.02 prior to a Determination of Taxability, the Holders of Bonds to be paid or
redeemed from such trust shall not be entitled to early redemption as a result
of any such Determination of Taxability.
(c) The Issuer hereby elects to have the $10,000,000 limitation set forth
in Section 144(a)(4) of the Internal Revenue Code apply to the Bonds and agrees
to take all actions necessary to assure compliance with the provisions of said
section.
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SECTION 10.10. Performance by Users
--------------------
Without relieving the Issuer from the responsibility for performance and
observance of the agreements and covenants required to be performed and observed
by it hereunder, the Users, on behalf of the Issuer, may perform any such
agreement or covenant, at no cost to Issuer.
SECTION 10.11. Further Assurances
------------------
The Issuer will at any time or times do, execute, acknowledge, deliver and
record or cause to be done, executed, acknowledged, delivered, and recorded all
such further acts, deeds, conveyances, assignments, pledges, transfers and
assurances in law as the Trustee shall reasonably require for the better
assuring, assigning, transferring, pledging and confirming unto the Trustee, all
and singular, the property and rights herein assigned, transferred and pledged
or intended so to be, but with all costs to be paid by Trustee or Users.
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ARTICLE XI
THE PROJECT
In the event of condemnation or destruction of or damage to the Project,
provision is made in the Loan Agreement for the application of the Net Proceeds
(as therein defined) of insurance or condemnation awards. All such proceeds
shall be held and applied as provided in the Loan Agreement, subject to Article
XVII of this Indenture. Any such proceeds held by the Trustee for the purpose of
repairing, rebuilding or restoring the Project shall be deposited in the
Acquisition/Construction Fund and withdrawals shall be made therefrom for such
purposes upon compliance with the provisions of this Indenture with reference to
disbursements from said Acquisition/Construction Fund.
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ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
SECTION 12.01. Events of Default
-----------------
Any one or more of the following shall constitute an event of default under
this Indenture (whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Bond when such
interest becomes due and payable; or
(2) default in the payment of the principal of (or premium, if any,
on) any Bond when such principal (or premium, if any) becomes due and
payable, whether at its stated maturity, by declaration of acceleration or
call for redemption or otherwise; or
(3) failure to pay when due the purchase price of any Bond tendered
for purchase pursuant to the Optional Tender or Mandatory Tender provisions
hereof; or
(4) the occurrence of an event of default, as therein defined, under
any other Financing Document (other than the Credit Documents) and the
expiration of the applicable grace period, if any, specified therein; or
(5) receipt of notice by the Trustee from the Credit Obligor that the
Credit Obligor has not reinstated the Credit Amount of the Letter of Credit
(as defined therein) in accordance with the terms thereof; or
(6) receipt by the Trustee of written notice from the Credit Obligor
that an event of default, as therein defined, has occurred and is
continuing under the Credit Documents; or
(7) the Credit Obligor dishonors a draw under the Letter of Credit;
or
(8) default in the performance, or breach, of any covenant,
representation or warranty of the Issuer in this Indenture (other than a
covenant or warranty a default in the performance or breach of which is
elsewhere in this Section specifically described), and continuance of such
default or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Issuer, the Users and the Credit
Obligor by the Trustee or to the Issuer, the Users, the Trustee and the
Credit Obligor by the Holders of at least 10% in principal amount of the
Outstanding Bonds, a written notice specifying such default or
80
breach and requiring it to be remedied and stating that such notice is a
"notice of default" hereunder.
SECTION 12.02. Acceleration of Maturity; Rescission and Annulment; Exercise
------------------------------------------------------------
of Remedies
-----------
(a) If an Event of Default exists under any of Section 12.01(1), (2),
(3), (4), (5), (6) or (7) and the Letter of Credit is in effect, the Trustee
shall (1) declare the principal of all the Bonds and the interest accrued
thereon to be due and payable immediately, by a notice in writing to the Issuer
and the Credit Obligor, and upon any such declaration such principal and the
interest accrued thereon to the date of declaration shall become immediately due
and payable and interest on the Bonds shall cease to accrue from and after the
date of declaration and (2) immediately draw under the Letter of Credit to the
full extent permitted by the terms thereof to pay the principal of the Bonds and
the interest accrued and to accrue thereon until and including the date of such
declaration.
(b) If an Event of Default exists under Section 12.01(8) or if any other
Event of Default exists and the Letter of Credit is no longer in effect or the
Credit Obligor has dishonored a draw thereon or there has otherwise been
instituted insolvency proceedings with respect to the Credit Obligor, then and
in every such case (1) the Trustee or the Holders of not less than 25% in
principal amount of the Bonds Outstanding may (but only with the consent of the
Credit Obligor if the Letter of Credit is in effect and there has not otherwise
been instituted insolvency proceedings with respect to the Credit Obligor)
declare the principal of all the bonds and the interest accrued thereon to be
due and payable immediately, by a notice in writing to the Issuer (and to the
Trustee, if given by Holders), and upon any such declaration such principal and
the interest accrued thereon to the date of declaration shall become immediately
due and payable and (2) the Trustee shall, if the Letter of Credit is then in
effect, immediately draw under the Letter of Credit to the full extent permitted
by the terms thereof to pay the principal of the Bonds and the interest accrued
and to accrue thereon until and including the date of such declaration.
(c) At any time after such a declaration of acceleration has been made
pursuant to subsection (b) of this Section, the Holders of a majority in
principal amount of the Bonds Outstanding may (but only with the consent of the
Credit Obligor if the Letter of Credit is in effect and an Event of Default has
not occurred under Section 12.01(7) and there has not otherwise been instituted
insolvency proceedings with respect to the Credit Obligor), by written notice to
the Issuer and the Trustee, rescind and annual such declaration and its
consequences if
(1) the Issuer has deposited with the Trustee a sum sufficient to pay
(A) all overdue installments of interest on all Bonds,
(B) the principal of (and premium, if any, on) any Bonds which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Bonds,
81
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor in the Bonds and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee its agents and counsel; and
(2) all Events of Default, other than the nonpayment of the principal
of Bonds which have become due solely by such declaration of acceleration,
have been cured or have been waived as provided in Section 12.15.
No such rescission and annulment shall affect any subsequent default or impair
any right consequent thereon.
(d) Upon the occurrence of any Event of Default specified in Section 12.01
the Trustee may, only with the consent of the Credit Obligor if the Letter of
Credit is in effect and has been reinstated to the full amount required to be
available thereunder and the Credit Obligor has not dishonored a draft
thereunder and there has not otherwise been instituted insolvency proceedings
with respect to the Credit Obligor, subject to the terms of this Indenture;
proceed to protect and enforce its rights and the rights of the Bondholders by
any suit, action or proceeding at law or in equity, including but not limited to
an action for mandamus, or for specific performance of any agreement herein or
in the Loan Agreement, contained, or for enforcing payment and collection of any
revenues due under the Loan Agreement, or for making a demand for payment from
the Users, or for taking action pursuant to any other document to which the
Trustee is a party by signature, assignment, operation of law, or otherwise.
SECTION. 12.03. Rights and Remedies of Trustee on Default under Loan
----------------------------------------------------
Agreement.
---------
The Trustee shall have the right in the name of the Issuer to declare any
default and exercise any remedy or remedies under the Loan Agreement or any
other lease of the Project, including the right to declare the entire rent
reserved under such lease immediately due and payable and to take any available
proceedings against any party liable upon any such lease for the payment
thereof, including any guarantor, if any, of the Users' obligations. In the
event of a default by the Users, as defined in the Loan Agreement, or in the
event of a default of any other lessee of the Project in the punctual payment of
rent sufficient to pay the Debt Service on all the Bonds Outstanding as such
principal matures or becomes subject to mandatory redemption and such interest
becomes due, the Trustee may, and upon the written request of the Credit Obligor
if the Credit Obligor has not dishonored any drafts under the Letter of Credit
and there have not been insolvency proceedings instituted against the Credit
Obligor, of if the Letter of Credit is not then in effect, upon the written
request of the Holders of a majority in aggregate principal amount of the Bonds
then Outstanding shall, declare such lease in default and, upon being
indemnified to its reasonable satisfaction, shall pursue such proper remedies as
may be directed by the Holders of such Bonds for the enforcement
82
of the provisions of such lease and guaranty, if any, and the exercise of any
remedies available to the Issuer or the Trustee in the event of such default
under such lease and such guaranty; subject, however, to the discretionary right
of the Trustee, and upon written notice to the Trustee by the Holders of a
majority in principal amount of the Outstanding Bonds, the duty of the Trustee,
to annul such declaration and destroy its effect at any time before action at
law or in equity to enforce such right shall have been instituted.
SECTION 12.04. Rights and Remedies of Trustee in the Event of Bankruptcy,
---------------------------------------------------------
and the Occurrence of Similar Events Regarding the Users.
-------------------------------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, composition or other judicial
proceeding relative to any person obligated for payment of the Bonds, the
Trustee (irrespective of whether there has been a default under this Indenture)
shall be entitled and empowered to intervene in such proceedings on behalf of
the Bondholders, to file and prove a claim or claims for the whole amount owing
and unpaid and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its gross negligence or bad faith)
and of the Bondholders allowed in any such judicial proceedings, to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to take such other action therein as the Trustee may deem necessary or
appropriate to protect the interests of the Bondholders, and any receiver,
assignee or trustee, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each of the Bondholders to make
payments to the Trustee.
SECTION 12.05. Rights of Users in Event of Default under Section 12.01(8)
----------------------------------------------------------
by Issuer under this Indenture.
------------------------------
If there has been no event of default under the Loan Agreement and an Event
of Default under Section 12.01(8) should occur under this Indenture, the Trustee
shall notify the Users in writing of the occurrence of such default and the
Users shall have the right to remedy such default hereunder within thirty days
after such written notice, provided the Users shall pay all expenses of
remedying such default. The exercise of the remedies set forth in Section 12.02
hereof is subject to the right of the Users under this Section to remedy a
default as in this Section provided and limited.
SECTION 12.06. Subrogation Rights of Credit Obligor.
------------------------------------
If money is collected by the Trustee pursuant to the Letter of Credit, the
Credit Obligor shall be subrogated to the rights possessed under this Indenture
by the Trustee and the Holders; provided, however, that the Credit Obligor shall
be precluded from exercising or enforcing such subrogation rights until the
principal of, premium, if any, and interest on all Bonds shall have been paid in
full as provided in Article XVI hereof. For purposes of the subrogation rights
of the Credit Obliger hereunder, (i) any reference herein to the registered
owners or Holders of the Bonds shall mean the
83
Credit Obligor, (ii) any principal of, mandatory redemption premium, optional
redemption premium and interest on the Bonds paid with moneys collected pursuant
to the Letter of Credit shall be deemed to be unpaid hereunder, and (iii) the
Credit Obligor may exercise any rights it would have hereunder as the Holder of
the Bonds. The subrogation rights granted to the Credit Obligor in this
Indenture are not intended to be exclusive of any other remedy or remedies
available to the Credit Obligor, and such subrogation rights shall be cumulative
and shall be in addition to every other remedy given hereunder or under the
Financing Documents, or any other instrument or agreement with respect to the
reimbursement of moneys paid by the Credit Obligor pursuant to the Letter of
Credit, and every other remedy now or hereafter existing at law or in equity or
by statute.
SECTION 12.07. Application of Money Collected
------------------------------
(a) The Trustee shall apply the following funds solely for the purposes
for which they were collected and held under this Indenture and not otherwise:
(1) funds collected from a draw under the Letter of Credit, (2) money held in
trust under Section 8.03 for the benefit of Unsurrendered Bonds, and (3) funds
and investments held in trust under Section 16.02 for the Bonds to be paid
therefrom.
(b) Any money collected by the Trustee pursuant to this Article and any
other sums then held by the Trustee as part of the Trust Estate (other than the
funds referred to in subsection (a) above shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Bonds and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
(1) First: To the payment of all undeducted amounts due the Trustee
-----
under Section 13.07;
(2) Second: To the payment of the whole amount then due and unpaid
------
upon the Outstanding Bonds for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has
been collected, with interest (to the extent that such interest has been
collected by the Trustee or a sum sufficient therefor has been so collected
and payment thereof is legally enforceable at the respective rate or rates
prescribed therefor in the Bonds on overdue principal (and premium, if
any) and (to the extent legally enforceable) on overdue installments of
interest; and in case such proceeds shall be insufficient to pay in full
the whole amount so due and unpaid upon such Bonds, then to the payment of
such principal (and premium, if any) and interest, without any preference
or priority, ratably according to the aggregate amount so due; provided,
however, that payments with respect to Pledged Bonds shall be made only
after all other Bonds have been Fully Paid;
(3) Third: To the payment of all amounts then due to the Credit
-----
Obligor pursuant to the Credit Documents; and
84
(4) Fourth: the payment of the remainder, if any, to the Issuer or
------
to whosoever may be lawfully entitled to receive the same or as a court of
competent jurisdiction may direct.
SECTION 12.08. Trustee May Enforce Claims without Possession of Bonds
------------------------------------------------------
All rights of action and claims under this Indenture or the Bonds may be
prosecuted and enforced by the Trustee without the possession of any of the
Bonds or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Bonds in respect of which such judgment has been recovered.
SECTION 12.09. Limitation on Suits by Holders
------------------------------
No Holder of any Bond shall have any right to institute any proceeding,
judicial or otherwise, under or with respect to this Indenture, or for the
appointment of a receiver or trustee or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Bonds shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding;
(5) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Bonds; and
(6) if the Letter of Credit is in effect and an Event of Default does
not exist under Section 12.01(5), (6), or (7), the Credit Obligor shall
have given its written consent to such direction or request;
it being understood and intended that no one or more Holders of Bonds shall have
any right in any manner whatever by virtue, or by availing of, any provision of
this Indenture to affect, disturb or
85
prejudice the lien of this Indenture or the rights of any other Holders of
bonds, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Outstanding Bonds.
SECTION 12.10. Unconditional Right of Bondholders to Receive Principal,
--------------------------------------------------------
Premium and Interest
--------------------
Notwithstanding any other provision in this Indenture other than those set
forth in Article III, the Holder of any Bond shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and interest on such Bond on the respective stated maturities expressed
in such Bond (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 12.11. Restoration of Positions
------------------------
If the Trustee or any Bondholder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason or has been determined adversely to the
Trustee or to such Bondholder, then and in every such case the Issuer, the
Trustee and the Bondholders shall, subject to any determination in such
proceeding, be restored to their former positions hereunder, and thereafter all
rights and remedies of the Trustee and the Bondholders shall continue as though
no such proceeding had been instituted.
SECTION 12.12. Rights and Remedies Cumulative
------------------------------
No right or remedy herein conferred upon or reserved to the Trustee or to
the Bondholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 12.13. Delay or 0mission Not Waiver
-----------------------------
No delay or omission of the Trustee or of any Holder of any Bond to
exercise any right or remedy accruing upon an Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Bondholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Bondholders, as the
case may be.
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SECTION 12.14. Control by Credit Obligor and Bondholders
-----------------------------------------
The Holders of a majority in principal amount of the Outstanding Bonds (but
only with the consent of the Credit Obligor, if the Letter of Credit is in
effect and the Credit Obligor has not dishonored any draws thereunder and there
has not otherwise been instituted insolvency proceedings with respect to the
Credit Obligor) shall have the right, during the continuance of an Event of
Default,
(1) to require the Trustee to proceed to enforce this Indenture,
either by judicial proceedings for the enforcement of the payment of the
Bonds or otherwise, and
(2) to direct 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 hereunder, provided that
(A) the provisions of Section 12.02 requiring a declaration of
acceleration and a draw under the Letter of Credit may not be modified
or waived without the consent of all Bondholders,
(B) such direction shall not be in conflict with any rule of law
or this Indenture,
(C) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction,
(D) if such direction is given by the Holders of a majority in
principal amount of Bonds Outstanding, the Trustee shall not determine
that the action so directed would be unjustly prejudicial to the
Holders not taking part in such direction.
SECTION 12.15. Waiver of Past Defaults
-----------------------
(a) The Holders of not less than a majority in principal amount of the
Outstanding Bonds may (but only with the consent of the Credit Obliger if the
Letter of Credit is in effect and the Credit Obliger has not dishonored any
draws thereunder and there has not otherwise been instituted insolvency
proceedings with respect to the Credit Obliger and subject to subsection (b)
below), by Action of such Bondholders delivered to the Trustee, the Issuer and
the Users, on behalf of the Holders of all the Bonds waive any past default
hereunder, or under the Loan Agreement, and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Bond,
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(2) in the payment of a Basic Payment, or
(3) in respect of a covenant or provision hereof which under Article
XIV cannot be modified or amended without the consent of the Holder of each
Outstanding Bond affected.
(b) Anything herein to the contrary notwithstanding no default may be
waived unless the Letter of Credit has been reinstated to the full amount then
required to be available thereunder and the Credit Obligor has rescinded any
notice of default under the Credit Documents or any notice of nonreinstatement
of the Credit Amount of the Letter of Credit.
(C) Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture and the Loan Agreement; but no such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon.
SECTION 12.16. Waiver of Appraisement and Other Laws
-------------------------------------
(a) To the full extent that it may lawfully so agree, the Issuer will not
at any time insist upon, plead, claim or take the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption law now or hereafter in
force, in order to prevent or hinder the enforcement of this Indenture; and the
Issuer, for itself and all who may claim under it, so far as it or they now or
hereafter may lawfully do so, hereby waives the benefit of all such laws. The
Issuer, for itself and all who may claim under it, waives, to the extent that it
may lawfully do so, all right to have the property in the Trust Estate marshaled
upon any enforcement hereof.
(b) If any law in this Section referred to and now in force, of which the
Issuer or its successor or successors might take advantage despite this Section,
shall hereafter be repealed or cease to be in force, such law shall not
thereafter be deemed to constitute any part of the contract herein contained or
to preclude the application of this Section.
SECTION 12.17. Suits to Protect the Trust Estate
---------------------------------
The Trustee shall have power to institute and to maintain such proceedings
as it may deem expedient to prevent any impairment of the Trust Estate by any
acts which may be unlawful or in violation of this Indenture and to protect its
interests and the interests of the Bondholders in the Trust Estate and in the
rents, issues, profits, revenues and other income arising therefrom, including
power to institute and maintain proceedings to restrain the enforcement of or
compliance with any governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interests of the Bondholders or the Trustee.
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SECTION 12.18. Remedies Subject to Applicable Law
----------------------------------
All rights, remedies and powers provided by this Article may be exercised
only to the extent that the exercise thereof does not violate any applicable
provision of law in the premises, and all the provisions of this Article are
intended to be subject to all applicable mandatory provisions of law which may
be controlling in the premises and to be limited to the extent necessary so that
they will not render this Indenture invalid, unenforceable or not entitled to be
recorded, registered or filed under the provisions of any applicable law.
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ARTICLE XIII
THE TRUSTEE
SECTION 13.01. Certain Duties and Responsibilities
----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as re specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required 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.
(b) If an Event of Default exists, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) 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
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith, unless it shall be proved that the Trustee was grossly
negligent in ascertaining the pertinent facts;
(3) 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 a majority in principal amount of the Outstanding Bonds
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
(4) no provision of this Indenture shall require the Trustee or the
Issuer to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of
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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.
(d) Whether or not therein expressly so provided, 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.
SECTION 13.02. Notice of Defaults
------------------
Within 90 days after the occurrence of any default hereunder, the Trustee
shall transmit by mail to all Bondholders as their names and addresses appear in
the Bond Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of Debt Service on any Bond, the Trustee
shall be protected in withholding such notice if and so long as the Trustee in
good faith determines that the withholding of such notice is in the interests of
the Bondholders; and provided, further, that in the case of any default of the
character specified in Section 12.01(5) no such notice to Bondholders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 13.03. Certain Rights of Trustee
-------------------------
Except as otherwise provided in Section 13.01:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a certificate or order executed by an Authorized
Issuer Representative;
(3) any request or direction of the Users mentioned herein shall be
sufficiently evidenced by a certificate or order executed by an Authorized
User Representative;
(4) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon a certificate executed by an Authorized
Issuer Representative or Authorized User Representative;
91
(5) the Trustee may consult with counsel and the written advice of
Independent Counsel or any Opinion of Independent Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by the Trustee hereunder in good faith and in reliance
thereon;
(6) neither the Trustee nor the Issuer shall be under any obligation
to exercise any of the rights or powers vested in it by this Indenture at
the request or direction of any of the Bondholders pursuant to this
Indenture, unless such Bondholders shall have offered to the Trustee or
Issuer reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request
or direction, provided, that the Trustee cannot require such security or
indemnity as a condition to the performance by the Trustee of its
obligations under Sections 8.01, 8.02 and 12.02;
(7) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice request, direction, consent, order,
bond, debenture, coupon or other paper or document but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the
books and records of the Issuer, personally or by agent or attorney; and
(8) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 13.04. Not Responsible for Recitals
----------------------------
The recitals contained herein and in the Bonds, except the certificate of
authentication on the Bonds, shall be taken as the statements of the Issuer, and
the Trustee assumes no responsibility for their correctness. The Trustee, makes
no representations as to the value or condition of the Trust Estate or any part
thereof, or as to the title of the Issuer thereto or as to the security afforded
thereby or hereby, or as to the validity or sufficiency of this Indenture or of
the Bonds.
SECTION 13.05. May Hold Bonds
--------------
The Trustee in its individual or any other capacity, may become the owner
or pledgee of Bonds and may otherwise deal with the Issuer and the Users with
the same rights it would have if it were not Trustee.
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SECTION 13.06. Money Held in Trust
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by this Indenture or by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise provided in Article IX.
SECTION 13.07. Compensation and Reimbursement
------------------------------
(a) The Issuer agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust), but only is responsible to the extent such funds are
provided by the Users; and
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and Independent counsel), except any such
expense, disbursement or advance as may be determined by a court of
competent jurisdiction to be attributable to the Trustee's [gross]
negligence, or bad faith, or wilful misconduct, but only is responsible to
the extent such funds are provided by the Users.
(b) As security for the performance of the obligations of the Issuer under
this Section the Trustee shall be secured under this Indenture by a lien prior
to the Bonds, and for the payment of such compensation, expenses, reimbursements
and indemnity the Trustee shall have the right to use and apply any money held
by it as a part of the Trust Estate; provided, however, that funds held by the
Trustee under Section 8.03 and Section 16.02 shall be used solely for the
purposes thereof and all funds received by the Trustee from the Letter of Credit
shall be used solely for the purpose of paying Debt Service on, or the purchase
price of, Bonds as herein provided, and such funds held under Section 8.03 and
Section 16.02 and such funds received from the Letter of Credit shall never be
subject to any lien imposed by this Section in favor of the Trustee.
SECTION 13.08. Corporate Trustee Required; Eligibility
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a commercial
bank or trust company organized and doing business under the laws of the United
States or of any State, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $25,000,000 or having
a minimum of $500,000,000 in trust assets under management, subject to
supervision or examination by Federal or State authority.
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SECTION 13.09. Resignation and Removal; Appointment of Successor
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 13.10.
(b) The Trustee may resign at any time by giving written notice thereof to
the Issuer and the Users. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may (but only with the consent of the Credit Obligor if
the Letter of Credit is in effect and the Credit Obligor has not dishonored any
draws thereunder and there has not otherwise been instituted insolvency
proceedings with respect to the Credit obligor) be removed at any time by Action
of the Holders of a majority in principal amount of the Outstanding Bonds
delivered to the Trustee, the Issuer and the Users.
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 13.08 and
shall fail to resign after written request therefor by the Issuer or by any
Bondholder who has been a Holder of a Bond for at least 6 months, or
(2) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then, in any such case, (i)
the Issuer by a resolution of its Board of Directors may remove the
Trustee, or (ii) any Bondholder who has been a Holder of a Bond for at
least 6 months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Issuer,
by a resolution of its Board of Directors, shall (with the consent of the Credit
Obligor if the Letter of Credit is in effect and the Credit Obligor has not
dishonored any draws thereunder and there has not otherwise been instituted
insolvency proceedings with respect to the Credit Obligor) promptly appoint a
successor Trustee. In case all or substantially all of the Trust Estate shall be
in the possession of a receiver or trustee lawfully appointed, such receiver or
trustee, by written instrument, may (with the consent of the Credit Obligor if
the Letter of Credit is in effect and the Credit Obligor has not dishonored any
draws thereunder and there has not otherwise been instituted insolvency
proceedings with respect to the Credit Obligor) similarly appoint a successor to
fill such vacancy until a new Trustee shall be so appointed by the Bondholders.
If, within 1 year after such resignation, removal or incapability or
94
the occurrence of such vacancy, a successor Trustee shall (with the consent of
the Credit Obligor under the conditions herein prescribed) be appointed by
Action of the Holders of a majority in principal amount of the Outstanding Bonds
delivered to the Issuer, the Users and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee and supersede the successor Trustee appointed by
the Issuer or by such receiver or trustee. If no successor Trustee shall have
been so appointed by the Issuer or the Bondholders and accepted appointment in
the manner hereinafter provided, any Bondholder who has been a Holder of a Bond
for at least 6 months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Issuer shall give notice at the expense of the Users of each
resignation and each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Bonds as their names and addresses appear in the Bond
Register. Each notice shall include the name of the successor Trustee and the
address of its designated office.
(g) Any successor Trustee shall be acceptable to any Rating Agency which
shall then maintain a rating with respect to the Bonds.
SECTION 13.10. Acceptance of Appointment by Successor
--------------------------------------
(a) Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the estates, properties,
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Issuer or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument conveying and transferring to
such successor Trustee upon the trusts herein expressed all the estates,
properties, rights, powers and trusts of the retiring Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 13.07. Upon request of any such successor Trustee,
the Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such estates,
properties, rights, powers and trusts.
(b) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article, to the extent operative.
SECTION 13.11. Merger, Conversion, Consolidation or Succession to Business
-----------------------------------------------------------
Any corporation or association into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation or
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or association
95
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall, if qualified under the criteria set forth in Section 13.08
hereof, be the successor of the Trustee hereunder, provided such corporation or
association shall be otherwise qualified and eligible under this Article, to the
extent operative, without the execution or filing of any paper or any further
act on the part of any of the parties hereto, except that notice should be
provided to the Issuer and the Users. In case any Bonds shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Bonds so authenticated with the same effect
as if such successor Trustee had itself authenticated such Bonds.
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ARTICLE XIV
SUPPLEMENTAL INDENTURES, AMENDMENTS TO LOAN
AGREEMENT AND AMENDMENTS OF LETTER OF CREDIT
SECTION 14.01. Supplemental Indentures Without Consent of Bondholders
------------------------------------------------------
Without the consent of the Holders of any Bonds, the Issuer, when
authorized by a resolution and the Trustee may, subject to the provisions of
Sections 14.06 and 14.07, from time to time enter into one or more indentures
supplemental hereto or in amendment hereof, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Trustee any property subject or required to be subjected
to the lien of this Indenture, or to subject to the lien of this Indenture
additional property; or
(2) to add to the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue of the Bonds; or
(3) to evidence the succession of another corporation to the Issuer
and the assumption by any such successor of the covenants of the Issuer
herein and in the Bonds contained; or
(4) to add to the covenants of the Issuer or the Users for the
benefit of the Holders of Bonds and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional
covenants an Event of Default permitting the enforcement of all or any of
the several remedies provided in this Indenture; provided, however, that
with respect to any such covenant, such supplemental indenture may provide
for a particular period of grace after default (which period may be shorter
or longer than that allowed in the case of other defaults) or may provide
for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(5) to surrender any right or power herein conferred upon the Issuer
or the Users; or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to make
any other provisions, with respect to matters or questions arising under
this Indenture, which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect the interests of
the Holders of the Bonds; or
97
(7) to make further provisions with respect to the administration and
operation of the Book-Entry System and the transfer, payment, selection for
redemption and redemption of Bonds in accordance therewith; or
(8) to secure or maintain ratings from a Rating Agency, provided that
(i) the changes necessary to obtain or secure such ratings do not adversely
affect the interests of the Holders of the Bonds and (ii) the Trustee and
the Issuer receive an Opinion of Bond Counsel to the effect that such
changes are permitted by applicable law and will not cause interest on the
Bonds referenced in said Opinion to become Taxable; or
(9) to modify, amend or supplement this Indenture in such manner as
to permit the qualification hereof under the Trust Indenture Act of 1939 or
any similar federal statute hereafter in effect or to permit the
qualification of the Bonds for sale under the securities laws of any of the
states of the United States, and, if they so determine, to add to this
Indenture such other terms, conditions and provisions as may be permitted
by said Trust Indenture Act of 1939 or similar federal statute.
SECTION 14.02. Supplemental Indentures With Consent of Bondholders
---------------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Bonds then Outstanding affected by such supplemental or amendatory
indenture, by Action of such Holders delivered to the Issuer and the Trustee,
the Issuer, when authorized by a resolution of its Board of Directors, and the
Trustee may, subject to the provisions of Sections 14.06 and 14.07, enter into
an indenture or indentures supplemental hereto or in amendment hereof for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of the Bonds under this Indenture; provided, however, that no such
supplemental indenture or any amendment shall, without the consent of the Holder
of each Outstanding Bond affected thereby,
(1) change the stated maturity of the principal of, or any
installment of interest on, any Bond, or reduce the principal amount
thereof or the interest thereon or any premium payable upon the redemption
thereof, or change any place of payment where, or the coin or currency in
which, any Bond, or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
stated maturity thereof (or, in the case of redemption, on or after the
redemption date); or
(2) reduce the percentage in principal amount of the Outstanding
Bonds the consent of whose Holders is required for any such supplemental
indenture or any amendment to the Loan Agreement, or the consent of whose
Holders is required for any waiver provided for in this Indenture of
compliance with certain provisions of this Indenture or certain defaults
hereunder or under the Loan Agreement and their consequences; or
98
(3) modify or alter the provisions of the proviso to the definition
of the term "Outstanding"; or
(4) modify any of the provisions of this Section or Section 12.15,
except to increase any percentage provided thereby or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Bond affected thereby; or
(5) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to the Trust Estate or any
part thereof or terminate the lien of this Indenture on any property at any
time subject hereto or deprive the Holder of any Bond of the security
afforded by the lien of this Indenture; or
(6) release any rights under the Letter of Credit; however, no
consent of the Bondholders will be required for any extension of the term
of the Letter of Credit by the Credit Obligor or any amendment to the
Letter of Credit which is provided for, and contemplated by, this
Indenture.
SECTION 14.03. Amendments and Supplements to Loan Agreement Without Consent
------------------------------------------------------------
of Bondholders
--------------
Without the consent of the Holders of any Bonds, the Trustee may, subject
to the provisions of Sections 14.06 and 14.07, from time to time consent to the
execution and delivery by the Issuer and the Users of one or more amendments or
supplements to the Loan Agreement, in form satisfactory to the Trustee, for any
one of the following purposes:
(1) to correct or amplify the description of any property at any time
subject to the Loan Agreement, or to subject to the Loan Agreement
additional property;
(2) to evidence the succession of a successor to either of the Users
and the assumption by any such successor of the agreements and covenants of
the Users contained in the Loan Agreement;
(3) to add to the covenants of the Users for the benefit of the
Issuer, the Trustee, or the Holders of Bonds, and to make the occurrence,
or the occurrence and continuance; of a default in any of such additional
covenants a Loan Default permitting the enforcement of all or any of the
several remedies provided in the Loan Agreement; provided, however, that
with respect to any such additional covenant such amendment to the Loan
Agreement may provide for a particular period of grace after default (which
period may be shorter or longer than that allowed in the case of other
defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee or the Issuer, as the case
may be, upon such default;
99
(4) to surrender any right or power conferred by the Loan Agreement
upon the Users; or
(5) to cure any ambiguity, to correct or supplement any provision
therein which may be inconsistent with any other provision therein or to
make any provisions, with respect to matters or questions arising under the
Loan Agreement, which shall not be inconsistent with the provisions of the
Loan Agreement, provided such action shall not adversely affect the
interests of the Holders of the Bonds.
SECTION 14.04. Amendments and Supplements to Loan Agreement With Consent of
------------------------------------------------------------
Bondholders
-----------
With the consent of the Holders of not less than a majority in principal
amount of the Bonds then outstanding, by Action of such Holders delivered to the
Trustee, the Trustee may, subject to the provisions of Sections 14.06 and 14.07,
consent to the execution and delivery by the Issuer and the Users of one or more
amendments or supplements to the Loan Agreement, in form satisfactory to the
Trustee, for the purpose of adding any provisions or changing in any manner or
eliminating any of the provisions of the Loan Agreement or of modifying in any
manner the rights of the Issuer, the Trustee or the Holders of the Bonds under
the Loan Agreement; provided, however, that without the consent of the Holders
of all Outstanding Bonds, no such amendment shall relieve the Users from the
obligation to make Basic Payments at times and in amounts sufficient to pay Debt
Service on the Bonds when due and payable or to pay the purchase price of
Tendered Bonds when due and payable.
SECTION 14.05. Discretion of Trustee: Actions of Bondholders
---------------------------------------------
(a) The Trustee may in its discretion determine whether or not any Bonds
would be affected by any supplemental indenture or amendment to the Loan
Agreement and any such determination shall be conclusive upon the Holders of all
Bonds, whether theretofore or thereafter authenticated and delivered hereunder.
The Trustee shall not be liable for any such determination made in good faith.
(b) It shall not be necessary for any Action of Bondholders under this
Section to approve the particular form of any proposed supplemental indenture or
amendment to the Loan Agreement, but it shall be sufficient if such Action shall
approve the substance thereof.
SECTION 14.06. Consent of Credit Obligor
-------------------------
Subject to Section 1.12, no amendment or change to this Indenture or the
Loan Agreement shall be made without the prior written consent of the Credit
Obligor.
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SECTION 14.07. Execution of Supplemental Indentures
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, or consenting to the amendment of the Loan
Agreement, the Trustee and the Issuer shall be entitled to receive, and, subject
to Section 13.01, shall be fully protected in relying upon, an Opinion of
Independent Counsel stating that the execution of such supplemental indenture or
amendment is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture or consent
to any such amendment which affects the Trustee's own rights, duties or
immunities under this Indenture, the Loan Agreement or otherwise.
SECTION 14.08. Effect of Supplemental Indentures
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Bonds theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 14.09. Reference in Bonds to Supplemental Indentures
---------------------------------------------
Bonds authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and if required by the Trustee shall,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer shall so determine, new Bonds so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Issuer, to any such supplemental indenture may be prepared and executed
by the Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Bonds.
SECTION 14.10. Amendment of Letter of Credit
-----------------------------
(a) The Trustee may, without the consent of or notice to the Holders of
the Bonds, consent to any amendment, modification or other change of the Letter
of Credit for the purpose of curing any ambiguity or formal defect or omission
or obtaining a rating on the Bonds from any Rating Agency, provided that (i)
such change does not adversely affect the interests of the Holders of the Bonds
and (ii) the Trustee and the Issuer shall receive an Opinion of Bond Counsel to
the effect that such change is permitted by applicable law and will not cause
interest on the Bonds referenced in said Opinion to become Taxable.
(b) Except as provided in subsection (a) of this Section, and except for
extensions of the term of the Letter of Credit by the Credit Obligor, no
amendment, modification or other change of the Letter of Credit shall be made
without the consent of the Holders of all Bonds Outstanding.
101
SECTION 14.11. Opinion of Bond Counsel
-----------------------
No amendment or change to this Indenture, the Loan Agreement or the Letter
of Credit shall be effective until there has been delivered to the Trustee and
the Issuer an Opinion of Bond Counsel that such amendment or change will not,
whether solely or in conjunction with other facts or circumstances, cause the
interest on the Bonds referenced in said Opinion to be or become Taxable
102
ARTICLE XV
THE REMARKETING AGENT AND THE TENDER AGENT
SECTION 15.01. Remarketing Agent
-----------------
(a) SouthTrust Securities, Inc. is hereby appointed as "Remarketing Agent"
for the Bonds, subject to the conditions set forth in this Section.
(b) The Remarketing Agent shall signify its acceptance of the duties and
obligations imposed upon it by this Indenture by execution and delivery of an
agreement satisfactory to the Trustee.
(c) The Remarketing Agent shall be authorized by law to perform all the
duties imposed upon it by this Indenture.
(d) The Remarketing Agent may resign at any time by giving 30 days' prior
written notice thereof to the Issuer, the Trustee, the Users and the Credit
Obligor; provided, however, that no such resignation shall become effective
until a successor Remarketing Agent has been appointed and has accepted its
duties and obligations hereunder.
(e) The Users may, with the prior written consent of the Credit Obligor,
remove the Remarketing Agent at any time upon 30 days' prior written notice
thereof to the Remarketing Agent, the Issuer and the Trustee.
(f) If at any time:
(1) the Remarketing Agent shall cease to be eligible under this
Section and shall fail to resign after written request therefor by the
Users, or
(2) the Remarketing Agent shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Remarketing Agent
or of its property shall be appointed or any public officer shall take
charge or control of the Remarketing Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Users may remove the Remarketing Agent upon 7 days'
written notice thereof to the Remarketing Agent, the Credit Obligor, the Issuer
and the Users.
(g) If the Remarketing Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Remarketing Agent for
any cause, the Issuer shall, with the prior written consent of the Users and the
Credit Obligor, promptly appoint a successor Remarketing Agent.
103
(h) Any successor Remarketing Agent shall be appropriately registered and
licensed, and be acceptable to the Users, the Trustee and to any Rating Agency
which shall then maintain a rating with respect to the Bonds.
(i) The Trustee shall give notice of each resignation and each removal of
the Remarketing Agent and each appointment of a successor Remarketing Agent by
mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Bonds as their names and addresses appear in the Bond Register.
Each notice shall include the name of the successor Remarketing Agent and the
address of its principal office.
SECTION 15.02. Tender Agent
------------
(a) At the written request of the Trustee, the Users shall appoint an
agent to act on behalf of the Trustee in the acceptance of delivery of Bonds
tendered for purchase pursuant to the Optional Tender or Mandatory Tender
provisions of this Indenture and in the authentication and delivery of Bonds
pursuant to the transfer and exchange provisions of this Indenture. The Trustee
shall initially be the Tender Agent. For all purpose of this Indenture, (i)
Bonds to be purchased pursuant to the Optional Tender or Mandatory Tender
provisions of this Indenture may be delivered to the Tender Agent, as well as
the Trustee, and (ii) the authentication and delivery of Bonds by a duly
authorized officer of the Tender Agent pursuant to the transfer and exchange
provisions of this Indenture shall be deemed to be the authentication and
delivery of Bonds "by the Trustee".
(b) Any Tender Agent appointed hereunder shall signify its acceptance of
such appointment by execution and delivery of an agreement satisfactory to the
Trustee.
(c) Any such Tender Agent shall at all times be a bank or trust company
having its principal office in New York, New York and shall at all times be a
corporation organized and doing business under the laws of the United States or
of any state with a combined capital and surplus of at least $5,000,000 and
authorized under such laws to exercise corporate trust powers and subject to
supervision and examination by federal or state authority and shall be
acceptable to any Rating Agency which shall then maintain a rating with respect
to the Bonds. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(d) Any corporation or association into which any Tender 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
Tender Agent shall be a party, or any corporation or association succeeding to
the corporate trust business of any Tender Agent, shall be the successor of the
Tender Agent hereunder, if such successor corporation or association is
otherwise eligible under this Section, without the execution or filing of any
further act on the part of the parties hereto or the Tender Agent or such
successor corporation or association.
104
(e) Any Tender Agent may at any time resign by giving written notice of
resignation to the Trustee, the Issuer and the Users. The Trustee may at any
time terminate the agency of any Tender Agent by giving written notice of
termination to such Tender Agent, the Issuer and the Users. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
Tender Agent shall cease to be eligible under this Section, the Trustee shall
promptly appoint a successor Tender Agent, shall give written notice of such
appointment to the Issuer and the Users, and shall mail notice of such
appointment to all Holders of Bonds as the names and addresses of such Holders
appear on the Bond Register.
(f) The Users shall to pay to the Tender Agent from time to time
reasonable compensation for its services, as provided in Section 4.03 of the
Loan Agreement. The provisions of Sections 5.05, 13.04 and 13.05 shall be
applicable to any Tender Agent.
105
ARTICLE XVI
DEFEASANCE
SECTION 16.01. Payment of Indebtedness; Satisfaction and Discharge of
------------------------------------------------------
Indenture
---------
(a) Whenever all Indenture Indebtedness has been Fully Paid, then, upon
the request of an Authorized Issuer Representative, this Indenture and the lien,
rights and interests created hereby shall cease, determine and become null and
void (except as to any surviving rights of transfer or exchange of bonds herein
or therein provided for) and the Trustee shall execute and deliver a termination
statement and such instruments of satisfaction and discharge as may be
necessary and pay, assign, transfer and deliver to the Issuer or upon the order
of the Issuer, all cash and securities then held by its hereunder as a part of
the Trust Estate.
(b) A Bond shall be deemed "Fully Paid" if
(1) such Bond has been canceled by the Trustee or delivered to the
Trustee for cancellation, or
(2) such Bond shall have matured or been called for redemption and,
on such maturity date or redemption date, money for the payment of Debt
Service on such Bond is held by the Trustee in trust for the benefit of the
person entitled thereto, or
(3) such Bond is alleged to have been mutilated, destroyed, lost or
stolen and has been replaced as provided in Section 5.03, or
(4) a trust for the payment of such Bond has been established in
accordance with Section 16.02 and the Trustee shall have received (i) an
Opinion of Counsel experienced in bankruptcy matters states in effect that
upon the occurrence of an Act of Bankruptcy, money and investments in such
trust will not be subject to any preference claim under the Federal
Bankruptcy Code, which opinion shall be satisfactory to any Rating Agency
then rating the Bonds and (ii) an Opinion of Bond Counsel with respect to
the Bonds which states in effect that the establishment of such trust in
accordance with the terms thereof will not cause interest on the Bonds
referenced in said Opinion to become Taxable and (iii) a certificate of an
Independent certified public accountant or firm thereof to the effect that
the funds on deposit in such trust and the income therefrom without
reinvestment will be sufficient to pay when due the principal of, premium
if any and interest on such Bonds. The Trustee shall give each Rating
Agency that maintains a rating with respect to the Bonds 10 days' notice of
the intent to establish such a trust for the payment of Bonds, but failure
to give any such notice shall not result in a Bond not being deemed Fully
Paid.
106
(c) Indenture Indebtedness other than Debt Service on the Bonds shall be
deemed "Fully Paid" whenever the Issuer has paid, or made provisions
satisfactory to the Trustee for payment of, all such Indenture Indebtedness
other than Debt Service on the Bonds.
SECTION 16.02. Trust for Payment of Debt Service
---------------------------------
(a) The Issuer may provide for the payment of any of the Bonds by
establishing a trust for such purpose with the Trustee and depositing therein
cash and/or Federal Securities which (assuming the due and punctual payment of
the principal of and interest on such Federal Securities) will provide funds
sufficient to pay the Debt Service on such Bonds as the same becomes due and
payable until the maturity or redemption of such Bonds; provided, however, that
(1) such Federal Securities must not be subject to redemption prior
to their respective maturities at the option of the issuer of such
Securities,
(2) if any of such Bonds are to be redeemed prior to their respective
maturities, either (i) the Trustee shall receive evidence that notice of
such redemption has been given in accordance with the provisions of this
Indenture and such Bonds or (ii) the Issuer shall confer on the Trustee
irrevocable authority for the giving of such notice on behalf of the
Issuer,
(3) such trust must be established only during a Fixed Rate Period
and, if established during a Fixed Rate Period, all Bonds to be retired
with funds from such trust must either mature or be called for redemption
on or before the date immediately following such Fixed Rate Period, and
(4) the Trustee has received the opinions referred to in Section
16.01(b)(4).
(b) Cash and Federal Securities deposited with the Trustee pursuant to
this Section shall not be a part of the Trust Estate but shall constitute a
separate, irrevocable trust fund for the benefit of the Holders of the Bonds to
be paid from such fund. Such cash and the principal and interest payable on such
Federal Securities shall be applied by the Trustee solely to the payment of Debt
Service on such Bonds. Any funds deposited with the Trustee pursuant to this
Section shall be invested only in Federal Securities meeting the requirements of
this Section.
107
ARTICLE XVII
FEDERAL REBATE PAYMENTS
SECTION 17.01. Computations and Payments of Rebate
-----------------------------------
(a) The Users, acting on behalf of the Issuer, shall, in a timely manner,
make all determinations and calculations, file all reports, forms, and returns,
remit all moneys and take all other action necessary for compliance with the
provisions of Section 148(f) or any successor provision of the Internal Revenue
Code with respect to rebate payments to the United States of America. The
Trustee shall not be responsible for (i) determining that any investment of
moneys in the Acquisition/Construction Fund or the Bond Fund or the Bond
Purchase Fund complies with the limitations imposed by Section 148 of the
Internal Revenue Code, or (ii) calculating the amount of, or making payment of,
any rebate due to the United States of America.
(b) All costs and expenses of compliance with the provisions of this
Article shall be paid by the Users.
SECTION 17.02. Accounting Records and Reports
------------------------------
The Trustee shall keep proper books of record and account in which complete
and correct entries shall be made of all transactions relating to the receipt,
investment, disbursement, allocation and application of the proceeds of the
Bonds and the revenues of the Project. Such records shall specify the account or
fund to which each investment (or portion thereof) held by the Trustee is to be
allocated and shall set forth, in the case of each investment security, (a) its
purchase price, (b) identifying information, including par amount, and interest
rate, (c) the amount received at maturity or its sale price, as the case may be,
and (d) the amounts and dates of any payments made with respect thereto. Such
records shall be open to inspection by the Issuer at any reasonable time during
regular business hours on reasonable notice.
108
IN WITNESS WHEREOF, the Issuer and the Trustee have caused this instrument
to be duly executed, and their respective corporate seals to be hereunto affixed
and the same attested, by officers thereof duly authorized thereunto.
DEVELOPMENT AUTHORITY OF
GWINNETT COUNTY
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Title: Chairman
[S E A L]
Attest:
By: /s/ Xxx X. Xxxx
---------------------------
Title: Secretary
(Trust Indenture Signature Page)
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President and Corporate
Trust Officer
[S E A L]
Attest:
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Title: Vice President and Trust Officer
----------------------------------
(Trust Indenture Signature Page)
EXHIBIT A
FORM OF REQUISITION CERTIFICATE
-------------------------------
TO: SOUTHTRUST BANK, NATIONAL ASSOCIATION, AS TRUSTEE
FROM: COLOR IMAGE, INC. AND KINGS BROTHERS, LLC (THE "COMPANIES")
SUBJECT: TRUST INDENTURE, DATED AS OF JUNE 1, 1999, BETWEEN THE TRUSTEE
AND DEVELOPMENT AUTHORITY OF GWINNETT COUNTY RELATING TO THE
INDUSTRIAL DEVELOPMENT REVENUE BONDS (COLOR IMAGE, INC. PROJECT),
SERIES 1999 (Capitalized terms used herein as defined in the
Trust Indenture)
This represents Requisition Certificate No. ___ in the total amount of
$ ___ for payment of those Costs of the Project detailed in the schedule
attached.
The undersigned does certify that:
1. All of the expenditures for which monies are requested hereby
represent proper Costs of the Project, have not been included in a previous
Requisition Certificate and have been properly recorded on the Companies' books.
2. None of the expenditures for which monies are requested hereby were
paid by either of the Companies prior to sixty days before March 1, 1999.
3. The monies requested thereby are not greater than those necessary to
meet obligations due and payable or to reimburse the Companies for funds
actually advanced for Costs of the Project. The monies requested do not include
retention or other monies not yet due or earned under construction contracts.
The requisition is in compliance with the requirements of Section 4.02 of the
Loan Agreement.
4. After payment of monies hereby requested, there will remain available
to the Companies sufficient funds to complete the Project substantially in
accordance with the plans.
A-l
5. No more than 2% of the sum for payment of costs of issuance, and all
other payments from the proceeds of the Bonds heretofore made from the bond
proceeds has been or will be used, directly or indirectly as working capital or
to finance inventory or issuance costs.
6. The Companies are not in default under the Loan Agreement or the
Credit Documents and nothing has occurred to the knowledge of the Companies that
would prevent the performance of their obligations under the Loan Agreement or
the Credit Documents.
Executed this __________ day of _________, ____.
COLOR IMAGE, INC.
By:
---------------------------------
Its:
---------------------------------
an Authorized User Representative
KINGS BROTHERS, LLC
By:
---------------------------------
Its:
---------------------------------
an Authorized User Representative
Approved by SouthTrust Bank,
National Association, as Credit
Obligor, as Lender.
By:
--------------------------------
Title:
--------------------------------
Date:
--------------------------------
A-2
SCHEDULE TO REQUISITION CERTIFICATE NO. 1
1474788v1
