EXHIBIT 4.3
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TRUST INDENTURE
BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF XXXXXXXXXX
AND
REGIONS BANK,
AS TRUSTEE AND REGISTRAR
---------------------------------------------
RELATING TO
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF XXXXXXXXXX
$4,000,000 TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(KINPAK INC. PROJECT) SERIES 1996A
AND
$990,000 INDUSTRIAL REFUNDING REVENUE BONDS
(KINPAK INC. PROJECT) SERIES 1996B
---------------------------------------------
DATED
AS OF
DECEMBER 1, 1996
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XXX X. XXXXXXXXXX, P.C.
MONTGOMERY, ALABAMA
BOND COUNSEL
TRUST INDENTURE
INDEX
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PARTIES.................................................................... 1
RECITALS................................................................... 1
GRANTING CLAUSES........................................................... 2
ARTICLE I
DEFINITIONS
Section 101. Definitions.................................................. 4
Section 102. Interpretation............................................... 15
Section 103. Captions and Headings........................................ 16
ARTICLE II
THE BONDS
Section 201. Authorized Amounts of Bonds.................................. 17
Section 202. Issuance of the Bonds; Terms Thereof......................... 17
Section 203. Execution of Bonds........................................... 20
Section 204. Authentication of Bonds...................................... 20
Section 205. Payment and Ownership of Bonds............................... 20
Section 206. Redemption................................................... 21
Section 207. Notice of Redemption......................................... 21
Section 208. Payment of Redeemed Bonds.................................... 22
Section 209. Partial Redemption........................................... 22
Section 210. Election to Redeem........................................... 23
Section 211. Mutilated, Lost, Stolen or Destroyed Bonds................... 23
Section 212. Transfer and Exchange of Bonds............................... 23
Section 213. Safekeeping and Cancellation of Bonds........................ 24
Section 214. Special Agreement with Holders............................... 24
Section 215. Actions Regarding of Letter of Credit........................ 25
Section 216. DTC Eligibility Requirements................................. 25
ARTICLE III
TENDER PROVISIONS
Section 301. Optional Tenders............................................. 26
Section 302. Mandatory Tenders............................................ 27
Section 303. Procedures for Purchase and Remarketing...................... 29
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ARTICLE IV
PROVISIONS AS TO FUNDS AND PAYMENTS
Section 401. Bond Fund.................................................... 34
Section 402. Payment of Debt Service...................................... 35
Section 403. Non-Presentment of Bonds..................................... 35
Section 404. Release of Funds Upon Payment of Bonds....................... 36
Section 405. Construction Fund; Disbursements............................. 36
Section 406. Bond Purchase Fund........................................... 37
Section 407. Rebate Fund ................................................. 39
Section 408. Refunding Fund............................................... 40
Section 409. Investment of Fund Moneys.................................... 40
Section 410. Moneys to be Held in Trust................................... 41
ARTICLE V
FIDUCIARIES
Section 501. Trustee's Acceptance and Responsibilities.................... 42
Section 502. Fees, Charges and Expenses of Fiduciaries.................... 44
Section 503. Notices to Holders........................................... 44
Section 504. Intervention by Trustee...................................... 45
Section 505. Successor Trustees........................................... 45
Section 506. Appointment of Co-Trustee.................................... 45
Section 507. Resignation by the Trustee................................... 46
Section 508. Removal of the Trustee....................................... 46
Section 509. Appointment of Successor Trustee............................. 47
Section 510. Concerning Any Successor Trustee............................. 47
Section 511. Right of Trustee to Pay Taxes and Other Charges.............. 47
Section 512. Adoption of Authentication................................... 48
Section 513. Registrars................................................... 48
Section 514. Designation and Succession of Paying Agents.................. 50
Section 515. Designation and Succession of Authenticating Agents.......... 50
Section 516. Dealing in Bonds............................................. 51
Section 517. Tender Agent................................................. 51
Section 518. Remarketing Agent............................................ 51
ARTICLE VI
DEFAULT PROVISIONS AND
REMEDIES OF TRUSTEE AND HOLDERS
Section 601. Events of Default............................................ 53
Section 602. Acceleration................................................. 54
Section 603. Other Remedies; Rights of Holders............................ 55
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Section 604. Application of Moneys........................................ 56
Section 605. Remedies Vested in Trustee................................... 57
Section 606. Rights and Remedies of Holders............................... 57
Section 607. Remedies Subject to Applicable Law........................... 58
ARTICLE VII
SUPPLEMENTAL INDENTURES; OTHER AMENDMENTS
Section 701. Supplemental Indentures Not Requiring Consent of Holders..... 59
Section 702. Supplemental Indentures Requiring Consent of Holders......... 60
Section 703. Additional Consents Required................................. 61
Section 704. Amendments of Lease Agreement................................ 61
Section 705. Amendments of Letter of Credit............................... 62
ARTICLE VIII
DEFEASANCE
Section 801. Defeasance................................................... 63
Section 802. Payment of Bonds............................................. 63
Section 803. Survival of Certain Provisions............................... 64
ARTICLE IX
COVENANTS BY THE ISSUER
Section 901. Payment of Debt Service and Purchase Price................... 65
Section 902. Revenues and Assignment of Revenues.......................... 65
Section 903. Performance of Covenants by Issuer........................... 65
Section 904. Inspection of Project Books.................................. 65
Section 905. Register..................................................... 65
Section 906. Rights and Enforcement of the Lease Agreement................ 65
Section 907. Further Assurances........................................... 66
Section 908. Non-Taxable Status........................................... 66
ARTICLE X
MISCELLANEOUS
Section 1001. Consents, Etc., of Holders.................................. 67
Section 1002. Limitation of Rights........................................ 67
Section 1003. Severability................................................ 67
Section 1004. Limitation of Liability..................................... 67
Section 1005. Payments Due on Other than Business Days.................... 68
Section 1006. Counterparts................................................ 68
Section 1007. Notices..................................................... 68
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Section 1008. Suspension of Mail.......................................... 69
Section 1009. Governing Law............................................... 69
Section 1010. Opinions of Bond Counsel Not Required....................... 69
Section 1011. Contest of Determination of Taxability...................... 69
SIGNATURES................................................................. 70
ACKNOWLEDGMENTS............................................................ 71
Exhibit A Forms of Bonds
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TRUST INDENTURE
THIS TRUST INDENTURE made and entered into as of December 1, 1996 (as
the same may hereafter be amended or supplemented, this "Indenture"), by and
between THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF XXXXXXXXXX, its
successors and assigns (the "Issuer"), a public corporation organized and
existing under the laws of the State of Alabama (the "State"), and REGIONS BANK,
a state banking corporation authorized to accept and execute trusts of the
character herein set forth, with its principal corporate trust office for
purposes of discharging the trusts hereunder being in the City of Montgomery,
Alabama, its successors and assigns (the "Trustee"), under the circumstances set
forth in the following recitals (the capitalized terms not defined in this
paragraph or the recitals having the meanings given to them in Article I
hereof):
W I T N E S S E T H:
A. The Issuer has been heretofore organized under and is authorized by
the Act to acquire, enlarge, improve, replace, own, lease and dispose of
properties to the end that the Issuer may be able to promote industry, develop
trade and further the use of the agricultural products and natural and human
resources of the State and the development and preservation of said resources.
B. On October 17, 1979, the Issuer issued the Prior Bonds pursuant to
the Act and the Prior Indenture and applied the proceeds thereof to acquire,
construct and equip the Existing Facilities as a "project" under the Act, which
the Issuer leased to Kinark pursuant to the Original Lease. Pursuant to the
Lease Assignments (as defined in the Lease Agreement), the Company has succeeded
to the position of Kinark as lessee under the Original Lease.
C. The Company has heretofore expressed to the Issuer its desire (a) to
achieve interest rate savings by refinancing the debt represented by the Prior
Bonds, (b) to renovate and upgrade the Existing Facilities and (c) to acquire,
construct and equip the New Facilities. The Issuer heretofore adopted the
Inducement Resolution which provided, among other things, for the issuance of
the Bonds by the Issuer to refund (inter alia) the Prior Bonds and to assist in
financing the costs of the Project.
D. Simultaneously with the execution and delivery of this Indenture,
the Issuer, as lessor, and the Company, as lessee, will enter into the Lease
Agreement which will amend, supplement and restate the provisions of the
Original Lease under which the Existing Facilities are leased to the Company.
Pursuant to the Lease Agreement, the Company will agree to pay the Basic Rent at
such times and in such amounts as shall be sufficient to pay when due the Debt
Service on and Purchase Price of the Bonds.
E. The Bonds shall be limited obligations of the Issuer payable solely
out of the Revenues. As additional security for the payment of the Bonds, the
Company shall cause the Bank to issue the Initial Letter of Credit in favor of
the Trustee in an amount equal to the sum of (a) the aggregate principal amount
of the Bonds, to enable the Trustee to pay the principal of the Bonds when due
and to pay the principal portion of the Purchase Price of Bonds tendered (or
deemed tendered) for purchase, plus (b) interest on the Bonds for a period of
120 days at the maximum rate of 15% per annum, 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.
F. The execution and delivery of this Indenture and the issuance of the
Bonds under the Act have been in all respects duly and validly authorized by
resolutions duly adopted and approved by the Issuer.
G. The Bonds to be issued hereunder and the authentication certificate
thereon are to be substantially in the forms thereof attached hereto as Exhibit
A, with appropriate omissions, insertions and variations permitted or authorized
as hereinafter provided.
H. All things necessary to make the Bonds, when authenticated by the
Trustee and issued as in this Indenture provided, the valid, binding and legal
obligations of the Issuer according to the import thereof, and to constitute
this Indenture a valid pledge of the Revenues to the payment of the Debt Service
on and Purchase Price of the Bonds, have been done and performed, and the
creation, execution and delivery of this Indenture, and the execution and
issuance of the Bonds, subject to the terms hereof, have in all respects been
duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
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That the Issuer, in consideration of the premises and the acceptance by
the Trustee and the Registrar of the trusts created herein and the acceptance of
the Bonds by the Holders thereof, and for other good and valuable
considerations, the receipt of which is hereby acknowledged, in order to secure
the payment of the Debt Service on and Purchase Price of the Bonds according to
their tenor and effect and the performance and observance by the Issuer of all
the covenants expressed or implied herein and in the Bonds, does hereby grant,
bargain, sell, convey, mortgage and pledge unto the Trustee and unto its
successors in trust, and to it and their respective assigns forever, the
following:
I.
All right, title and interest of the Issuer in and to the Lease
Agreement, except for Unassigned Rights (as therein defined).
II.
All Revenues receivable by or for the account of the Issuer, including,
without limitation, all Basic Rent and other payments in respect of payment of
Basic Rent to be received under and pursuant to and subject to the provisions of
the Lease Agreement, which moneys are (subject to the credits or offsets
provided for under the Lease Agreement) to be paid directly to the Trustee at
the Trustee's Office for the account of the Issuer and deposited as hereinafter
provided.
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TO HAVE AND TO HOLD all the same with all privileges and appurtenances
hereby and hereafter conveyed and assigned, or agreed or intended so to be, to
the Trustee and its successors in trust and its and their respective assigns
forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for
the benefit, security and protection of the Holders from time to time of the
Bonds issued under and secured by this Indenture, without preference, priority
or distinction as to lien or otherwise of any of such Bonds over any of the
others except as herein expressly provided.
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid, the Debt Service due or to become due,
at the times and in the manner mentioned in the Bonds according to the true
intent and meaning thereof, and shall cause the payments to be made as required
hereunder, and shall well and truly keep, perform and observe all the covenants
and conditions pursuant to the terms of this Indenture to be kept, performed and
observed by it, and shall pay or cause to be paid to the Trustee and the other
Fiduciaries all sums of money due or to become due to them in accordance with
the terms and provisions hereof; then upon such final payments this Indenture
and the rights granted shall cease, determine and be void; otherwise this
Indenture to be and remain in full force and effect.
The terms and conditions upon which the Bonds are to be issued,
authenticated, delivered, secured and accepted by all Persons who from time to
time shall be or become Holders thereof, and the trusts and conditions upon
which the Revenues pledged are to be held and disposed of, which said trusts and
conditions the Trustee and Registrar hereby accept, and to all of which the
respective parties hereto covenant and agree, are as follows:
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ARTICLE I
DEFINITIONS
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Section 101. Definitions. In addition to the words and terms elsewhere
defined in this Indenture (including in the recitals hereto) or by reference to
the Lease Agreement or other document, unless the context or use indicates
another or different meaning or intent:
"Act" means Article 4, Chapter 54, Title 11 of the Code of Alabama of
1975, as amended.
"Act of Bankruptcy" means the filing of a petition in bankruptcy (or
other commencement of a bankruptcy or similar proceeding) by or against the
Company or by the Issuer, as debtor, under any applicable bankruptcy,
reorganization, insolvency or other similar law now or hereafter in effect.
"Affiliate" means, as to any specified Person, another Person that
directly, or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, the specified Person.
"Alternate Credit Facility" means an irrevocable letter of credit, a
surety bond, an insurance policy or other credit facility delivered to the
Trustee pursuant to Section 5.8(f) of the Lease Agreement.
"Authenticating Agent" means the Trustee and any bank, trust company or
other Person designated as an Authenticating Agent for the Bonds by or in
accordance with Section 515 of this Indenture, each of which shall be a transfer
agent registered in accordance with Section 17A(c) of the Securities Exchange
Act of 1934, as amended.
"Authorized Denominations" means, as to the Bonds, the denominations of
$100,000 and any integral multiple of $5,000 in excess thereof.
"Available Moneys" shall mean: (a) with respect to any payment date
occurring during any period that the Bonds are entitled to the benefit of a
Letter of Credit, (i) any moneys which have been paid to the Trustee by the
Company (including moneys transferred from the Construction Fund pursuant to
Section 405(f) hereof) and which have been on deposit with the Trustee for at
least 367 days during and prior to which no Act of Bankruptcy shall have
occurred, and the proceeds from the investment of such moneys after such moneys
have become Available Moneys, (ii) moneys on deposit with the Trustee
representing proceeds from the resale by the Remarketing Agent of Bonds to
persons other than the Issuer or the Company as described in Article III hereof,
which, in each case, were at all times since their deposit with the Trustee held
in a separate and segregated account or accounts or sub-account or sub-accounts
in which no moneys which were not Available Moneys were at any time held, and
the proceeds from the investment thereof, and (iii) moneys drawn under a Letter
of Credit which in each case were at all times since their deposit with the
Trustee held in a separate and segregated account or accounts or sub-account or
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sub-accounts in which no moneys (other than those drawn under a Letter of
Credit) were at any time held; and (b) with respect to any payment date not
occurring during a period that the Bonds are entitled to the benefit of a Letter
of Credit, any moneys furnished to the Trustee and the proceeds from the
investment thereof. The Trustee may presume that no Act of Bankruptcy has
occurred unless notified in writing to the contrary by the Company, the Bank or
the owners of not less than 25% in aggregate principal amount of Bonds
Outstanding.
"Bank" means First Union National Bank of Florida, Fort Lauderdale,
Florida, and its successors and assigns, as issuer of the Initial Letter of
Credit, until such time, if any, as a Substitute Letter of Credit or Alternate
Credit Facility shall become effective pursuant to Section 5.8 of the Lease
Agreement, and thereafter "Bank" shall mean the issuer of such Substitute Letter
of Credit or Alternate Credit Facility.
"Basic Rent" means that portion of the rentals payable under the Lease
Agreement in the amounts and at the times sufficient, giving effect to any
credit therein provided for, to pay Debt Service on or Purchase Price of the
Bonds.
"Bio-Chem" means Ocean Bio-Chem, Inc., a Florida corporation, its
successors and assigns, of which the Company is a wholly-owned subsidiary.
"Bond" or "Bonds" means, collectively, the Series 1996A Bonds and the
Series 1996B Bonds.
"Bond Counsel" means Xxx X. Xxxxxxxxxx, P.C., Montgomery, Alabama, or
any other attorney or firm of attorneys nationally recognized on the subject of
municipal bonds and acceptable to the Trustee.
"Bond Fund" means the fund created and described in Section 401 hereof.
"Bond Payment Date" means each date (including any date fixed for
redemption of Bonds) on which Debt Service on the Bonds is payable.
"Bond Purchase Fund" means the fund created and described in Section
406 hereof.
"Bond Year" means, during the period the Series 1996B Bonds and (if and
when issued) the Refunding Obligations remain outstanding, the annual period
provided for the computation of Excess Earnings under Section 148(f) of the Code
(except that the first and last Bond Years may be less than 12 months long).
"Building" means that certain existing manufacturing facility of
approximately 50,000 square feet, the proposed new building of approximately
60,000 square feet and all other structures and improvements which are required
or permitted by the Lease Agreement to stand or be constructed on the Leased
Realty, as they may at any time exist.
"Business Day" means any day other than (1) a day on which the payment
system of the Federal Reserve System is not operational, or (2) a day on which
commercial banks are required or authorized by law to close in any of the
following locations: (i) the city in which the Trustee's Office is located, (ii)
the city in which the principal office of the Remarketing Agent is located, or
(iii) the city in which the office of the Bank at which drawings under the
Letter of Credit are to be made is located.
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"Cap Rate" means the lower of (i) the rate of 15% 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, at which there has been calculated
the amount available to be drawn on such Letter of Credit to pay interest on the
Bonds.
"City" means the City of Montgomery, Alabama.
"Code" means the Internal Revenue Code of 1986, as amended. References
to the Code and Sections thereof include relevant applicable temporary, proposed
or final regulations thereunder and under any predecessor provisions of the
Internal Revenue Code of 1954, as amended.
"Company" means KINPAK INC., formerly known as Kinbright, Inc., a
corporation for profit organized and existing under the laws of the State, and
its successors and assigns.
"Company Account" means the account so named in the Bond Fund.
"Company Bonds" means Bonds registered in the name of the Company
pursuant to Section 303(e) or (f) hereof.
"Completion Date" means the date of completion of the Project to be
established by the Company in accordance with the provisions of the Lease
Agreement.
"Computation Date" means the last day of each Bond Year and the day on
which the final payment in full of all the Series 1996B Bonds and (if and when
issued) the Refunding Obligations is made.
"Construction Fund" means the fund created and described in Section 405
hereof.
"Conversion Date" means a Proposed Conversion Date on which the Fixed
Rate shall become effective.
"County" means Xxxxxxxxxx County, Alabama.
"Credit Facility Account" means the account so named in the Bond Fund.
"Credit Facility Proceeds Account" means the account so named in the
Bond Purchase Fund.
"DTC" means The Depository Trust Company, New York, New York.
"DTC-Eligible Obligations" means securities which are eligible for
deposit at DTC.
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"Debt Service" means, for any period or payable at any time, the
principal, interest and any premium due on the Bonds for that period or payable
at that time.
"Determination of Taxability" means, with respect to the Series 1996B
Bonds and (if and when issued) the Refunding Obligations, a determination that
interest on any such obligation is Taxable because of (i) the receipt by any
Holder or any member of an "affiliated group", as that term is defined in
Section 1504 of the Code, of a "30-day letter" within the meaning of Treasury
Regulations Section 601.105(d)(1)(iv) proposing a determination to that effect;
(ii) receipt by the Company of written advice from the Commissioner or any
District Director of the Internal Revenue Service to that effect; or (iii)
receipt by the Trustee or any Holder of a written opinion of Bond Counsel that
there is substantial likelihood that such interest is Taxable; subject, however,
in all such cases to the right on the part of the Company set forth in Section
1011 hereof to contest the same.
"Eligible Investments" means (i) Government Obligations; (ii)
obligations issued or guaranteed by any state or political subdivision thereof,
which obligations are rated by a Rating Agency in the highest category if rated
as short-term obligations or not lower than the third highest category if rated
as long-term obligations; (iii) commercial or finance paper which is rated in
not lower than the second highest rating category by a Rating Agency; (iv)
deposit accounts, bankers' acceptances, certificates of deposit or bearer
deposit notes in one or more banks, trust companies or savings and loan
associations (including without limitation, the Trustee or any bank affiliated
with the Trustee) organized under the laws of Canada or the United States of
America or any state or province thereof, provided that the debt obligations of
each such bank, trust company or savings and loan association are rated by a
Rating Agency in the highest category if rated as short-term obligations or not
lower than the third highest category if rated as long-term obligations; (v)
obligations of the Federal Land Bank, the Federal Home Loan Bank or the Federal
Intermediate Credit Bank; (vi) money market mutual funds registered under the
Investment Company Act of 1940, as amended, provided that the portfolio of any
such money market fund is limited to Government Obligations and to agreements to
purchase Government Obligations; and (vii) repurchase agreements secured fully
by obligations of the type specified in clause (i), which obligations must be
held by or under the control of the Trustee, and issued by a bank or savings and
loan association which is insured by the Federal Deposit Insurance Corporation
or the Federal Savings and Loan Insurance Corporation; provided that any
investment or deposit described above is not prohibited by applicable law.
"Equipment" means all items of machinery, equipment, fixtures and
tangible personal property now or hereafter constituting part of the Project,
and any item of machinery, equipment, fixtures or tangible personal property
acquired in substitution therefor or as a renewal or replacement thereof
pursuant to the provisions of the Lease Agreement.
"Event of Default" means an Event of Default specified in and defined
by Section 601 hereof.
"Excess Earnings" means, with respect to the proceeds from the Series
1996B Bonds and (if and when issued) the Refunding Obligations, as of each
Computation Date, an amount equal to the sum of (a) plus (b) where:
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(a) is the excess of
(i) the aggregate amount earned from the Issue Date on all
nonpurpose investments in which gross proceeds of the Bonds are
invested (other than investments attributable to excess earnings
described in this clause (a)), taking into account any gain or
loss on the disposition of nonpurpose investments, over
(ii) the amount that would have been earned if such
nonpurpose investments (other than amounts attributable to an
excess described in this clause (a)) had been invested at a rate
equal to the yield on the Bonds; and
(b) is any income attributable to the excess described in clause
(a), taking into account any gain or loss on the disposition of
nonpurpose investments.
The sum of (a) plus (b) shall be determined in accordance with Sections
148(f)(2) and 148(f)(4) of the Code. As used herein, the terms "gross proceeds",
"nonpurpose investments" and "yield" have the meanings assigned to them for
purposes of Section 148 of the Code.
"Existing Facilities" means the land, buildings and equipment financed
in part with the proceeds of the Prior Bonds, previously leased by the Issuer to
and operated by Kinark and now constituting a part of the Project.
"Existing Letter of Credit" means, as of any particular time, the
Letter of Credit or Alternate Credit Facility held by the Trustee at that time.
"Extension Letter of Credit" means a Substitute Letter of Credit from
the same Bank which issued the Existing Letter of Credit, substantially
identical to the Existing Letter of Credit except that it has a Stated
Expiration Date at least one year later than that of the Existing Letter of
Credit.
"Extraordinary Services" and "Extraordinary Expenses" mean all services
rendered and all expenses incurred under the Indenture other than Ordinary
Services and Ordinary Expenses.
"Fiduciaries" means the Trustee, the Tender Agent, the Registrar and
any Paying Agent or Authenticating Agent, and their respective successors and
assigns.
"Final Determination" means a Determination of Taxability deemed final
by reason of the termination or forfeiture of the Company's right to contest the
same under Section 1011 hereof.
"Fixed Rate" means, with respect to each Series of the Bonds, the
interest rate to be borne by such Bonds on and after the Conversion Date,
established pursuant to Section 202(g) hereof.
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"Fixed Rate Period" means, with respect to each Series of the Bonds,
the period beginning on the Conversion Date and ending on the day immediately
prior to the maturity date of that Series.
"Government Obligations" means (a) direct obligations of the United
States of America for the full and timely payment of which the full faith and
credit of the United States of America is pledged; (b) obligations issued by a
person controlled or supervised by and acting as an instrumentality of the
United States of America, the full and timely payment of the principal of,
premium, if any, and interest on which is fully and unconditionally guaranteed
as a full faith and credit obligation by the United States of America; or (c)
securities or receipts evidencing ownership interests in obligations or
specified portions (such as principal or interest) of obligations described in
preceding clause (a) or (b), which securities, receipts or portions of
obligations are not subject to redemption prior to maturity at less than par at
the option of anyone other than the holder thereof.
"Governmental Authority" means the United States, any state or
political subdivision thereof and any court, agency, department, commission,
board, bureau or instrumentality of any of the foregoing.
"Holder" or "Holder of a Bond" means the Person in whose name a Bond is
registered on the Register.
"Initial Letter of Credit" means the initial Letter of Credit in the
form attached to the Reimbursement Agreement as Schedule I and delivered to the
Trustee on or prior to the Issue Date.
"Interest Payment Date" means, so long as the Bonds are outstanding,
the first Business Day of each March, June, September and December, commencing
on the first Business Day of March, 1997.
"Interest Rate for Advances" means the rate per annum which is one
percent (1%) per annum in excess of the Prime Rate.
"Interim Indebtedness" means the indebtedness in the principal amount
of $220,000 incurred, in anticipation of the issuance of the Series 1996B Bonds,
to pay a like principal amount of the Prior Bonds which matured on September 1,
1996.
"Issue Date" means the date of the initial authentication and delivery
of the Bonds.
"Kinark" means Kinark Corporation, a Delaware corporation, as lessee
under the Original Lease.
"Lease Agreement" means the Restated Lease Agreement of even date
herewith between the Issuer, as lessor, and the Company, as lessee, as the same
may hereafter be amended and supplemented.
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"Leased Realty" means the real estate and interests therein
constituting the site of the Project and described in Exhibit A to the Lease
Agreement, together with any additions thereto, less any removals therefrom.
"Letter of Credit" means the Initial Letter of Credit and, unless the
context or use indicates another or different meaning or intent, any Substitute
Letter of Credit.
"Letter of Credit Substitution Date" means any Business Day specified
by the Company pursuant to Section 5.8 of the Lease Agreement on which the
Company proposes (other than by reason of the Conversion Date or the Stated
Expiration Date of the Existing Letter of Credit) to furnish a Substitute Letter
of Credit (other than an Extension Letter of Credit) or Alternate Credit
Facility in place of the then Existing Letter of Credit.
"Mandatory Tender" means a tender of Bonds required by Section 302
hereof.
"Mandatory Tender Date" means a date on which any Mandatory Tender is
required, more particularly described in Section 302 hereof.
"Miscellaneous Account" means the account so named in the Bond Purchase
Fund.
"Moody's" means Xxxxx'x Investors Service, Inc., New York, New York.
"Necessary Authorizations" means, with respect to any given action or
effect, all authorizations, consents, approvals, permits, licenses and
exemptions of, filings and registrations with, and reports to, all Governmental
Authorities which are necessary or required to accomplish such action or achieve
such effect.
"New Facilities" means an expansion to the Existing Facilities,
consisting of an approximately 60,000 square-foot new building and new machinery
and equipment therefor.
"Non-Taxability Opinion" means, with respect to one or more given
events or prospective events, an opinion of Bond Counsel to the effect that the
occurrence of such event or events will not adversely affect the non-Taxable
status of the interest on the obligations in question.
"Non-Tender Notice" shall have the meaning assigned in Section 302(c)
hereof.
"Notice of Tender" shall mean written, formal notice of tender in the
form provided in the Bonds or in such other form as shall be acceptable to the
Trustee.
"Optional Tender" means a tender of Bonds at the option of the Holder
thereof pursuant to Section 301 hereof.
"Optional Tender Date" means any date on which Bonds are to be
purchased pursuant to the Optional Tender provisions of Section 301 hereof.
10
"Ordinary Services" and "Ordinary Expenses" mean those services
normally rendered and those expenses normally incurred by a trustee under
instruments similar to this Indenture.
"Original Lease" means the Lease Agreement dated as of September 1,
1979 between the Issuer and Kinark.
"Outstanding", as applied to the Bonds, means all Bonds which have been
authenticated and delivered under this Indenture, except:
(a) Bonds cancelled upon surrender, exchange or transfer, or
because of payment or redemption prior to maturity;
(b) Bonds, or any portion thereof, for the payment, redemption or
purchase for cancellation of which sufficient moneys have been
deposited and credited with the Trustee or any Paying Agents (whether
upon or prior to the maturity, purchase or redemption date of those
Bonds); provided, that if any of those Bonds are to be redeemed prior
to their maturity, notice of that redemption shall have been given or
arrangements satisfactory to the Trustee shall have been made for
giving notice of that redemption, or waiver by the affected Holders of
that notice satisfactory in form to the Trustee shall have been filed
with the Trustee;
(c) 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
(d) Bonds in exchange for or in lieu of which others have been
authenticated and delivered under Section 211 hereof;
provided, however, that in determining whether the Holders of the requisite
principal amount of Bonds Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Bonds owned by
the Company, the Issuer, any other obligor with respect to the Bonds or any
affiliate of any of the foregoing, 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. Notwithstanding the foregoing proviso, Pledged Bonds shall be
deemed, at the election of the Bank, to be Outstanding for all purposes, except
that the Bank may not vote such Bonds in any manner that would lessen the
protection to the Holders of other Outstanding Bonds provided by the Letter of
Credit. Bonds so owned which have been pledged in good faith 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 Company, the Issuer, any other obligor with respect to
the Bonds or any affiliate of any of the foregoing.
"Paying Agent" means the Trustee and any other bank or trust company
designated as a Paying Agent by or in accordance with Section 514 of this
Indenture.
11
"Person" includes natural persons, firms, associations, partnerships,
trusts, corporations, limited liability companies and public bodies.
"Placement Agency Agreement" means that certain letter agreement dated
the Issue Date among the Issuer, the Company and the Placement Agent.
"Placement Agent" means First Union National Bank of North Carolina, in
its capacity as Placement Agent.
"Pledge Agreement" means the Pledge Agreement of even date herewith
from the Company to the Bank, as the same may hereafter be amended or
supplemented.
"Pledged Bonds" means Bonds registered in the name of the Company,
subject to the provisions of the Pledge Agreement, pursuant to Section
303(e)(ii) hereof.
"Predecessor Bond" of any particular Bond means every previous Bond
evidencing all or a portion of the same debt as that evidenced by the particular
Bond. For the purposes of this definition, any Bond authenticated and delivered
under Section 211 of this Indenture in lieu of a lost, stolen or destroyed Bond
shall be deemed to evidence the same debt as the lost, stolen or destroyed Bond.
"Preliminary Fixed Rate" means the interest rate determined by the
Placement Agent prior to a Proposed Conversion Date, in accordance with Section
2.2(g) hereof, to be that rate which, taking into account prevailing market
conditions as of the date of such determination and assuming such conditions
continue to prevail until and including such Proposed Conversion Date, would
result in the market value of the Bonds on such Proposed Conversion Date being
100% of the principal amount thereof; provided such rate shall not exceed the
Cap Rate.
"Prime Rate" means (a) the interest rate publicly announced from time
to time by the Bank to be its prime rate for lending purposes, which may not
necessarily be its best lending rate; or (b) in the event the Bank shall abolish
or abandon the practice of announcing its prime rate or should the same be
unascertainable, a comparable reference rate designated by the Bank.
"Prior Bonds" means the Issuer's First Mortgage Industrial Revenue
Bonds (Kinark Corporation Project) Series 1979 heretofore issued on October 17,
1979 in the original principal amount of $3,000,000 and now outstanding in the
principal amount of $770,000.
"Prior Indenture" means that Trust Indenture dated as of September 1,
1979 between the Issuer and the Prior Trustee, pursuant to which the Prior Bonds
were issued.
"Prior Trustee" means Regions Bank (formerly known as First Alabama
Bank), Montgomery, Alabama, successor by merger to Union Bank & Trust Co., in
its capacity as trustee under the Prior Indenture.
12
"Project" means, collectively, the Existing Facilities and the New
Facilities, consisting of the Leased Realty, the Building and the Equipment (as
the same may at any time exist), leased to the Company pursuant to the Lease
Agreement for the manufacture of aftermarket products for consumer marine and
recreational vehicle markets or for such other purposes as may be consistent
with the Act and the Code and permitted by the Lease Agreement.
"Proposed Conversion Date" means that Interest Payment Date elected by
the Company in accordance with Section 202(g) hereof as the date on which the
interest rate borne by the Bonds is intended to convert from the Seven-Day Rate
to the Fixed Rate.
"Purchase Price" means, with respect to any Bond tendered for purchase
by Optional Tender or Mandatory Tender, 100% of the principal amount thereof
plus accrued interest thereon to the Tender Date.
"Rating Agency" means Moody's or S & P, their respective successors and
assigns and any other nationally recognized securities rating agency.
"Rebate Fund" means the fund created and described in Section 407
hereof.
"Record Date" means (a) with respect to any Interest Payment Date
during the Seven-Day Rate Period, the Business Day immediately prior to such
Interest Payment Date, and (b) with respect to any Interest Payment Date during
the Fixed Rate Period, the 15th day (whether or not a Business Day) next
preceding such Interest Payment Date.
"Refunding Fund" means the fund created and described in Section 408
hereof.
"Refunding Obligations" means the revenue bonds intended to be
hereafter issued by the Issuer on a non-Taxable basis in order to refund the
Series 1996A Bonds.
"Register" means the books kept and maintained by the Registrar for
registration and transfer of Bonds.
"Registrar" means the Trustee, until such time, if any, as a successor
Registrar, which shall be a transfer agent registered in accordance with Section
17(A)(c) of the Securities Exchange Act of 1934, shall have become such pursuant
to Section 513 of this Indenture.
"Reimbursement Agreement" means that certain Letter of Credit and
Reimbursement Agreement of even date herewith between the Bank, as issuer of the
Initial Letter of Credit, and the Company and Bio-Chem, jointly and severally,
as account parties, as the same may hereafter be amended or supplemented; or any
comparable agreement relating to a Substitute Letter of Credit or Alternate
Credit Facility.
"Related Documentation" means the documentation required to accompany a
Substitute Letter of Credit or Alternate Credit Facility in accordance with the
provisions of Section 5.8 of the Lease Agreement.
13
"Remarketing Agent" means, initially, First Union National Bank of
North Carolina or any successor thereto appointed in accordance with this
Indenture.
"Remarketing Agreement" means the Remarketing Agreement of even date
herewith between the Company and the Remarketing Agent, as the same may
hereafter be amended or supplemented.
"Remarketing Proceeds Account" means the account so named in the Bond
Purchase Fund.
"Revenues" means (a) the Basic Rent; (b) all other moneys received or
to be received by the Issuer or the Trustee in respect of payment of the Basic
Rent, including without limitation, moneys and investments in the Bond Fund and
Bond Purchase Fund and received by the Trustee from drawings made under the
Letter of Credit or an Alternate Credit Facility or as a result of the
remarketing of any Bonds, but excluding any moneys and investments in the Rebate
Fund; (c) any moneys and investments in the Construction Fund; and (d) all
income and profit from the investment of the foregoing moneys.
"S & P" means Standard & Poor's, New York, New York.
"Series 1996A Bonds" means the $4,000,000 Taxable Industrial
Development Revenue Bonds (KINPAK INC. Project) Series 1996A of the Issuer to be
issued under the Indenture.
"Series 1996B Bonds" means the $990,000 Industrial Refunding Revenue
Bonds (KINPAK INC. Project) Series 1996B of the Issuer to be issued under the
Indenture.
"Seven-Day Rate" means, with respect to each Series of the Bonds, the
interest rate on such Bonds from time to time in effect during a Seven-Day Rate
Period, as established pursuant to Section 202(f) hereof.
"Seven-Day Rate Determination Date" means a date on which the Seven-Day
Rate is determined, as provided in Section 202(f) hereof.
"Seven-Day Rate Period" means, with respect to each Series of the
Bonds, the period beginning on the Issue Date and ending on the day immediately
prior to the earlier of the Conversion Date or the maturity date of that Series.
"Special Record Date" means, with respect to any Bond, the date
established by the Trustee in connection with the payment of overdue interest on
that Bond pursuant to Section 604 hereof.
"State" means the State of Alabama.
"Stated Expiration Date" means the date on which the Letter of Credit
is stated to expire, unless extended in accordance with its terms.
14
"Substitute Letter of Credit" means an irrevocable letter of credit
delivered to the Trustee in substitution for the Existing Letter of Credit, in
compliance with the requirements of Section 5.8 of the Lease Agreement and
accompanied by the Related Documentation.
"Taxable" means that interest on the Bonds (including for this purpose
the Refunding Obligations) is includable in the gross income of any Holder
thereof for any reason other than the fact that such Holder is a "substantial
user" of the Project or a "related person" as those terms are used in Section
147(a) of the Code. Interest on the Bonds shall not be deemed "Taxable" because
interest is includable in any calculation of income for purposes of any
alternative minimum tax, any foreign branch profits tax or any other type of
taxation other than the regular federal tax imposed on gross income.
"Telefax" means telecopy, telefax or other instantaneous transmission
device; and whenever in this Indenture "confirmation by Telefax" is required,
such requirement shall, unless otherwise herein provided, be deemed satisfied if
such confirmation is received by not later than 11:00 a.m. on the Business Day
following the day on which the communication to be confirmed was given.
"Tender Agent" means any Person appointed as such pursuant to Section
517 hereof. Until such time, if any, as a Tender Agent shall be appointed, the
Trustee shall perform all duties of the Tender Agent; provided, that the Trustee
shall not be required to maintain an office in New York, New York.
"Tender Date" means an Optional Tender Date or a Mandatory Tender Date,
as the case may be.
"Tender Office" means the location of the office of the Tender Agent
where Bonds may be exchanged and transferred or tendered for purchase in
accordance with the provisions hereof.
"Trustee's Office" means the office from time to time designated by the
Trustee, or its successor in trust, as its principal corporate trust office for
purposes of discharging its trusts and duties under this Indenture, which office
as of the Issue Date is located at 00 Xxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxxx,
Xxxxxxx.
"Unsurrendered Bonds" means Bonds (or portions thereof in Authorized
Denominations hereunder) which are deemed purchased pursuant to Section 301 or
Section 302 hereof, but which have not been presented to the Trustee or Tender
Agent by the Holders thereof.
Section 102. Interpretation. Unless the context indicates otherwise,
words importing the singular number include the plural number, and vice versa;
the terms "hereof", "hereby", "herein", "hereto", "hereunder" and similar terms
refer to this Indenture; and the term "hereafter" means after, and the term
"heretofore" means before, the effective date of this Indenture. Words of any
gender include the correlative words of the other genders, unless the sense
indicates otherwise.
All references herein to time shall be prevailing Eastern time.
15
Section 103. Captions and Headings. The captions and headings in this
Indenture are solely for convenience of reference and in no way define, limit or
describe the scope or intent of any Articles, Sections, subsections, paragraphs,
subparagraphs or clauses hereof.
[END OF ARTICLE I]
16
ARTICLE II
THE BONDS
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Section 201. Authorized Amounts of Bonds.
---------------------------
(a) No Bonds may be issued under the provisions of this Indenture
except in accordance with this Article. The aggregate principal amount
of Series 1996A Bonds authorized to be issued under this Indenture is
$4,000,000, and the aggregate principal amount of Series 1996B Bonds
authorized to be issued under this Indenture is $990,000. Other than as
provided in subsection (b) of this Section 201, this Indenture does not
authorize the issuance of additional bonds or other indebtedness
secured by the lien and entitled to the benefits hereof.
(b) The Issuer has agreed and hereby reaffirms that it will
hereafter issue the Refunding Obligations in order to refund the Series
1996A Bonds, such refunding to occur as soon as all of the requirements
of the Code to assure the non-Taxable status of the Refunding
Obligations may be satisfied. Such issuance may be accomplished by a
supplement to this Indenture entered into pursuant to the provisions of
Section 701 hereof. Upon issuance, such Refunding Obligations will have
many of the same terms and provisions as the Series 1996A Bonds
refunded thereby, all as shall be more fully set forth in such
supplemental indenture; provided, however, that, among other things,
the Refunding Obligations shall be subject to two events of mandatory
redemption in addition to that specified for the Series 1996A Bonds,
namely, upon a Final Determination and from excess Construction Fund
moneys. The Trustee shall, at the time of issuance of the Refunding
Obligations, establish separate accounts within the Rebate Fund for the
Series 1996B Bonds and for the Refunding Obligations.
Section 202. Issuance of the Bonds; Terms Thereof.
------------------------------------
(a) It is determined to be necessary to, and the Issuer shall,
issue, sell and deliver the Bonds for the purposes of refunding the
Prior Bonds and retiring the Interim Indebtedness and assisting in
financing the costs of the Project. The Series 1996A Bonds shall be
designated "Taxable Industrial Development Revenue Bonds (KINPAK INC.
Project) Series 1996A" and shall mature, unless earlier redeemed, on
the first Business Day of March, 2012. The Series 1996B Bonds shall be
designated "Industrial Refunding Revenue Bonds (KINPAK INC. Project)
Series 1996B" and shall mature, unless earlier redeemed, on the first
Business Day of March, 2000. The Bonds shall be issuable only in fully
registered form, substantially in the forms attached as Exhibit A to
this Indenture; shall be numbered consecutively upwards beginning with
AR-1 and BR-1, respectively; shall be dated the Issue Date; shall bear
interest from the most recent date to which interest shall have been
paid or duly provided for or, if no interest shall have been paid or
duly provided for, from the Issue Date; and shall be issuable in
Authorized Denominations, except that the final maturity of either
Series may be represented by an instrument of a denomination equal to a
multiple of $5,000 that is less than $100,000. The Bonds may be issued
in book-entry form in accordance with the requirements of applicable
law. The Bonds shall be initially issued as DTC-Eligible Obligations,
and therefore the requirements of Section 216 hereof shall be
applicable.
17
(b) The Bonds shall bear interest at the Seven-Day Rate
throughout the Seven-Day Rate Period and, if the Conversion Date shall
occur, at the Fixed Rate throughout the Fixed Rate Period. It is
understood, however, that the Seven-Day Rate (and, if applicable, the
Fixed Rate) borne by the two Series of the Bonds will not be the same
at least until such time (if any) as the Refunding Obligations shall
have been issued, and even thereafter need not be the same; and
therefore that the Remarketing Agent shall make separate rate
determinations for the two Series of the Bonds at least until such time
(if any) as the Refunding Obligations shall have been issued.
(c) Interest at the Seven-Day Rate shall be computed on the basis
of a 365- or 366-day year, as the case may be, for the number of days
actually elapsed. Interest at the Fixed Rate shall be computed on the
basis of a 360-day year for the number of days actually elapsed.
(d) Interest shall be payable on overdue principal of the Bonds
and (to the extent legally enforceable) on any overdue installment of
interest on the Bonds at the Interest Rate for Advances.
(e) Interest shall be payable in arrears on each Interest Payment
Date.
(f) The Seven-Day Rate shall be determined on the Issue Date and
on each Wednesday (or if Wednesday is not a Business Day, on the next
succeeding Business Day) of each succeeding week during the Seven-Day
Rate Period (each such date, a "Seven-Day Rate Determination Date").
The Seven-Day Rate so determined on each Seven-Day Rate Determination
Date shall be effective from the day of each week during any Seven-Day
Rate Period following the Seven-Day Rate Determination Date for such
week until and including the day immediately prior to the earlier of
the Conversion Date or the following Thursday; provided, however, that
if the Seven-Day Rate is not so determined on any Seven-Day Rate
Determination Date, the Seven-Day Rate as determined on the next
preceding Seven-Day Rate Determination Date shall remain in effect
until and including the day immediately prior to the earlier of the
Conversion Date or the following Thursday. The Seven-Day Rate shall be
determined by the Remarketing Agent and shall equal the lesser of (i)
the Cap Rate or (ii) the interest rate determined by the Remarketing
Agent to be the interest rate that would result in the market value of
the Bonds on such Seven-Day Rate Determination Date being 100% of the
principal amount thereof, taking into account prevailing market
conditions. On each Seven-Day Rate Determination Date the Remarketing
Agent shall give notice of the Seven-Day Rate so determined by
telephone, with confirmation by Telefax or other form of written notice
selected by the Remarketing Agent, to the Trustee and the Company. The
Trustee shall confirm the Seven-Day Rate on the Bonds from time to time
in effect by telephone (confirmed in writing, if requested). The
determination of the Seven-Day Rate by the Remarketing Agent (if not
greater than the Cap Rate) shall be conclusive and binding on the
Issuer, the Company, the Trustee, the Bank and the Holders from time to
time of the Bonds.
(g) At any time that the Bonds bear interest at the Seven-Day
Rate, the Company may elect that the Bonds shall bear interest at the
18
Fixed Rate, which rate shall be equal to the lesser of (i) the Cap Rate
or (ii) the interest rate established in the manner described in this
subsection. The Company shall give the Trustee, the Placement Agent and
the Bank written notice of the exercise of its option to convert the
interest rate borne by the Bonds to the Fixed Rate, to be received by
each of them not fewer than 30 nor more than 60 days prior to the
Proposed Conversion Date. Such notice shall, if the Company intends
that the Bonds be secured by a Letter of Credit following the Proposed
Conversion Date, be accompanied by the documentation required pursuant
to Section 5.8(b)(3) of the Lease Agreement. At least 25 days prior to
the Proposed Conversion Date, the Placement Agent shall determine the
Preliminary Fixed Rate, and on such date shall give telephonic notice
thereof, with confirmation by Telefax, to the Trustee, the Company and
the Bank. From and after the Proposed Conversion Date, the Fixed Rate
shall be (x) that rate, at least equal to the Preliminary Fixed Rate,
at which some or all of the Bonds shall have been remarketed at par, or
(y) if no Bonds shall have been so remarketed or all Holders shall have
timely delivered a Non-Tender Notice, the Preliminary Fixed Rate.
Notwithstanding the foregoing, such Fixed Rate shall not become
effective unless (i) there shall have been supplied to the Trustee, the
Company and the Placement Agent at or prior to 10:00 a.m. on the
Proposed Conversion Date a Non-Taxability Opinion further stating that
such conversion to the Fixed Rate is lawful under applicable law and
permitted by this Indenture, and (ii) if a Substitute Letter of Credit
is required to be provided, there shall have been delivered to the
Trustee such Substitute Letter of Credit and the Related Documentation
at or prior to 10:00 a.m. on the Proposed Conversion Date. If all
conditions to the effectiveness of the Fixed Rate shall not have been
met, the Bonds of each Series shall continue to bear interest at the
Seven-Day Rate from such Proposed Conversion Date until and including
the earlier of the date immediately prior to the Conversion Date or the
maturity date of such Series. The determination of the Fixed Rate shall
be conclusive and binding on the Issuer, the Company, the Trustee, the
Bank and the Holders from time to time of the Bonds. The Trustee shall
stamp a legend on the face of each Bond authenticated on or after the
Conversion Date reading substantially as follows:
"This Bond bears interest at the Fixed Rate, as defined in
this Bond, which is _______% per annum, from and after
______________, ____."
and, if applicable,
"From and after such date, no Letter of Credit is in
effect."
(h) Upon the execution and delivery of this Indenture, and
satisfaction of the conditions established by the Issuer for delivery
of the Bonds, including delivery to the Trustee of the Initial Letter
of Credit pursuant to Section 5.8(a) of the Lease Agreement, the Issuer
shall execute the Bonds and deliver them to the Trustee or other
Authenticating Agent for authentication and delivery to, or on the
order of, the Placement Agent. Prior to the delivery of the Bonds,
there shall have been received by the Trustee a duly executed request
and authorization to the Trustee from the Issuer to authenticate and
deliver the Bonds to, or on the order of, the Placement Agent upon
payment to the Trustee of the amount specified therein. That portion of
19
such amount allocable to the Series 1996A Bonds shall be deposited in
the Construction Fund and the portion allocable to the Series 1996B
Bonds shall be deposited in the Refunding Fund, all as hereinafter
described and as shall be more fully provided in said request and
authorization of the Issuer.
(i) Pending preparation of definitive Bonds, the Issuer may issue
and, upon its request, the Trustee or any Authenticating Agent shall
authenticate, in lieu of definitive Bonds, one or more temporary
printed or typewritten Bonds of each Series substantially in the
respective forms set forth in Exhibit A hereto. Upon request of the
Issuer, the Trustee or any Authenticating Agent shall authenticate
definitive Bonds in exchange for and upon surrender of an equal
principal amount of such temporary Bonds without charge. Until so
exchanged, temporary Bonds shall have the same rights, remedies and
security hereunder as definitive Bonds.
Section 203. Execution of Bonds. The Bonds shall be executed on behalf
of the Issuer by its Chairman or Vice-Chairman under its corporate seal
impressed or otherwise reproduced thereon and attested by its Secretary. The
signature of any of these officers of the Issuer on the Bonds may be manual or,
to the extent permitted by law, facsimile. In case any officer of the Issuer
whose signature shall appear on the Bonds shall cease to be such officer before
the delivery of such Bonds, such signature shall nevertheless be valid and
sufficient for all purposes, the same as if he had remained in office until
delivery.
Section 204. Authentication of Bonds. Only such Bonds as shall have
endorsed thereon a certificate of authentication substantially in the form set
forth as part of Exhibit A hereto, duly executed by the Trustee or by any
Authenticating Agent, shall be entitled to any right or benefit under this
Indenture. No Bond shall be valid or obligatory for any purpose unless and until
such certificate of authentication shall have been duly executed by the Trustee
or by any Authenticating Agent, and such executed certificate upon any such Bond
shall be conclusive evidence that such Bond has been authenticated and delivered
under this Indenture. The certificate of authentication on any Bond shall be
deemed to have been duly executed if signed by an officer of the Trustee or any
Authenticating Agent, but it shall not be necessary that the same officer sign
the certificate of authentication on all of the Bonds issued under this
Indenture.
Section 205. Payment and Ownership of Bonds. Debt Service on the Bonds
shall be payable in lawful money of the United States of America without
deduction for the services of the Trustee or any Paying Agent. Subject to the
provisions of Section 214 of this Indenture, (a) the principal of and any
premium on any Bond shall be payable when due to a Holder upon presentation and
surrender of such Bond at the Trustee's Office or at the office, designated by
the Trustee, of any other Paying Agent, and (b) interest on any Bond shall be
paid on each Interest Payment Date by check or draft which the Trustee shall
cause to be sent on that date to the Person in whose name the Bond (or one or
more Predecessor Bonds) is registered, at the close of business on the Record
Date applicable to that Interest Payment Date, on the Register at the address
appearing therein. If and to the extent, however, that the Issuer shall fail to
make payment or provision for payment of interest on any Bond on any Interest
Payment Date, whenever moneys become available for payment of that overdue
interest and any subsequently accruing interest, (i) the Trustee shall, pursuant
20
to Section 604 hereof, establish a Special Record Date for the payment of that
interest which shall be not more than 15 nor fewer than ten days prior to the
date of the proposed payment, and (ii) the Trustee shall cause notice of the
proposed payment and of the Special Record Date to be mailed by first class
mail, postage prepaid, to each Holder at its address as it appears on the
Register not fewer than ten days prior to the Special Record Date and,
thereafter, the interest shall be payable to the Persons who are the Holders of
the Bonds (or their respective Predecessor Bonds) at the close of business on
the Special Record Date.
The Holder of any Bond shall be deemed and regarded as the absolute
owner thereof for all purposes of this Indenture; payment of or on account of
the Debt Service on any Bond shall be made only to or upon the order of that
Holder or its duly authorized attorney in the manner permitted by this
Indenture; and neither the Issuer, the Trustee, the Registrar nor any Paying
Agent or Authenticating Agent shall, to the extent permitted by law, be affected
by notice to the contrary. All of those payments shall be valid and effective to
satisfy and discharge the liability upon that Bond, including without
limitation, the interest thereon, to the extent of the amount or amounts so
paid.
Section 206. Redemption.
----------
(a) The Bonds of each Series shall be redeemable in accordance
with the respective redemption provisions contained in the Forms of
Bond attached as Exhibit A hereto and incorporated by reference herein.
(b) If Bonds are redeemed prior to maturity and a Letter of
Credit is then in effect, the Trustee shall take such action as may be
necessary to reduce the coverage of the Letter of Credit to an amount
equal to the sum of:
(1) the principal of all Bonds Outstanding following the
redemption; plus
(2) accrued interest thereon for a period of 120 days (A)
at the Cap Rate, if the Bonds then bear interest at the Seven-Day
Rate, or (B) at the Fixed Rate, if the Bonds then bear interest
at the Fixed Rate.
(c) So long as a Letter of Credit is in effect, the Company
acknowledges that if any redemption of Bonds is to be effected (i) from
its own funds (as would be the case whenever a redemption premium is
payable), such funds must constitute Available Moneys; or (ii) from a
draw under the Letter of Credit, the Company must procure and furnish
to the Trustee, by not later than the time of the election pursuant to
Section 210 hereof, the written consent of the Bank to such redemption.
Section 207. Notice of Redemption. The notice of the call for
redemption of Bonds shall identify (a) by Series, designation, letters, numbers
or other distinguishing marks, the Bonds or portions thereof to be redeemed, (b)
the redemption price to be paid, (c) the date fixed for redemption and (d) the
place or places where the amounts due upon redemption are payable. The notice
shall be given or caused to be given by the Trustee on behalf of the Issuer by
mailing a copy of the redemption notice by first class mail, postage prepaid,
21
not more than 60 nor fewer than 20 days prior to the date fixed for redemption
to the Holder of each Bond subject to redemption in whole or in part at the
Holder's address shown on the Register on the 15th day preceding that mailing;
provided, that failure to receive notice by mailing, or any defect in that
notice, as to any Bond shall not affect the validity of the proceedings for the
redemption of any Bond for which notice is properly given.
Section 208. Payment of Redeemed Bonds. Notice having been mailed in
the manner provided in the preceding Section, the Bonds and portions thereof
called for redemption shall become due and payable on the redemption date, and
upon presentation and surrender thereof at the place or places specified in that
notice, shall be paid at the redemption price, plus interest accrued to the
redemption date; provided that, so long as the Letter of Credit or an Alternate
Credit Facility is in effect, payment of the Bonds upon optional redemption
thereof shall be made from moneys only to the extent such moneys constitute
Available Moneys.
If moneys for the redemption of all of the Bonds and portions thereof
to be redeemed, together with interest accrued thereon to the redemption date,
are held by the Trustee or any Paying Agent on the redemption date, so as to be
available therefor on that date, then from and after the redemption date the
Bonds and portions thereof called for redemption shall cease to bear interest
and no longer shall be considered to be Outstanding hereunder. If those moneys
shall not be so available on the redemption date, those Bonds and portions
thereof shall continue to bear interest, until they are paid, at the same rate
as they would have borne had they not been called for redemption.
All moneys deposited in the Bond Fund or held by the Trustee or a
Paying Agent for the redemption of particular Bonds shall be held in trust for
the account of the Holders thereof and shall be paid to them, respectively, upon
presentation and surrender of those Bonds.
Section 209. Partial Redemption. If fewer than all of the Bonds of
either Series are to be redeemed, the selection of Bonds to be redeemed, or
portions thereof in multiples of $100,000 and any integral multiple of $5,000 in
excess thereof, shall be made by lot by the Trustee in any manner which the
Trustee may determine. In the case of a partial redemption of Bonds of either
Series by lot when Bonds of that Series in denominations greater than $100,000
are then Outstanding, the Trustee shall treat any Bond of a denomination greater
than $100,000 as representing that number of separate Bonds, each of the minimum
denomination of $100,000 or any integral multiple of $5,000 in excess thereof,
as the Trustee may determine; and if less than the full number of such separate
Bonds are to be called for redemption, then upon surrender the Holder thereof
shall receive a new Bond or Bonds of any Authorized Denomination in an aggregate
principal amount equal to the unmatured and unredeemed portion of, and bearing
interest at the same rate as, the Bond surrendered.
Notwithstanding anything to the contrary contained in this Indenture,
whenever the Bonds are to be redeemed in part, Bonds which are Pledged Bonds at
the time of selection of Bonds for redemption shall be selected for redemption
prior to the selection of any other Bonds. If the aggregate principal amount of
Bonds to be redeemed exceeds the aggregate principal amount of Pledged Bonds at
22
the time of selection, the Trustee may select for redemption Bonds in an
aggregate principal amount equal to such excess by lot in any manner which the
Trustee may determine.
Section 210. Election to Redeem. Except in the case of redemption
pursuant to any mandatory redemption provisions (in connection with which no
election need be made), Bonds shall be redeemed only by written election
effected by notice from the Company (on behalf of the Issuer) to the Trustee.
That notice shall specify the redemption date and the principal amount of Bonds
to be redeemed, and shall be given at least 45 days prior to the redemption date
or such shorter period as shall be acceptable to the Trustee. In the event that
notice of redemption shall have been given by the Trustee to the Holders as
provided in Section 207 hereof, there shall be deposited with the Trustee on or
prior to the redemption date, funds which, in addition to any other moneys
available therefor and held by the Trustee, will be sufficient to redeem at the
redemption price thereof, plus interest accrued to the redemption date, all of
the redeemable Bonds for which notice of redemption has been given.
Section 211. Mutilated, Lost, Stolen or Destroyed Bonds. In the event
any Bond is mutilated, lost, stolen or destroyed, the Issuer shall execute and
the Registrar shall authenticate a new Bond of like Series, date, number and
denomination to that mutilated, lost, stolen or destroyed; provided that, in the
case of any mutilated bond, such mutilated Bond shall first be surrendered to
the Registrar and, in the case of any lost, stolen or destroyed Bond, there
shall be first furnished to the Issuer, the Company, the Registrar and the
Trustee evidence of such loss, theft or destruction satisfactory to them
together with indemnity satisfactory to them. In the event any such Bond shall
have matured, instead of issuing a new Bond the Company may direct the Trustee
to pay the same without surrender. The Issuer, the Registrar and the Trustee may
charge the Holder of a mutilated, lost, wrongfully taken or destroyed Bond their
reasonable fees and expenses in connection with their actions pursuant to this
Section.
Section 212. Transfer and Exchange of Bonds. So long as any of the
Bonds remain outstanding, the Issuer will cause books for the registration and
transfer of Bonds, as provided in this Indenture, to be maintained and kept at
the designated office of the Registrar.
Any Bond shall be transferable, subject to any restrictions on
transferability therein contained, only upon the books of the Registrar by the
Holder thereof in person or by his duly authorized attorney, upon surrender
thereof to the Registrar with a written instrument of transfer satisfactory to
the Registrar duly executed by the Holder or his duly authorized attorney. Upon
the registration of transfer, the Issuer shall issue in the name of the
transferee one or more new Bonds of the same Series and aggregate principal
amount as the surrendered Bond.
Bonds may be exchanged, at the option of their Holder, for Bonds of any
Authorized Denomination in an aggregate principal amount equal to the unmatured
and unredeemed principal amount of, and bearing interest at the same rate as,
the Bonds being exchanged. The exchange shall be made upon presentation and
23
surrender of the Bonds being exchanged at the designated office of the Registrar
or at the designated office of any Authenticating Agent, together with an
assignment duly executed by the Holder or its duly authorized attorney in any
form which shall be satisfactory to the Registrar or the Authenticating Agent,
as the case may be.
In all cases in which the privilege of exchanging or transferring Bonds
is exercised, the Issuer shall execute and the Registrar or other Authenticating
Agent shall authenticate and deliver new Bonds in accordance with the provisions
hereof. The new Bonds shall be issued upon the surrender of the old Bonds, in
such manner that no gain or loss of interest results from said transfer or
exchange.
No charge shall be made to any Holder for the privilege of transfer or
exchange hereinabove granted, but any Holder requesting any such transfer or
exchange shall pay any tax or other governmental charge required to be paid with
respect thereto. Neither the Issuer, the Registrar nor any Authenticating Agent,
as the case may be, shall be required to make any exchange or transfer of a 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 to transfer or exchange any Bonds
selected for redemption, in whole or in part.
Section 213. Safekeeping and Cancellation of Bonds. Any Bond
surrendered pursuant to this Article for the purpose of payment or retirement,
or for exchange, replacement or transfer, shall be cancelled upon presentation
and surrender thereof to the Registrar, the Trustee or any Paying Agent or
Authenticating Agent. Any Bond cancelled by the Trustee or any Paying Agent or
Authenticating Agent shall be transmitted promptly to the Registrar by the
Trustee, Paying Agent or Authenticating Agent.
The Issuer, or the Company on behalf of the Issuer, may deliver at any
time to the Registrar for cancellation any Bonds previously authenticated and
delivered hereunder, which the Issuer or the Company may have acquired in any
manner whatsoever. All Bonds so delivered shall be promptly cancelled and
destroyed by shredding or incineration by the Registrar. Certification of such
surrender, cancellation and destruction (describing the manner thereof) shall be
made to the Issuer, the Company and the Trustee by the Registrar once each
calendar year.
Section 214. Special Agreement with Holders. Notwithstanding any
provision of this Indenture or of any Bond to the contrary, upon written request
of any Holder of at least $500,000 in aggregate principal amount of the Bonds
given at least ten days prior to the first applicable Record Date, the Trustee
(or other Paying Agent) shall enter into an agreement with that Holder providing
for making all payments to that Holder of Debt Service on that Bond or any part
thereof at a place and in a manner, including without limitation by wire
transfer, other than as provided in this Indenture and in the Bond, upon any
conditions which shall be satisfactory to the Trustee (or other Paying Agent)
and the Company; provided, that payment in any event shall be made to the Person
in whose name a Bond shall be registered on the Register, with respect to
payment of principal and premium, on the date such principal and premium is due,
and, with respect to the payment of interest, as of the applicable Record Date
or Special Record Date, as the case may be.
24
The Trustee (or other Paying Agent) will upon request furnish a copy of
each of those agreements, certified to be a true copy by an officer of the
Trustee (or other Paying Agent), to the Registrar, the Tender Agent and the
Company. Any payment of Debt Service pursuant to such an agreement shall
constitute payment thereof pursuant to, and for all purposes of, this Indenture.
Section 215. Actions Regarding Letter of Credit.
----------------------------------
(a) The Trustee is hereby authorized to accept the Initial Letter
of Credit and any Substitute Letter of Credit delivered to it pursuant
to Section 5.8 of the Lease Agreement.
(b) The Trustee shall, at least 30 days prior to any proposed
Letter of Credit Substitution Date, furnish to the Holders a copy of
the Company's written notice, given pursuant to Section 5.8(b)(1) of
the Lease Agreement, of its intention to furnish a Substitute Letter of
Credit.
(b) If a Substitute Letter of Credit shall have been delivered to
the Trustee pursuant to Section 5.8 of the Lease Agreement and become
effective, the Existing Letter of Credit shall be returned to the
issuer thereof as provided in said Section of the Lease Agreement.
Section 216. DTC Eligibility Requirements. To induce DTC to accept the
Bonds as eligible for deposit at DTC, and to assure compliance with the rules of
DTC with respect to the Bonds, the Issuer and the Trustee agree, with respect to
any Bonds that are to be deposited with DTC, to comply with the terms of a
letter of representations heretofore executed by the Issuer in connection with
DTC-eligible debt offerings generally, the terms and provisions of which are
incorporated herein by this reference. In the event of any conflict between any
term or provision of said letter of representations and any other term or
provision of this Indenture, the terms and provisions of said letter of
representations shall be controlling during any period that the Bonds are
deposited with DTC.
[END OF ARTICLE II]
25
ARTICLE III
TENDER PROVISIONS
-----------------
Section 301. Optional Tenders.
----------------
(a) The Holder of any Bond (other than a Pledged Bond or Company
Bond) shall have the right to tender such Bond to the Tender Agent, for
purchase at the Purchase Price, in whole or in part (and if in part, in
any Authorized Denomination) on any Business Day (the "Optional Tender
Date") during the Seven-Day Rate Period, but not during the Fixed Rate
Period. In order to exercise such option with respect to any Bond, the
Holder thereof must give to the Trustee at the Trustee's Office, with a
copy to the Tender Agent at the Tender Office, at least seven days
prior to the proposed Optional Tender Date, notice (i) by telephone,
confirmed by Notice of Tender not more than two Business Days after
such telephonic notice, or (ii) by Notice of Tender. If the telephonic
notice or the Notice of Tender specifies an Optional Tender Date that
is not a Business Day, then such notice shall be deemed to specify the
Business Day following the designated Optional Tender Date. Upon the
delivery of Notice of Tender, such election to tender shall be
irrevocable and binding upon such Holder. If a Notice of Tender shall
have been duly given with respect to any Bond, the Holder of such Bond
shall deliver such Bond to the Tender Agent at the Tender Office not
fewer than five days prior to 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 Tender
Agent); provided, however, that any such Holder which is an investment
company registered under the Investment Company Act of 1940 may deliver
its Bonds to the Tender Agent at the Tender Office at or before 10:00
a.m. on the Optional Tender Date. 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 its Bond
purchased.
(b) As to any such notice of tender for purchase which the
Trustee deems duly given pursuant to this Section, the Trustee shall
immediately give telegraphic or telephonic notice, with prompt
confirmation by Telefax, to the Tender Agent, the Remarketing Agent,
the Bank and the Company of the principal amount of affected Bonds and
the proposed Optional Tender Date therefor. On each Optional Tender
Date the Trustee shall cause the Tender Agent to purchase, at the
Purchase Price, all Bonds as to which Notices of Tender for purchase
shall have been received. 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 406 of this Indenture.
(c) Any Bond for which a Notice of Tender shall have been given
but which shall not be so delivered to the Tender Agent (an
"Unsurrendered Bond"), shall nevertheless be deemed to have been
tendered by the Holder thereof on the Optional Tender Date. If there
shall have 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 an Optional Tender Date, any
26
Unsurrendered Bonds shall cease to accrue interest on such Optional
Tender Date and the Holders thereof shall thereafter be entitled only
to payment of the Purchase Price therefor and not to the benefits of
this Indenture. The Tender Agent shall notify the Trustee and Registrar
of any Unsurrendered Bonds, shall authenticate a new Bond or Bonds in
the same aggregate principal amount as the Unsurrendered Bonds, and
shall hold or dispose of such new Bond or Bonds in accordance with the
provisions of subsections (e) and (f) of Section 303 hereof. The
Trustee shall notify the Remarketing Agent of such Unsurrendered Bonds
and shall place a stop transfer against such Unsurrendered Bonds until
they are properly delivered to the Tender Agent. Payment of the
Purchase Price of any such Unsurrendered Bonds shall be made only upon
the presentment and surrender of such Bonds to the Tender Agent,
whereupon the Registrar shall make any necessary adjustment to the
Register.
(d) Notwithstanding anything to the contrary contained herein, no
tender hereunder shall be deemed a redemption of the affected Bonds;
and the right of Holders to tender Bonds pursuant to this Section 301
shall cease immediately and without further notice from and including
the date Bonds are declared accelerated, subject, however, to
reinstatement upon rescission and annulment of such declaration, all
pursuant to Section 602 hereof.
Section 302. Mandatory Tenders.
-----------------
(a) Subject to the provisions of subsection (c) of this Section,
the Holder of each Bond shall be required to tender such Bond to the
Tender Agent for purchase on (i) each Proposed Conversion Date, and
(ii) the first day of the calendar month in which the Stated Expiration
Date of the Letter of Credit occurs; or, if any of such dates is not a
Business Day, the next succeeding Business Day (each such date, a
"Mandatory Tender Date"), all as more fully provided in this Section.
(b) Notice of a Mandatory Tender shall be given by the Trustee by
first-class mail, postage prepaid, to the Holders of all Bonds at their
addresses appearing on the Register not fewer than 20 days prior to a
Mandatory Tender Date. Such notice of Mandatory Tender shall:
(i) specify the Mandatory Tender Date;
(ii) state the reason for the Mandatory Tender (that is,
the applicable event listed in subsection (a) of this Section);
(iii) if such Mandatory Tender Date is the first day of
the calendar month in which the Stated Expiration Date of the
Letter of Credit occurs, state that the Trustee will no longer be
permitted to make drawings under the Existing Letter of Credit
after the Stated Expiration Date, which date shall be specified;
27
(iv) if such Mandatory Tender Date is a Proposed
Conversion Date, state (A) that after the tenth day preceding the
Proposed Conversion Date, Holders will not be entitled to tender
Bonds for purchase pursuant to Section 301 hereof, (B) the
Preliminary Fixed Rate, and (C) that depending on market
conditions, the Fixed Rate may be higher but in no event lower
than the Preliminary Fixed Rate;
(v) state whether or not a Letter of Credit or Alternate
Credit Facility will be or is expected to be in effect following
the Stated Expiration Date or Proposed Conversion Date, as the
case may be; if not, that the rating or ratings on the Bonds may
be reduced or withdrawn; but if so, the name of the Bank issuing
the same, the rating or ratings, if any, assigned or expected to
be assigned to the Bonds by reason of such Letter of Credit or
Alternate Credit Facility, and whether such rating or ratings, if
any, are equivalent to or lower than the rating or ratings, if
any, on the Bonds in effect prior to the Mandatory Tender Date;
(vi) state that the Holder may elect not to tender or sell
its Bond or Bonds on such Mandatory Tender Date by delivering to
the Trustee a Non-Tender Notice, together with the written
statement referred to below, not less than five days prior to
such Mandatory Tender Date; and
(vii) state that all Bonds as to which no such Non-Tender
Notice is properly received must be tendered by the Holder
thereof to the Tender Agent at the Tender Office at or before
10:00 a.m. on such Mandatory 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 in the Bonds or such other form as shall be acceptable
to the Tender Agent), and shall be purchased on the Mandatory
Tender Date at the Purchase Price. Any Bond (other than a Bond
for which a Non-Tender Notice shall have been given) that is not
so delivered to the Tender Agent (an "Unsurrendered Bond") shall
be deemed to have been tendered for purchase by the Holder
thereof on the Mandatory Tender Date.
(c) In the case of any Mandatory Tender, the Holder of any Bond
may, by delivery of a written notice (a "Non-Tender Notice") to the
Trustee, with a copy to the Tender Agent, not fewer than five days
prior to such Mandatory Tender Date, elect not to tender or sell such
Bond on such Mandatory Tender Date, which Non-Tender Notice shall be
irrevocable. Any such Non-Tender Notice must be accompanied by a
written statement from the Holder of such Bond identifying the Series,
number and principal amount of such Bond, and acknowledging that such
Holder is aware, if such Mandatory Tender Date is a Proposed Conversion
Date, that the Bonds will bear interest from such date at the Fixed
Rate, that he or she is aware that effective immediately after the
Mandatory Tender Date the Trustee may or may not draw on the Letter of
Credit, as the case may be, and that if the Trustee does not so draw,
28
the rating or ratings on the Bonds may be reduced or withdrawn. The
Trustee shall immediately give telegraphic or telephonic notice of
receipt of any such Non-Tender Notice, and promptly Telefax a copy of
any such Non-Tender Notice received by it, to the Tender Agent, the
Company, the Bank and the Remarketing Agent.
(d) All Bonds (other than any Bond with respect to which a
Non-Tender Notice shall have been properly delivered to the Trustee,
with a copy to the Tender Agent) shall be tendered by the Holders
thereof for purchase at or before 10:00 a.m. on the Mandatory Tender
Date, by delivering such Bonds to the Tender Agent at the Tender
Office, 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 Tender Agent). On the Mandatory Tender Date, the
Trustee shall cause the Tender Agent to purchase all Bonds (other than
any Bond as to which a Non-Tender Notice shall have been properly
delivered to the Trustee) at the Purchase Price. 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 406 of this Indenture.
(e) All Bonds so to be purchased that are not timely delivered to
the Tender Agent on the Mandatory Tender Date (the "Unsurrendered
Bonds") shall nevertheless be deemed to have been tendered for purchase
by the Holders thereof on the Mandatory Tender Date. If there shall
have 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 (except Bonds as to
which a Non-Tender Notice shall have been received), any Unsurrendered
Bonds shall cease to accrue interest on such Mandatory Tender Date and
the Holders thereof shall thereafter be entitled only to payment of the
Purchase Price therefor and not to the benefits of this Indenture. The
Tender Agent shall notify the Trustee and Registrar of any
Unsurrendered Bonds, shall authenticate a new Bond or Bonds in the same
aggregate principal amount as the Unsurrendered Bonds, and shall hold
or dispose of such new Bond or Bonds in accordance with the provisions
of subsections (e) and (f) of Section 303 hereof. The Trustee shall
notify the Remarketing Agent of such Unsurrendered Bonds and shall
place a stop transfer against such Unsurrendered Bonds until they are
properly delivered to the Tender Agent. Payment of the Purchase Price
of any such Unsurrendered Bonds shall be made only upon the presentment
and surrender of such Bonds to the Tender Agent, whereupon the
Registrar shall make any necessary adjustment to the Register.
Section 303. Procedures for Purchase and Remarketing.
---------------------------------------
(a) Unless directed by the Company not to do so, the Remarketing
Agent will use its best efforts to remarket all Bonds tendered or
deemed to be tendered for purchase pursuant to Sections 301 and 302
hereof, and, when directed in writing by the Company, to remarket all
Bonds held by the Tender Agent pursuant to this Section; provided no
such remarketing shall be made to the Company, the Issuer or any
29
Affiliate of either; provided further no such remarketing shall be
permitted while an Event of Default exists. The Company 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.
(b) As soon as practicable, but by not later than 3:00 p.m. on
the Business Day preceding any Tender Date, the Remarketing Agent shall
give telegraphic or telephonic notice, confirmed on the same day by
Telefax, to the Trustee, the Tender Agent, the Company and the Bank,
of:
(i) the principal amount of Bonds, if any, remarketed by
it pursuant to the first sentence of Section 303(a) hereof (or
that no Bonds have been so remarketed, if such is the case); and
(ii) the names, addresses and taxpayer identification
numbers of those who, upon payment therefor as herein specified,
shall become the new registered Holders of, and the principal
amount and denominations of, such Bonds, if any, as shall have
been 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 by appropriate instructions direct such purchasers to pay the
Purchase Price of the Bonds which shall have been so remarketed to the
Trustee or its order in federal or other immediately available funds at
or before 10:00 a.m. on the Tender Date; provided, the Remarketing
Agent shall further instruct each such purchaser that payment must in
any event be so made by 10:00 a.m. on the Tender Date, or else that
purchaser will not be entitled to receive the Bonds purchased by it
until the next Business Day and that purchaser will be required to pay
additional accrued interest on the Bonds from the Tender Date to the
next Business Day; provided, further, if Bonds are remarketed after a
Tender Date, such purchasers shall be instructed to pay, in addition to
the Purchase Price, accrued interest on the Bonds from the Tender Date
to the date such purchasers do make payment to the Trustee by 12:00
noon. The Remarketing Agent shall further instruct purchasers of
remarketed Bonds to which subsection (g) hereof applies, to deliver
acknowledgment to the Trustee that they have received notice of
redemption or Mandatory Tender, as the case may be. The Trustee shall
deposit the proceeds of any such remarketing in the Remarketing
Proceeds Account of the Bond Purchase Fund and shall hold such moneys
therein in trust for the benefit of the Person who or which shall have
so delivered such moneys until the Bonds purchased with such moneys
shall have been registered or delivered to or for the account of such
Person.
(c) At or before 3:00 p.m. on each Tender Date, the Trustee shall
cause the Tender Agent to pay the Purchase Price to each Holder of a
Bond (or portion thereof) tendered for purchase in federal or other
immediately available funds. The Tender Agent shall pay such Purchase
Price from moneys on deposit in the Bond Purchase Fund; provided, that
30
the Tender Agent shall not pay the Purchase Price of any Unsurrendered
Bond, unless and until the Holder of such Unsurrendered Bond presents
such Unsurrendered Bond, together with an instrument of assignment or
transfer duly executed in blank, to the Tender Agent. All Bonds so
purchased by the Tender Agent shall be delivered by the Tender Agent in
accordance with this Section.
(d) The Tender Agent shall hold all Bonds delivered to it
pursuant to Sections 301 and 302 hereof in trust solely for the benefit
of the respective Holders who shall have so delivered such Bonds until
moneys representing the Purchase Price of such Bonds shall have been
delivered to or for the account of such Holder.
(e) Bonds purchased on a Tender Date with moneys drawn under the
Letter of Credit shall be held or disposed of by the Tender Agent as
follows:
(i) If the Letter of Credit provides by its terms that the
amount available for drawing thereunder to pay Purchase Price
reinstates upon the Bank's receipt from the Trustee or its
representative of notice of reimbursement (whether from proceeds
of remarketing of Bonds or payments by the Company) and the
moneys constituting such reimbursement, then the Trustee shall,
by not later than 3:00 p.m. on any Tender Date, to the extent the
Trustee shall have received remarketing proceeds or payments of
Basic Rent in respect of Purchase Price by such time, forward
such notice of reimbursement and the aggregate amount of such
reimbursement to the Bank in accordance with the terms of the
Letter of Credit. The Trustee shall immediately furnish to the
Tender Agent a copy of such notice to the Bank, whereupon the
Tender Agent shall register that amount of such Bonds equal to
the amount so reimbursed as follows: (A) to the extent such Bonds
shall have been remarketed by the Remarketing Agent, as directed
by the Remarketing Agent pursuant to subsection (b) of this
Section; and/or (B) to the extent such Bonds shall not have been
remarketed, in the name of the Company. The Bank shall give
telephonic notice to the Trustee and the Tender Agent, confirmed
on the same day by Telefax (a "Reimbursement Notice"), that it
has received from the Trustee or its representative the notice of
reimbursement and the amount of the reimbursement; such notice
shall further state the amount, if any, reimbursed directly to
the Bank by or on behalf of the Company, and that the Letter of
Credit has been reinstated by such amount, whereupon the Tender
Agent shall register in the name of the Company an amount of
Bonds equal to such amount reimbursed directly to the Bank.
(ii) If the Trustee shall not have received moneys
(whether from remarketing proceeds or payments from the Company)
sufficient to make reimbursement to the Bank in full, and if the
Trustee and Tender Agent shall not have received a Reimbursement
Notice from the Bank as to any reimbursement made directly to the
Bank by or on behalf of the Company, then the Tender Agent shall
register in the name of the Company, subject, however, to the
provisions of the Pledge Agreement, that amount of such Bonds
equal to the amount not reimbursed ("Pledged Bonds"); such Bonds
31
shall remain so registered until such time, if any, as the
Trustee shall receive from the Bank a Reimbursement Notice,
whereupon the Tender Agent shall, if appropriate, re-register
Pledged Bonds pursuant to clause (i) of this subsection.
Moreover, if the Letter of Credit does not provide by its terms
that the amount available for drawing thereunder to pay Purchase
Price reinstates upon the Bank's receipt from the Trustee or its
representative of notice of reimbursement and the moneys
constituting such reimbursement, the Tender Agent shall register
in the name of the Company, subject, however, to the provisions
of the Pledge Agreement, all tendered Bonds until the Trustee and
Tender Agent shall have received evidence from the Bank of the
reinstatement of the Letter of Credit in the amount of the
tendered Bonds, whereupon the Tender Agent shall, if appropriate,
re-register Pledged Bonds pursuant to clause (i) of this
subsection.
(iii) Bonds registered as directed by the Remarketing
Agent shall be delivered by the Tender Agent to, or upon the
direction of, the Remarketing Agent. Company Bonds shall be held
by the Tender Agent for the account of the Company or, upon
written request of the Company, shall be delivered to the
Company.
(f) Bonds purchased with moneys from any source other than moneys
drawn under the Letter of Credit shall be registered as follows: (i) to
the extent such Bonds shall have been remarketed by the Remarketing
Agent, as directed by the Remarketing Agent pursuant to subsection (b)
of this Section, and/or (ii) to the extent such Bonds shall not have
been remarketed, in the name of the Company. Bonds registered as
directed by the Remarketing Agent shall be delivered by the Tender
Agent to, or upon the direction of, the Remarketing Agent. Company
Bonds shall be held by the Tender Agent for the account of the Company
or, upon written request of the Company, shall be delivered to the
Company.
(g) Any Bond remarketed by the Remarketing Agent that shall
theretofore have been called for redemption shall be redelivered with a
copy of the redemption notice, and any such Bond as to which notice of
Mandatory Tender shall theretofore have been given pursuant to Section
302 hereof shall be redelivered with a copy of the notice of Mandatory
Tender.
(h) 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 cancelled, but shall remain Outstanding
until fully paid within the meaning of Article VIII hereof.
Notwithstanding any other provision herein which may be interpreted to
the contrary, any purchase of Bonds pursuant to a remarketing by the
Remarketing Agent shall not be viewed as a sale of the Bonds from the
Holder directly to a new purchaser, but rather as a sale to the
Remarketing Agent and a resale by the Remarketing Agent to the new
purchaser. Proceeds of a remarketing are intended to be a source of
payment, together with amounts available under the Letter of Credit and
32
other funds as specified herein, for Bonds following tender and
delivery in accordance with this Article; and the occurrence of a
successful remarketing is not a precondition to a Holder's right to
receive payment for its Bonds following tender and delivery in
accordance with this Article.
[END OF ARTICLE III]
33
ARTICLE IV
PROVISIONS AS TO FUNDS AND PAYMENTS
-----------------------------------
Section 401. Bond Fund.
---------
(a) There is hereby created and established with the Trustee a
trust fund designated "The Industrial Development Board of the City of
Xxxxxxxxxx -- KINPAK INC. Bond Fund" (the "Bond Fund"). Amounts in the
Bond Fund shall be used solely to pay Debt Service on the Bonds as the
same shall become due and payable or to reimburse the Bank for amounts
drawn under the Letter of Credit, as provided in subsection (d) of this
Section.
(b) There shall be deposited in the appropriate account in the
Bond Fund, as and when received:
(i) All moneys drawn by the Trustee under the Letter of
Credit for the purpose of paying the principal amount of the
Bonds and the interest due thereon on any Bond Payment Date, into
the Credit Facility Account;
(ii) All payments of Basic Rent under the Lease Agreement
with respect to Debt Service, into the Company Account;
(iii) All other moneys required to be deposited in the
Bond Fund pursuant to the Lease Agreement or this Indenture, into
the Company Account; and
(iv) All other moneys received by the Trustee when
accompanied by directions that such moneys are to be deposited in
the Bond Fund, into the Company Account.
(c) The Issuer hereby authorizes and directs the Trustee to
withdraw sufficient moneys from the Bond Fund to pay Debt Service on
the Bonds as the same shall become due and payable, whether at
maturity, by call for redemption or otherwise, which authorization and
direction the Trustee hereby accepts. Funds for such payments of Debt
Service shall be derived from the following sources in the order of
priority indicated:
(i) First, moneys drawn by the Trustee under the Letter of
Credit, and
(ii) Second, all other moneys on deposit in the Bond Fund.
(d) If the Letter of Credit is then in effect, prior to 12:00
noon on each Business Day preceding a Bond Payment Date the Trustee
shall, without making any prior claim or demand upon the Company for
payment of Basic Rent, make a draw under the Letter of Credit in an
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amount equal to the amount of Debt Service due on such Bond Payment
Date on Bonds other than Pledged Bonds or Company Bonds. Any such
moneys drawn under the Letter of Credit shall be deposited and held in
the Credit Facility Account in the Bond Fund, and shall not be
commingled with other moneys in the Bond Fund. If moneys from any
source other than a drawing under the Letter of Credit are, on the date
of such draw or any later date, on deposit in the Bond Fund, the
Trustee shall nevertheless draw under the Letter of Credit to make such
payment of Debt Service, and the moneys available from such other
source shall, to the extent of the amount paid by the Bank against such
draw but not reimbursed by the Company to the Bank, be paid to the
Bank. All moneys so drawn under the Letter of Credit shall be used to
pay Debt Service on Bonds other than Pledged Bonds or Company Bonds.
(e) Debt Service on Pledged Bonds and Company Bonds shall be paid
(i) with moneys deposited in the Bond Fund from any source other than a
drawing under the Letter of Credit and (ii) to the Bank and the
Company, respectively.
Section 402. Payment of Debt Service. The Trustee shall be obligated to
draw under the Letter of Credit or Alternate Credit Facility at such times and
in such manner and amounts as shall be necessary to provide for the payment when
due of Debt Service on Bonds other than Pledged Bonds or Company Bonds. The
Trustee shall not in any event be liable for any failure on the part of the Bank
to make payment under the Letter of Credit once a draw in conformity with the
terms of the Letter of Credit shall have been submitted by the Trustee.
Section 403. Non-Presentment of Bonds. In the event any Bonds shall not
be presented for payment when the principal thereof becomes due, either at
maturity, upon tender, redemption or otherwise, or a check or draft for interest
is not cashed, if funds sufficient to pay such Bonds or such check or draft
shall have been made available to the Trustee for the benefit of the Holders
thereof, all liability of the Issuer to the Holders thereof for the payment of
such Bonds or such check or draft shall cease, determine and be completely
discharged as of the time such funds are made available to the Trustee and
thereupon it shall be the duty of the Trustee to hold such funds, uninvested, in
a separate account of the Bond Fund or Bond Purchase Fund, as appropriate, for
the benefit of the Holders of such Bonds, who shall thereafter be restricted
exclusively to such funds for any claim of whatever nature on their part under
this Indenture or on, or with respect to, such Bonds.
Any of those moneys which shall be so held by the Trustee, and which
remain unclaimed by the Holder of a Bond not presented for payment or check or
draft not cashed for a period of three years after the due date thereof, shall
be paid to the Company free of any trust or lien. Thereafter, the Holder of that
Bond shall look only to the Company for payment and then only to the amounts so
received by the Company without any interest thereon, and the Trustee shall not
have any responsibility with respect to those moneys.
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Section 404. Release of Funds Upon Payment of Bonds. Except as provided
in Section 403 hereof, any amounts remaining in the Bond Fund (other than
amounts in the Credit Facility Account) or the Bond Purchase Fund (other than
amounts in the Remarketing Proceeds or Credit Facility Proceeds Accounts) after
payment in full of the Bonds, the fees, charges and expenses of the Issuer and
of the Trustee, the Paying Agents and any other Fiduciaries hereunder and all
other amounts required to be paid hereunder, shall be paid to the Company if
there is then no Event of Default under and as defined in the Lease Agreement.
Any amounts remaining in the Credit Facility Account, Remarketing
Proceeds Account or Credit Facility Proceeds Account shall be paid to the Bank
and not to the Company.
Section 405. Construction Fund; Disbursements.
--------------------------------
(a) There is hereby created and established with the Trustee a
trust fund designated "The Industrial Development Board of the City of
Xxxxxxxxxx -- KINPAK INC. Construction Fund" (the "Construction Fund").
The proceeds of the sale of the Series 1996A Bonds shall be deposited
in the Construction Fund.
(b) The moneys in the Construction Fund shall be paid out by the
Trustee from time to time solely for the purposes of (1) paying
Issuance Costs, as defined in the Lease Agreement, but subject to the
limitations in Sections 2.3(n) and 2.4(l) of the Lease Agreement; (2)
reimbursing to or for the account of the Company all funds advanced to
the Issuer or otherwise expended, subsequent to the date of the
Inducement Agreement, for the acquisition, construction and equipping
of the new facilities; and (3) paying the Project Costs.
(c) The Trustee shall make such payments from the Construction
Fund, but in each case only after receipt of a payment requisition
substantially in the form prescribed and promulgated by the Issuer,
duly completed and executed. Each such payment requisition (1) shall be
signed by any duly authorized officer, employee or agent of the Issuer;
(2) shall state, with respect to each payment requested thereby, the
amount requested to be paid, the name and address of the person, firm
or corporation to whom such payment is due and the purpose for which
such payment is to be made; (3) shall be consecutively numbered; (4)
shall be accompanied by bills, invoices or other appropriate
documentation supporting the payments or reimbursements requested; (5)
shall bear an endorsement signed by the Project Supervisor as to the
matters therein specified; and (6) shall, prior to submission to the
Trustee, have been submitted to and approved by the Bank in accordance
with the provisions of the Reimbursement Agreement.
(d) At the time of submission of each such payment requisition,
the Company shall be deemed to make the following certifications: (1)
the purpose for which such payment is to be made is one for which
Construction Fund moneys are authorized under the Lease Agreement to be
expended; (2) such payment is for the acquisition, construction,
36
reconstruction or improvement of land or property of a character
subject to the allowance for depreciation within the meaning of Section
144(a)(1) of the Code or for paying Issuance Costs (as defined in the
Lease Agreement); (3) payment of any such item will not result (i) in
less than 95% of the net proceeds (within the meaning of the Code) of
the Series 1996A Bonds being used (A) for the acquisition,
construction, reconstruction or improvement of land or property of a
character subject to the allowance for depreciation under said Section
144(a)(1) or (B) to provide a "manufacturing facility" within the
meaning of Section 144(a)(12)(C) of the Code, or (ii) in more than 2%
of the proceeds of the Series 1996A Bonds being used to pay Issuance
Costs; and (4) any property for which payment is to be made has been
installed or located on the Leased Realty.
(e) The provisions of this Section to the contrary
notwithstanding, if with respect to payment of any item of Project Cost
from the Construction Fund the Company shall furnish the Trustee a
certificate signed by the Project Supervisor stating that the Issuer
had failed or refused, after reasonable request therefor made by the
Company, to issue a payment requisition for payment of such item, the
payment requisition therefor may be signed in the name of the Issuer by
the Project Supervisor, and the Trustee shall be fully protected in
making the payments directed by such payment requisition as fully and
completely as if it were signed by an authorized officer, employee or
other agent of the Issuer, provided that such payment requisition is
accompanied by the endorsement and other documentation required by the
provisions of this Section.
(f) Any amounts remaining in the Construction Fund after the
Completion Date shall be applied as directed by the Company pursuant to
Section 4.5(c) of the Lease Agreement.
Section 406. Bond Purchase Fund.
------------------
(a) There is hereby created and established with the Trustee a
trust fund designated "The Industrial Development Board of the City of
Xxxxxxxxxx -- KINPAK INC. Bond Purchase Fund" (the "Bond Purchase
Fund"). The Trustee shall be the custodian for the Bond Purchase Fund,
and moneys in such Fund may be disbursed by the Trustee as hereinafter
provided. The moneys 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 Bank for amounts drawn under the Letter of Credit, as provided in
subsection (d) of this Section.
(b) There shall be deposited in the appropriate account of the
Bond Purchase Fund, as and when received:
(i) All moneys drawn by the Trustee under the Letter of
Credit for the purpose of paying the Purchase Price of Bonds due
on any Tender Date, into the Credit Facility Proceeds Account;
37
(ii) The proceeds of any remarketing of Bonds by the
Remarketing Agent, into the Remarketing Proceeds Account;
(iii) All payments of Basic Rent under the Lease Agreement
with respect to Purchase Price, into the Miscellaneous Account;
(iv) All other moneys required to be deposited in the Bond
Purchase Fund pursuant to the Lease Agreement or this Indenture,
into the Miscellaneous Account; and
(v) All other moneys received by the Trustee when
accompanied by directions that such moneys are to be deposited in
the Bond Purchase Fund, into the Miscellaneous Account.
(c) The Trustee is hereby authorized and directed to withdraw
sufficient moneys 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 in the order of priority indicated:
(i) First, Available Moneys received by the Trustee from
the remarketing of Bonds by the Remarketing Agent;
(ii) Second, moneys drawn by the Trustee under the Letter
of Credit; and
(iii) Third, all other moneys on deposit in the Bond
Purchase Fund.
(d) If the Letter of Credit is then in effect, by 10:30 a.m. on
each Tender Date the Trustee shall, if necessary, and without making
any prior claim or demand upon the Company for payments of Basic Rent
with respect to the Purchase Price of Bonds, make a draw under the
Letter of Credit in an amount equal to (i) the Purchase Price of all
Bonds to be purchased on such Tender Date, less (ii) the amount, if
any, then on deposit in the Remarketing Proceeds Account of the Bond
Purchase Fund. Any such moneys drawn under the Letter of Credit shall
be deposited and held in the Credit Facility Proceeds Account in the
Bond Purchase Fund, and shall not be commingled with other moneys in
the Bond Purchase Fund. If moneys from any source other than
remarketing proceeds or a drawing under the Letter of Credit are, on
the date of such draw or any later date, on deposit in the
Miscellaneous Account of the Bond Purchase Fund, the Trustee shall
nevertheless draw under the Letter of Credit in the net amount
hereinabove specified; and any such moneys on deposit in the
Miscellaneous Account from such other sources shall, to the extent of
the amount so drawn under the Letter of Credit and paid by the Bank
against such draw but not reimbursed by the Company to the Bank, be
paid to the Bank.
38
Section 407. Rebate Fund. There is hereby created by the Issuer and
ordered established in the custody of the Trustee a fund designated "The
Industrial Development Board of the City of Xxxxxxxxxx -- KINPAK INC. Rebate
Fund" (the "Rebate Fund"). Any provision hereof to the contrary notwithstanding,
amounts credited to the Rebate Fund shall be free and clear of any lien
hereunder.
As required by the Lease Agreement, the Company shall calculate with
respect to the Series 1996B Bonds and report to the Trustee, within 20 days
after each Computation Date, the amount of Excess Earnings as of the end of that
Bond Year or the date of such payment in full. The Trustee shall notify the
Company in writing of the amount then on deposit in the Rebate Fund. If the
amount then on deposit in the Rebate Fund is in excess of the Excess Earnings,
the Trustee shall forthwith pay that excess amount to the Company. If the amount
then on deposit in the Rebate Fund is less than the Excess Earnings, the Company
shall, within five days after receipt of the aforesaid notice from the Trustee,
pay to the Trustee for deposit in the Rebate Fund an amount sufficient to cause
the Rebate Fund to contain an amount equal to the Excess Earnings. Within 30
days after the end of the fifth Bond Year and every fifth Bond Year thereafter,
the Trustee, acting at the written direction of the Company and on behalf of the
Issuer, shall pay to the United States, in accordance with Section 148(f) of the
Code from the moneys then on deposit in the Rebate Fund, an amount calculated by
the Company to be equal to 90% (or such greater percentage not in excess of 100%
as the Company may direct the Trustee to pay) of the Excess Earnings earned from
the Issue Date through the end of such fifth Bond Year (less the amount of
Excess Earnings, if any, previously paid to the United States pursuant to this
Section). Within 60 days after the payment in full of all Series 1996B Bonds
then outstanding the Trustee shall, at the written direction of the Company and
on behalf of the Issuer, pay to the United States in accordance with Section
148(f) of the Code from the moneys deposited in the Rebate Fund an amount
calculated by the Company to be equal to 100% of the Excess Earnings earned from
the Issue Date to the date of such payment in full (less the amount of Excess
Earnings, if any, previously paid to the United States pursuant to this Section)
and any moneys remaining in the Rebate Fund following such payment shall be paid
to the Company. In each case of any payment made pursuant to either of the two
preceding sentences, it shall be the responsibility of the Company to prepare
and furnish to the Trustee any information returns or forms required to
accompany such payment. All computations of Excess Earnings pursuant to the
Lease Agreement shall treat the amount or amounts, if any, previously paid to
the United States pursuant to this Section as amounts on deposit in the Rebate
Fund.
The Trustee shall be entitled to rely on the calculations made by the
Company and shall not be responsible for any loss or damage resulting from any
action taken or omitted to be taken in reliance upon those calculations.
The Trustee shall make available to the Company such records as the
Trustee customarily maintains concerning the investments of the gross proceeds
of the Series 1996B Bonds and the investments of earnings from those
investments.
39
The provisions of this Section 407 shall not apply if and to the extent
that the Issuer, the Company and the Trustee receive a Non-Taxability Opinion
regarding the failure to comply therewith.
Section 408. Refunding Fund. There is hereby created and established
with the Trustee a trust fund designated "The Industrial Development Board of
the City of Xxxxxxxxxx -- KINPAK INC. Refunding Fund (the "Refunding Fund"). All
the proceeds of the sale of the Series 1996B Bonds shall be deposited in the
Refunding Fund on the Issue Date. Moreover, pursuant to Section 4.4 of the Lease
Agreement, the Company has agreed that it shall, on the Issue Date, deposit in
the Refunding Fund such additional amounts, if any, as shall be necessary to pay
in full the Interim Indebtedness and to provide for the redemption, on the
redemption date designated by the Prior Trustee, of all outstanding Prior Bonds
(including accrued interest thereon to such redemption date). The Trustee shall,
on the Issue Date, and without need for further direction from the Issuer and
the Company, apply the moneys on deposit in the Refunding Fund (a) to pay in
full the Interim Indebtedness and (b) to pay to the Prior Trustee the amount
necessary to provide for the redemption, on the redemption date designated by
the Prior Trustee, of all outstanding Prior Bonds (including accrued interest
thereon to such redemption date).
Section 409. Investment of Fund Moneys. Moneys in the Bond Fund and the
Bond Purchase Fund (except for moneys therein (i) held pursuant to Section 403
hereof, (ii) to pay Unsurrendered Bonds or (iii) representing proceeds of a
drawing under the Letter of Credit, which moneys shall be either held in cash
and not invested or invested only in Government Obligations with a maturity of
not to exceed 30 days or fewer, as needed) and the Refunding Fund shall be
invested and reinvested by the Trustee in Eligible Investments at the direction
of the Company, consistent, however, with the covenants of the Company contained
in Section 5.7 of the Lease Agreement. Investments of moneys in the Bond Fund
shall mature or be redeemable at the option of the Trustee at the times and in
the amounts necessary to provide moneys to pay Debt Service on Bonds as the same
shall become due at stated maturity, by redemption or otherwise.
Subject to any directions from the Company with respect thereto, from
time to time, the Trustee may sell those investments and reinvest the proceeds
therefrom in Eligible Investments maturing or redeemable as aforesaid. Any of
those investments may be purchased from or sold to the Trustee, the Registrar,
an Authenticating Agent or a Paying Agent, or any bank, trust company or savings
and loan association affiliated with any of the foregoing. The Trustee shall
sell or redeem investments credited to the Bond Fund to produce sufficient
moneys applicable hereunder to and at the times required for the purpose of
paying Debt Service on Bonds when due as aforesaid, and shall do so without
necessity for any order on behalf of the Issuer and without restriction by
reason of any order. An investment made from moneys credited to the Bond Fund,
the Bond Purchase Fund or the Refunding Fund shall constitute part of that
respective Fund, and each respective Fund shall be credited with all proceeds of
40
sale and income from investment of moneys credited thereto. For purposes of this
Indenture, all investments shall be valued at face amount or market value,
whichever is less.
In addition to the foregoing requirements, the Issuer will not pay or
agree to pay to a party, other than the United States, any portion of the Excess
Earnings (computed as of the most recent prior Computation Date) through a
transaction that reduces the aggregate amount earned on all nonpurpose
investments in which gross proceeds of the Series 1996B Bonds are invested or
that results in a smaller profit or a larger loss than would have resulted in an
arm's length transaction in which the yield on the nonpurpose investment was not
subject to any restriction. As used herein, the terms "gross proceeds",
"nonpurpose investments" and "yield" have the meanings assigned to them for
purposes of Section 148 of the Code.
Furthermore, except to the extent set forth in an opinion of Bond
Counsel, investments or deposits of proceeds of Series 1996B Bonds in
certificates of deposit or pursuant to investment contracts shall not be made
without compliance, at or prior to such investment or deposit, with the
requirements of Treasury Regulations Section 1.148-5(d)(6)(ii) and (iii),
respectively, or with any successor provisions thereto.
Section 410. Moneys to be Held in Trust. Except where moneys have been
deposited with or paid to the Trustee pursuant to an instrument restricting
their application to particular Bonds, all moneys required or permitted to be
deposited with or paid to the Trustee or any Paying Agent under any provision of
this Indenture, the Lease Agreement or the Letter of Credit, and any investments
thereof, shall be held by the Trustee or that Paying Agent in trust. Except for
(a) moneys deposited with or paid to the Trustee or any Paying Agent for the
redemption of Bonds, notice of the redemption of which shall have been duly
given, (b) moneys held by the Trustee pursuant to Section 403 hereof, and (c)
any moneys in the Rebate Fund, all moneys described in the preceding sentence
held by the Trustee or any Paying Agent shall be subject to the lien hereof
while so held.
[END OF ARTICLE IV]
41
ARTICLE V
FIDUCIARIES
-----------
Section 501. Trustee's Acceptance and Responsibilities. The Trustee
hereby accepts the trusts imposed upon it by this Indenture, and agrees to
perform said trusts, but only upon and subject to the following express terms
and conditions:
(a) The Trustee, prior to the occurrence of an Event of Default
and after curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default
shall have occurred (which shall not have been cured or waived) 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.
(b) The Trustee may execute any of the trusts or powers hereof
and perform any of its duties by or through attorneys, agents,
receivers or employees but shall be answerable for the conduct of the
same in accordance with the standard specified above, and shall be
entitled to advice of counsel concerning all matters of trusts hereof
and the duties hereunder, and may in all cases pay such reasonable
compensation to all such attorneys, agents, receivers and employees as
may reasonably be employed in connection with the trusts hereof. The
Trustee may act upon the opinion or advice of any attorney (who may be
the attorney or attorneys for the Issuer or the Company), approved by
the Trustee in the exercise of reasonable care. The Trustee shall not
be responsible for any loss or damage resulting from any action or
non-action in good faith in reliance upon such opinion or advice.
(c) The Trustee shall not be responsible for any recital herein,
or in the Bonds (except with respect to any certificate of
authentication on the Bonds executed by the Trustee), or for any
matters in respect of the Project, or for the validity of the execution
by the Issuer of this Indenture or of any supplement hereto or
instruments of further assurance, or for the sufficiency or maintenance
of the security for the Bonds issued hereunder or intended to be
secured hereby.
(d) The Trustee shall not be accountable for the use of the
proceeds of any Bonds authenticated or delivered hereunder, other than
to comply with the Issuer's request and authorization with respect
thereto as described in Section 202(h) hereof. The Trustee may become a
Holder of Bonds secured hereby with the same rights which it would have
if not Trustee.
(e) The Trustee shall be protected, in the absence of bad faith,
in acting upon any notice, request, consent, certificate, order,
affidavit, letter, telegram, Telefax or other paper or document
believed to be genuine and correct and to have been signed or sent by
42
the proper person or persons. Any action taken by the Trustee pursuant
to this Indenture upon the request or authority or consent of any
Person who at the time of making such request or giving such authority
or consent is a Holder of any Bond, shall be conclusive and binding
upon all future Holders of the same Bond and of Bonds issued in
exchange therefor or in place thereof.
(f) As to the existence or non-existence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the
Trustee shall be entitled to rely upon a certificate signed on behalf
of the Issuer by any duly authorized officer thereof as sufficient
evidence of the facts therein contained; and prior to the occurrence of
an Event of Default of which the Trustee shall have been notified as
provided in subsection (h) of this Section, or of which pursuant to
said subsection it shall be deemed to have notice, shall also be at
liberty to accept a similar certificate to the effect that any
particular dealing, transaction or action is necessary or expedient,
though the Trustee may at its discretion (but shall in no case be bound
to) secure such further evidence as it shall deem necessary or
advisable.
(g) The permissive right of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty and it shall not be
answerable for other than its negligent action or failure to act or
willful misconduct.
(h) Unless the Trustee shall be specifically notified in writing
of an Event of Default by the Issuer or by the Holders of at least 25%
in aggregate principal amount of Bonds then Outstanding, the Trustee
shall not be required to take notice or be deemed to have notice of any
Event of Default hereunder except Events of Default by reason of (i)
any notice from the Bank given under Section 601 hereof or (ii) failure
by the Issuer to cause to be made any payments of Debt Service on or
Purchase Price of the Bonds. All notices or other instruments required
by this Indenture to be delivered to the Trustee, must, in order to be
effective, be delivered at the Trustee's Office, and in the absence of
such notice so delivered the Trustee may conclusively assume there is
no Event of Default except as aforesaid.
(i) At any and all reasonable times the Trustee, and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right fully to inspect any and all of
the property herein conveyed, including all books, papers and records
of the Issuer and the Company pertaining to the Project and the Bonds,
and to take such memoranda from and in regard thereto as may be
desired.
(j) The Trustee shall not be required to give any bond or surety
in respect of the execution of the said trusts and powers or otherwise
in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture
contained, the Trustee may demand, in respect and as a condition of the
authentication of any Bonds, the withdrawal of any cash, the release of
any property or the taking of any action whatsoever within the purview
of this Indenture, such showing, certificates, opinions, appraisals or
43
other information, or corporate action or evidence thereof, as the
Trustee may reasonably deem desirable in addition to what is expressly
required hereby.
(l) Before taking any action hereunder (with the exceptions of
declaring acceleration of the Bonds pursuant to clause (b)(ii) of the
first paragraph of Section 602 hereof and of making payments of Debt
Service and drawings under the Letter of Credit pursuant to Sections
401, 402 and 406 hereof) the Trustee may require that a satisfactory
indemnity bond be furnished for the reimbursement of all expenses which
it may incur and to protect it against all liability, except liability
which is adjudicated to have resulted from its negligent action or
failure to act or willful misconduct. The Trustee may take action
without indemnity, and in that case, the Company shall reimburse the
Trustee for all of the Trustee's expenses pursuant to Section 502
hereof.
(m) Unless otherwise provided herein, all moneys received by the
Trustee or any Paying Agent shall, until applied or invested as herein
provided, be held in trust for the purposes for which they were
received, provided that those moneys need not be segregated from other
funds except to the extent required by this Indenture or by law.
Neither the Trustee nor any Paying Agent shall be under any liability
for interest on any moneys received hereunder except such as may be
agreed upon.
Section 502. Fees, Charges and Expenses of Fiduciaries. Each Fiduciary
shall be entitled to payment and/or reimbursement by the Company as provided in
the Lease Agreement for reasonable fees for its Ordinary Services rendered
hereunder and all advances, counsel fees and other Ordinary Expenses reasonably
and necessarily made or incurred by it in connection with such Ordinary
Services. For purposes hereof, fees for Ordinary Services provided for in the
standard fee schedule (if any) of each Fiduciary shall be considered reasonable.
In the event that it should become necessary that any Fiduciary perform
Extraordinary Services, it shall be entitled to reasonable extra compensation
therefor, and to reimbursement for reasonable and necessary Extraordinary
Expenses in connection therewith; provided, that if such Extraordinary Services
or Extraordinary Expenses are occasioned by the neglect or misconduct of such
Fiduciary, it shall not be entitled to compensation or reimbursement therefor.
A Fiduciary shall be entitled to payment and reimbursement for Ordinary
Services and Ordinary Expenses only from (a) the additional payments made by the
Company pursuant to the Lease Agreement, or (b) other moneys available therefor
(except for moneys in the Bond Fund or Bond Purchase Fund (i) held pursuant to
Section 403 hereof, (ii) to pay Unsurrendered Bonds or (iii) representing
proceeds of remarketing of Bonds or a drawing under the Letter of Credit). Any
amounts payable to a Fiduciary pursuant to this Section shall be payable upon
demand and shall bear interest from the date of demand therefor at the Interest
Rate for Advances.
Section 503. Notices to Holders. If an Event of Default occurs of which
the Trustee has actual notice or of which the Trustee is pursuant to Section
501(h) hereof required to take or deemed to have notice, then the Trustee shall
44
promptly give or cause to be given written notice thereof by first class mail,
postage prepaid, to each Holder at its address shown on the Register (a "Notice
by Trustee"); provided the Trustee shall, on the date of such occurrence, give
telephonic notice thereof to each Holder of 25% or more in aggregate principal
amount of Bonds Outstanding.
Section 504. Intervention by Trustee. In any judicial proceeding to
which the Issuer or the Company is a party of which the Trustee has actual
notice and which in the opinion of the Trustee has a substantial bearing on the
interests of Holders of the Bonds, the Trustee may intervene on behalf of
Holders, and shall intervene if requested to do so in writing by Holders of at
least 25% of the aggregate principal amount of Bonds then Outstanding. The
rights and obligations of the Trustee under this Section are subject to the
approval of a court of competent jurisdiction.
Section 505. Successor Trustees. Any corporation or association into
which the Trustee may be converted or merged, or with which it may be
consolidated, or to which it may sell or transfer its trust business and assets
as a whole or substantially as a whole, or any corporation or association
resulting from such conversion, sale, merger, consolidation or transfer to which
it is a party shall be and become, ipso facto, successor Trustee hereunder and
vested with all of the title to the property herein conveyed and all the trusts,
powers, discretion, immunities, privileges and all other matters as was its
predecessor, without the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
Any successor Trustee other than the foregoing, however, (a) shall be a
trust company or a bank having the powers of a trust company, (b) shall be in
good standing within the State or shall be duly authorized to exercise trust
powers within the State, and (c) shall have a reported capital and surplus of
not less than $50,000,000.
Section 506. Appointment of Co-Trustee. It is the purpose of this
Indenture that there shall be no violation of any law of any jurisdiction
(including without limitation, the laws of the State) denying or restricting the
right of banks or trust companies to transact business as trustees in that
jurisdiction. It is recognized that, (a) if there is litigation under this
Indenture or other instruments or documents relating to the Bonds, and in
particular, in case of the enforcement thereof upon a default or an Event of
Default, or (b) if the Trustee should deem that, by reason of any present or
future law of any jurisdiction, it may not (i) exercise any of the powers,
rights or remedies granted herein to the Trustee, (ii) hold title to the
properties, in trust, as granted herein, or (iii) take any action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint an individual or additional institution as a co-Trustee. The
following provisions of this Section are adapted to these ends.
In the event that the Trustee appoints an individual or additional
institution as a co-Trustee, each and every trust, property, remedy, power,
right, duty, obligation, discretion, privilege, claim, demand, cause of action,
immunity, estate, title, interest and lien expressed or intended by this
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Indenture to be exercised by, vested in or conveyed to the Trustee shall be
exercisable by, vest in and be conveyed to that co-Trustee, but only to the
extent necessary for it to be so vested and conveyed and to enable that
co-Trustee to exercise it. Every covenant, agreement and obligation necessary to
the exercise thereof by the co-Trustee shall run to and be enforceable by it.
Notwithstanding the foregoing, a co-Trustee shall exercise only such
rights and perform only such duties as may be required to avoid violation of any
law of any jurisdiction or as may be directed by the Trustee in writing. Any
written direction by the Trustee to a co-Trustee to take or to refrain from
taking any action hereunder shall be sufficient warrant for taking or refraining
from taking such action by such co-Trustee. Neither the Trustee nor any
co-Trustee shall be personally liable by reason of any act or omission of a
co-Trustee or the Trustee, respectively, hereunder. Any moneys, papers,
securities or other items of personal property received by a co-Trustee pursuant
to its exercise of rights or performance of duties hereunder shall forthwith, to
the extent permitted by law, be turned over to the Trustee.
Should any instrument or document in writing from the Issuer reasonably
be required by the co-Trustee so appointed by the Trustee for vesting and
conveying more fully and certainly in and to that co-Trustee those trusts,
properties, remedies, powers, rights, duties, obligations, discretion,
privileges, claims, demands, causes of action, immunities, estates, titles,
interests and liens, that instrument or document shall be executed, acknowledged
and delivered, but not prepared, by the Issuer. In case any co-Trustee or a
successor to it shall die, become incapable of acting, resign or be removed, all
of the trusts, properties, remedies, powers, rights, duties, obligations,
discretion, privileges, claims, demands, causes of action, immunities, estates,
titles, interests and liens of the co-Trustee shall be exercised by, vest in and
be conveyed to the Trustee, to the extent permitted by law, until the
appointment of a successor to the co-Trustee.
Section 507. Resignation by the Trustee. The Trustee and any successor
Trustee may at any time resign from the trusts hereby created, by giving 30
days' written notice to the Issuer, the Registrar, the Tender Agent, the
Remarketing Agent, the Bank and the Company and notice by registered or
certified mail to each Holder of Bonds then Outstanding. Such resignation shall
take effect only upon the appointment of a successor trustee. Such notices to
the Issuer, the Registrar, the Tender Agent, the Remarketing Agent, the Bank and
the Company may be served personally or sent by registered mail.
Section 508. Removal of the Trustee. The Trustee may be removed at any
time, by an instrument or concurrent instruments in writing delivered to the
Trustee and to the Issuer, and signed by the Holders of a majority in aggregate
principal amount of Bonds then Outstanding.
The Trustee also may be removed at any time by any court of competent
jurisdiction upon the application of the Issuer or the Holders of not less than
25% in aggregate principal amount of the Bonds then Outstanding, for any breach
of trust or for acting or proceeding in violation of, or for failing to act or
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proceed in accordance with, any provision of this Indenture with respect to the
duties and obligations of the Trustee. Such removal shall take effect only upon
the appointment of a successor trustee.
Section 509. Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or shall be in course of
dissolution or liquidation, or otherwise become incapable of acting hereunder,
or in case the Trustee shall be taken under the control of any public officer or
officers or of a receiver appointed by a court, a successor shall be appointed
by the Issuer and with the consent of the Company; provided if the Issuer shall
not have appointed a successor within ten days after the event giving rise to
the need for such appointment, then a successor may be appointed by the Holders
of a majority in aggregate principal amount of the Bonds then Outstanding, by an
instrument or concurrent instruments in writing delivered to the Issuer, the
Trustee and the successor Trustee, signed by such Holders, or by their duly
authorized attorneys in fact. If no appointment of a successor Trustee shall be
made pursuant to the foregoing provisions of this Section, the Holder of any
Bond outstanding hereunder or any retiring Trustee may apply to any court of
competent jurisdiction to appoint a successor Trustee. Such court may thereupon,
after such notice, if any, as such court may deem proper and prescribe, appoint
a successor Trustee under this Indenture. Every such Trustee appointed pursuant
to the provisions of this Section to succeed the Trustee shall satisfy the
requirements of the second paragraph of Section 505 hereof.
Section 510. Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer, the Company, the Registrar and the Tender Agent an
instrument in writing accepting such appointment hereunder, and thereupon such
successor, without any further act, deed or conveyance, shall become fully
vested with all the estates, properties (including, without limitation, all
securities and moneys and the Letter of Credit), rights, powers, trusts, duties
and obligations of its predecessor; but such predecessor shall nevertheless, on
the written request of the Issuer or of its successor, execute and deliver an
instrument transferring to such successor all the estates, properties, rights,
powers and trusts of such predecessor hereunder; and every predecessor trustee
shall deliver all securities and moneys held by it as trustee hereunder to its
successor. Should any instrument in writing from the Issuer be required by any
successor trustee for more fully and certainly vesting in such successor the
estate, rights, powers and duties hereby vested or intended to be vested in the
predecessor, any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer. In the event of a change in
the Trustee, the predecessor trustee shall cease to be Registrar, Authenticating
Agent, Tender Agent and Paying Agent for any of the Bonds, to the extent it
served in any of those capacities. The successor Trustee shall become custodian
of any moneys held by its predecessor and, if applicable, Registrar,
Authenticating Agent, Tender Agent and a Paying Agent. Upon delivery to the
successor trustee of any moneys or securities held by it, the predecessor
trustee shall be discharged from any further liability on account of such moneys
or securities so delivered.
Section 511. Right of Trustee to Pay Taxes and Other Charges. In case
any tax, assessment or governmental or other charge upon any part of the
property herein conveyed is not paid as required herein or by law, the Trustee
47
may pay such tax, assessment or governmental charge, without prejudice, however,
to any rights of the Trustee or the Holders hereunder arising as a result of
such failure; and any amount at any time so paid under this Section with
interest thereon from the date of payment at the Interest Rate for Advances,
shall become so much additional indebtedness secured by this Indenture, and
shall be paid out of the Revenues (excluding moneys in the Bond Fund or Bond
Purchase Fund (i) held pursuant to Section 403 hereof, (ii) for the payment of
Unsurrendered Bonds or (iii) representing proceeds of a drawing under the Letter
of Credit), if not otherwise paid; but the Trustee shall be under no obligation
to make any such payment unless it shall have been requested to do so by the
Holders of at least 25% of the aggregate principal amount of Bonds then
Outstanding and shall have been provided with adequate funds for the purpose of
payment.
Section 512. Adoption of Authentication. In case any of the Bonds shall
have been authenticated, but shall not have been delivered, any successor
Trustee, Registrar or Authenticating Agent may adopt the certificate of
authentication of any predecessor Trustee, Registrar or Authenticating Agent and
may deliver those Bonds so authenticated as provided herein. In case any Bonds
shall not have been authenticated, any successor Trustee, Registrar or
Authenticating Agent may authenticate those Bonds either in the name of any
predecessor or in its own name. In all cases, the certificate of authentication
shall have the same force and effect as provided in the Bonds or in this
Indenture with respect to the certificate of authentication of the predecessor
Trustee, Registrar or Authenticating Agent.
Section 513. Registrars.
----------
(a) Succession. Anything herein to the contrary notwithstanding,
any corporation or association (i) into which the Registrar may be
converted or merged, (ii) with which the Registrar or any successor to
it may be consolidated, or (iii) to which it may sell or transfer its
assets as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, merger, consolidation,
sale or transfer, ipso facto, shall be and become successor Registrar
hereunder and shall be vested with each and every power, right, duty,
obligation, discretion and privilege expressed or intended by this
Indenture to be exercised by or vested in the predecessor Registrar,
without the execution or filing of any instrument or document or any
further act on the part of any of the parties hereto.
(b) Resignation. The Registrar may resign at any time by giving
written notice of its resignation to the Issuer, the Company, the
Trustee, the Bank, the Remarketing Agent and each Paying Agent and
Authenticating Agent for the Bonds, at least 60 days before the
resignation is to take effect. The resignation shall take effect only
upon the appointment of a successor Registrar, but may take effect
sooner than within 60 days if the successor Registrar is appointed and
accepts that appointment before the time stated in the notice.
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(c) Removal. The Registrar may be removed at any time by an
instrument or document or concurrent instruments or documents in
writing delivered to the Registrar, with copies thereof mailed to the
Issuer, the Trustee and the Company, and signed by or on behalf of the
Holders of not less than a majority in aggregate principal amount of
the Bonds then Outstanding. Such removal shall take effect only upon
the appointment of a successor Registrar.
(d) Appointment of Successors. If (i) the Registrar shall resign,
shall be removed, shall be dissolved, or shall become otherwise
incapable of acting hereunder, (ii) the Registrar shall be taken under
the control of any public officer or officers, (iii) a receiver shall
be appointed for the Registrar by a court, or (iv) the Registrar shall
have an order for relief entered in any case commenced by or against it
under the federal bankruptcy laws or commence a proceeding under any
federal or state bankruptcy, insolvency, reorganization or similar law,
or have such a proceeding commenced against it and either have an order
of insolvency or reorganization entered against it or have the
proceeding remain undismissed and unstayed for 90 days, then a
successor Registrar shall be appointed by the Issuer, with the written
consent of the Company and the Trustee; provided, that if a successor
Registrar is not so appointed within ten days after (a) a notice of
resignation or an instrument or document of removal is received by the
Issuer, as provided above, or (b) the Registrar is dissolved, taken
under control, becomes otherwise incapable of acting or a receiver is
appointed, in each case, as provided above, then, if the Issuer shall
not have appointed a successor Registrar, the Trustee or the Holders of
a majority in aggregate principal amount of Bonds then Outstanding may
designate a successor Registrar by an instrument or document or
concurrent instruments or documents in writing signed by the Trustee,
or in the case of the Holders, by or on behalf of those Holders.
Every successor Registrar appointed hereunder shall execute and
acknowledge, and shall deliver to its predecessor, the Issuer, the
Trustee and the Company, an instrument or document accepting the
appointment. Thereupon, without any further act, the successor shall
become vested with all of the properties, remedies, powers, rights,
duties, obligations, discretion, privileges, claims, demands, causes of
action, immunities, titles and interests of its predecessor. Upon the
written request of its successor, the Issuer or the Company, a
predecessor Registrar (i) shall execute and deliver an instrument or
document transferring to its successor all of the properties, remedies,
powers, rights, duties, obligations, discretion, privileges, claims,
demands, causes of action, immunities, titles and interests of it as
predecessor Registrar hereunder, and (ii) shall take any other action
necessary duly to assign, transfer and deliver to its successor all
property and records (including without limitation, the Register and
any cancelled Bonds) held by it as Registrar. Should any instrument or
document from the Issuer be requested by any successor Registrar for
vesting and conveying more fully and certainly in and to that successor
the properties, remedies, powers, rights, duties, obligations,
discretion, privileges, claims, demands, causes of action, immunities,
titles and interests vested or conveyed or intended to be vested or
conveyed hereby in or to a predecessor Registrar, the Issuer shall
execute, acknowledge and deliver that instrument or document.
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Section 514. Designation and Succession of Paying Agents. The Trustee
shall be the Paying Agent for the Bonds and, with the consent of the Issuer, the
Trustee may appoint an additional Paying Agent or Agents with power to act on
its behalf and subject to its direction in the payment of Debt Service on the
Bonds. It is the responsibility of the Trustee to establish the duties and
responsibilities of any Paying Agent for the purposes of this Indenture, to the
extent not specified herein.
Any corporation or association with or into which any Paying 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 Paying Agent shall be a party, or any corporation or association succeeding
to the trust business of any Paying Agent, shall be the successor of that Paying
Agent hereunder, if that successor corporation or association is otherwise
eligible hereunder, without the execution or filing of any paper or any further
act on the part of the parties hereto or of the predecessor or that successor
Paying Agent.
Any Paying Agent may at any time resign by giving written notice of
resignation to the Trustee, the Registrar and the Company. The Trustee may at
any time terminate the agency of any Paying Agent by giving written notice of
termination to such Paying Agent, the Registrar and the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any Paying Agent shall cease to be eligible under this Section, the Trustee may
appoint a successor Paying Agent. Any successor Paying Agent must be a bank or
trust company organized under the laws of the United States or any state
thereof. The Trustee shall give written notice of appointment of a successor
Paying Agent to the Company, the Issuer and the Registrar and shall mail, within
ten days after that appointment, notice thereof to all Holders as their names
and addresses appear on the Register on the date of that appointment.
Section 515. Designation and Succession of Authenticating Agents. With
the consent of the Issuer, the Trustee may appoint an Authenticating Agent or
Agents, in addition to the Trustee, with power to act on its behalf and subject
to its direction in the authentication and delivery of Bonds in connection with
transfers and exchanges hereunder. For all purposes of this Indenture, the
authentication and delivery of Bonds by an Authenticating Agent pursuant to this
Section shall be deemed to be authentication and delivery of those Bonds "by the
Trustee", and any authorized signatory of an Authenticating Agent shall be
deemed an "authorized signatory" on behalf of the Trustee for any such
authentication.
Any corporation or association with or into which any Authenticating
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 Authenticating Agent shall be a party, or any
corporation or association succeeding to the trust business of any
Authenticating Agent, shall be the successor of that Authenticating Agent
hereunder, if that successor corporation or association is otherwise eligible
hereunder, without the execution or filing of any paper or any further act on
the part of the parties hereto or of the predecessor or that successor
Authenticating Agent.
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Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee, the Registrar and the Company. The Trustee
may at any time terminate the agency of any Authenticating Agent by giving
written notice of termination to such Authenticating Agent, the Registrar and
the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section, the Trustee may appoint a successor Authenticating
Agent. The Trustee shall give written notice of appointment of a successor
Authenticating Agent to the Company, the Issuer and the Tender Agent and shall
mail, within ten days after that appointment, notice thereof to all Holders as
their names and addresses appear on the Register on the date of that
appointment.
Section 516. Dealing in Bonds. The Trustee, the Tender Agent, a
Registrar, a Paying Agent and an Authenticating Agent, their affiliates, and any
directors, officers, employees or agents thereof may become the Holders of Bonds
secured hereby with the same rights which it or they would have hereunder if the
Trustee, the Tender Agent, the Registrar, Paying Agents or Authenticating Agents
did not serve in those capacities.
Section 517. Tender Agent. The Trustee may appoint an agent (the
"Tender Agent") to act on its behalf in the acceptance of delivery of Bonds
tendered for purchase pursuant to the optional or mandatory tender provisions of
this Indenture; provided, however, that any such Tender Agent (i) shall be a
bank or trust company organized under the laws of the United States or any state
thereof, and (ii) shall have its principal office in New York, New York. The
Tender Agent shall also be an Authenticating Agent. The Tender Agent shall
signify its acceptance of the duties and obligations imposed upon it hereunder
in its various capacities by a written instrument of acceptance delivered to the
Issuer, the Company, the Trustee, the Remarketing Agent and the Bank. The
provisions of Section 513 hereof pertaining to the succession, resignation and
removal of Registrars shall be applicable to the succession, resignation and
removal of the Tender Agent.
Section 518. Remarketing Agent. The Company has, pursuant to the
Remarketing Agreement, appointed First Union Capital Markets Group of First
Union National Bank of North Carolina, Charlotte, North Carolina, as Remarketing
Agent for the Bonds, subject to the conditions set forth herein. The Remarketing
Agent has, pursuant to the Remarketing Agreement, designated to the Trustee its
principal office, signified its acceptance of the duties and obligations imposed
upon it hereunder and agreed to perform the duties specified to be performed by
it in Articles II and III hereof and in the Bonds, and in particular those
duties relating to remarketing of Bonds and determining the interest rate
applicable to each Series of the Bonds from time to time.
The Remarketing Agent shall be a member of the National Association of
Securities Dealers, Inc. and authorized to perform all the duties imposed upon
it by this Indenture. The Remarketing Agent may at any time resign and be
discharged of the duties and obligations created by this Indenture by giving at
least 30 days' notice to the Issuer, the Company, the Bank, the Tender Agent and
the Trustee. The Remarketing Agent may be removed at any time, at the election
of the Company, by an instrument signed by the Company on behalf of the Issuer
and mailed by first class mail to the Issuer, the Remarketing Agent, the Bank,
the Tender Agent and the Trustee not fewer than 30 days prior to the date
proposed for removal.
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In the event of the resignation or removal of the Remarketing Agent, it
shall be the responsibility of the Company to designate a successor (which
position may be held jointly), and the old Remarketing Agent shall pay over,
assign and deliver any moneys and Bonds held by it in such capacity to its
successor or, if there be no successor, to the Tender Agent. No successor
Remarketing Agent may be an Affiliate of the Company.
In the event that the Remarketing Agent shall resign, be removed or be
dissolved, or if the property or affairs of the Remarketing Agent shall be taken
under the control of any state or federal court or administrative body because
of bankruptcy or insolvency or for any other reason, and the Company shall not
have made a timely appointment of a successor as Remarketing Agent, the Tender
Agent shall be deemed to be the Remarketing Agent for all purposes of this
Indenture until the appointment by the Company of a successor Remarketing Agent;
provided, however, that the Tender Agent, in its capacity as Remarketing Agent,
shall not be required to sell Bonds or to perform the duties with respect
thereto.
[END OF ARTICLE V]
52
ARTICLE VI
DEFAULT PROVISIONS AND
REMEDIES OF TRUSTEE AND HOLDERS
-------------------------------
Section 601. Events of Default. If any of the following events occurs,
it is hereby defined as and declared to be and to constitute an "Event of
Default" under this Indenture:
(a) Payment of any interest on any Bond shall not be made when
and as that interest shall have become due and payable;
(b) Payment of the principal of or any premium on any Bond shall
not be made when and as that principal or premium shall have become due
and payable, whether at stated maturity, by redemption, by acceleration
or otherwise;
(c) Failure by the Issuer to perform any of the other agreements
on its part herein contained which failure shall continue for 30 days
after written notice, specifying such failure and requesting that it be
remedied, shall have been given to the Issuer and the Company by the
Trustee, unless the Issuer and the Trustee shall agree in writing to an
extension of such time prior to its expiration; provided, however, if
the failure stated in the notice can be corrected but not within the
applicable period, it shall not constitute an Event of Default if
corrective action shall be instituted by the Issuer within the
applicable period and diligently pursued until the failure is
corrected;
(d) The occurrence of any "Event of Default" under and as defined
in the Lease Agreement;
(e) Payment of the Purchase Price of Bonds tendered pursuant to
Article III hereof shall not be made when the same shall have become
due;
(f) Receipt by the Trustee of written notice from the Bank that
an "Event of Default" has occurred under and as defined in the
Reimbursement Agreement, which notice shall instruct the Trustee to
declare the principal of all Bonds then Outstanding and interest
thereon to be immediately due and payable;
(g) Receipt by the Trustee, on or before the tenth day following
a drawing under the Letter of Credit to pay accrued interest on the
Bonds, of written notice from the Bank that the Bank has not been
reimbursed for such drawing and that the interest portion of the Letter
of Credit will not be reinstated; or
(h) The occurrence of an Act of Bankruptcy. The declaration of an
Event of Default under this subsection and the exercise of remedies
upon any such declaration shall be subject to any applicable
limitations of federal or state law affecting or precluding such
declaration or exercise during the pendency of or immediately following
any liquidation or reorganization proceedings.
53
Section 602. Acceleration. Except as otherwise provided herein, (a)
upon the occurrence of an Event of Default described in Section 601(c) or (d)
hereof, the Trustee may declare, and (b) (i) upon the written request of the
Holders of not less than 25% in aggregate principal amount of Bonds then
Outstanding or (ii) upon the occurrence of an Event of Default described in
Section 601(a), (b), (e), (f), (g) or (h) hereof, the Trustee shall declare, the
principal of all Bonds then Outstanding (if not then due and payable), and the
interest accrued thereon, to be due and payable on the date specified in the
notice by the Trustee described in the following paragraph. The Trustee shall
promptly draw upon the Letter of Credit to the full extent permitted by the
terms thereof and deposit the proceeds of such drawing (to the extent allocable
to the Bonds) in the Credit Facility Account of the Bond Fund. Interest on the
Bonds shall accrue to the date determined by the Trustee for the tender of
payment to the Holders pursuant to such declaration; provided interest on the
Bonds shall continue to accrue on and after such date, if on such date the
Trustee shall not hold moneys sufficient to pay the principal and interest so
declared to be payable.
Any acceleration pursuant to the preceding paragraph of this Section
shall be by notice in writing delivered to the Issuer, the Bank, the Company,
the Registrar, any Paying Agent and any Authenticating Agent. The Trustee shall
further, on the same day as such declaration, give telephonic notice thereof to
each Holder of 25% or more in aggregate principal amount of Bonds Outstanding,
and mail or cause to be mailed notice of such acceleration to all Holders of
Bonds then Outstanding, as shown on the Register at the close of business on the
day of the mailing of that notice. Such notice shall specify the date on which
payment of principal and interest shall be tendered to the Holders, such date to
be not more than ten calendar days after the date of notice. Upon any
declaration of acceleration hereunder, the Trustee shall immediately exercise
such rights as it may have under the Bonds and the Lease Agreement to declare
all payments thereunder to be due and payable on the tender date specified in
the notice by the Trustee described in this paragraph and the Trustee shall draw
upon the Letter of Credit to the full extent necessary hereunder and permitted
by the terms thereof to provide for the timely payment of principal and interest
accrued to such tender date.
The provisions of the preceding paragraphs are subject, however, to the
condition that if, at any time after declaration or the occurrence of
acceleration and prior to the entry of a judgment in a court for enforcement
hereunder (after an opportunity for hearing by the Issuer and the Company),
(a) all sums payable hereunder (except the principal of and
interest on Bonds which shall not have reached their stated maturity
but which shall be due and payable solely by reason of that declaration
of acceleration), plus interest to the extent permitted by law on any
overdue installments of interest at the rate borne by the Bonds in
respect of which the default shall have occurred, shall have been duly
paid or provision shall have been made therefor by deposit with the
Trustee or Paying Agents,
(b) all existing Events of Default shall have been cured, and
54
(c) so long as the Letter of Credit or an Alternate Credit
Facility is in effect, (i) the written consent of the Bank shall have
been obtained (which consent shall also rescind any "Event of Default"
under the Reimbursement Agreement, if the Event of Default hereunder is
one specified in Section 601(f) hereof); and (ii) if the Event of
Default hereunder is one specified in Section 601(g) hereof or if a
drawing under the Letter of Credit or Alternate Credit Facility shall
have been made, the Trustee shall have received written notice of
reinstatement of the full amount of such drawing,
then and in every case, the Trustee shall waive the Event of Default and its
consequences and shall rescind and annul that declaration. No waiver or
rescission and annulment shall extend to or affect any subsequent Event of
Default or shall impair any rights consequent thereon.
Section 603. Other Remedies; Rights of Holders. With or without taking
action under Section 602 hereof, upon the occurrence and continuation of an
Event of Default, the Trustee may pursue any available remedy to enforce the
payment of Debt Service or the observance and performance of any other covenant,
agreement or obligation under this Indenture, the Lease Agreement, the Letter of
Credit or any other instrument providing security, directly or indirectly, for
the Bonds.
If, upon the occurrence and continuation of an Event of Default, the
Trustee is requested so to do by the Holders of at least 25% in aggregate
principal amount of Bonds Outstanding, the Trustee shall exercise any rights and
powers conferred by this Section and by Section 602 hereof.
No remedy conferred upon or reserved to the Trustee (or to the Holders)
by this Indenture is intended to be exclusive of any other remedy. Each remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or otherwise to the Trustee or to the Holders or now or hereafter
existing.
No delay in exercising or omission to exercise any remedy, right or
power accruing upon any default or Event of Default shall impair that remedy,
right or power or shall be construed to be a waiver of any default or Event of
Default or acquiescence therein. Every remedy, right and power may be exercised
from time to time and as often as may be deemed to be expedient.
No waiver of any default or Event of Default hereunder, whether by the
Trustee or by the Holders, shall extend to or shall affect any subsequent
default or Event of Default or shall impair any remedy, right or power
consequent thereon.
As the assignee of all right, title and interest of the Issuer in and
to the Lease Agreement (except as therein reserved), the Trustee is empowered to
enforce each remedy, right and power granted to the Issuer under the Lease
Agreement. In exercising any remedy, right or power thereunder or hereunder, the
Trustee shall take any action which would best serve the interests of the
Holders in the judgment of the Trustee.
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Section 604. Application of Moneys. All moneys received by the Trustee
pursuant to any right given or action taken under the provisions of this Article
shall, after payment of the costs and expenses of the proceedings resulting in
the collection of such moneys and of the expenses, liabilities and advances
incurred or made by the Trustee, be deposited in the Bond Fund and all moneys in
the Bond Fund shall be applied as follows (provided, however, that (i) moneys
received from a drawing under the Letter of Credit or held pursuant to Section
403 hereof shall only be used to pay Debt Service on other than Pledged Bonds;
(ii) moneys received from any other source shall be used to pay Debt Service on
Pledged Bonds first; and (iii) any characterization made herein as to the
application of such moneys to pay interest or principal or both shall not
necessarily govern or mirror such characterization of those payments as may be
made by any taxing authority with jurisdiction over the recipient thereof):
(a) Unless the principal of all the Bonds shall have become or
shall have been declared due and payable, all such moneys shall be
applied to the payment to the Persons entitled thereto of (i) all
installments of interest then due on the Bonds, in the order of the
maturity of the installments of such interest and, if the amount
available shall not be sufficient to pay in full any particular
installment, then to the payment thereof ratably, according to the
amounts due on such installment, to the Persons entitled thereto,
without any discrimination or privilege; and (ii) the unpaid principal
of any of the Bonds which shall have become due (other than Bonds
called for redemption for the payment of which moneys are held pursuant
to the provisions of this Indenture), with interest on such Bonds (at
the rate borne by the Bonds) from the respective dates upon which they
became due and, if the amount available shall not be sufficient to pay
in full the principal of Bonds due on any particular date, together
with such interest, then to the payment thereof ratably, according to
the amount of principal due on such date, to the Persons entitled
thereto, without any discrimination or privilege.
(b) If the principal of all the Bonds shall have become due or
shall have been declared due and payable, all such moneys shall be
applied to the payment of the principal and interest then due and
unpaid upon the Bonds (provided for this purpose any premium then
payable on the Bonds shall be treated as principal), without preference
or priority of principal over interest or of interest over principal,
or of any installment of interest over any other installment of
interest or of any Bond over any other Bond, ratably, according to the
amounts due respectively for principal and interest, to the persons
entitled thereto, without any discrimination or privilege.
(c) If the principal of all the Bonds shall have been declared
due and payable and such declaration shall thereafter have been
rescinded and annulled under the provisions of this Article, then,
subject to the provisions of paragraph (b) of this Section in the event
that the principal of all the Bonds shall later become due or be
declared due and payable, all such moneys shall be applied in
accordance with the provisions of paragraph (a) of this Section.
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Whenever moneys are to be applied pursuant to the provisions of this
Section, such moneys shall be applied at such times, and from time to time, as
the Trustee shall determine, having due regard to the amount of such moneys
available for application and the likelihood of additional moneys becoming
available for such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date (which shall be an Interest Payment Date
unless it shall deem another date more suitable) upon which such application is
to be made and upon such date (the "Special Record Date") interest on the
amounts of principal to be paid on such dates shall cease to accrue. The Trustee
shall give notice of the deposit with it of any such moneys and of the fixing of
any such date (all consistent with the requirements hereof for the establishment
and notification of a Special Record Date for the payment of overdue interest),
and shall not be required to make payment to the Holder of any unpaid Bond until
such date.
Whenever all Bonds and interest and premium, if any, thereon shall have
been paid under the provisions of this Section and all expenses and charges of
the Trustee shall have been paid, any balance remaining in the Bond Fund shall
be paid to or upon the order of the Company or the Bank, if any reimbursement
obligation is owing to it under the Reimbursement Agreement; provided that no
moneys remaining in the Credit Facility Account of the Bond Fund shall be paid
to the Company.
Section 605. Remedies Vested in Trustee. All rights of action
(including the right to file proofs of claim) under this Indenture or under any
of the Bonds may be enforced by the Trustee without the possession of any of the
Bonds or the production thereof in any trial or other proceedings relating
thereto and any such suit or proceeding instituted by the Trustee shall be
brought in its name as Trustee without the necessity of joining as plaintiffs or
defendants any Holders of the Bonds, and any recovery of judgment shall be for
the equal benefit of the Holders of the Outstanding Bonds.
Section 606. Rights and Remedies of Holders. No Holder of any Bond
shall have any right to institute any suit, action or proceeding in equity or at
law for the enforcement of this Indenture or for the execution of any trust
hereof or for the appointment of a receiver or any other remedy hereunder,
unless (a) the Holders of not less than 25% in principal amount of Bonds then
Outstanding shall have made written request to the Trustee and shall have
offered reasonable opportunity either to proceed to exercise the powers
hereinabove granted or to institute such action, suit or proceeding in its own
name, (b) such Holders shall also have offered to the Trustee indemnity as
provided in Article V hereof, and (c) the Trustee shall thereafter have failed
or refused to exercise the powers hereinabove granted or to institute such
action, suit or proceeding in its own name. Such notification, request and offer
of indemnity shall in every case (excepting those specified in Section 501(l)
hereof), at the option of the Trustee, be conditions precedent to the execution
of the powers and trusts of this Indenture, and to any action or cause of action
for the enforcement of this Indenture, or for the appointment of a receiver or
for any other remedy hereunder; it being understood and intended that no one or
more Holders of the Bonds shall have any right in any manner whatsoever to
affect, disturb or prejudice the lien of this Indenture by its, his or their
action or to enforce any right hereunder except in the manner herein provided,
57
and that all proceedings at law or in equity shall be instituted, had and
maintained in the manner herein provided and for the equal benefit of the
Holders of all Bonds then Outstanding. Nothing in this Indenture contained
shall, however, affect or impair the right of any Holder to enforce the payment
of the principal of, premium, if any, and interest on any Bond at and after the
maturity thereof at the time, place, from the source and in the manner in said
Bond expressed.
Section 607. 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.
[END OF ARTICLE VI]
58
ARTICLE VII
SUPPLEMENTAL INDENTURES; OTHER AMENDMENTS
-----------------------------------------
Section 701. Supplemental Indentures Not Requiring Consent of Holders.
The Issuer and the Trustee may, without the consent of, or notice to, any of the
Holders, enter into an indenture or indentures supplemental to this Indenture to
accomplish any one or more of the following purposes:
(a) To cure any ambiguity or formal defect or omission in this
Indenture;
(b) To grant to or confer upon the Holders or the Trustee for the
benefit of the Holders any additional rights, remedies, powers or
authority that may lawfully be granted to or conferred upon the Holders
or the Trustee;
(c) To subject to this Indenture additional revenues, properties
or collateral;
(d) To add to the covenants, agreements and obligations of the
Issuer under this Indenture, other covenants, agreements and
obligations to be observed for the protection of the Holders;
(e) To evidence any succession to the Issuer and the assumption
by its successor of the covenants, agreements and obligations of the
Issuer under this Indenture, the Lease Agreement and the Bonds;
(f) To provide for the issuance of the Refunding Obligations and
the refunding of the Series 1996A Bonds;
(g) To permit the use of a book entry system to identify the
owner of an interest in an obligation issued by the Issuer under this
Indenture, whether that obligation was formerly, or could be, evidenced
by a tangible security;
(h) To permit the Trustee to comply with any obligations imposed
upon it by law;
(i) To specify further the duties and responsibilities of, and to
define further the relationships among, the Trustee, the Tender Agent,
the Registrar and any Authenticating Agents or Paying Agents;
(j) To achieve compliance of this Indenture with any applicable
federal or state securities or tax law;
(k) To provide for a Substitute Letter of Credit or an Alternate
Credit Facility and to make any change necessary to facilitate the
provision of such Substitute Letter of Credit or Alternate Credit
59
Facility, provided such change shall not adversely affect the interests
of the Holders of the Bonds;
(l) 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 receives a Non-Taxability Opinion with respect to such changes,
which further opines to the effect that such changes are permitted by
applicable law; and
(m) To make amendments to the provisions hereof with respect to
the Bonds relating to arbitrage matters under Section 148 of the Code,
which amendments may, among other things, change the responsibility for
making the relevant calculations, but only upon receipt of a
Non-Taxability Opinion with respect to the proposed changes.
The provisions of Subsections 701(h) and (j) hereof shall not be deemed
to constitute a waiver by the Trustee, the Registrar, the Issuer or any Holder
of any right which any of them may have in the absence of those provisions to
contest the application of any change in law to this Indenture or the Bonds.
Section 702. Supplemental Indentures Requiring Consent of Holders.
Exclusive of supplemental indentures covered by the preceding Section and
subject to the terms and provisions contained in this Section, and not
otherwise, the Holders of not less than a majority in aggregate principal amount
of the Bonds then Outstanding shall have the right, from time to time, anything
contained in this Indenture to the contrary notwithstanding, to consent to and
approve the execution by the Issuer and the Trustee of such other indenture or
indentures supplemental hereto as shall be requested by the Issuer or the
Company as necessary and desirable for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any of the terms or
provisions contained in this Indenture or in any supplemental indenture. Nothing
in this Section or Section 701 hereof shall permit, however, or be construed as
permitting,
(a) without the consent of the Holder of each Bond so affected,
(i) an extension of the maturity of the principal of or the interest on
any Bond or (ii) a reduction in the principal amount of any Bond or the
rate of interest or premium thereon, or
(b) without the consent of the Holders of all Bonds then
Outstanding, (i) the creation of a privilege or priority of any such
Bond or Bonds over any other such Bond or Bonds, or (ii) a reduction in
the aggregate principal amount of Bonds required for consent to a
supplemental indenture.
If at any time the Issuer (or the Company, on the Issuer's behalf)
shall request the Trustee to enter into a supplemental indenture for any of the
purposes of this Section, the Trustee shall, upon being satisfactorily
indemnified with respect to expenses, cause notice of the proposed execution of
such supplemental indenture (setting forth briefly the subject matter thereof
and stating that copies thereof are available for inspection at the Trustee's
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Office) to be mailed by first class mail, postage prepaid, to all Holders of
Bonds then Outstanding at their addresses appearing on the Register. The Trustee
shall not, however, be subject to any liability by reason of its failure to
mail, or the failure of any Holder to receive, such notice, and any such failure
shall not affect the validity of such supplemental indenture when consented to
and executed as provided in this Section.
If within such period, not exceeding one year, as shall be prescribed
by the Issuer, following the giving of the notice referred to in the preceding
paragraph of this Section, the Trustee shall receive an instrument or
instruments purporting to be executed by the Holders of not less than a majority
in aggregate principal amount of Bonds then Outstanding, which instrument or
instruments shall refer to the proposed supplemental indenture described in such
notice and shall specifically consent to the execution thereof in substantially
the form referenced in such notice as on file with the Trustee, thereupon, but
not otherwise, the Trustee shall execute such supplemental indenture in
substantially such form, without liability or responsibility to any Holder of
any Bond, whether or not such Holder shall have consented thereto.
Any such consent shall be binding upon the Holder of the Bond giving
the same and, anything in Section 1001 hereof to the contrary notwithstanding,
upon any subsequent Holder of such Bond and of any Bond issued in exchange
therefor (whether or not such subsequent Holder has notice thereof), unless such
consent is revoked in writing by the Holder of such Bond giving such consent or
by a subsequent Holder thereof by filing with the Trustee, prior to the
execution by the Trustee of such supplemental indenture, such revocation. At any
time after the Holders of the required percentage of Bonds shall have filed
their consents to the supplemental indenture, the Trustee shall make and file
with the Issuer a written statement that the Holders of such required percentage
of Bonds have filed such consents, which statement shall be conclusive that such
consents have been so filed.
If the Holders of the required percentage in aggregate principal amount
of the Bonds Outstanding shall have consented to the execution thereof as herein
provided, no Holder of any Bond shall have any right to object to the execution
of such supplemental indenture, or to object to any of the terms and provisions
contained therein or the operation thereof, or in any manner to question the
propriety of the execution thereof, or to enjoin or restrain the Trustee or the
Issuer from executing the same or from taking any action pursuant to the
provisions thereof.
Section 703. Additional Consents Required. Anything herein to the
contrary notwithstanding, any supplemental indenture under this Article shall
not become effective unless and until the Company and, so long as a Letter of
Credit or Alternate Credit Facility shall be in effect, the Bank shall have
consented in writing to the execution and delivery of such supplemental
indenture.
Section 704. Amendments of Lease Agreement. The Issuer and the Company
may, with the consent of the Trustee and the Bank but without consent of or
notice to any Holders, enter into any amendment of the Lease Agreement for
61
purposes analogous to those described in subsections (a) through (f) and (k)
through (m) of Section 701 hereof pertaining to supplemental indentures. Any
other amendment of the Lease Agreement may only be made with the consent of the
Holders of such percentage of Bonds Outstanding as is specified in Section 702
hereof pertaining to supplemental indentures.
Section 705. Amendments 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 credit rating on the Bonds
from any Rating Agency, provided that (i) the Trustee, in its sole
judgment, shall determine that such change does not adversely affects
the interests of the Holders of the Bonds and (ii) the Trustee shall
receive a Non-Taxability Opinion with respect to such change and
further opining to the effect that such change is permitted by
applicable law.
(b) Except as provided in subsection (a) of this Section, no
amendment, modification or other change of the Letter of Credit (other
than in connection with an Extension Letter of Credit) shall be made
without the consent of the Holders of all Bonds Outstanding.
[END OF ARTICLE VII]
62
ARTICLE VIII
DEFEASANCE
----------
Section 801. Defeasance. When all of the Bonds shall have been fully
paid and provision shall also have been made for paying all other sums payable
hereunder and under the Lease Agreement, then this Indenture shall be defeased,
discharged and satisfied (except for those provisions surviving by reason of
Section 803 hereof) and the Issuer shall be released from the covenants,
agreements and obligations of the Issuer contained in this Indenture. Upon such
defeasance, discharge and satisfaction, the Trustee, at the request of the
Issuer, shall execute such documents as may be reasonably requested by the
Issuer to evidence the defeasance, discharge and satisfaction of this Indenture
and the release of the Issuer from its obligations hereunder.
Section 802. Payment of Bonds. At such time (if any) as the Bonds bear
interest at the Fixed Rate, and only at any such time, all of the Bonds shall be
deemed to have been fully paid within the meaning of Section 801 hereof, if the
Trustee (and, if applicable, any other Paying Agents) shall have received, in
trust therefor and irrevocably committed thereto,
(a) sufficient Available Moneys, or
(b) noncallable direct obligations of the United States of
America for the full and timely payment of which the full faith and
credit of the United States of America are pledged, which shall have
been acquired with Available Moneys and which are certified by an
independent public accounting firm of national reputation to be of such
maturities or redemption dates and interest payment dates, and to bear
such interest, as will be sufficient, together with any moneys to which
reference is made in subparagraph (a) above, without further investment
or reinvestment of either the principal amount thereof or the interest
earnings therefrom (which earnings are to be held likewise in trust and
so committed, except as provided herein),
for the payment of all Debt Service on the Bonds, at their maturity or
redemption dates, as the case may be, or if a default in payment shall have
occurred on any maturity or redemption date, then for the payment of all Debt
Service thereon to the date of the tender of payment; provided, that if any of
those Bonds are to be redeemed prior to the maturity thereof, notice of that
redemption shall have been duly given or irrevocable provision satisfactory to
the Trustee shall have been duly made for the giving of that notice; provided
further, that if any of those Bonds are purchased upon tender prior to the
maturity thereof, such Bonds shall be delivered to the Trustee for cancellation
and not remarketed.
Any moneys held by the Trustee in accordance with the provisions of
this Section may be invested by the Trustee only in noncallable direct
obligations of the United States of America having maturity dates, or having
redemption dates which, at the option of the holder of those obligations, shall
be not later than the date or dates on which moneys will be required for the
63
purposes described above. To the extent that any income or interest earned by,
or increment to, the investments held under this Section is determined from time
to time by the Trustee to be in excess of the amount required to be held by the
Trustee for the purposes of this Section, that income, interest or increment
shall be transferred at the time of that determination in the manner provided in
Section 404 hereof for transfers of amounts remaining in the Bond Fund.
If any Bonds shall be deemed paid and discharged pursuant to this
Section 802, then within 15 days after such Bonds are so deemed paid and
discharged the Trustee shall cause a written notice to be given to each Holder
as shown on the Register on the date on which such Bonds are deemed paid and
discharged. Such notice shall state that all Bonds are deemed paid and
discharged, set forth a description of the obligations, if any, held pursuant to
subparagraph (b) of the first paragraph of this Section 802 and specify any date
or dates on which any of the Bonds are to be called for redemption pursuant to
notice of redemption given or irrevocable provision made for such notice
pursuant to the first paragraph of this Section 802.
Section 803. Survival of Certain Provisions. Any provisions of this
Indenture which relate to the maturity of Bonds, interest payments and dates,
optional and mandatory redemption provisions, exchange, transfer and
registration of Bonds, replacement of mutilated, destroyed, lost or stolen
Bonds, the safekeeping and cancellation of Bonds, non-presentment of Bonds, the
holding of moneys in trust (including without limitation any moneys or
investments held by the Trustee at such time in the Bond Fund or Bond Purchase
Fund for payments in accordance with Article III and Sections 403 and 404
hereof), repayments to the Bank or the Company from the Bond Fund, and the
duties of the Trustee and the Registrar in connection with all of the foregoing,
shall remain in effect and be binding upon the Trustee, the Registrar, the
Authenticating Agents, Paying Agents and the Holders notwithstanding the
release, discharge and satisfaction of this Indenture. The provisions of this
Section 803 shall survive the release, discharge and satisfaction of this
Indenture.
[END OF ARTICLE VIII]
64
ARTICLE IX
COVENANTS BY THE ISSUER
-----------------------
In addition to any other covenants and agreements of the Issuer
contained in this Indenture, the Issuer, for itself, its successors and assigns,
covenants and agrees with the Trustee and the Holders from time to time of the
Bonds as follows:/
Section 901. Payment of Debt Service and Purchase Price. The Issuer
will pay all Debt Service on and Purchase Price of the Bonds, or cause the same
to be paid, solely from the sources provided herein, on the dates, at the places
and in the manner provided in this Indenture.
Section 902. Revenues and Assignment of Revenues. The Issuer has not
assigned or granted a security interest in, and will not assign or grant a
security interest in, or create or authorize to be created any debt, lien or
charge on, the Revenues, other than the absolute and irrevocable assignment
hereby made to the Trustee of any right, title and interest of the Issuer in and
to those Revenues constituting proceeds of a drawing under the Letter of Credit
or any Alternate Credit Facility and remarketing proceeds and all rights and
remedies of the Issuer under the Lease Agreement (except for the Unassigned
Rights, as therein defined) and the grant to the Trustee of a security interest
in the other Revenues.
Section 903. Performance of Covenants by Issuer. The Issuer will
faithfully perform at all times any and all of its covenants, undertakings,
stipulations and provisions contained in this Indenture, in the Lease Agreement,
in any and every Bond executed, authenticated and delivered hereunder and in all
proceedings of its governing body pertaining thereto.
Section 904. Inspection of Project Books. All books and documents in
its possession relating to the Project and the Revenues and receipts derived
from the Project, including any financial statement or other report by the
Company, shall at all times during the Issuer's regular business hours be open
to inspection by such accountants or other agents of the Trustee as the Trustee
may from time to time designate.
Section 905. Register. At reasonable times and under reasonable
regulations established by the Registrar, the Register may be inspected and
copied by the Company, the Trustee, by Holders of 25% or more in principal
amount of the Bonds then Outstanding, or a designated representative of any of
the foregoing.
Section 906. Rights and Enforcement of the Lease Agreement. The Trustee
may, for and on behalf of the Holders, enforce in its name or in the name of the
Issuer all rights of the Issuer under the Lease Agreement (except for Unassigned
Rights), and may enforce all covenants, agreements and obligations of the
Company under and pursuant to the Lease Agreement, regardless of whether the
Issuer is in default in the pursuit or enforcement of those rights, covenants,
agreements or obligations. The Issuer, however, will do all things and take all
65
actions on its part necessary to comply with covenants, agreements, obligations,
duties and responsibilities on its part to be observed or performed under the
Lease Agreement, and will take all actions within its authority to keep the
Lease Agreement in effect in accordance with the terms thereof.
Section 907. Further Assurances. The Issuer will at any time or times,
and at the expense of the Company, do, execute, acknowledge and deliver and
cause to be done, executed, acknowledged and delivered, 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 herein conveyed or intended so to be.
Section 908. Non-Taxable Status. The Issuer covenants that it (i) will
take, or require to be taken, all actions that may be required of the Issuer for
the interest on the Series 1996B Bonds and (if and when issued) the Refunding
Obligations to be and remain excluded from gross income for federal income tax
purposes, and (ii) will not take or authorize to be taken any actions that would
adversely affect that exclusion under the provisions of the Code.
[END OF ARTICLE IX]
66
ARTICLE X
MISCELLANEOUS
-------------
Section 1001. Consents, Etc., of Holders. Any consent, request,
direction, approval, objection or other instrument required by this Indenture to
be signed and executed by Holders may be in any number of writings of similar
tenor and may be signed or executed by such Holders in person or by agent
appointed in writing. Proof of the execution of any such consent, request,
direction, approval, objection or other instrument or of the writing appointing
any such agent and of the ownership of Bonds, if made in the following manner,
shall be sufficient for any purposes of this Indenture, and shall be conclusive
in favor of the Trustee with regard to any action taken under such request or
other instrument:
(a) the fact and date of the execution by any person of any such
writing may be proved by the certificate of any officer in any
jurisdiction who by law has power to take acknowledgments within such
jurisdiction that the person signing such writing acknowledged before
him the execution thereof, or by an affidavit of any witness to such
execution; and
(b) the fact of ownership of Bonds shall be proved from the
Register maintained by the Registrar.
Section 1002. Limitation of Rights. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from
this Indenture or the Bonds is intended or shall be construed to give any Person
other than the parties hereto, the Holders of the Bonds, the Bank and the
Company any legal or equitable right, remedy or claim under or with respect to
this Indenture or any covenants, conditions and provisions herein contained;
this Indenture and all of the covenants, conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto, the Company, the Bank and the Holders of the Bonds as herein provided.
Section 1003. Severability. If any provision of this Indenture shall be
held or deemed to be or shall, in fact, be inoperative or unenforceable as
applied in any particular case in any jurisdiction or jurisdictions or in all
jurisdictions, or in all cases because it conflicts with any other provision or
provisions hereof or any constitution or statute or rule of public policy, or
for any other reason, such circumstances shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative, or unenforceable to any extent whatever.
The invalidity of any one or more phrases, sentences, clauses or
Sections in this Indenture contained, shall not affect the remaining portions of
this Indenture, or any part thereof.
Section 1004. Limitation of Liability. The Bonds will not constitute
general obligations of the Issuer nor will they constitute a liability or
obligation of the State or any political subdivision thereof. No recourse under
67
or upon any covenant or agreement of this Indenture, or of any of the Bonds, or
for any claim based thereon or otherwise in respect thereof, shall be had
against any past, present or future incorporator, officer or member of the
governing body of the Issuer, or any of its servants, agents or employees, or of
any successor corporation, either directly or through the Issuer, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the Bonds issued hereunder are solely corporate obligations, and
that no personal liability whatever shall attach to, or is or shall be incurred
by, any incorporator, officer or member of the governing body of the Issuer or
any successor corporation, or any servants, agents or employees of the Issuer or
any successor corporation, or any of them, because of the issuance of the Bonds,
or under or by reason of the covenants or agreements contained in this Indenture
or the Bonds or implied therefrom.
Section 1005. Payments Due on Other than Business Days. In any case
where the scheduled date of payment of Debt Service or Purchase Price is not a
Business Day, then such payment need not be made on such date but may be made on
the Business Day next succeeding the scheduled date, in the same amount due, and
with the same force and effect as if made, on the scheduled date.
Section 1006. Counterparts. This Indenture may be simultaneously
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 1007. Notices. Unless otherwise provided or permitted herein,
any notice, request, complaint, demand, communication or other paper shall be in
writing and shall be deemed to be sufficiently given to a party when delivered
or mailed by registered or certified mail, postage prepaid, or sent by telegram
or Telefax, addressed as follows:
(a) if to the Issuer, at The Industrial Development Board of the
City of Xxxxxxxxxx, Xxxx Xxxxxx Xxx 00, Xxxxxxxxxx, Xxxxxxx 00000,
Attention: Chairman of the Board of Directors, Telefax No. (334)
265-4745;
(b) if to the Company, at KINPAK INC., c/o Ocean Bio-Chem, Inc.,
0000 X.X. 00xx Xxxxxx, Xx. Xxxxxxxxxx, XX 00000, Attention: President,
Telefax No. (000) 000-0000;
(c) if to the Trustee, at Regions Bank, 00 Xxxxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust
Department, Telefax No. (000) 000-0000;
(d) if to the Bank, at First Union National Bank of Florida, 000
Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xx. Xxxxxxxxxx, XX 00000, Attention:
Xxxxxx Xxxxxxxxx, Telefax No. (000) 000-0000; and
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(e) If to the Remarketing Agent, at First Union Capital Markets
Group, Xxx Xxxxx Xxxxx Xxxxxx, XX-0, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000, Attention: Xxxx X. Xxxxxx, Telefax No. (000) 000-0000.
Any of the foregoing parties may, by notice given hereunder, designate any
further or different address or addresses to which subsequent notices,
certificates, requests or other communications shall be sent.
Section 1008. Suspension of Mail. If, because of the suspension of
delivery of first class mail or any other reason, the Trustee shall be unable to
mail by the required class of mail any notice required to be mailed by the
provisions of this Indenture, the Trustee shall give such notice in such other
manner as in the judgment of the Trustee shall most effectively approximate
mailing thereof, and the giving of that notice in that manner for all purposes
of this Indenture shall be deemed to be in compliance with the requirement for
the mailing thereof. Except as otherwise provided herein, the mailing of any
notice shall be deemed complete upon deposit of that notice in the mail and the
giving of any notice by any other means of delivery shall be deemed complete
upon receipt of the notice by the delivery service.
Section 1009. Governing Law. This Indenture and the Bonds shall be
deemed to be contracts made under the laws of the State and for all purposes
shall be governed by and construed in accordance with the laws of the State.
Section 1010. Opinions of Bond Counsel Not Required. Notwithstanding
the provisions of Section 202(g) of this Indenture, in the event the Company
obtains an opinion of Bond Counsel, and delivers a copy of the same to the
Trustee, the Remarketing Agent and the Bank, to the effect that opinions of Bond
Counsel should no longer be required in any instance of a Proposed Conversion
Date, such opinions shall thereupon no longer be required as a precondition to
the Conversion Date.
Section 1011. Contest of Determination of Taxability. If no Event of
Default exists, the Company may, within 20 days after being notified of a
Determination of Taxability and after furnishing to the Trustee a Non-Taxability
Opinion in respect of the event or events leading up to said Determination,
pursue in the name of any affected Holder such remedies as may then be available
to such Holder in order to obtain an administrative ruling or judicial
determination in a proceeding to which the Internal Revenue Service is a party,
to the effect that the interest on the Series 1996B Bonds or (if and when
issued) the Refunding Obligations is not Taxable. In such event, and for so long
as the Company pursues such administrative or judicial remedies with due
diligence, such Holder shall cooperate with the Company and no Final
Determination shall be deemed to have occurred until the first to occur of
either (1) the final determination of such contest adversely to the Company with
no further right of appeal, or (2) prior to such final determination, the
expiration of a period of 24 months after the date the Company received such
notification of a Determination of Taxability or such further extended periods
of time (not to exceed three months at a time) as such Holder may from time to
time consent to in writing.
[END OF ARTICLE X]
69
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 attested.
THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF XXXXXXXXXX
(SEAL)
By: /s/ R. E. Xxxxxxxx, Jr.
-----------------------------------
Chairman of the Board of Directors
ATTEST:
/s/ [ILLEGIBLE]
----------------------------
[Assistant] Secretary
REGIONS BANK, as Trustee and Registrar
(SEAL)
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Vice President/Corporate Trust Officer
ATTEST:
/s/ [ILLEGIBLE]
---------------------------
Corporate Trust Officer
70
ACKNOWLEDGMENT OF ISSUER
------------------------
STATE OF ALABAMA )
MONTGOMERY COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that R. E. Xxxxxxxx, Jr., whose signature as the Chairman of the
Board of Directors of The Industrial Development Board of the City of Xxxxxxxxxx
is signed to the foregoing Indenture and who is known to me and known to be such
officer, acknowledged before me on this day that, being informed of the contents
of said Indenture, he, as such officer and with full authority, executed the
same voluntarily for and as the act of said Board.
Given under my hand and seal of office this 16th day of December, 1996.
/s/ [ILLEGIBLE]
----------------------------------
NOTARY PUBLIC, State at Large
My Commission Expires:
------------
(SEAL)
ACKNOWLEDGMENT OF TRUSTEE
-------------------------
STATE OF ALABAMA )
MONTGOMERY COUNTY )
I, the undersigned Notary Public in and for said County in said State,
hereby certify that Xxxxxx X. Xxxxxxxx, whose signature as Vice
President/Corporate Trust Officer of Regions Bank is signed to the foregoing
Indenture, and who is known to me and known to be such officer, acknowledged
before me on this day that, being informed of the contents of said Indenture,
he, as such officer and with full authority, executed the same voluntarily for
and as the act of said Bank.
Given under my hand and seal of office this 18th day of December, 1996.
/s/ [ILLEGIBLE]
----------------------------------
NOTARY PUBLIC, State at Large
My Commission Expires:
------------
(SEAL)
THIS INSTRUMENT PREPARED BY:
----------------------------
Xxx X. Xxxxxxxxxx, Esq.
Xxx X. Xxxxxxxxxx, P.C.
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
(000) 000-0000
71
