XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
and
DAUPHIN DEPOSIT BANK AND TRUST COMPANY,
as Trustee
TRUST INDENTURE
Dated December 26, 1996
XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
VARIABLE RATE DEMAND/FIXED RATE
REVENUE BONDS
(APPLE FRESH FOODS LTD PROJECT)
SERIES OF 1996
BOND COUNSEL AUTHORITY SOLICITOR
XXXXXX XXXXXXXX & X'XXXXX, L.L.P. XxXXXXX, XXXXX, XXXXXXXXX &
000 Xxxxx Xxxxxxx Xxxxxx O'HARA
Media, PA 19063 000 Xxxx Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
Section 1.01. Definitions.............................................4
Section 1.02. Content of Certificates and Opinions...................18
Section 1.03. Interpretation.........................................18
ARTICLE II
THE BONDS
Section 2.01. Authorization of Bonds.................................19
Section 2.02. Terms of Bonds: Interest on the Bonds..................19
Section 2.03. Execution of Bonds.....................................21
Section 2.04. Authentication.........................................22
Section 2.05. Form of Bonds..........................................22
Section 2.06. Transfer of Bonds .....................................22
Section 2.07. Exchange of Bonds......................................23
Section 2.08. Xxxx Register..........................................23
Section 2.09. Temporary Bonds........................................23
Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen.............23
Section 2.11. Cancellation and Destruction of Surrendered Bonds......24
Section 2.12. Acts of Bondholders; Evidence of Ownership.............24
Section 2.13. Book-Entry Bonds; Securities Depository................24
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
Section 3.01. Issuance of the Bonds........................................26
Section 3.02. Validity of Bonds............................................26
Section 3.03. Disposition of Proceeds of the Bonds and Other Amounts.......26
*This Table of Contents is for convenience only, does not constitute a part of
this Indenture and shall not be considered as having any bearing upon any
interpretation of this Indenture.
(i)
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.01. Extraordinary and Mandatory Redemption.................27
Section 4.02. Optional Redemption....................................28
Section 4.03. Notice of Redemption...................................29
Section 4.04. Interest on Bonds Called for Redemption................29
Section 4.05. Cancellation...........................................29
Section 4.06. Partial Redemption of Bonds............................29
Section 4.07. Payment of Redemption Price with
Available Moneys; Consent of Letter of Credit Bank
to Optional Redemption.................................30
ARTICLE V
CONVERSION OF INTEREST RATE; DEMAND PURCHASE OPTION
Section 5.01. Conversion of Interest Rate on Conversion Date.........30
Section 5.02. Delivery of Bonds After Conversion Date ...............32
Section 5.03 Mandatory Tender Upon Substitution of Letter of Credit.32
Section 5.04. Demand Purchase Option.................................33
Section 5.05. Funds for Purchase of Bonds............................34
Section 5.06. Delivery of Purchased Bonds............................36
Section 5.07. Sale of Bonds by Remarketing Agent.....................36
Section 5.08. Delivery of Proceeds of Sale of
Purchased Bonds........................................37
Section 5.09. Duties of Trustee and Tender Agent with
Respect to Purchase of Bonds...........................37
Section 5.10. No Purchases or Sales After Certain Defaults...........38
ARTICLE VI
REVENUES AND FUNDS
Section 6.01. Creation of the Bond Fund..............................38
Section 6.02. Payments into the Bond Fund............................38
Section 6.03. Use of Moneys in the Bond Fund.........................39
Section 6.04. Custody of Separate Trust Fund.........................39
(ii)
Section 6.05. Construction Fund......................................39
Section 6.06. Payments into the Construction Fund; Disbursements.....39
Section 6.07. Use of Money in the Construction Fund Upon Default ....40
Section 6.08. Use of Money in the Construction Fund
Upon Completion of the Project ........................40
Section 6.09. Nonpresentment of Bonds................................40
Section 6.10. Moneys to be Held in Trust.............................40
Section 6.11. Repayment to the Bank and the Company
from the Bond Fund or the Rebate Fund..................41
Section 6.12. Letter of Credit.......................................41
Section 6.13. Rebate Fund............................................41
Section 6.14. Investment of Moneys in Funds..........................43
ARTICLE VII
PARTICULAR COVENANTS
Section 7.01. Punctual Payment.......................................44
Section 7.02. Extension of Payment of Bonds..........................44
Section 7.03. Against Encumbrances...................................44
Section 7.04. Power to Issue Bonds and Make Pledge and Assignment....44
Section 7.05. Accounting Records and Financial Statements............44
Section 7.06. Tax Covenants..........................................45
Section 7.07. Other Covenants........................................45
Section 7.08. Waiver of Laws.........................................46
Section 7.09. Further Assurances.....................................46
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
Section 8.01. Events of Default......................................46
Section 8.02. Acceleration...........................................47
Section 8.03. Other Remedies.........................................49
Section 8.04. Legal Proceedings by Trustee...........................49
Section 8.05. Discontinuance of Proceedings by Trustee...............50
Section 8.06. Bondholders May Direct Proceedings.....................50
Section 8.07. Limitations on Actions by Bondholders..................50
Section 8.08. Trustee May Enforce Rights Without
Possession of Bonds....................................51
Section 8.09. Delays and Omissions Not to Impair Rights..............51
Section 8.10. Application of Moneys in Event of Default..............51
Section 8.11. Trustee and Bondholders Entitled to All
(iii)
Remedies Under Act: Remedies Not Exclusive.............51
Section 8.12. Trustee's Right to Receiver............................52
Section 8.13. Subrogation Rights of Bank.............................52
Section 8.14. Waiver of Default......................................52
ARTICLE IX
THE TRUSTEE; THE TENDER AGENT
AND THE REMARKETING AGENT
Section 9.01. Duties, Immunities and Liabilities of Trustee..........52
Section 9.02. Merger or Consolidation................................54
Section 9.03. Liability of Trustee...................................54
Section 9.04. Right of Trustee to Rely on Documents..................55
Section 9.05. Preservation and Inspection of Documents...............55
Section 9.06. Compensation...........................................55
Section 9.07. The Tender Agent.......................................56
Section 9.08. Qualifications of Tender Agent.........................56
Section 9.09. Qualifications of Remarketing Agent;
Resignation; Removal...................................57
Section 9.10. Construction of Ambiguous Provisions...................57
ARTICLE X
MODIFICATION OR AMENDMENT OF THE INDENTURE
Section 10.01. Amendments Permitted...................................57
Section 10.02. Effect of Supplemental Indenture.......................58
Section 10.03. Trustee Authorized to Join in Amendments
and Supplements; Reliance on Counsel...................58
ARTICLE XI
DEFEASANCE
Section 11.01. Discharge of Indenture.................................58
Section 11.02. Discharge of Liability on Bonds........................59
Section 11.03. Deposit of Money or Securities with Trustee............59
Section 11.04. Payment of Bonds After Discharge of Indenture..........60
(iv)
ARTICLE XII
MISCELLANEOUS
Section 12.01. Liability of Authority Limited to Revenues.............60
Section 12.02. Limitation of Liability of Directors,
Etc.of Authority.......................................61
Section 12.03. Covenant Not to Sue....................................61
Section 12.04. Successor Is Deemed Included in All
References to Predecessor..............................61
Section 12.05. Limitation of Rights to Parties, Bank,
Company and Bondholders................................62
Section 12.06. Waiver of Notice.......................................62
Section 12.07. Severability of Invalid Provisions.....................62
Section 12.08. Notices................................................62
Section 12.09. Evidence of Rights of Bondholders......................64
Section 12.10. Disqualified Bonds.....................................64
Section 12.11. Money Held for Particular Bonds........................64
Section 12.12. Funds..................................................65
Section 12.13. Payments Due on Days other than Business Days..........65
Section 12.14. Execution in Several Counterparts......................65
Section 12.15. Notices to Rating Agency...............................65
Exhibit "A" - Floating Rate Form of Bond..................................A-1
Exhibit "B" - Fixed Rate Form of Bond.....................................B-1
Exhibit "C" - Form of Construction Fund Requisition.......................C-1
Exhibit "D" - Bank Approval...............................................D-1
(v)
This TRUST INDENTURE, made and entered into December 26, 1996, by and
between the XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY, a body public
and corporate and a public instrumentality of the Commonwealth (the "Authority")
and DAUPHIN DEPOSIT BANK AND TRUST COMPANY, a banking corporation organized and
existing under the laws of the Commonwealth, as trustee (the "Trustee") and
tender agent (the "Tender Agent");
W I T N E S S E T H:
(Capitalized terms and phrases used in these Recitals, and in the
following Granting Clauses, and not otherwise defined shall have the meanings
ascribed to them in Section 1.01 of this Indenture.)
WHEREAS, the Authority is a body politic and corporate and a public
instrumentality of the Commonwealth, organized and existing under the Act, and
is authorized under the Act to acquire, hold, construct, improve, maintain, own,
finance, lease, in the capacity of lessor or lessee, and/or sell industrial,
commercial and specialized development projects for the public purpose of
alleviating unemployment, maintaining employment at a high level and creating
and developing business opportunities, by the construction, improvement,
rehabilitation, revitalization and financing of industrial, commercial and
specialized enterprises; and
WHEREAS, the Authority has determined to undertake the financing
required to provide the funds to the Authority necessary in connection with the
Project pursuant to the provisions and requirements of the Act; and
WHEREAS, the Authority has entered into the Agreement with the Company
wherein the Authority will, among other things, loan the proceeds of the Bonds
to the Company, and wherein the Company agrees to, among other things, make
certain loan payments to the Authority, all as set forth in the Agreement; and
WHEREAS, the Authority has determined to assign, transfer and pledge
unto the Trustee; as trustee under this Indenture, all right, title and interest
of the Authority (except for certain rights of the Authority to indemnification
and the payment of its costs, fees and expenses as more particularly described
in the Agreement) in and to the Agreement and sums payable thereunder; and
WHEREAS, the Authority is authorized by the Act to borrow money, and
the Authority deems it necessary to borrow money under and pursuant to
provisions hereof for the purposes of, among other things, financing the costs
and expenses of the Project (all in accordance with applicable law) and of
carrying out its obligations under the terms of the Agreement, and, to that end,
the Authority has duly authorized and directed the issuance, sale and delivery
of the Bonds to be issued as fully registered bonds; and to secure payment of
the principal thereof and of the interest and premium, if any, thereon and the
performance and observance of the covenants and conditions herein contained, the
Authority has authorized the execution and delivery of this Indenture; and
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WHEREAS, the Agreement provides that the Company will cause the Letter
of Credit to be delivered by the Bank to the Trustee at the time of delivery of
the Bonds for the further security and benefit of Owners of the Bonds; and
WHEREAS, the Company and the Bank have entered into the Reimbursement
Agreement whereunder the Bank has agreed to issue and maintain the Letter of
Credit as provided for therein and herein, and the Company has agreed to, among
other things, reimburse the Bank for any draws made by the Trustee on the Letter
of Credit and for other costs, expenses and charges, as specified in the
Reimbursement Agreement; and
WHEREAS, execution and delivery of this Indenture and the issuance of
the Bonds hereunder and under the Act have been duly and validly authorized by
resolution of the Board of the Authority duly adopted prior to such execution
and delivery.
GRANTING CLAUSES AND AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the acceptance by
the Trustee of the trusts hereby created and of the purchase and acceptance of
the Bonds issued and sold by the Authority under this Indenture by those who
shall own the same from time to time, and of the sum of one dollar, lawful money
of the United States, duly paid to the Authority by the Trustee at or before the
execution and delivery of this Indenture, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
for the purpose of fixing and declaring the terms and conditions upon which the
Bonds are to be executed, authenticated, issued, delivered and accepted by all
persons who shall from time to time be or become owners thereof; and in order to
secure the payment of the principal of and premium (if any) and interest on, and
purchase price of, the Bonds according to their tenor and effect and the
performance and observance by the Authority of all the covenants expressed or
implied herein and in the Bonds and the payment and performance of all other of
the Authority's obligations, the Authority does hereby grant, bargain, sell,
convey, pledge and assign, without recourse, unto the Trustee and unto its
successors in the trust forever, and grants to the Trustee and to its successors
in the trust, a security interest in all of the following:
GRANTING CLAUSE FIRST
All right, title and interest of the Authority in and to the Agreement
and the security granted thereunder and under the Collateral Documents and the
other Bond Documents, including, but not limited to: (i) the obligation of the
Company under Section 3.03 of the Agreement to make payments at such times and
in such amounts as are necessary to pay the principal of, interest and
redemption premium, if any, on the Bonds; (ii) the present and continuing right
to make claim for, collect, receive and receipt for any of the sums, amounts,
income, revenues, issues and profits and any other sums of money payable or
receivable under the Agreement, the Collateral Documents and the other Bond
Documents (except for the right to receive any Administrative Fees or Expenses
and any Additional Payments to the extent payable to the Authority and any
rights of the Authority to
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indemnification); (iii) the right to bring actions and proceedings thereunder or
for the enforcement thereof; and (iv) the right to do any and all things which
the Authority is or may become entitled to do under the Agreement, the
Collateral Documents and the other Bond Documents.
GRANTING CLAUSE SECOND
All right, title and interest of the Authority in and to all moneys and
securities from time to time held by the Trustee under the terms of this
Indenture; provided, however, that in consideration of the issuance by the
Letter of Credit Bank of the Letter of Credit, the Authority hereby grants a
security interest in the Construction Fund to the Letter of Credit Bank in order
to secure payment of the obligations of the Company under the Reimbursement
Agreement, the rights of the Letter of Credit Bank therein being subject and
subordinate to the rights of the Trustee so long as any amount due in respect of
the Bonds remains unpaid.
GRANTING CLAUSE THIRD
Any and all other property rights and interests of every kind and
nature from time to time hereafter by delivery or by writing of any kind
granted, bargained, sold, alienated, demised, released, conveyed, assigned,
transferred, mortgaged, pledged, hypothecated or otherwise subjected hereto, as
and for additional security herewith, by the Company or any other person on its
behalf or with its written consent or by the Authority or any other person on
its behalf or with its written consent, and the Trustee is hereby authorized to
receive any and all such property at any and all times and to hold and apply the
same subject to the terms hereof.
TO HAVE AND TO HOLD all and singular the Trust Estate with all
privileges and appurtenances hereby conveyed and assigned, or agreed or intended
so to be to the Trustee and its successors in trust forever.
IN TRUST NEVERTHELESS, under and subject to the terms and conditions
hereinafter set forth: (a) for the equal benefit, protection and security of the
Owners of any and all of the Bonds, all of which regardless of the time or times
of their issuance or maturity shall be of equal rank, without preference,
priority or distinction of any of the Bonds over any other thereof, except as
otherwise provided in or pursuant to this Indenture; (b) for securing the
observance and performance of the Authority's obligations and of all others of
the conditions, promises, stipulations, agreements and terms and provisions of
this Indenture and the uses and purposes herein expressed and declared; and (c)
for the benefit of the Letter of Credit Bank.
PROVIDED, HOWEVER, that if the Authority, its successors or assigns,
well and truly pays, or causes to be paid, the principal of the Bonds issued
hereunder and the premium (if any) and interest due or to become due thereon,
and the purchase price thereof, at the times and in the manner mentioned in the
Bonds and as provided herein, according to the true intent and meaning thereof,
and shall cause the payments to be made into the Bond Fund as required under
Article VI hereof, or shall provide, as permitted hereby, for payment thereof in
accordance with Article XI hereof, and
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shall well and truly keep, perform and observe all of the covenants and
conditions pursuant to the terms of this Indenture and all other of the
Authority's obligations to be kept, performed and observed by it, and shall pay
or cause to be paid to the Trustee all sums of money due or to become due in
accordance with the terms and provisions hereof, then upon such final payments
or deposits as provided in Article XI hereof, and upon the termination of the
Agreement, the right, title and interest of the Trustee in and to the Trust
Estate shall cease, terminate and be void, and the Trustee shall thereupon
assign, transfer, and turn over the Trust Estate to the Letter of Credit Bank;
provided, that if the Trustee shall have received written evidence from the
Letter of Credit Bank that all obligations of the Company under the
Reimbursement Agreement have been satisfied and that the Reimbursement Agreement
has been terminated, or if no Letter of Credit Bank shall then exist, the Trust
Estate shall be assigned, transferred and turned over to the Company; and the
Trustee shall execute and deliver to the Authority, the Letter of Credit Bank
and the Company; as appropriate, such instruments in writing as shall be
requisite to evidence such transfer of the Trust Estate. Upon the Trustee's
assignment, transfer and turning over to the Letter of Credit Bank or the
Company, as appropriate, of the Trust Estate pursuant to the provisions of
Section XI hereof, the Trustee shall have no further duties, responsibilities or
obligations under and pursuant to this Indenture.
AND IT IS EXPRESSLY DECLARED that all Bonds issued and secured
hereunder are to be issued, authenticated and delivered and all of the Trust
Estate hereby pledged is to be dealt with and disposed of under, upon and
subject to the terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes hereinafter expressed, and the Authority has agreed and
covenanted and intending to be legally bound does hereby agree and covenant with
the Trustee and with the respective Owners from time to time of the Bonds, or
any part thereof as follows:
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
Section 1.01. Definitions. Unless the context otherwise requires, the
terms and phrases defined in this Section shall, for all purposes of the
recitals hereto, this Indenture and of any indenture supplemental hereto and of
any certificate, opinion or other document herein mentioned, have the meanings
herein specified, to be equally applicable to both the singular and plural forms
of any of the terms herein defined. Unless otherwise defined in this Indenture,
all terms used herein shall have the meanings assigned to such terms in the Act.
"Accountant" means any firm of independent certified public accountants
(not an individual) selected by the Company and acceptable to the Bank.
"Act" means the Pennsylvania Economic Development Financing Law, Act of
August 23, 1967, P.L. 251, as amended and supplemented and as it may, from time
to time, hereafter be amended or supplemented.
"Additional Payments" means any payments required to be made by the
Company pursuant
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to the Agreement which are not required to be: (i) applied to the payment of
scheduled debt service on the Bonds; or (ii) reimbursed to the Letter of Credit
Bank for monies drawn on the Letter of Credit to pay debt service on the Bonds.
"Administrative Expenses" means those expenses of the Authority and the
Bank which are properly chargeable to the Company on account of the Bonds and
the Bond Documents as administrative expenses under Generally Accepted
Accounting Principles and include, without limiting the generality of the
foregoing, the following: (a) fees and expenses of the Trustee, the Tender
Agent, the Authority, the Bank and the Placement Agent; and (b) fees and
expenses of the Authority's, the Bank's, the Trustee's, the Tender Agent's and
the Placement Agent's professional advisors reasonably necessary and fairly
attributable to the Project Facilities, including without limiting the
generality of the foregoing, fees and reasonable expenses of the Authority's,
the Trustee's, the Bank's and the Placement Agent's counsel.
"Agreement" means the Loan Agreement, dated December 26, 1996, between
the Authority and the Company, together with all supplements thereto.
"Authority" means the Xxxxxxxxxx County Industrial Development
Authority created pursuant to, and as defined in, the Act, and its successors.
"Authority Board" shall mean, at any given time, the governing body of
the Authority.
"Authorized Representative" means with respect to the Company, the
Chairman, the President, Vice President, Secretary, Assistant Secretary or
Treasurer thereof, or any other person designated as an Authorized
Representative of the Company by a Certificate of the Company executed by the
President, Vice President, Secretary, Assistant Secretary or Treasurer of the
Company and filed with the Trustee.
"Available Moneys" means: (i) moneys derived from drawings under the
Letter of Credit; (ii) moneys held by the Trustee in funds and accounts
established under this Indenture for a period of at least one hundred
twenty-four (124) days and not commingled with any moneys so held for less than
said one hundred twenty-four (124) day period and during and prior to which
period, no petition in bankruptcy was filed by or against the Company or the
Authority under the Bankruptcy Code or any applicable state bankruptcy or
insolvency law, unless such petition was dismissed and all applicable appeal
periods have expired without an appeal having been filed; (iii) investment
income derived from the investment of moneys described in clauses (i) or (ii)
above; or (iv) any other moneys, if the Trustee and the Letter of Credit Bank
have received an opinion of nationally recognized counsel acceptable to Moody's
experienced in bankruptcy matters to the effect that payment of the principal or
purchase price of or interest on the Bonds with such moneys would not, in the
event of bankruptcy of the Company, the Authority, any affiliate of the Company
or other payor, constitute a voidable preference under the Bankruptcy Code or
any applicable state bankruptcy or insolvency law.
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"Bank" means CoreStates Bank, N.A., a national banking association
organized and existing under the laws of the United States, whose principal
office is located in the City of Philadelphia, Philadelphia County,
Pennsylvania, its lawful successors and assigns and, if applicable, the issuer
of any Substitute Letter of Credit hereunder.
"Bankruptcy Code" means the federal Bankruptcy Code, 11 U.S.C. ss.101
et seq., as amended and supplemented from time to time.
"Bond Documents" means any or all of the Agreement, this Indenture, the
Tender Agent Agreement, the Remarketing Agreement and all documents,
certificates and instruments executed in connection therewith.
"Bond Fund" means the fund created in Section 6.01 hereof.
"Bond Registrar" means any bank, national banking association or trust
company designated as registrar for the Bonds, and its successor appointed under
the Indenture.
"Bonds" means the $1,000,000 original aggregate principal amount of the
Authority's Variable Rate Demand/Fixed Rate Revenue Bonds (Apple Fresh Foods Ltd
Project) Series of 1996 authorized to be issued under this Indenture.
"Bond Year" shall have the meaning ascribed to such term in the Rebate
Certificate.
"Business Day" means any day other than: (i) a Saturday or Sunday; (ii)
a legal holiday or any day on which banking institutions in the State of New
York, the Commonwealth, the City of New York, or the city in which the principal
office of the Trustee, the Tender Agent or the Bank are authorized to remain
closed; or (iii) a day on which the New York Stock Exchange is closed.
"Cede & Co." means Cede & Co., as nominee of The Depository Trust
Company, New York, New York.
"Certificate," "Statement," "Request," "Requisition" and "Order" means:
(a) with respect to the Authority, a written certificate, statement, request,
requisition or order executed in the name of the Authority by its Chairman, Vice
Chairman, Executive Director or such other person as may be designated and
authorized to sign for the Authority; or (b) with respect to the Company a
written certificate, statement, request, requisition or order executed by an
Authorized Representative of the Company. Any such instrument and supporting
opinions or representations, if any, may, but need not, be combined in a single
instrument with any other instrument, opinion or representation, and the two or
more so combined shall be read and construed as a single instrument. If and to
the extent required by Section 1.02 hereof, each such instrument shall include
the statements provided for in such Section 1.02.
"Certified Resolution of the Authority" means a copy of a resolution of
the Authority
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Board certified by the Secretary or an Assistant Secretary of the Authority, or
other officer serving in a similar capacity, under its corporate seal, to have
been duly adopted by the Authority Board and to be in full force and effect on
the date of such certification.
"Certified Resolution of the Company" means a copy of a resolution of
the Company duly adopted and in full force and effect as of the date of the
execution and delivery of the Bonds and the Letter of Credit.
"Clearing Fund" means the fund created pursuant to Section 3.03 hereof.
"Closing Date" means December 26, 1996 or such other date which shall
be the date of the execution and delivery of the Agreement and the other Bond
Documents and the issuance and delivery of the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder.
"Collateral" means all of the rights and assets of the Company or any
other Person in which the Authority or the Trustee is now or hereafter granted a
lien or security interest in order to secure the performance of (i) the
Company's obligations under the Agreement or any of the Collateral Documents or
(ii) the obligations of the Authority hereunder or under the Bonds.
"Collateral Documents" means all documents executed and delivered or to
be executed and delivered and under which the Authority or the Trustee is
granted a lien or security interest in any of the rights and assets of the
Company or any other Person in order to secure the performance of the Company's
obligations under the Agreement or any other Bond Documents or the obligations
of the Authority hereunder or under the Bonds.
"Commonwealth" means the Commonwealth of Pennsylvania.
"Company" means Apple Fresh Foods Limited, a Pennsylvania corporation.
"Completion Date" means the date of completion of the Project, as that
date shall be certified as provided in Section 2.03 of the Agreement.
"Construction Fund" means the fund created pursuant to Section 6.05
hereof.
"Conversion Date" means the Optional Conversion Date.
"Conversion Option" means the option granted to the Company in Section
5.01 hereof pursuant to which the interest rate on the Bonds is converted from
the Floating Rate to the Fixed Rate as of the Optional Conversion Date.
"Cost" or "Costs," means any cost in respect of the Project Facilities
permitted under the Act and the Code.
"Counsel" means an attorney-at-law or law firm (who may be counsel for
the Company or for the Authority) satisfactory to the Trustee.
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"County" means the County of Xxxxxxxxxx, Pennsylvania.
"Debt Service Requirements," with reference to a specified period
means, with respect to Bonds:
(a) amounts required to be paid into any mandatory sinking fund
account during the period; and
(b) amounts needed to pay the principal of such indebtedness
maturing during the period and not to be redeemed prior to maturity from amounts
on deposit in any sinking fund or redemption, retirement or similar fund or
account; and
(c) interest payable on the subject indebtedness during the
period, excluding capitalized interest and amounts on deposit with the Trustee
which are available under the Indenture to pay interest with respect to such
indebtedness.
"Demand Purchase Notice" means a notice delivered pursuant to
paragraph (i) of Section 5.04 hereof.
"Demand Purchase Option" means the option granted to Owners of Bonds
to require that Bonds be purchased prior to the Conversion Date pursuant to
Section 5.04 hereof.
"Determination Date" means with respect to any Floating Rate Bonds,
each Wednesday or if such Wednesday is not a Business Day, on the next
succeeding Business Day.
"Determination of Taxability" means, with respect to any Bond, the
first to occur of the following events: (i) the date on which the Company
determines that an Event of Taxability has occurred by filing with the Trustee a
statement to that effect supported by one or more tax schedules, returns or
documents that disclose that such an Event of Taxability has occurred; (ii) the
date on which the Company or the Trustee is advised by private ruling, technical
advice or any other written communication from any authorized official of the
Internal Revenue Service that, based upon any filings of the Company or any
other person or entity, or upon any review or audit of the Company or any other
person or entity, or upon any other grounds whatsoever, an Event of Taxability
has occurred; (iii) the date on which the Trustee or the Company is advised that
a court of competent jurisdiction has issued an order, declaration, ruling or
judgment to the effect that an Event of Taxability has occurred; (iv) the date
the Trustee shall have received written notice from any owner of the Bonds that
such owner has received a written assertion or claim by any authorized official
of
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the Internal Revenue Service that an Event of Taxability has occurred; or (v)
the date the Trustee is notified that the Internal Revenue Service has issued
any private ruling, technical advice or any other written communication, with or
to the effect that an Event of Taxability has occurred; provided, however, that
(x) no Determination of Taxability described above shall be deemed to have
occurred unless the Trustee shall have received a written opinion of nationally
recognized bond counsel satisfactory to the Bank and the Company and not
unsatisfactory to the Trustee, and in form and substance satisfactory to the
Bank and the Company and not unsatisfactory to the Trustee, to the effect that
an Event of Taxability has occurred; and (y) no Determination of Taxability
described above shall be deemed to have occurred until 180 days shall have
elapsed from the dates described in clauses (i), (ii), (iii), (iv) or (v) above
without such Determination of Taxability having been rescinded or canceled.
"Event of Default" means any of the events specified in Section 8.01 of
this Indenture.
"Event of Taxability" means, with respect to any Bond, a change of law
or regulations, or the interpretation thereof, or the occurrence of any other
event or the existence of any other circumstances (including without limitation
the fact that any representations or warranties of the Company or the Authority
made in connection with the issuance of any Bond is or was untrue or that a
covenant of the Company has been breached) that has the effect of causing
interest payable on any Bond to be includable in gross income for federal income
tax purposes under Section 103 of the Code other than by reason that such
interest: (i) is includable in the gross income of an owner or former owner of
any Bond while such owner or former owner is or was a "substantial user" or a
"related person" to a "substantial user" of the Project Facilities (as such
terms are used in Section 147(a)(1) of the Code); or (ii) is deemed an item of
tax preference, including without limitation an item subject to any alternative
minimum tax
"Fiscal Year" means the period of twelve (12) consecutive months
beginning July 1 of each year, or such other period of twelve consecutive months
established by the Company as its new Fiscal Year.
"Fixed Rate" means the interest rate in effect on any Bonds from and
after the Conversion Date, as said rate is determined in accordance with Section
2.02(D) hereof.
"Fixed Rate Bonds" means any Bonds which are converted to a Fixed Rate
in accordance with the provisions of this Indenture.
"Fixed Rate Period" means, with respect to any Bonds, a Period during
which interest on such Bonds accrues at a Fixed Rate.
"Floating Rate" means a variable rate of interest equal to the minimum
rate of interest necessary, in the sole judgment of the Remarketing Agent, to
sell the Bonds at a price equal to the principal amount thereof, exclusive of
accrued interest, if any, thereon; said interest rate to be in effect on the
Bonds from the date of issuance of the Bonds until (but not including) the
Conversion
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Date, as said rate is determined in accordance with Section 2.02(C) hereof.
"Floating Rate Bonds" means any Bonds which bear interest at the
Floating Rate.
"Generally Accepted Accounting Principles" means those accounting
principles applicable in the preparation of financial statements of business
institutions or industrial development authorities, as appropriate, as
promulgated by the Financial Accounting Standards Board or such other body
recognized as authoritative by the American Institute of Certified Public
Accountants or any successor body.
"Government Obligations" means direct obligations of (including
obligations issued or held in book entry form) or obligations the principal of
and interest on which are unconditionally guaranteed as to full and timely
payment by the United States.
"Holder," "Owner", "Registered Owner" or "Bondholders" whenever used
herein with respect to a Bond, means the person in whose name such Xxxx is
registered on the registration books maintained by the Trustee.
"Indenture" means this Trust Indenture, dated December 26, 1996,
between the Authority and the Trustee, as originally executed or as it may, from
time to time, be supplemented, modified or amended by any Supplemental
Indenture.
"Interest Payment Date" means prior to the Conversion Date, the first
Wednesday of each calendar month, or if such date is not a Business Day, the
next succeeding Business Day, commencing February 5, 1997 and from and after the
Conversion Date, June 1 and December 1 of each year, commencing on the June 1 or
December 1 next following the Conversion Date.
"Investment Securities" means any of the following which at the time
are legal investments under the laws of the Commonwealth for moneys held
hereunder:
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(i) Government Obligations;
(ii) bonds, debentures, notes or other evidences of
indebtedness issued by any agency or other governmental or government-sponsored
agencies which may be hereafter created by the United States, provided, however,
that the full and timely payment of the securities issued by each such agency or
government-sponsored agency is secured by the full faith and credit of the
United States;
(iii) certificates of deposit of, or time deposits in, any
bank (including the Trustee) or savings and loan association having securities
rated, at the time of purchase or acquisition, in one of the three highest
Rating Categories (without regard to modifiers) of Moody's or S&P;
(iv) certificates which evidence ownership of the right to
the payment of the principal of and interest on obligations described in clauses
(i) and (ii) of this definition, provided that such obligations are held in the
custody of a bank or trust company in a special account separate from the
general assets of such custodian;
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(v) obligations which, at the time of purchase or
acquisition, are rated in one of the two highest Rating Categories (without
regard to modifiers) of Moody's and the interest on which is not includable in
gross income for federal income tax purposes and the timely payment of the
principal of and interest on which is fully provided for by the deposit in trust
or escrow of cash or obligations described in clauses (i) or (ii) of this
definition;
(vi) guaranteed investment contracts or other similar
financial instruments with a commercial bank, insurance company or other
financial institution whose long term debt obligations are rated, at the time of
purchase or acquisition, in one of the two highest Rating Categories (without
regard to modifiers) by Moody's;
(vii) mutual funds invested primarily in obligations
described in clauses (i) and (ii) of this definition, and rated, at the time of
purchase, in one of the two highest rating categories (without regard to
modifiers) by Moody's, including, if such fund meets the criteria described in
this clause (vii), mutual funds managed by the Trustee or an affiliate thereof;
(viii) any investment approved in writing by the Bank and
Moody's;
(ix) repurchase agreements issued by financial institutions:
(i) insured by the Federal Deposit Insurance Corporation; or (ii) whose senior
debt obligations at the time of purchase are rated, at the time of purchase or
acquisition, in any of the three highest Rating Categories (without regard to
modifiers) by Moody's; provided, such repurchase agreements are subject to
perfected security interests in the Investment Securities of the kind specified
in paragraphs (i) or (ii) above, which have a fair market value, exclusive of
accrued interest, at least equal to the amount invested in the repurchase
agreement; and provided further: (1) the Trustee has possession of the
securities; (2) the Trustee has a perfected first security interest in the
securities; (3) the securities are free and clear of any third-party liens; and
(4) failure to maintain the requisite securities percentage will require the
Trustee to liquidate the securities in accordance with the terms of the
repurchase agreement; and
(x) any other security or obligation constituting a
permitted investment under the Act, provided that the Bank and Moody's consent
to the investment of funds in such security or obligation.
"Issue Date" means the date on which the Trustee authenticates the
Bonds and on which the Bonds are delivered to the purchasers thereof upon
original issuance.
"Letter of Credit" means the Irrevocable Direct Pay Letter of Credit
issued by the Letter of Credit Bank pursuant to the provisions of the
Reimbursement Agreement, or, in the event of delivery of a Substitute Letter of
Credit, such Substitute Letter of Credit.
"Letter of Credit Bank" means the Bank, as issuer of the Letter of
Credit, and its lawful successors and assigns, and to the extent applicable, the
issuer of any Substitute Letter of Credit.
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"Letter of Credit Termination Date" means the later of: (i) that date
upon which the Letter of Credit shall expire or terminate pursuant to its terms;
or (ii) that date to which the expiration or termination of the Letter of Credit
may be extended, from time to time, either by extension or renewal of the
existing Letter of Credit or the issuance of a Substitute Letter of Credit.
"Moody's" means Xxxxx'x Investors Service, a corporation organized and
existing under the laws of the State of Delaware, its successors and their
assigns, or, if such corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency, any other nationally
recognized securities rating agency designated by the Authority, with the
approval of the Company.
"Net Proceeds," when used with respect to any insurance proceeds or any
condemnation award, means the amount remaining after deducting all expenses
(including attorneys' fees and disbursements) incurred in the collection of such
proceeds or award from the gross proceeds thereof.
"Obligation Termination Date" means the date on which the Bank delivers
to the Trustee a certificate to the effect that all obligations owing to the
Bank under the Reimbursement Agreement have been paid in full.
"Officers' Certificate" means with respect to the Authority, a
certificate, duly executed by the Chairman or Vice Chairman, Secretary or
Assistant Secretary, Treasurer or Assistant Treasurer of the Authority, under
the corporate seal of the Authority; or with respect to the Company, a
certificate duly executed by an Authorized Representative, under the corporate
seal of the Company.
"Opinion of Counsel" means a written opinion of counsel (who may be
counsel for the Authority) selected by the Authority and acceptable to the
Trustee. If and to the extent required by the provisions of Section 1.02 hereof,
each Opinion of Counsel shall include in substance the statements provided for
in such Section 1.02.
"Optional Conversion Date" means that date on or after February 5,
1997, which shall be a Business Day, from and after which the interest rate on
the Bonds is converted from the Floating Rate to the Fixed Rate as a result of
the exercise by the Company of the Conversion Option in accordance with the
terms of this Indenture.
"Outstanding," when used as of any particular time with reference to
Bonds, means (subject to the provisions of Section 12.10) all Bonds theretofore,
or thereupon being, authenticated and delivered by the Trustee under this
Indenture, except: (1) Bonds theretofore canceled by the Trustee or surrendered
to the Trustee for cancellation; (2) Bonds with respect to which all liability
of the Authority shall have been discharged in accordance with Section 11.02,
including Bonds (or portions of Bonds) referred to in Section 12.10; and (3)
Bonds for the transfer or exchange of or in lieu of or in substitution for which
other Bonds shall have been authenticated and delivered by the Trustee pursuant
to this Indenture.
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"Participants" means those financial institutions for whom the
Securities Depository effects book-entry transfers and pledges of securities
deposited with the Securities Depository, as such listing of Participants exists
at the time of such reference.
"Permitted Encumbrances" means any liens or encumbrances permitted
under the Reimbursement Agreement or otherwise permitted by the Bank.
"Person" means an individual, corporation, firm, association,
partnership, trust, or other legal entity or group of entities, including a
governmental entity or any agency or political subdivision thereof.
"Placement Agent" means CoreStates Capital Markets, a division of
CoreStates Bank, N.A.
"Pledge Agreement" means: (i) the Pledge and Security Agreement, dated
December 26, 1996, between the Company and the Bank, and any amendments or
supplements thereto; and (ii) any pledge and security agreement made by the
Company and the Substitute Bank for the benefit of any Substitute Bank, and any
amendments or supplements thereto.
"Pledged Bonds" means any Bonds which shall, at the time of
determination thereof, be held in pledge for the benefit of the Bank by the
Pledged Bonds Custodian pursuant to the Pledge Agreement.
"Pledged Bonds Custodian" means that banking entity which serves as the
custodian for the Pledged Bonds under the terms and conditions of the Pledge
Agreement. The initial Pledged Bonds Custodian shall be the Tender Agent.
"Premises" shall mean that certain parcel of real property located at
0000 Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, located in the Township of Lower
Providence, Xxxxxxxxxx County, Pennsylvania.
"Principal Corporate Trust Office" means the principal corporate trust
office of the Trustee, which at the date of the execution of the Indenture is
located at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention
Corporation Trust Services.
"Project" means, among other things: (i) the acquisition, construction,
installation and renovation of certain equipment to be used in connection with a
cook-chill system of batch food processing; and (ii) the payment of a portion of
the costs of issuance of the Bonds.
"Project Facilities" shall mean all of the Company's right, title and
interest in and to the Premises, together with all the right, title and interest
of the Company in and to all buildings, improvements, and appurtenant facilities
located on the Premises.
"Purchase Price" means an amount equal to 100% of the principal amount
of any Bond
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tendered or deemed tendered pursuant to Sections 5.01, 5.03 or 5.04 hereof, plus
accrued and unpaid interest thereon to the date of purchase.
"Rating Agency" means Xxxxx'x when the Bonds are rated by Xxxxx'x and
S&P when the Bonds are rated by S&P.
"Rating Category" means one of the general rating categories of Xxxxx'x
or S&P, without regard to any refinement or gradation of such rating category by
a numerical modifier or otherwise.
"Rebate Certificate" means the requirements relating to rebate within
the meaning of Section 148 of the Code included in the Authority's Non-Arbitrage
Certificate and Compliance Agreement, delivered by the Authority at the time of
the issuance and delivery of the Bonds, as such requirements may be amended or
supplemented from time to time in accordance with its terms.
"Rebate Fund" means the fund by that name established pursuant to the
provisions of Section 6.13 hereof.
"Record Date" means, prior to the Conversion Date, that day which is
the seventh calendar day next preceding any Interest Payment Date and
thereafter, that date which is the fifteenth calendar day next preceding any
Interest Payment Date.
"Reimbursement Agreement" means the Reimbursement Agreement, dated
December 26, 1996 by and among the Bank and the Company, and any other similar
agreement entered into in connection with the issuance of any Substitute Letter
of Credit and any and all modifications, alterations, amendments and supplements
thereto.
"Remarketing Agent" means (singly or collectively, as the case may be)
the remarketing agent(s) appointed by the Company and accepted and consented to
in writing by the Authority and the Trustee and at the time serving as such
under the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement, dated December
26, 1996, by and between the Company and CoreStates Capital Markets, a division
of CoreStates Bank, N.A., as the remarketing agent, and accepted and consented
in writing to by the Authority and the Trustee.
"Replacement Bonds" means Bonds issued to the beneficial owners of the
Bonds in accordance with Section 2.13 hereof.
"Revenues" means all amounts received by the Authority or the Trustee
for the account of the Authority pursuant or with respect to the Agreement or
the Letter of Credit, including, without limiting the generality of the
foregoing, payments under the Agreement (including both timely and delinquent
payments and any late charges, and whether paid from any source), prepayments,
insurance proceeds, condemnation proceeds, and all interest, profits or other
income derived from the investment of amounts in any fund or account established
pursuant to this Indenture.
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"Securities Depository" means The Depository Trust Company and its
successors and assigns or if: (i) the then-Securities Depository resigns from
its functions as depository of the Bonds; or (ii) the Authority discontinues use
of the then-Securities Depository pursuant to Section 2.13, any other securities
depository which agrees to follow the procedures required to be followed by a
securities depository in connection with the Bonds and which is selected by the
Authority with the consent of the Company.
"Securities Depository Nominee" means, as to any Securities Depository,
such Securities Depository or the nominee of such Securities Depository in whose
name there shall be registered on the registration books maintained by the
Trustee the Bond certificates to be delivered to and immobilized at such
Securities Depository during the continuation with such Securities Depository of
participation in its book-entry system.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"S&P" means Standard & Poor's Rating Services, a division of the
XxXxxx-Xxxx Companies, Inc., a corporation organized and existing under the laws
of the State of Delaware, its successors and their assigns, or, if such
corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, any other nationally recognized
securities rating agency designated by the Authority, with the approval of the
Company.
"Substitute Bank" means a commercial bank, savings and loan association
or savings bank which has issued a Substitute Letter of Credit.
"Substitute Letter of Credit" means a letter of credit delivered to the
Trustee in accordance with Section 4.07 of the Agreement: (i) issued by the Bank
or a Substitute Bank, the short term unsecured debt of which shall then have
been assigned a rating by Xxxxx'x of "P-1" or the equivalent rating assigned by
S&P, or the long term senior subordinated debt of which shall then have been
assigned a rating of "Aa3" or higher by Xxxxx'x or the equivalent rating
assigned by S&P; (ii) replacing any existing Letter of Credit; (iii) dated no
later than the date of the expiration or replacement date of the Letter of
Credit for which the same is to be substituted; (iv) which shall expire on a
date which is 15 days after an Interest Payment Date for the Bonds; (v) having a
term of at least one year; and (vi) issued on substantially identical terms and
conditions as the then existing Letter of Credit, except that the stated amount
of the Substitute Letter of Credit shall equal the sum of: (A) the aggregate
principal amount of Bonds at the time Outstanding, plus (B) an amount equal to
(i) prior to the Conversion Date, forty-six (46) days' interest or such other
number of days as shall be required by the Rating Agency (computed at a rate of
15% per annum) on all Bonds at the time Outstanding and (ii) from and after the
Conversion Date, two hundred (200) days' interest or such other number of days
as shall be required by the Rating Agency (computed at the fixed rate on all
Bonds at the time outstanding).
"Substitution Date" shall mean the date the Company delivers a
Substitute Letter of Credit to the Trustee in accordance with the terms and
conditions of Section 4.07 of the Agreement.
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"Supplemental Indenture" means any indenture hereafter duly authorized
and entered into between the Authority and the Trustee, supplementing, modifying
or amending this Indenture, but only if and to the extent that such Supplemental
Indenture is specifically authorized hereunder.
"Tender Agent" means Dauphin Deposit Bank and Trust Company, a banking
corporation organized and existing under the laws of the Commonwealth and its
successors and any corporation resulting from or surviving any consolidation or
merger to which it or its successors may be a party and any successor Tender
Agent at the time serving as successor Tender Agent hereunder and under the
Tender Agent Agreement. "Delivery Office" and "Principal Office" of the Tender
Agent means 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Corporate Trust Services or such other address as may be designated in writing
to the Authority, the Trustee, the Remarketing Agent and the Company.
"Tender Agent Agreement" means the Tender Agent Agreement, dated
December 26, 1996, between the Company, the Trustee and the Tender Agent and any
amendments and supplements thereto.
"Trust Estate" means all property rights and interests transferred,
assigned, or otherwise pledged to the Trustee and the Letter of Credit Bank
pursuant to the Granting Clauses hereof, which does not include the moneys on
deposit from time to time in the Rebate Fund pursuant to Section 6.13 hereof.
"Trustee" means Dauphin Deposit Bank and Trust Company, a banking
corporation organized and existing under the laws of the Commonwealth and its
successor and any entity resulting from or surviving any consolidation or merger
to which it or its successors may be a party and any successor trustee at the
time serving as successor trustee hereunder.
"United States" means the United States of America.
"Unremarketed Bonds" means Bonds which have been purchased pursuant to
Sections 5.01, 5.03 or 5.04 hereof but which have not been remarketed.
"Weekly Period" shall mean, while the Bonds bear interest at the
Floating Rate, the weekly period that begins on and includes Wednesday of each
calendar week and ends at the close of business on Tuesday of the next
succeeding week.
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Section 1.02. Content of Certificates and Opinions. The Trustee may,
but shall not be obligated to, require that every certificate or opinion
provided for in this Indenture with respect to compliance with any provision
hereof shall include: (1) a statement to the effect that the Person making or
giving such certificate or opinion has read such provision and the definitions
herein relating thereto; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the certificate or opinion is based; (3)
a statement to the effect that in the opinion of such person, he has made or
caused to be made such examination or investigation as is necessary to enable
him to express an informed opinion with respect to the subject matter referred
to in the instrument to which his signature is affixed; (4) a statement of the
assumptions upon which such certificate or opinion is based, and that such
assumptions are reasonable; and (5) a statement as to whether, in the opinion of
such person, such provision has been complied with.
Any such certificate or opinion made or given by an officer of the
Authority or the Company may be based, insofar as it relates to legal or
accounting matters, upon a certificate or opinion of or representation by
counsel or an accountant, unless such officer knows, or in the exercise of
reasonable care should have known, that the certificate, opinion or
representation with respect to the matters upon which such certificate or
statement may be based, as aforesaid, is erroneous. Any such certificate or
opinion made or given by counsel or an accountant may be based, insofar as it
relates to factual matters (with respect to which information is in the
possession of the Authority or the Company, as the case may be) upon a
certificate or opinion of or representation by an officer of the Authority or
the Company, unless such counsel or accountant knows, or in the exercise of
reasonable care should have known, that the certificate or opinion or
representation with respect to the matters upon which such person's certificate
or opinion or representation may be based, as aforesaid, is erroneous. The same
officer of the Authority or the Company, or the same counsel or accountant, as
the case may be, need not certify to all of the matters required to be certified
under any provision of this Indenture, but different officers, counsel or
accountants may certify to different matters, respectively.
Section 1.03. Interpretation.
(a) Unless the context otherwise indicates, words expressed in
the singular shall include the plural and vice versa and the use of the neuter,
masculine, or feminine gender is for convenience only and shall be deemed to
mean and include the neuter, masculine or feminine gender, as appropriate.
(b) Headings of articles and sections herein and the table of
contents hereof are solely for convenience of reference, do not constitute a
part hereof and shall not affect the meaning, construction or effect hereof.
(c) All references herein to "Articles," "Sections" and other
subdivisions are to the corresponding Articles, Sections or subdivisions of this
Indenture; the words "herein," "hereof," "hereby," "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or subdivision hereof.
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(d) Whenever in this Indenture it is required that notice be
provided to the Bank or that consent of the Bank be obtained, such provisions
shall be effective only when: (i) the Letter of Credit is in effect; or (ii) the
Bank, in its capacity as provider of the Letter of Credit, is the Holder of any
Bonds.
ARTICLE II
THE BONDS
Section 2.01. Authorization of Bonds. The Bonds shall be issued
hereunder in order to obtain moneys to finance the Project for the benefit of
the Authority and the Company. The Bonds are designated as "Xxxxxxxxxx County
Industrial Development Authority Variable Rate Demand/Fixed Rate Revenue Bonds
(Apple Fresh Foods Ltd Project), Series of 1996." The aggregate principal amount
of Bonds which may be issued and Outstanding under this Indenture shall not
exceed One Million Dollars ($1,000,000). No additional bonds may be issued under
this Indenture. This Indenture constitutes a continuing agreement by the
Authority for the benefit of the Holders from time to time of the Bonds to
secure the full payment of the principal of and interest on all such Bonds
subject to the covenants, provisions and conditions herein contained.
Section 2.02. Terms of Bonds; Interest on the Bonds.
(A) The Bonds shall be issued in fully registered form. Prior
to the Conversion Date: (i) such Bonds shall be Outstanding in denominations of
$100,000 or any integral multiple of $5,000 in excess thereof; and (ii) such
Bonds may not be issued, exchanged or transferred except in the authorized
denominations of $100,000 or any integral multiple of $5,000 in excess thereof.
From and after the Conversion Date: (x) such Bonds shall be Outstanding in
denominations of $5,000 or any integral multiple of $5,000; and (y) such Bonds
may not be issued, exchanged or transferred except in the authorized
denominations of $5,000 or any integral multiple of $5,000 in excess thereof.
The Bonds shall be dated as of the date of delivery and shall mature, subject to
prior redemption, as provided herein. Unless the Authority shall otherwise
direct, prior to the Conversion Date the Bonds shall be lettered "VR" and shall
be numbered consecutively from 1 upward, and after the Conversion Date the Bonds
shall be lettered "FR" and shall be numbered consecutively from 1 upward.
(B) Each Bond shall be dated the Issue Date and shall bear
interest, payable: (i) prior to the Conversion Date, on the first Wednesday of
each calendar month, or if such date is not a Business Day, the next succeeding
Business Day commencing February 5, 1997; (ii) on the Conversion Date; and (iii)
from and after the Conversion Date, on June 1 and December 1 of each year,
commencing on the June 1 or December 1 next following the Conversion Date, in
each case from the Interest Payment Date next preceding the date of
authentication thereof to which interest has been paid or duly provided for,
unless the date of authentication thereof is an Interest Payment Date to which
interest has been paid or duly provided for, in which case from the date of
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authentication thereof, or unless no interest has been paid or duly provided for
on the Bonds, in which case from the Issue Date, until payment of the principal
thereof has been made or duly provided for. Notwithstanding the foregoing, any
Bond authenticated after any Record Date and before the following Interest
Payment Date shall bear interest from such Interest Payment Date, provided,
however, that if the Authority shall default in the payment of interest due on
such Interest Payment Date, then such Bond shall bear interest from the next
preceding Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for on the Bonds, from
the Issue Date.
The Bonds shall mature on December 1, 2016.
(C) (i) From the Issue Date to the Conversion Date, the
Bonds shall bear interest at the Floating Rate. The Floating Rate shall be
determined by the Remarketing Agent by 9:30 a.m. on each Determination Date and
shall be effective on such Determination Date for the immediately following
Weekly Period.
(ii) The Remarketing Agent shall advise the Company
and the Trustee of the Floating Rate by telephone (confirmed by telecopy to the
Trustee) at or before the close of business on each Determination Date. Upon
request of any Bondholder, the Remarketing Agent shall notify such Bondholder of
the Floating Rate then borne by the Bonds.
(iii) If for any reason the interest rate on a Bond
for any Weekly Period is not determined by the Remarketing Agent pursuant to
(C)(i) above, or a court holds that the Floating Rate set as provided pursuant
to (C)(i) above is invalid or unenforceable, the Floating Rate for such Bonds
shall be for the first such Weekly Period that a Floating Rate is not determined
by the Remarketing Agent or has been determined invalid or unenforceable, a rate
per annum equal to the Floating Rate established by the Remarketing Agent
pursuant to (C)(i) on the immediately preceding Determination Date and on each
Determination Date thereafter, shall be a rate per annum equal to 85% of the
interest rate per annum for 30 day commercial paper having a rating of A-2/P-2
as reported in The Wall Street Journal on each Determination Date.
(iv) The determination of the Floating Rate by the
Remarketing Agent shall be conclusive and binding upon the Authority, the
Trustee, the Bank, the Company, the Remarketing Agent, the Tender Agent and the
Owners of the Bonds.
Anything herein to the contrary notwithstanding, the
Floating Rate shall in no event exceed 15% per annum.
(D) The Bonds shall bear interest at the Fixed Rate from
and after the Conversion Date until the maturity of the Bonds. The Fixed Rate
shall be a fixed annual interest rate on the Bonds established by the
Remarketing Agent as the rate of interest for which the Remarketing Agent has
received commitments from purchasers on or prior to the 5th Business Day
preceding the Conversion Date to purchase all the Outstanding Bonds on the
Conversion Date at a price of par.
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(E) Prior to the Conversion Date, interest on the Bonds
shall be computed on the basis of a 365/366-day year, for the actual number of
days elapsed. On and after the Conversion Date, interest on the Bonds shall be
computed on the basis of a 360-day year of twelve 30-day months. The principal
of and premium, if any, on the Bonds shall be payable in lawful money of the
United States at the Principal Corporate Trust Office of the Trustee, or of its
successor in trust. The Purchase Price of the Bonds shall be payable in lawful
money of the United States by the Tender Agent to the Owner of Bonds entitled to
receive such Purchase Price.
Interest on the Bonds shall be payable on each Interest
Payment Date to the persons in whose name the Bonds are registered at the close
of business on the Record Date for the respective Interest Payment Date.
Interest shall be paid by check mailed to each Owner at the addresses shown on
the registration books maintained by the Trustee, provided that such interest
shall be paid by wire transfer to: (i) the Bank; and (ii) any Holder of at least
$1,000,000 in aggregate principal amount of Bonds, if the Holder makes a written
request of the Trustee at least 15 days before a Record Date specifying the
account address and wiring instructions. Such a request may provide that it will
remain in effect for subsequent interest payments until changed or revoked by
written notice to the Trustee or upon the transfer or re-registration of the
Bond.
The principal of the Bonds shall be payable in lawful
money of the United States at the Principal Corporate Trust Office of the
Trustee; provided, however that payment of Bonds tendered pursuant to Sections
5.01, 5.03 and 5.04 hereof shall be paid at the Delivery Office of the Tender
Agent. Except as provided for in Section 2.13 hereof, no payment of principal
shall be made on any Bond until such Xxxx is surrendered to the Trustee at its
Principal Corporate Trust Office.
Section 2.03. Execution of Bonds. The Bonds shall be executed in the
name and on behalf of the Authority with the manual or facsimile signature of
its Chairman, under its seal attested by the manual or facsimile signature of
its Secretary. Such seal may be in the form of a facsimile of the Authority's
seal and may be reproduced, imprinted or impressed on the Bonds. The Bonds shall
then be delivered to the Trustee for authentication by it. In case any of the
officers who shall have executed or attested any of the Bonds shall cease to be
such officer or officers of the Authority before the Bonds so executed or
attested shall have been authenticated or delivered by the Trustee or issued by
the Authority, such Bonds may nevertheless be authenticated, delivered and
issued and, upon such authentication, delivery and issue, shall be as binding
upon the Authority as though those who executed and attested the same had
continued to be such officers of the Authority, and also any Bond may be signed
and attested on behalf of the Authority by such persons as at the actual date of
execution of such Bond shall be the proper officers of the Authority although at
the nominal date of such Bond any such person shall not have been such officer
of the Authority.
Only such of the Bonds as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Bond, manually
executed by the Trustee, shall be valid or obligatory for any purpose or
entitled to the benefits of this Indenture, and such certificate of the Trustee
shall be conclusive evidence that the Bonds so authenticated have been duly
executed, authenticated and delivered hereunder and are entitled to the benefits
of this Indenture.
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Section 2.04. Authentication.
(a) The Authority hereby appoints the Tender Agent as a
co-authenticating agent for the Bonds.
(b) No Bond shall be valid or obligatory for any purpose or
entitled to any security or benefit under this Indenture unless and until a
certificate of authentication on such Bond, substantially in the form set forth
in Exhibit "A" and Exhibit "B" attached hereto, shall have been duly executed by
the Trustee or by the Tender Agent and such executed certificate of
authentication 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 executed by the Trustee
or the Tender Agent if executed by an authorized signatory of the Trustee or the
Tender Agent, as the case may be, but it shall not be necessary that the same
signatory execute the certificate of authentication on all of the Bonds.
(c) In the event any Bond is deemed tendered to the Tender
Agent as provided in Section 5.01 or 5.04 hereof but is not physically delivered
to the Tender Agent, the Authority shall execute and the Trustee or the Tender
Agent shall authenticate a new Bond of like denomination as that deemed
tendered.
Section 2.05. Form of Bonds. The Floating Rate Bonds and the
certificate of authentication to be endorsed thereon prior to the Conversion
Date are to be in substantially the form set forth in Exhibit "A" which is
attached hereto and hereby made a part hereof as though fully set forth herein,
with appropriate variations, omissions and insertions as permitted or required
by this Indenture and applicable law. The Fixed Rate Bonds and the certificate
of authentication to be endorsed thereon are to be in substantially the form set
forth in Exhibit "B" which is attached hereto and hereby made a part hereof as
though fully set forth herein, with appropriate variations, omissions and
insertions as permitted or required by this Indenture.
Section 2.06. Transfer of Bonds. Any Bond may be transferred in
accordance with its terms upon the books required to be kept pursuant to the
provisions of Section 2.08 hereof. Such transfer shall be made, in accordance
with the requirements of Section 2.02 hereof, by the person in whose name it is
registered, in person or by his duly authorized attorney, upon surrender of such
registered Bond for cancellation, accompanied by delivery of a written
instrument of transfer, duly executed in a form approved by the Trustee.
Whenever any Bond or Bonds shall be surrendered for transfer, the
Authority shall execute and the Trustee or the Tender Agent, as the case may be,
shall authenticate and deliver a new Bond or Bonds of the same Series for a like
aggregate principal amount. The Trustee shall require the Bondholder requesting
such transfer to pay any tax or other governmental charge required to be paid
with respect to such transfer, and may in addition require the payment of a
reasonable sum to cover expenses incurred by the Authority or the Trustee in
connection with such transfer.
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During the Fixed Rate Period, the Trustee shall not be required to
transfer any Bond during the period beginning 15 days before the mailing of
notice of redemption calling the Bond or any portion of the Bond for redemption
and ending on the redemption date.
Section 2.07. Exchange of Bonds. Bonds may be exchanged at the
Principal Corporate Trust Office of the Trustee for a like aggregate principal
amount of Bonds of the same Series of other authorized denominations in
accordance with the requirements of Section 2.02 hereof. The Trustee shall
require the Bondholder requesting such exchange to pay any tax or other
governmental charge required to be paid with respect to such exchange, and may
in addition require the payment of a reasonable sum to cover expenses incurred
by the Authority or the Trustee in connection with such exchange.
During the Fixed Rate Period, the Trustee shall not be required to
exchange any Bond during the period beginning 15 days before the mailing of
notice of redemption calling the Bond or any portion of the Bond for redemption
and ending on the redemption date.
Section 2.08. Bond Register. The Trustee is hereby appointed the Bond
Registrar of the Authority and the Tender Agent is hereby appointed the Co-Bond
Registrar of the Authority. The Trustee or the Tender Agent, as the case may be,
will keep or cause to be kept sufficient books for the registration and transfer
of the Bonds, which shall at all times be open to inspection during regular
business hours by any Bondholder or his agent duly authorized in writing, the
Authority, the Company, the Bank and the Remarketing Agent; and upon
presentation for such purpose, the Trustee or the Tender Agent, as the case may
be, shall, under such reasonable regulations as they may prescribe, register or
transfer or cause to be registered or transferred, on such books, Bonds as
hereinbefore provided.
Section 2.09. Temporary Bonds. The Bonds may be issued in temporary
form exchangeable for definitive Bonds when ready for delivery. Any temporary
Bond may be printed, lithographed or typewritten, shall be of such denomination
as may be determined by the Authority, shall be in fully registered form without
coupons and may contain such reference to any of the provisions of this
Indenture as may be appropriate. Every temporary Bond shall be executed by the
Authority and be authenticated by the Trustee or the Tender Agent, as the case
may be, upon the same conditions and in substantially the same manner as the
definitive Bonds. If the Authority issues temporary Bonds it will execute and
deliver definitive Bonds as promptly thereafter as practicable, and thereupon
the temporary Bonds may be surrendered, for cancellation, in exchange therefor
at the Principal Corporate Trust Office of the Trustee and the Trustee or the
Tender Agent, as the case may be, shall authenticate and deliver in exchange for
such temporary Bonds an equal aggregate principal amount of definitive Bonds of
authorized denominations. Until so exchanged, the temporary Bonds shall be
entitled to the same benefits under this Indenture as definitive Bonds
authenticated and delivered hereunder.
Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond
shall become mutilated, the Authority, at the expense of the Holder of said
Xxxx, shall execute, and the Trustee
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shall thereupon authenticate and deliver, a new Bond of like tenor and number in
exchange and substitution for the Bond so mutilated, but only upon surrender to
the Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the
Trustee shall be canceled by it and delivered to, or upon the order of, the
Authority. If any Bond shall be lost, destroyed or stolen, evidence of such
loss, destruction or theft may be submitted to the Authority and the Trustee
and, if such evidence be satisfactory to both and indemnity satisfactory to them
both shall be given, the Authority, at the expense of the Holder, shall execute,
and the Trustee shall thereupon authenticate and deliver, a new Bond of like
tenor and number in lieu of and in substitution for the Bond so lost, destroyed
or stolen (or if any such Bond shall have matured or shall be about to mature,
instead of issuing a substitute Xxxx, the Trustee may pay the same without
surrender thereof). The Authority may require payment by the Holder of a sum not
exceeding the actual cost of preparing each new Bond issued under this Section
and of the expenses which may be incurred by the Authority and the Trustee in
connection therewith. Any Bond issued under the provisions of this Section in
lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an
original additional contractual obligation on the part of the Authority whether
or not the Bond so alleged to be lost, destroyed or stolen be at any time
enforceable by anyone, and shall be entitled to the benefits of this Indenture
with all other Bonds secured by this Indenture.
Section 2.11. Cancellation and Destruction of Surrendered Bonds. All
Bonds surrendered for payment or redemption and all Bonds purchased with moneys
available for that purpose in any funds established under this Indenture, shall,
at the time of such payment or redemption, be canceled and destroyed by the
Trustee. The Trustee shall deliver to the Authority certificates of destruction
with respect to all Bonds destroyed in accordance with this Section.
Section 2.12. Acts of Bondholders; Evidence of Ownership. Any action to
be taken by Bondholders may be evidenced by one or more concurrent written
instruments of similar tenor signed or executed by such Bondholders in person or
by agents appointed in writing. The fact and date of the execution by any person
of any such instrument may be proved by acknowledgment before a notary public or
other officer empowered to take acknowledgments or by an affidavit of a witness
to such execution. Any action by the holder of any Bond shall bind all future
holders of the same Bond in respect of any thing done or suffered by the
Authority or the Trustee in pursuance thereof.
Section 2.13. Book-Entry Bonds; Securities Depository.
(a) The Bonds shall initially be registered to Cede & Co., the
nominee for the Securities Depository, and no beneficial owner will receive
certificates representing their respective interests in the Bonds, except in the
event the Trustee issues Replacement Bonds as provided in subsection (b) hereof.
It is anticipated that during the term of the Bonds, the Securities Depository
will make book-entry transfers among its Participants and receive and transmit
payment of principal of, premium, if any, and interest on, the Bonds to the
Participants until and unless the Trustee authenticates and delivers Replacement
Bonds to the beneficial owners as described in subsection (b).
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(b) If the Company determines: (1) that the Securities
Depository is unable to properly discharge its responsibilities; or (2) that the
Securities Depository is no longer qualified to act as a securities depository
and registered clearing agency under the Securities Exchange Act; or (3) that
the continuation of a book-entry system to the exclusion of any Bonds being
issued to any Bondowner other than Cede & Co. is no longer in the best interests
of the beneficial owners of the Bonds, then the Trustee shall notify the
Bondowners of such determination or such notice and of the availability of
certificates of Owners requesting the same, and the Trustee shall register in
the name of and authenticate and deliver Replacement Bonds to the beneficial
owners or their nominees in principal amounts representing the interest of each,
making such adjustments as it may find necessary or appropriate as to accrued
interest and previous calls for redemption; provided, that in the case of a
determination under (1) or (2) of this subsection (b), the Company, with the
consent of the Trustee, may select a successor Securities Depository in
accordance with subsection (c) hereof to effect book-entry transfers. In such
event, all references to the Securities Depository herein shall relate to the
period of time when the Securities Depository has possession of at least one
Bond. Upon the issuance of Replacement Bonds, all references herein to
obligations imposed upon or to be performed by the Securities Depository shall
be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Replacement Bonds. If the Securities Xxxxxxxxxx
resigns and the Company, the Trustee or Bondowners are unable to locate a
qualified successor of the Securities Depository in accordance with subsection
(c) hereof, then the Trustee shall authenticate and cause delivery of
Replacement Bonds to Bondowners, as provided herein. The Trustee may rely on
information from the Securities Depository and its Participants as to the names
of the beneficial owners of the Bonds. The cost of printing Replacement Bonds
shall be paid for by the Company.
(c) In the event the Securities Depository resigns, is unable
to properly discharge its responsibilities, or is no longer qualified to act as
a securities depository and registered clearing agency under the Securities
Exchange Act, the Company may appoint a successor Securities Depository provided
the Trustee receives written evidence satisfactory to the Trustee with respect
to the ability of the successor Securities Depository to discharge its
responsibilities. Any such successor Securities Depository shall be a securities
depository which is a registered clearing agency under the Securities Exchange
Act, or other applicable statute or regulation that operates a securities
depository upon reasonable and customary terms. The Trustee upon its receipt of
a Bond or Bonds for cancellation shall cause the delivery of Bonds to the
successor Securities Depository in appropriate denominations and form as
provided herein.
(d) Notwithstanding any provision herein to the contrary, so
long as the Bonds are subject to a system of book-entry transfers pursuant to
this Section 2.13, any requirement for the delivery of Bonds to the Tender Agent
or the Trustee in connection with a tender pursuant to Section 5.01, 5.03 or
5.04 or a partial redemption pursuant to Section 4.01 shall be deemed satisfied
upon the transfer, on the registration books of the Securities Depository, of
the beneficial ownership interests in such Bonds tendered for purchase to the
account of the Tender Agent, or a Participant acting on behalf of or at the
discretion of such Tender Agent, or on the books of the Trustee.
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ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
Section 3.01. Issuance of the Bonds. At any time after the execution of
this Indenture, the Authority may execute and the Trustee or the Tender Agent,
as the case may be, shall authenticate and, upon request of the Authority,
deliver the Bonds in the aggregate principal amount of One Million Dollars
($1,000,000).
Section 3.02. Validity of Bonds. The validity of the authorization and
issuance of the Bonds is not dependent on and shall not be affected in any way
by any proceedings taken by the Authority or the Trustee with respect to or in
connection with the Agreement. The recital contained in the Bonds that the same
are issued pursuant to the Act and the Constitution and laws of the Commonwealth
shall be conclusive evidence of their validity and of compliance with all
provisions of law in their issuance.
Section 3.03. Disposition of Proceeds of the Bonds and Other Amounts.
The Authority shall deposit or cause to be deposited with the Trustee,
immediately upon receipt thereof, all proceeds derived from the sale of the
Bonds, together with any monies deposited by the Company as an equity
contribution. The Trustee shall deposit all such amounts in a special fund,
which the Trustee is hereby directed to establish and create, to be known as the
"Clearing Fund", and in the following order, the Trustee shall:
(a) Transfer to the persons identified on the Closing Statement
executed by the Authority and the Company and delivered to the Trustee on the
Closing Date (the "Closing Statement") to pay or reserve for payment any and all
costs of issuance incurred in connection with the Bonds;
(b) Transfer to the Company the amount set forth on the Closing
Statement to reimburse the Company for any capital expenditures made, if any, in
connection with the Project prior to the issuance of the Bonds; and
(c) Transfer to the credit of the Construction Fund (created
pursuant to Section 6.05 hereof) the balance of the funds held in the Clearing
Fund not otherwise reserved for the payment of the items described in subsection
3.03(a) and (b) above.
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ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.01. Extraordinary and Mandatory Redemption.
(a) Extraordinary Redemption. The Bonds are callable for
redemption in the event: (1) the Project Facilities or any portion thereof are
damaged or destroyed or taken in a condemnation proceeding as provided in
Section 6.04 of the Agreement; or (2) the Company shall exercise its option to
cause the Bonds to be redeemed as provided in Section 9.02 of the Agreement. If
called for redemption at any time pursuant to this Section 4.01(a), the Bonds
shall be subject to redemption by the Authority on any Interest Payment Date, in
whole or in part, at a redemption price equal to 100% of the principal amount
thereof being redeemed, plus accrued interest to the redemption date.
(b) Mandatory Redemption. The Bonds are subject to mandatory
redemption:
(1) at any time, in whole, within one hundred eighty (180)
days after the Trustee receives notice of the occurrence of a Determination of
Taxability, at a redemption price equal to one hundred percent (100%) of the
aggregate principal amount of Bonds Outstanding plus accrued interest to the
redemption date; or
(2) five (5) Business Days prior to the Letter of Credit
Termination Date, in whole, at a redemption price equal to one hundred percent
(100%) of the principal amount thereof being redeemed plus accrued interest to
the redemption date if, on the thirtieth (30th) Business Day prior to the Letter
of Credit Termination Date, the Trustee shall not have received a Substitute
Letter of Credit which will be effective on or before the Letter of Credit
Termination Date.
(c) Mandatory Sinking Fund Redemption. The Bonds are subject to
mandatory sinking fund redemption on the Interest Payment Date occurring in the
month of December in each of the years set forth below commencing on the
Interest Payment Date occurring in December of 1997 (each, a "Mandatory Sinking
Account Payment Date"), at a redemption price equal to 100% of the principal
amount thereof plus accrued interest as follows:
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Mandatory Sinking
Year Account Payments
---- ----------------
1997 30,000
1998 35,000
1999 35,000
2000 40,000
2001 40,000
2002 40,000
2003 40,000
2004 45,000
2005 45,000
2006 50,000
2007 50,000
2008 50,000
2009 55,000
2010 55,000
2011 60,000
2012 60,000
2013 65,000
2014 65,000
2015 70,000
2016* 70,000
*Final maturity of the Bonds is December 1, 2016
Section 4.02. Optional Redemption. On or prior to the Conversion Date,
the Bonds are subject to redemption by the Authority, at the option of the
Company, at any time, subject to provisions of Section 4.03 hereof, in whole or
in part, at the redemption price of 100% of the principal amount thereof being
redeemed plus accrued interest to the redemption date.
After the Conversion Date, if the length of time from the Conversion
Date to the final maturity date of the Bonds is seven (7) years or more, the
Bonds are subject to redemption by the Authority, at the option of the Company,
on or after the fifth anniversary of the Conversion Date, in whole at any time
or in part on any Interest Payment Date, at the redemption price of 100% of the
principal amount thereof being redeemed plus accrued interest to the redemption
date.
Notwithstanding the foregoing, no such optional redemption shall occur
after the Conversion Date unless there shall be available in the Bond Fund
sufficient Available Moneys to pay all amounts due with respect to such a
redemption.
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Section 4.03. Notice of Redemption. Notice of the call for redemption,
identifying the Bonds or portions thereof to be redeemed and the redemption
price (including the premium, if any), shall be given by the Trustee by mailing
a copy of the redemption notice by first-class mail, postage prepaid, at least
thirty (30) days but not more than sixty (60) days prior to the date fixed for
redemption to the Owner of each Bond to be redeemed in whole or in part at the
address shown on the registration books. Such notice shall contain such matters
specified in the Bonds for the redemption thereof and shall state that such
redemption is conditional upon the receipt of monies by the Trustee for such
purpose on or prior to the redemption date. Any notice mailed as provided in
this Section shall be conclusively presumed to have been duly given, whether or
not the Owner receives the notice. The Trustee shall deliver a copy of any such
redemption notice to the Tender Agent, the Company and to the Remarketing Agent.
Section 4.04. Interest on Bonds Called for Redemption. Upon the giving
of notice and the deposit of Available Moneys for redemption at the required
times on or prior to the date fixed for redemption, as provided in this Article,
interest on the Bonds or portions thereof thus called shall no longer accrue
after the date fixed for redemption.
Section 4.05. Cancellation. All Bonds which have been redeemed shall
not be reissued but shall be canceled and destroyed by the Trustee in accordance
with Section 2.11 hereof.
Section 4.06. Partial Redemption of Bonds.
(a) If less than all the Bonds are to be redeemed, the
particular Bonds or portions thereof to be redeemed shall be selected by the
Trustee by lot.
(b) Upon surrender of any Bond for redemption in part only, the
Authority shall execute and the Trustee shall authenticate and deliver to the
Owner thereof a new Bond or Bonds of authorized denominations, in an aggregate
principal amount equal to the unredeemed portion of the Bond surrendered. If all
or a portion of Bonds tendered for purchase pursuant to Section 5.04 hereof have
been selected by the Trustee for redemption, the Tender Agent, upon receipt of
such tendered Bonds, shall authenticate and redeliver only such portion of
tendered Bonds not subject to redemption. The Tender Agent shall deliver to the
tendering Bondholder a copy of the notice of redemption, indicating the portion
of the Bonds subject thereto, and upon receipt of funds as provided herein, an
amount representing the principal of and interest on the Bonds not called for
redemption. The principal of and interest accrued on the Bonds called for
redemption shall be paid to such bondholder on the redemption date. The Tender
Agent shall cancel the Bond or such portion thereof tendered for purchase and
subject to redemption, and shall deliver a certificate evidencing such
cancellation and the canceled Bond to the Trustee.
(c) (i) Prior to the Conversion Date, in case a Bond is of a
denomination larger than $100,000, a portion of such Bond ($100,000 or any
integral multiple of $5,000 in excess thereof) may be redeemed, but Bonds shall
be redeemed only if the remaining unredeemed portion of such Bond is in the
principal amount of $100,000 or any integral multiple of $5,000 in excess of
$100,000.
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(ii) After the Conversion Date, in case a Bond is of a
denomination larger than $5,000, a portion of such Bond ($5,000 or any integral
multiple thereof) may be redeemed, but Bonds shall be redeemed only if the
remaining unredeemed portion of such Bond is in the principal amount of $5,000
or any integral multiple of $5,000.
(d) 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 Bond. If the aggregate
principal amount of Bonds to be redeemed exceeds the aggregate principal amount
of Pledged Bonds at the time of selection, the Trustee may select for redemption
Bonds in an aggregate principal amount equal to such excess in such manner as
the Trustee in its discretion shall deem fair and appropriate.
Section 4.07. Payment of Redemption Price with Available Moneys;
Consent of Letter of Credit Bank to Optional Redemption. Notwithstanding any
provision to the contrary contained in this Indenture, the payment of the
redemption price of Bonds shall be made only from Available Moneys. On each date
that the Bonds are subject to redemption, the Trustee shall draw on the Letter
of Credit in an amount sufficient to pay the full redemption price of the Bonds
then subject to redemption from the sources and in the order provided in Section
6.03 hereof. As long as the Bank is not in default under the Letter of Credit,
the Trustee shall not call Bonds for Optional Redemption unless it has received
the prior written consent to such Optional Redemption from the Letter of Credit
Bank.
ARTICLE V
CONVERSION OF INTEREST RATE; DEMAND PURCHASE OPTION
Section 5.01. Conversion of Interest Rate on Conversion Date. The
interest rate on the Bonds shall be converted from the Floating Rate to the
Fixed Rate upon the exercise by the Company of the Conversion Option, and the
Bonds shall be subject to mandatory tender for purchase by the Owners thereof on
the Conversion Date. To exercise the Conversion Option, the Company shall notify
the Trustee, the Tender Agent, the Bank, the Authority and the Remarketing Agent
at least thirty-five (35) days prior to the Conversion Date of such exercise,
cause the Remarketing Agent to furnish to the Trustee the information set forth
in paragraphs 1 and 4 below and, thereafter cause the Trustee to deliver or mail
by first class mail a notice at least twenty (20) days but not more than thirty
(30) days prior to the Conversion Date to the Owner of each Bond at the address
shown on the registration books of the Bond Registrar. No such notice may be
given unless the Trustee first receives: (i) an opinion of nationally recognized
bond counsel to the effect that the proposed conversion of the interest rate on
the Bonds will not cause the interest on the Bonds to be includable in gross
income of the Bondholders for federal income tax purposes; (ii) a commitment
from the
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Bank or a Substitute Bank to issue a Substitute Letter of Credit to take effect
on the Conversion Date, together with a proposed form of such Substitute Letter
of Credit; and (iii) a Company certificate to the effect that each of the
Company's representations and warranties made in the Agreement and in any other
agreements or certificates given by the Company in connection with the issuance
of the Bonds remain true and correct in all material respects as of the proposed
Conversion Date. Any notice given as provided in this section shall be
conclusively presumed to have been duly given, whether or not the Owner receives
the notice. Said notice shall state in substance the following:
1. the Conversion Date;
2. that the existing Letter of Credit will expire five (5)
Business Days after the Conversion Date;
3. that unless firm commitments for the purchase of all
Outstanding Bonds have been received on or prior to the fifth (5th)
Business Day prior to the proposed Conversion Date, the Company has the
option to rescind an optional conversion of the Bonds; and
4. that in the event the Company elects not to rescind the
optional conversion of the Bonds, all Bonds shall be subject to
mandatory purchase on the Conversion Date pursuant to this Section
5.01.
On or prior to the Conversion Date, Owners of Bonds shall be required to deliver
their Bonds to the Tender Agent for purchase at the Purchase Price, and any such
Bonds not delivered to the Tender Agent on or prior to the Conversion Date
("Undelivered Bonds"), for which there has been irrevocably deposited in trust
with the Trustee or the Tender Agent an amount of money sufficient to pay the
Purchase Price of the Undelivered Bonds, shall be deemed to have been purchased
pursuant to this Section 5.01 and are deemed to be no longer Outstanding with
respect to such prior Owners. IN THE EVENT OF A FAILURE BY AN OWNER OF BONDS TO
DELIVER ITS BONDS ON OR PRIOR TO THE CONVERSION DATE, SAID OWNER SHALL NOT BE
ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON OR SUBSEQUENT TO
THE OPTIONAL CONVERSION DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNDELIVERED
BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFIT OF
THIS INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE
THEREFOR.
Notwithstanding the foregoing provisions, to the extent that at the
close of the fifth Business Day prior to the proposed Conversion Date, the
Remarketing Agent has not presented to the Company firm commitments for the
purchase of all of the Bonds, the Company, at its option, may rescind an
optional conversion of the Bonds. Any such election to rescind must be made by
the close of the fourth Business Day prior to the proposed Conversion Date and
the Company shall give written notice to the Trustee, the Tender Agent and the
Bank of its decision to rescind by such time.
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The Company shall cause the Trustee to immediately notify the Owners of such
rescission and thereafter the Bonds shall bear interest at the Floating Rate in
effect for the current Weekly Period and thereafter the Bonds shall bear
interest at the Floating Rate until any subsequent Conversion Date effected in
accordance with this Indenture.
In the event the Company rescinds the proposed optional conversion in
accordance with the terms of the foregoing paragraph, the Letter of Credit then
in effect will remain in effect in accordance with its terms.
The Bonds are subject to mandatory purchase in whole on the Conversion
Date, at a purchase price equal to 100% of the principal amount thereof being
purchased, plus accrued interest to the purchase date; provided, however, that:
(i) all Pledged Bonds for which a commitment to purchase has not been received
in connection with a conversion of the Bonds to a Fixed Rate, shall be redeemed
or otherwise paid by the Company on or before the Conversion Date; and (ii) no
such mandatory purchase shall take place in the event the Company exercises its
right to rescind the conversion.
Section 5.02. Delivery of Bonds After Conversion Date. At any time
prior to the Record Date preceding the first Interest Payment Date following the
Conversion Date, the Trustee or the Tender Agent, as the case may be, shall
deliver Bonds in the form of Exhibit "B" hereto. Prior to the delivery by the
Trustee of such Bonds, there shall be filed with the Trustee a request and
authorization to the Trustee on behalf of the Authority, which shall be executed
by the Chairman, Vice Chairman, Secretary, Assistant Secretary or any authorized
officer of the Authority to authenticate and deliver the Bonds, as executed by
the Authority, to the purchasers thereof. Such delivery shall be made by the
Trustee or the Tender Agent, as the case may be, without making any charge
therefor to the Owner of such Bonds.
Section 5.03. Mandatory Tender upon Substitution of Letter of Credit.
Prior to the Conversion Date, the Bonds are subject to mandatory purchase in
whole on the Substitution Date, at a purchase price equal to 100% of the
principal amount thereof being purchased, plus accrued interest to the purchase
date. The Trustee shall deliver or mail by first class mail a notice at least
twenty (20) days but not more than thirty (30) days prior to the Substitution
Date to the Owner of each Bond at the address shown on the registration books of
the Bond Registrar notifying such Owner that their Bonds are subject to
mandatory purchase. No such notice may be given unless the Company shall have
satisfied the provisions of Section 4.07 of the Agreement. Any notice given as
provided in this Section 5.03 shall be conclusively presumed to have been given,
whether or not the Owner receives the notice. Said notice shall state in
substance the following:
(1) the Substitution Date;
(2) that the existing Letter of Credit securing such Bonds
will expire five (5) Business Days after the Substitution Date; and
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(3) that if the Company satisfies the conditions precedent
to delivery of the Substitute Letter of Credit, all Bonds shall be subject to
mandatory purchase on the Substitution Date pursuant to this Section 5.03.
On or prior to the Substitution Date, Owners of Bonds shall be required to
deliver their Bonds to the Tender Agent for purchase at the Purchase Price, and
any such Bonds not delivered to the Tender Agent on or prior to the Substitution
Date ("Undelivered Bonds"), for which there has been irrevocably deposited in
trust with the Trustee or the Tender Agent an amount of money sufficient to pay
the Purchase Price of the Undelivered Bonds, shall be deemed to have been
purchased pursuant to this Section 5.03 and are deemed to be no longer
Outstanding with respect to such prior Owners. IN THE EVENT OF A FAILURE BY AN
OWNER OF BONDS TO DELIVER ITS BONDS ON OR PRIOR TO THE SUBSTITUTION DATE, SAID
OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON
OR SUBSEQUENT TO THE SUBSTITUTION DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH
UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE
BENEFIT OF THIS INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE
PRICE THEREFOR.
Notwithstanding the foregoing provisions, to the extent that at the
close of the fifth Business Day prior to the proposed Substitution Date, the
Company has not delivered to the Authority, the Trustee and the Remarketing
Agent the items set forth in Section 4.07(i) through (iv) of the Agreement, the
mandatory purchase of Bonds shall be rescinded and the Trustee shall notify the
Owners of such rescission immediately and thereafter the Bonds shall continue to
be secured by the existing Letter of Credit until its termination date.
Section 5.04. Demand Purchase Option. Prior to the Conversion Date, any
Bond shall be purchased at the Purchase Price from the Owner thereof upon:
(i) delivery by such Owner to the Trustee and the Tender
Agent at their Principal Corporate Trust Office and Delivery Office,
respectively, and to the Remarketing Agent at its principal office set forth in
Section 12.08 hereof, of a notice (the "Demand Purchase Notice") (said notice to
be irrevocable and effective upon receipt) which states: (1) the aggregate
principal amount and bond numbers of the Bonds to be purchased; and (2) the date
on which such Bonds are to be purchased, which date shall be a Business Day not
prior to the seventh (7th) day next succeeding the date of delivery of such
notice and which date shall be prior to the Conversion Date;
(ii) if such Bonds are to be purchased prior to an Interest
Payment Date and after the Record Date in respect thereof, delivery to the
Tender Agent together with the Demand Purchase Notice described in (i) above, of
a nonrecourse due-bill, payable to bearer, for interest due on such interest
payment date; and
(iii) delivery to the Tender Agent at its Delivery Office at or prior to 10:00
a.m., New York City time, on the date designated for purchase in the applicable
Demand Purchase Notice of such Bonds to be purchased, with an appropriate
endorsement for transfer or accompanied by a bond power endorsed in blank.
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Any Bond as to which a Demand Purchase Notice has been delivered
pursuant to paragraph (i) above, must be delivered to the Tender Agent, as
provided in (iii) above, and any such Bond not so delivered ("Undelivered
Bonds"), for which there has been irrevocably deposited in trust with the
Trustee or the Tender Agent an amount of money sufficient to pay the Purchase
Price thereof, shall be deemed to have been purchased at the Purchase Price
pursuant to this Section 5.04 and are deemed to be no longer Outstanding with
respect to such tendering Owner. IN THE EVENT OF A FAILURE BY AN OWNER OF BONDS
TO DELIVER ITS BONDS AS SPECIFIED ABOVE, SAID OWNER SHALL NOT BE ENTITLED TO ANY
PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON OR SUBSEQUENT TO THE DATE
DESIGNATED FOR PURCHASE IN THE APPLICABLE DEMAND PURCHASE NOTICE) OTHER THAN THE
PURCHASE PRICE FOR SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO
LONGER BE ENTITLED TO THE BENEFIT OF THE INDENTURE, EXCEPT FOR THE PAYMENT OF
THE PURCHASE PRICE THEREFOR.
Notwithstanding the foregoing provisions, in the event any Bond as to
which the Owner thereof has exercised the Demand Purchase Option is remarketed
to such Owner pursuant to the Remarketing Agreement, such Owner need not deliver
such Bond to the Tender Agent as provided in (iii) above, although such Bond
shall be deemed to have been delivered to the Tender Agent, redelivered to such
Owner, and remarketed for purposes of this Indenture, including, without
limitation, for purposes of adjusting the Floating Rate as provided in Section
2.02(C) hereof.
Section 5.05. Funds for Purchase of Bonds.
(a) On the date Bonds are to be purchased pursuant to Section
5.01, Section 5.03 or Section 5.04 hereof, such Bonds shall be purchased at the
Purchase Price only from the funds listed below. Subject to the provisions of
Section 6.12(b), funds for the payment of the Purchase Price shall be derived
from the following sources in the order of priority indicated:
(i) moneys drawn by the Trustee under the Letter of Credit
(in the event of a drawing on the Letter of Credit to fund payment of the
Purchase Price of Bonds tendered pursuant to Section 5.03 hereof, the Trustee
shall draw on the existing Letter of Credit and not the Substitute Letter of
Credit to fund such payment);
(ii) proceeds of the remarketing of the Bonds; and
(iii) any other Available Moneys furnished to the Trustee
or the Tender Agent and available for such purpose.
(b) Payment for the Bonds purchased pursuant to Sections 5.01,
5.03 or 5.04 shall be made as follows:
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(i) On the Business Day immediately preceding the date on
which such Bonds are to be purchased (the "Purchase Date"), the Trustee shall
make a drawing pursuant to the Letter of Credit in respect of the Purchase Price
of such Bonds. In connection therewith, the Trustee shall prepare and present to
the Bank the appropriate certificates required under the Letter of Credit by
12:00 noon, New York City time on the Business Day immediately preceding the
Purchase Date.
(ii) By not later than 10:00 a.m., New York City time, on
the Purchase Date, the Remarketing Agent shall give telephonic notice, promptly
confirmed in writing, to the Bank, the Trustee and the Tender Agent, specifying:
(1) the total principal amount of Bonds, if any,
remarketed by it; and
(2) the names of the persons to whom such Bonds
were sold and are to be registered, each such
person's address and social security number
or taxpayer identification number, the
denominations in which replacement Bonds are
to be prepared, and any other appropriate
registration and transfer instructions.
(iii) There is hereby established with the Tender Agent a
special fund to be designated the "Bond Purchase Fund" and therein two separate
and segregated accounts to be designated the "Remarketing Account" and the "Bank
Account." An amount equal to the proceeds received by the Trustee pursuant to a
draw under the Letter of Credit shall be transferred by the Trustee in
immediately available funds to the Tender Agent for deposit in the Bank Account
no later than 12:30 p.m., New York City time on the applicable Purchase Date.
(iv) No later than 1:00 p.m., New York City time, on each
Purchase Date, the Tender Agent shall give telephonic notice (promptly confirmed
by telecopy) to the Remarketing Agent of the amount deposited in the Bank
Account on such date. No later than 2:00 p.m., New York City time, on each
Purchase Date the Remarketing Agent shall: (x) transfer to the Bank an amount of
the proceeds of the remarketing of the Bonds equal to the amount deposited in
the Bank Account on such Purchase Date; (y) transfer the remainder of the
proceeds of the remarketing of the Bonds to the Tender Agent for deposit in the
Remarketing Account and shall give telephonic notice (promptly confirmed by
telecopy) to the Tender Agent of the amount of such proceeds transferred to the
Bank; and (z) give telephonic notice, promptly confirmed in writing, to the
Company of the total principal amount of Unremarketed Bonds, if any.
(v) The Tender Agent shall pay the Purchase Price to the
tendering Bondholders from the amounts on deposit in the Bank Account to the
extent available. If amounts on deposit in the Bank Account are insufficient to
pay the Purchase Price to the tendering Bondholders, the Tender Agent shall make
up any such deficiency from amounts on deposit in the Remarketing Account.
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(vi) The Bank shall give telephonic confirmation to the
Tender Agent and the Trustee by 4:00 p.m., New York City time on the applicable
Purchase Date of its receipt of the remarketing proceeds described in Section
5.05(b)(iv) hereof.
Section 5.06. Delivery of Purchased Bonds.
(a) Remarketed Bonds shall be delivered by the Tender Agent, at
its Delivery Office, to or upon the order of the purchasers thereof.
(b) Unremarketed Bonds purchased with funds drawn under the
Letter of Credit shall be delivered by the Tender Agent to the Pledged Bonds
Custodian or otherwise upon the order of the Bank pursuant to the Pledge
Agreement.
(c) Unremarketed Bonds purchased with moneys described in
Section 5.05(a)(iii) hereof shall, at the direction of the Company, be: (i)
delivered as instructed by the Company; or (ii) delivered to the Trustee for
cancellation; provided, however, that any Bonds so purchased after the selection
thereof by the Trustee for redemption shall be delivered to the Trustee for
cancellation.
(d) The Tender Agent shall deliver to the person to whom the
Tender Agent is to deliver such Bonds, the nonrecourse due-bills, if any,
delivered to the Tender Agent with respect to such Bonds in accordance with
Section 5.04 hereof.
Bonds delivered as provided in this Section shall be registered in the
manner directed by the recipient thereof.
Section 5.07. Sale of Bonds by Remarketing Agent.
(a) On each Purchase Date, the Remarketing Agent shall offer
for sale and use its best efforts to sell, as agent of the Company, all Bonds
tendered or deemed tendered for purchase on such Purchase Date at the Purchase
Price thereof and, if such Bonds are not sold on such date, the Remarketing
Agent shall continue, for a period not in excess of thirty (30) days thereafter,
to use its best efforts to sell such Bonds.
(b) Notwithstanding anything to the contrary herein: (i) the
Remarketing Agent shall use its best efforts to remarket any Bonds tendered or
deemed tendered for purchase in such a manner that, immediately following the
remarketing of any Bonds, at least one (1) Holder will own at least $200,000 in
aggregate principal amount of Bonds; and (ii) the Remarketing Agent shall not
remarket any Bonds to the Authority, the Company or any affiliate thereof.
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Section 5.08. Delivery of Proceeds of Sale of Purchased Bonds.
(a) Except in the case of the sale of any Pledged Bonds, the
proceeds of the sale of any Bonds delivered or deemed delivered to the Tender
Agent pursuant to Sections 5.01, 5.03 or 5.04 hereof, to the extent not required
to pay the Purchase Price to tendering Bondholders and not required to reimburse
the Bank under the Reimbursement Agreement, shall be paid to or upon the order
of the Company.
(b) In the event the Remarketing Agent shall have remarketed
any Pledged Bonds and the Company or the Remarketing Agent shall have directed
the Bank to cause the Pledged Bonds Custodian to deliver such Pledged Bonds to
the Tender Agent pursuant to the Pledge Agreement, such Bonds shall be delivered
to the Tender Agent and the proceeds of sale of such Bonds shall be delivered to
the Delivery Office of the Tender Agent, and shall be paid to or upon the order
of the Bank; provided that any amounts so paid in excess of amounts then due to
the Bank in respect of drawings under the Letter of Credit shall be delivered by
the Bank to or upon the order of the Company; provided further that Pledged
Bonds shall not be delivered to the Tender Agent until the Letter of Credit has
been reinstated in accordance with the terms of the Pledge Agreement and the
Letter of Credit.
Section 5.09. Duties of Trustee and Tender Agent with Respect to
Purchase of Bonds.
(a) The Tender Agent shall hold all Bonds delivered to it
pursuant to Sections 5.01, 5.03 or 5.04 hereof in trust for the benefit of the
respective Owners of Bonds which 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 or to the order of such Owners of Bonds. Upon delivery of
monies representing the Purchase Price of such Bonds to or for the account of or
to the order of such Owners of Bonds, the Tender Agent shall deliver all such
Unremarketed Bonds, the funds for which have been obtained by a drawing under
the Letter of Credit, to the Pledged Bonds Custodian pursuant to Section 5.06(b)
hereof for the purpose of perfecting the Bank's security interest therein under
the Pledge Agreement unless the Bank shall direct the Tender Agent to deliver
such Bonds to or upon the order of the Bank in accordance with Section 5.06
hereof.
(b) The Trustee and the Tender Agent shall hold all moneys
delivered to them pursuant to this Indenture for the purchase of Bonds in a
separate account, in trust for the benefit of the Bank or, in the case of
remarketed Bonds, the purchasers of such Bonds, until the Bonds purchased with
such moneys shall have been delivered to or for the account of the Pledged Bonds
Custodian, the Bank or to such other purchaser, as appropriate.
(c) The Trustee shall deliver to the Company and the Bank a
copy of each notice delivered to it in accordance with Section 5.04 within two
(2) days of the receipt thereof.
(d) As soon as possible, but not later than the close of
business on any date designated for purchase of Bonds in accordance with Section
5.04; the Tender Agent shall give
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telephonic or telegraphic notice to the Remarketing Agent and the Trustee
specifying the principal amount of Bonds delivered or deemed delivered for
purchase on such date.
(e) The Trustee shall draw moneys under the Letter of Credit
in accordance with the terms thereof to the extent required by Sections 5.05 and
6.12 hereof to provide for timely payment of the Purchase Price of Bonds.
Section 5.10. No Purchases or Sales After Certain Defaults. Anything in
this Indenture to the contrary notwithstanding, there shall be no purchases or
sales of Bonds pursuant to Section 5.04 if there shall have occurred any Event
of Default in respect of which the principal of all Bonds Outstanding shall have
been declared immediately due and payable pursuant to Section 8.02 and such
declaration shall not have been annulled. If the Trustee shall have given a
notice of a call for redemption pursuant to Section 4.03 hereof and such notice
shall not have been rescinded, the Remarketing Agent shall provide a notice of
such redemption to any prospective purchaser of such Bonds upon the remarketing
of any Bonds tendered pursuant to Section 5.04 hereof. Nothing in this Section
is intended to limit secondary trading or transfer of the Bonds.
ARTICLE VI
REVENUES AND FUNDS
Section 6.01. Creation of the Bond Fund. There is hereby created and
established with the Trustee a trust fund to be designated "Bond Fund" which
shall be used to pay when due the principal and Purchase Price of, premium, if
any, and interest on the Bonds.
Section 6.02. Payments into the Bond Fund. There shall be deposited
into the Bond Fund from time to time the following:
(a) any amount in the Construction Fund directed to be paid
into the Bond Fund in accordance with the provisions of Section 6.07 or Section
6.08 hereof;
(b) any amount deposited into the Bond Fund pursuant to Section
6.04 hereof;
(c) all payments specified in Sections 3.03 and 3.04 of the
Agreement (other than amounts paid for the Trustee's or the Authority's own
account);
(d) any moneys received pursuant to the Collateral Documents;
(e) any moneys drawn under the Letter of Credit which moneys
shall be deposited or credited (in the case of a draw to pay the Purchase Price)
in a separate subaccount of the Bond Fund and shall not be commingled with any
other moneys held by the Trustee;
(f) amounts, if any, held by the Trustee pursuant to Section
5.09 hereof; and
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(g) all other moneys received by the Trustee under and pursuant
to any of the provisions of the Agreement which are required to be or which are
accompanied by directions that such moneys are to be paid into the Bond Fund.
Section 6.03. Use of Moneys in the Bond Fund. Except as provided in
Sections 5.05, 5.09 and 6.11 hereof, moneys in the Bond Fund shall be used
solely for the payment of the principal of, premium, if any, and interest on the
Bonds, for the redemption of the Bonds prior to maturity and for payment of the
Acceleration Price as defined in Section 8.02 hereof. Subject to the provisions
of Section 6.12(b) hereof, funds for such payments of redemption price and
principal of and premium, if any, and interest on the Bonds shall be derived
from the following sources in the order of priority indicated:
(i) moneys drawn by the Trustee under the Letter of
Credit;
(ii) amounts deposited into the Bond Fund which constitute
Available Moneys (other than moneys drawn by the Trustee under the Letter of
Credit); and
(iii) any other moneys furnished to the Trustee and
available for such purpose.
Section 6.04. Custody of Separate Trust Fund. The Trustee is authorized
and directed to hold all Net Proceeds from any insurance proceeds or
condemnation award and disburse such proceeds in accordance with Article VII of
the Agreement. If the Company directs that any portion of such Net Proceeds be
applied to redeem Bonds, the Trustee shall deposit such Net Proceeds in a
separate sub-account of the Bond Fund, and the Authority covenants and agrees to
take and cause to be taken any action requested of the Authority to redeem on
the earliest possible redemption date the amount of Bonds so specified by the
Company.
Section 6.05. Construction Fund. There is hereby created and
established with the Trustee a trust fund to be designated "Construction Fund,"
which shall be expended in accordance with the provisions hereof and of the
Agreement.
Section 6.06. Payments into the Construction Fund; Disbursements. The
Construction Fund shall initially consist of those monies deposited therein
pursuant to Section 3.03(c) hereof. Proceeds of the Bonds deposited in the
Construction Fund shall be applied to pay a portion of the costs of the Project.
The Trustee is hereby authorized and directed to make disbursements from the
Construction Fund upon the receipt of a requisition in the form of Exhibit "C"
which is attached hereto and hereby made a part hereof as though fully set forth
herein, executed by an Authorized Representative of the Company and approved by
the Bank. The Trustee shall keep and maintain adequate records pertaining to the
Construction Fund and all disbursements therefrom, including records of all
Requisitions made pursuant to the Agreement, and the Trustee shall, upon request
of the Company, furnish statements in the form customarily prepared by the
Trustee. The Trustee shall hold all monies and investments from time to time on
deposit in the Construction Fund for the Owners and for the Bank, the rights of
the Bank being subject and subordinate to the rights of the
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Trustee so long as any amount due in respect of the Bonds remains unpaid.
Section 6.07. Use of Money in the Construction Fund Upon Default. If
the principal of the Bonds shall have become due and payable pursuant to Article
VIII hereof, any balance remaining in the Construction Fund shall without
further authorization: (i) prior to the Obligation Termination Date, if any
amounts are due and owing under the Reimbursement Agreement, be transferred
immediately to the Bank, as long as the Bank is not in default of its
obligations under either Letter of Credit; or (ii) after the Obligation
Termination Date, be transferred into the Bond Fund.
Section 6.08. Use of Money in the Construction Fund Upon Completion of
the Project. The completion of the Project and payment or provision for payment
of all Costs of the Project shall be evidenced by the filing with the Trustee of
the certificate required by Section 2.03 of the Agreement. As soon as
practicable and in any event not more than sixty (60) days from the date of
receipt by the Trustee of the certificate referred to in the preceding sentence,
any balance remaining in the Construction Fund (except amounts the Company shall
have directed the Trustee to retain for any Cost of the Project not then due and
payable) shall, without further authorization be transferred into a separate
sub-account within the Bond Fund. Thereafter, such funds shall be transferred by
the Trustee on the next Interest Payment Date to the Letter of Credit Bank to
reimburse the Letter of Credit Bank for a drawing affected pursuant to Section
6.12 hereof.
Section 6.09. Nonpresentment of Bonds. In the event any Bond shall not
be presented for payment when the principal thereof becomes due, either at
maturity, or at the date fixed for redemption thereof, or otherwise, if
Available Moneys sufficient to pay any such Bond shall have been made available
to the Trustee for the benefit of the Owner thereof, all liability of the
Authority to the Owner thereof for the payment of such Bond shall forthwith
cease, determine and be completely discharged, and thereupon it shall be the
duty of the Trustee to hold such funds uninvested, without liability for
interest thereon, for the benefit of the Owner of such Xxxx who shall thereafter
be restricted exclusively to such funds for any claim of whatever nature on his
part under this Indenture with respect to such Xxxx.
Any moneys so deposited with and held by the Trustee not so applied to
the payment of Bonds within five (5) years after the date on which the same
shall have become due shall be repaid by the Trustee to the Company upon written
direction of a Company Representative, and thereafter Owners of Bonds shall be
entitled to look only to the Company for payment, and then only to the extent of
the amount so repaid, and all liability of the Trustee with respect to such
money shall thereupon cease, and the Company shall not be liable for any
interest thereon and shall not be regarded as a trustee of such money.
Section 6.10. Moneys to be Held in Trust. All moneys required to be
deposited with or paid to the Trustee for the account of any fund or account
referred to in any provision of this Indenture or the Agreement shall be held by
the Trustee in trust, and (except for the moneys from time to time required to
be deposited and maintained in the Rebate Fund) shall, while held by the
Trustee, constitute part of the Trust Estate and be subject to the lien and
security interest created hereby.
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Section 6.11. Repayment to the Bank and the Company from the Bond Fund
or the Rebate Fund. Any amounts remaining in the Bond Fund, the Rebate Fund, the
Construction Fund, or any other fund or account created hereunder after payment
in full of the principal of, premium, if any, and interest on the Bonds, the
fees, charges and expenses of the Trustee and all other amounts required to be
paid hereunder, including payment to the United States of the final installment
of the Rebate Amount, if any, pursuant to Section 6.13 hereof, shall be paid as
soon as possible to the Bank unless the Bank notifies the Trustee to the
contrary in writing, in which case such amounts shall be paid directly to the
Company.
Section 6.12. Letter of Credit.
(a) During the term of the Letter of Credit, the Trustee shall
draw moneys under the Letter of Credit in accordance with the terms thereof: (i)
in an amount sufficient to pay when due (whether by reason of maturity,
redemption, conversion, acceleration or otherwise) the principal of, and
interest and, to the extent the Letter of Credit covers same, any premium on the
Bonds; and (ii) in an amount sufficient to pay when due the Purchase Price of
Bonds. Within two (2) Business Days after the last Determination Date of each
month, the Trustee shall give written notice (which notice may be transmitted
via facsimile) to the Company of the amount that the Trustee will draw under the
Letter of Credit on the next Interest Payment Date.
(b) Notwithstanding any provision to the contrary which may be
contained in this Indenture, including, without limitation, Section 6.12(a): (i)
in computing the amount to be drawn under the Letter of Credit on account of the
payment of the principal or Purchase Price of, interest or, to the extent the
Letter of Credit covers same, any premium, on the Bonds, the Trustee shall
exclude any such amounts in respect of any Bonds which it is advised by the
Tender Agent (pursuant to Section 5.09(d) hereof) are Pledged Bonds prior to the
date such payment is due; and (ii) amounts drawn by the Trustee under the Letter
of Credit shall not be applied to the payment of the Purchase Price of any Bonds
which are Pledged Bonds prior to the date such payment is due.
(c) The Letter of Credit shall terminate in accordance with its
terms on the Letter of Credit Termination Date. Upon such termination, the
Trustee shall deliver the terminated Letter of Credit to the Bank, together with
such certificates as may be required by the terms of the Letter of Credit.
Section 6.13. Rebate Fund.
(a) The Trustee shall establish and maintain a fund separate
from any other fund established and maintained hereunder designated as the
Rebate Fund. The Rebate Fund shall be held for the benefit of the United States
and not for the benefit of the Holders of the Bonds, which Holders shall have no
rights in or to such fund.
(b) Subject to subsection (c) of this Section 6.13, as of the
last day of every fifth Bond Year (the "Rebate Computation Date"), the Company,
on behalf of the Authority shall
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calculate, or cause to be calculated, the amount required to be paid to the
United States (the "Rebatable Arbitrage") pursuant to Section 148 of the Code.
On or before the sixtieth day after such date, the Trustee at the direction of,
and upon the receipt of funds from, the Company shall deposit in the Rebate Fund
the amount, if any, needed to increase the amount in such Fund to an amount
equal to ninety percent (90%) of the Rebatable Arbitrage for the period from the
date of issuance of the Bonds to the Rebate Computation Date at issue, or shall
transfer from the Rebate Fund to the Bond Fund the amount, if any, needed to
reduce the amount in the Rebate Fund to 90% of the amount of the Rebatable
Arbitrage for such period.
Subject to subsection (c) of this Section 6.13, as of the
last day on which the last Bond remaining outstanding is retired (the "Final
Computation Date"), the Company, on behalf of the Authority shall calculate, or
cause to be calculated, the amount required to be paid to the United States of
America pursuant to Section 148 of the Code. On or before the sixtieth day after
such date, the Trustee, at the direction of, and upon the receipt of funds from,
the Company, shall deposit in the Rebate Fund the amount, if any, needed to
increase the amount in such Fund to an amount equal to the Rebatable Arbitrage
for the period from the date of issuance of the Bonds to the Final Computation
Date, or shall transfer from the Rebate Fund to the Bond Fund the amount, if
any, needed to reduce the amount in the Rebate Fund to the amount of the
Rebatable Arbitrage for such period.
After making any transfer required for a Rebate
Computation Date and the Final Computation date, the Authority shall immediately
pay or cause to be paid to the United States the amount in the Rebate Fund. The
amounts in the Rebate Fund shall not be subject to the claim of any party,
including any Bondholder, and shall not be paid to any party other than the
United States.
All amounts in the Rebate Fund shall be used and withdrawn
by the Authority or the Trustee solely for the purposes set forth in this
Section. In the event the amount in the Rebate Fund is for any reason
insufficient to pay to the United States the amounts due as calculated in this
Section, the Company, or the Trustee at the direction of, and upon the receipt
of funds from, the Company, shall deposit in the Rebate Fund the amount for such
deficiency.
(c) Notwithstanding the provisions of this Section 6.13,
the Company, on behalf of the Authority, xxxxxx agrees to calculate the amount
to be deposited in the Rebate Fund and the amount to be rebated to the United
States pursuant to Section 148(f) of the Code in any manner not inconsistent
with its arbitrage covenants set forth in its Rebate Agreement delivered on the
date of issuance of the Bonds. Such calculation shall give regard to all
regulations applicable to such Section 148(f) including any temporary
regulations heretofore or hereafter released.
(d) The Authority and the Company agree that the Trustee
shall not be liable for any damages, costs or liabilities resulting from the
performance of the Trustee's duties and obligations under Section 6.13 hereof,
except that the Trustee shall be liable for its gross negligence or willful
misconduct. The Company shall indemnify and hold harmless the Trustee from and
against any liabilities which the Trustee may incur in the exercise and
performance of its duties and
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obligations under Section 6.13 hereof, excepting only those damages, costs,
expenses or liabilities caused by the Trustee's gross negligence or willful
misconduct. In making any deposit or transfer to or payment from the Rebate
Fund, the Trustee shall be entitled to rely solely on the written instructions
of the Company and shall have no duty to examine such written instruments to
determine the accuracy of the Company's calculation of the Rebate Amount or the
amounts to be paid to the United States. In the event that the Company or the
Authority shall not comply with their respective obligations under Section 6.13
of this Indenture, the Trustee shall have no obligation to cause compliance on
their respective behalf.
Section 6.14. Investment of Moneys in Funds. All moneys in any of the
funds established pursuant to this Indenture (except moneys obtained from a draw
on the Letter of Credit, which moneys shall be held uninvested) shall be
invested by the Trustee, as directed in writing by the Company, solely in
Investment Securities except with respect to Available Moneys held by the
Trustee for the payment of Undelivered Bonds, which Available Moneys the Trustee
shall not invest. Investment Securities may be purchased at such prices as the
Trustee may in its discretion determine or as may be directed by the Company.
All Investment Securities shall be acquired subject to the limitations set forth
in Section 7.06, the limitations as to maturities hereinafter in this Section
set forth and such additional limitations or requirements consistent with the
foregoing as may be established by request of the Company.
To the extent the Bank has not been reimbursed under the Reimbursement
Agreement and has notified the Trustee of same in writing, all interest, profits
and other income received from the investment of moneys in any fund established
pursuant to this Indenture shall be transferred to the Bank in the amount
specified by the Bank. Otherwise, such amounts shall be deposited to the
appropriate fund or account in which such investments were made. Notwithstanding
anything to the contrary contained in this paragraph, an amount of interest
received with respect to any Investment Security equal to the amount of accrued
interest, or premium paid, if any, paid as part of the purchase price of such
Investment Security shall be credited to the fund from which such accrued
interest was paid.
Investment Securities acquired as an investment of moneys in any fund
established under this Indenture shall be credited to such fund. For the purpose
of determining the amount in any fund, all Investment Securities credited to
such fund shall be valued at the lesser of cost or par value plus, prior to the
first payment of interest following purchase, the amount of accrued interest, if
any, paid as a part of the purchase price.
The Trustee may act as principal or agent in the making or disposing of
any investment. The Trustee may sell or present for redemption, any Investment
Securities so purchased whenever it shall be necessary to provide moneys to meet
any required payment, transfer, withdrawal or disbursement from the fund to
which such Investment Security is credited, and the Trustee shall not be liable
or responsible for any loss resulting from such investment.
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ARTICLE VII
PARTICULAR COVENANTS
Section 7.01. Punctual Payment. The Authority shall punctually pay or
cause to be paid the principal, premium, if any, and interest to become due in
respect of all the Bonds, in strict conformity with the terms of the Bonds and
of this Indenture, according to the true intent and meaning thereof, but only
out of Revenues and other assets pledged for such payment as provided in this
Indenture.
Section 7.02. Extension of Payment of Bonds. The Authority shall not
directly or indirectly extend or assent to the extension of the maturity of any
of the Bonds or the time of payment of any claims for interest by the purchase
or funding of such Bonds or claims for interest or by any other arrangement and
in case the maturity of any of the Bonds or the time of payment of any such
claims for interest shall be extended, such Bonds or claims for interest shall
not be entitled, in case of any default hereunder, to the benefits of this
Indenture, except subject to the prior payment in full of the principal of all
of the Bonds then outstanding and of all claims for interest thereon which shall
not have been so extended. Nothing in this Section shall be deemed to limit the
right of the Authority to issue Bonds for the purpose of refunding any
Outstanding Bonds, and such issuance shall not be deemed to constitute an
extension of maturity of Bonds.
Section 7.03. Against Encumbrances. The Authority shall not create, or
permit the creation of, any pledge, lien, charge or other encumbrance upon the
Revenues and other assets pledged or assigned under this Indenture while any of
the Bonds are Outstanding, except the pledge and assignment created by this
Indenture and will assist the Trustee in contesting any such pledge, lien,
charge or other encumbrance which may be created. Subject to this limitation,
the Authority expressly reserves the right to enter into one or more other
indentures for any of its corporate purposes, including other programs under the
Act, and reserves the right to issue other obligations for such purposes.
Section 7.04. Power to Issue Bonds and Make Pledge and Assignment. The
Authority represents and covenants that it is duly authorized pursuant to law to
issue the Bonds and to enter into this Indenture and to pledge and assign the
Revenues and other assets pledged and assigned, respectively, under this
Indenture in the manner and to the extent provided in this Indenture. The Bonds
and the provisions of this Indenture are and will be the legal, valid and
binding limited obligations of the Authority in accordance with their terms, and
the Authority and Trustee shall at all times, to the extent permitted by law,
defend, preserve and protect said pledge and assignment of Revenues and other
assets and all the rights of the Bondholders under this Indenture against all
claims and demands of all Persons whomsoever.
Section 7.05. Accounting Records and Financial Statements. (A) The
Trustee shall at all times keep, or cause to be kept, proper books of record and
account as shall be consistent with prudent industry practice, in which complete
and accurate entries shall be made of all transactions relating to the proceeds
of Bonds, the Revenues, the Agreement and all funds established pursuant to this
Indenture. Such books of record and account shall be available for inspection by
the
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Authority, the Company, the Bank and any bondholder, or his agent or
representative duly authorized in writing, at reasonable hours and under
reasonable circumstances.
(B) The Trustee shall within 30 days after the end of each
month furnish to the Company a monthly statement (which need not be audited)
covering receipts, disbursements, allocation and application of Revenues and any
other moneys (including proceeds of Bonds) in any of the funds and accounts
established pursuant to this Indenture for such month.
Section 7.06. Tax Covenants. The Authority covenants, and the Company
has covenanted, not to take any action, or fail to take any action, if any such
action or failure to take action would adversely affect the exclusion from gross
income of the interest on the Bonds under Section 103 and Sections 141 through
150, inclusive, of the Code. The Authority and the Company will not directly or
indirectly use or permit the use of any proceeds of the Bonds or any other funds
of the Authority or the Company, or take or omit to take any action that would
cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code. To that end, the Authority and the Company will comply with all
requirements of Section 148 of the Code to the extent applicable to the Bonds.
In the event that at any time the Authority or the Company is of the opinion
that for purposes of this Section 7.06 it is necessary to restrict or limit the
yield on the investment of any moneys held by the Trustee under this Indenture,
the Agreement or otherwise, the Authority or the Company shall so instruct the
Trustee in writing, and the Trustee shall take such action as shall be set forth
in such instructions. The covenants of the Authority contained in the Agreement
are fully incorporated herein by reference and are made a part of this Indenture
as if fully set forth herein.
Without limiting the generality of the foregoing, the Authority and the
Company agree that there shall be paid, from time to time, all amounts required
to be rebated to the United States pursuant to Section 148(f) of the Code and
any temporary, proposed or final Treasury Regulations as may be applicable to
the Bonds from time to time. This covenant shall survive payment in full or
defeasance of the Bonds. The Authority and the Company specifically covenant to
pay or cause to be paid to the United States at the times and in the amounts
determined under Section 6.13 hereof the Rebate Amounts, as described in the
Rebate Certificate.
Notwithstanding any provision of this Section and Section 6.13 hereof,
if the Company shall provide to the Authority and the Trustee an opinion of
nationally recognized bond counsel to the effect that any action required under
this Section and Section 6.13 hereof is no longer required, or to the effect
that some further action is required, to maintain the exclusion from gross
income of interest on the Bonds, the Authority, the Trustee and the Company may
rely conclusively on such opinion.
Section 7.07. Other Covenants. (A) The Trustee shall promptly collect
all amounts due from the Company pursuant to the Agreement, and upon an Event of
Default (as defined in the Agreement) shall perform all duties imposed upon it
pursuant to the Agreement and shall diligently enforce, and take all steps,
actions and proceedings reasonably necessary for the enforcement of all of the
rights of the Authority and all of the obligations of the Company.
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(B) The Authority shall not amend, modify or terminate any
of the terms of the Agreement, or consent to any such amendment, modification or
termination, without the written consent of the Trustee. The Trustee shall give
such written consent only if (1) notification of such amendment, modification or
termination has been given to each rating agency then rating the Bonds and to
the Holders, (2) the Trustee receives the written consent of the Bank, (3)(i)
such amendment, modification or termination will not materially adversely affect
the interests of the Bondholders or result in any material impairment of the
security hereby given for the payment of the Bonds or (ii) the Trustee first
obtains the written consent of the Bank and the Holders of a majority in
principal amount of the Bonds then Outstanding to such amendment, modification
or termination and provides notice of such amendment, modification or
termination and of such written consent to the Holders, provided that no such
amendment, modification or termination shall reduce the amount of installment
sale payments to be made to the Authority or the Trustee by the Company pursuant
to the Agreement, or extend the time for making such payments, without the
written consent of all of the Holders of the Bonds then Outstanding, and (4) the
Authority shall have delivered to the Trustee an opinion of Counsel satisfactory
to the Trustee that all of the provisions and conditions set forth in this
Section 7.07(B) have been satisfied.
Section 7.08. Waiver of Laws. The Authority shall not at any time
insist upon or plead in any manner whatsoever, or claim or take the benefit or
advantage of, any stay or extension provided by law now or at any time hereafter
in force that may affect the covenants and agreements contained in this
Indenture or in the Bonds, and all benefit or advantage of any such law or laws
is hereby expressly waived by the Authority to the extent permitted by law.
Section 7.09. Further Assurances. The Authority will make, execute and
deliver any and all such further indentures, instruments and assurances as may
be reasonably necessary or proper to carry out the intention or to facilitate
the performance of this Indenture and for the better assuring and confirming
unto the Holders of the Bonds of the rights and benefits provided in this
Indenture.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
Section 8.01. Events of Default. The following events shall be Events
of Default:
(a) default in the due and punctual payment of the principal of
any Bond when and as the same shall become due and payable, whether at maturity
as therein expressed, by proceedings for redemption, by acceleration, or
otherwise; or
(b) default in the due and punctual payment of any installment
of interest on any Bond when and as the same shall become due and payable; or
(c) failure to pay the purchase price on any Bond tendered
pursuant to Article V when such payment is due; or
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(d) default by the Authority in the observance of any of the
other covenants, agreements or conditions on its part in this Indenture or in
the Bonds, if such default shall have continued for a period of sixty (60) days
after written notice thereof, specifying such default and requiring the same to
be remedied, shall have been given to the Authority by the Trustee, or to the
Authority and the Trustee by the Holders of not less than twenty-five per cent
(25%) in aggregate principal amount of the Bonds at the time Outstanding; or
(e) if there occurs an Event of Default as defined in Sections
8.01(a) through (d) of the Agreement; or
(f) the Trustee's receipt of written notice from the Bank that
the Bank has declared an Event of Default under the provisions of the
Reimbursement Agreement and instructing the Trustee to declare the principal
amount of the Outstanding Bonds to be immediately due and payable; or
(g) if, at any time after a draw under the Letter of Credit,
the Trustee shall have received notice from the Bank that the amount of such
draw corresponding to the payment of interest on the Bonds shall not be
reinstated in the amount and in the manner set forth in the Letter of Credit.
Upon actual knowledge of the existence of any Event of Default, the
Trustee shall, as soon as practicable, notify the Bank, the Company, the
Authority, the Tender Agent and the Remarketing Agent. Anything contained in
this Indenture to the contrary notwithstanding: (i) no Event of Default under
subsections (d) or (e) above shall occur without the prior written consent of
the Bank so long as the Bank is not in default under the terms of the Letter of
Credit; and (ii) the Trustee shall not notify bondholders of the existence of
any Event of Default without the prior written consent of the Bank (except upon
the occurrence of an Event of Default under subsections 8.01(f) or (g) hereof),
as long as the Bank is not in default under the terms of the Letter of Credit.
Section 8.02. Acceleration. If any Event of Default under Section 8.01
hereof occurs, the Trustee (with the written consent of the Bank provided the
Bank is not in default of its obligations under the Letter of Credit) may, and
upon request of the Owners of 25% in principal amount of the Bonds then
Outstanding shall, by written notice to the Authority, the Bank and the Company,
declare the principal amount of all Bonds then Outstanding and the interest
accrued thereon to such date (the "Acceleration Date") to be due and the
Acceleration Price (as such phrase is hereinafter defined) shall thereupon
become payable on the first (lst) Business Day following the Acceleration Date
(the "Payment Date"). Thereupon, the Trustee, among other things, shall draw
immediately upon the Letter of Credit as set forth in Section 6.12 hereof.
Interest on the accelerated Bonds shall cease to accrue on the Acceleration
Date. Accelerated Bonds shall be payable at a price equal to 100% of the
aggregate principal amount thereof plus interest accrued to the Acceleration
Date (the "Acceleration Price"). Notwithstanding anything contained herein to
the contrary, upon the occurrence of an Event of Default described in Section
8.01(f) or (g), the Trustee shall, by written notice to the Bank, the Company
and the Authority declare immediately due and payable the principal amount of,
and interest accrued on, the Outstanding Bonds.
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Any such declaration is subject to the condition that if, at any time
after such declaration and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered, the Letter of Credit shall have
been reinstated in full as to principal and interest and the reasonable charges
and expenses of the Trustee, and any and all other defaults known to the Trustee
(other than in the payment of principal of and interest on the Bonds due and
payable solely by reason of such declaration) shall have been made good or cured
to the satisfaction of the Trustee or provision deemed by the Trustee to be
adequate shall have been made therefor, then, and in every such case, the
Holders of not less than 25% in aggregate principal amount of the Bonds then
Outstanding, by written notice to the Authority, the Bank, the Company and the
Trustee, or the Trustee if such declaration was made by the Trustee, may, on
behalf of the Holders of all of the Bonds, rescind and annul such declaration
and its consequences and waive such default; but such rescission and annulment
shall not extend to or affect any subsequent default, and shall not impair or
exhaust any right or power in consequence thereof. The foregoing to the contrary
notwithstanding, Owners of 25% in principal amount of the Bonds then outstanding
shall have no right to request the Trustee to accelerate the Bonds under this
Section 8.02 and the Trustee shall not be obligated to give any Bondholder
notice of a default under the Indenture (except upon the occurrence of an Event
of Default under Section 8.01(f) or (g) hereof), the Agreement or any other
documents executed and delivered in connection with the Bonds without the prior
written consent of the Bank, unless the Bank shall be in default of its
obligations under the Letter of Credit or a voluntary or involuntary case has
been commenced by the filing of a petition under the Bankruptcy Code or any
other law relating to bankruptcy, insolvency, reorganization, winding-up or
composition or adjustment of debts by or against the Bank.
Upon any declaration of acceleration hereunder, the Trustee shall as
soon as possible give written notice of the acceleration to the Bondholders as
set forth below. In addition, notice of such acceleration shall be mailed, by
registered or certified mail or overnight mail, to the rating agency then rating
the Bonds, if any, but failure to mail any such notice or any defect in the
mailing thereof shall not affect the validity of such acceleration. Such notice
of acceleration: (i) shall be given in the name of the Authority; (ii) shall
identify the accelerated Bonds (by name, date of issue, interest rate and
maturity date); (iii) shall specify the Acceleration Date; (iv) shall specify
the Payment Date and the Acceleration Price; (v) shall state that the interest
on the accelerated Bonds ceased to accrue on the Acceleration Date; (vi) shall
state the reason for the acceleration; and (vii) shall state that on the Payment
Date the Acceleration Price will be payable at the principal corporate trust
office of the Trustee. The Trustee shall use "CUSIP" numbers on such notices as
a convenience to Bondholders and such notice shall state that no representation
is made as to the correctness of such "CUSIP" numbers either as printed on the
Bonds or as contained in any notice of acceleration and that reliance may be
placed on the registration and description printed on the Bonds.
Upon acceleration pursuant to this Section 8.02, the Trustee shall
immediately exercise such rights as it may have under the Agreement to declare
all payments thereunder to be immediately due and payable and shall immediately
draw upon the Letter of Credit as provided in Section 6.12 hereof in an amount
that, together with any Available Moneys on deposit in the Bond Fund (excluding
Available Moneys held by the Trustee for the Owner of any Bond not presented for
payment as
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provided in Section 6.09 hereof) and irrevocably committed to the payment of
principal of and interest on the Bonds, is sufficient to pay the Acceleration
Price due on the Outstanding Bonds on the Payment Date.
Upon receipt by the Trustee of any amount from the Bank under the
preceding paragraphs of this Section 8.02 (or after receipt by the Trustee of
any amounts from the Bank under any other provision of this Indenture), the Bank
shall be subrogated to the right, title and interest of the Trustee and the
Bondholders in and to the Agreement, the Project Facilities and any other
security held for the payment of the Bonds (other than said funds), all of
which, upon payment of any fees and expenses due and payable to the Trustee
pursuant to the Agreement or this Indenture, shall be assigned by the Trustee to
the Bank.
Section 8.03. Other Remedies. If any Event of Default occurs and is
continuing, the Trustee, before or after declaring the principal of the Bonds
immediately due and payable, may enforce each and every right granted to the
Authority or the Trustee under the Indenture, the Agreement, the Letter of
Credit or any other security instrument, or under any supplements or amendments
thereto, and shall, at all times complying with the provisions of Section 8.02
hereof, apply any Revenues or Available Moneys in the Bond Fund held by the
Trustee to the payment of principal of or interest on the Bonds. In exercising
such rights and the rights given the Trustee under this Article VIII, the
Trustee shall take such action, as in the judgment of the Trustee, applying the
standards described in Section 9.01 hereof, would best serve the interests of
the Bondholders.
Section 8.04. Legal Proceedings by Trustee. If any Event of Default has
occurred and is continuing, the Trustee in its discretion may and, upon the
written request of the Bank or the Owners of 25% in principal amount of the
Bonds then Outstanding (subject to the consent of the Bank, as long as the Bank
is not in default of its obligations under the Letter of Credit or a voluntary
or involuntary case has not been commenced by the filing of a petition under the
Bankruptcy Code or any other law relating to bankruptcy, insolvency,
reorganization, winding-up or composition or adjustment of debts by or against
the Bank) and receipt of indemnity to its satisfaction shall, in its own name:
(A) by mandamus, other suit, action or proceeding at law or
in equity, enforce all rights of the Bondholders, including the right to require
the Authority to collect the amounts payable under the Agreement and to require
the Authority to carry out any other provisions of this Indenture for the
benefit of the Bondholders and to perform its duties under the Act;
(B) bring suit upon the Bonds;
(C) by action or suit in equity require the Authority to
account as if it were the trustee of an express trust for the Bondholders; and
(D) by action or suit in equity enjoin any acts or things
that may be unlawful or in violation of the rights of the Bondholders.
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Section 8.05. Discontinuance of Proceedings by Trustee. If any
proceeding taken by the Trustee on account of any Event of Default is
discontinued or is determined adversely to the Trustee, the Authority, the
Trustee, the Bondholders and the Bank shall be restored to their former
positions and rights hereunder as though no such proceeding had been taken, but
subject to the limitations of any such adverse determination.
Section 8.06. Bondholders May Direct Proceedings. The Holders of a
majority in principal amount of the Bonds Outstanding hereunder shall have the
right to direct the method and place of conducting all remedial proceedings by
the Trustee hereunder, provided that such direction shall not be otherwise than
in accordance with law or the provisions of this Indenture, and that the Trustee
shall not be required to comply with any such direction which it deems to be
unlawful or unjustly prejudicial to Bondholders not parties to such direction.
The foregoing provisions of this Section 8.06 to the contrary notwithstanding,
as long as the Bank shall not be in default under the Letter of Credit, the Bank
shall have the right to direct the method and the place of conducting all
remedial proceedings by the Trustee hereunder provided that such direction shall
not be otherwise than in accordance with law or the provisions of this
Indenture.
Section 8.07. Limitations on Actions by Bondholders. Anything in this
Indenture to the contrary notwithstanding, no bondholder shall have any right to
pursue any remedy hereunder or under the Agreement unless:
(a) the Trustee shall have been given written notice of an
Event of Default;
(b) the holders of at least 25% in aggregate principal amount
of the Bonds Outstanding shall have requested the Trustee, in writing, to
exercise the powers hereinabove granted or to pursue such remedy in its or their
name or names;
(c) the Trustee shall have been offered indemnity satisfactory
to it against costs, expenses and liabilities;
(d) the Trustee shall have failed to comply with such request
within a reasonable time; and
(e) the Bank shall be in default of its obligations under the
Letter of Credit or a voluntary or involuntary case has been commenced by the
filing of a petition under the Bankruptcy Code or any other law relating to
bankruptcy, insolvency, reorganization, winding-up or composition or adjustment
of debts by or against the Bank; provided, however, that nothing herein shall
affect or impair the right of any Owner of any Bond to enforce payment of the
principal thereof and interest thereon at and after the maturity thereof, or the
obligation of the Authority to pay such principal and interest to the respective
Owners of the Bonds at the time and place, from the source and in the manner
expressed herein and in the Bonds, provided further that such action shall not
disturb or prejudice the lien of this Indenture.
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Section 8.08. Trustee May Enforce Rights Without Possession of Bonds.
All rights under the Indenture and the Bonds may be enforced by the Trustee
without the possession of any Bonds or the production thereof at the trial or
other proceedings relative thereto, and any proceedings instituted by the
Trustee shall be brought in its name for the ratable benefit of the Owners of
the Bonds.
Section 8.09. Delays and Omissions Not to Impair Rights. No delay or
omission in respect of exercising any right or power accruing upon any Event of
Default shall impair such right or power or be a waiver of such Event of Default
and every remedy given by this Article VIII may be exercised, from time to time,
and as often as may be deemed expedient.
Section 8.10. Application of Moneys in Event of Default. Any money
received by the Trustee under this Article VIII shall be applied in the order
listed below (provided that any money received by the Trustee upon a drawing
under the Letter of Credit together with Available Moneys on deposit in the Bond
Fund and available for payment of principal and interest on all Outstanding
Bonds, any money held by the Trustee upon the nonpresentment of Bonds and any
money held by the Trustee for the defeasance of Bonds pursuant to Article XI
shall be applied only as provided in clause (B) below and only to pay
outstanding principal and accrued interest, as provided in the Letter of Credit,
with respect to the Bonds):
(A) To the payment of the fees and expenses of the Trustee
and the Authority including reasonable counsel fees and expenses, and any
disbursements of the Trustee with interest thereon and its reasonable
compensation;
(B) To the payment of principal and interest then owing on
the Bonds, including any interest on overdue interest, and in case such money
shall be insufficient to pay the same in full, then to the payment of principal
and interest ratably, without preference or priority of one over another or of
any installment of principal or interest over any other installment of principal
or interest; and
The surplus, if any, remaining after the application of the money as
set forth above shall to the extent of any unreimbursed drawing under the Letter
of Credit, or other obligations owing by the Company to the Bank under the
Reimbursement Agreement, be paid to the Bank. Any remaining money shall be paid
to the Company or the person lawfully entitled to receive the same as a court of
competent jurisdiction may direct.
Section 8.11. Trustee and Bondholders Entitled to All Remedies Under
Act; Remedies Not Exclusive. It is the purpose of this Article VIII to provide
to the Trustee and the Bondholders all rights and remedies as may be lawfully
granted under the provisions of the Act; but should any remedy herein granted be
held unlawful, the Trustee and the Bondholders shall nevertheless be entitled to
every remedy permitted by the Act. It is further intended that, insofar as
lawfully possible, the provisions of this Article VIII shall apply to and be
binding upon any trustee or receiver appointed under the Act.
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No remedy herein conferred is intended to be exclusive of any other
remedy or remedies, and each remedy is in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Section 8.12. Trustee's Right to Receiver. As provided by the Act, the
Trustee shall be entitled as of right to the appointment of a receiver; and the
Trustee, the Bondholders and any receiver so appointed shall have such rights
and powers and be subject to such limitations and restrictions as may be
contained in or permitted by the Act.
Section 8.13. Subrogation Rights of Bank. The Trustee agrees that the
Bank or other provider of a Substitute Letter of Credit shall be subrogated to
all rights, remedies and collateral of the Trustee under the Indenture, the
Agreement or any other document or instrument, to the extent the Bank or other
provider of a Substitute Letter of Credit has honored a draw under the Letter of
Credit or Substitute Letter of Credit, as the case may be, and has not been
reimbursed or paid therefor.
Section 8.14. Waiver of Default. As long as the Bank is not in default
of its obligations under the Letter of Credit and the Letter of Credit is in
full force and effect, the Bank may waive an Event of Default and if the Bank
does so, the Trustee must also waive such Event of Default. The Trustee may not
waive an Event of Default under this Indenture if the Letter of Credit has not
been reinstated to cover principal and interest on the Bonds in accordance with
the terms of the Letter of Credit.
ARTICLE IX
THE TRUSTEE, THE TENDER AGENT
AND THE REMARKETING AGENT
Section 9.01. Duties, Immunities and Liabilities of Trustee. (A) The
Trustee shall, prior to an Event of Default, and after the curing of all Events
of Default which may have occurred, perform such duties and only such duties as
are specifically set forth in this Indenture. The Trustee shall, during the
existence of any Event of Default (which has not been cured or waived), 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) At the written direction of the Company, the Authority
shall remove the Trustee if at any time requested to do so by an instrument or
concurrent instruments in writing executed by the Holders of not less than a
majority in aggregate principal amount of the Bonds then Outstanding (or their
attorneys duly authorized in writing) or if at any time the Trustee shall cease
to be eligible to act in such capacity, or shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or its
property shall be appointed, or any public officer shall take control or charge
of the Trustee or of its property or affairs for the purpose of
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rehabilitation, conservation or liquidation, in each case by giving written
notice of such removal to the Trustee, and thereupon shall appoint, with the
consent of the Bank and the Company, a successor Trustee by an instrument in
writing.
(C) The Trustee may at any time resign by giving written
notice of such resignation to the Authority, the Company and the Bank and by
giving the Bondholders notice of such resignation by mail at the addresses shown
on the registration books maintained by the Trustee. Upon receiving such notice
of resignation, the Authority shall promptly appoint, with the consent of the
Bank and the Company, a successor Trustee by an instrument in writing.
(D) Any removal or resignation of the Trustee and
appointment of a successor Trustee shall become effective upon acceptance of
appointment by the successor Trustee. If no successor Trustee shall have been
appointed and have accepted appointment within forty-five (45) days of giving
notice of removal or notice of resignation as aforesaid, the resigning Trustee
or any Bondholder (on behalf of himself and all other Bondholders) may petition
any court of competent jurisdiction for the appointment of a successor Trustee,
and such court may thereupon, after such notice (if any) as it may deem proper,
appoint such successor Trustee. Any successor Trustee appointed under this
Indenture, shall signify its acceptance of such appointment by executing and
delivering to the Authority and to its predecessor Trustee a written acceptance
thereof, and thereupon such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the moneys, estates, properties,
rights, powers, trusts, duties and obligations of such predecessor Trustee, with
like effect as if originally named Trustee herein; but, nevertheless at the
request of the Authority or the request of the successor Trustee, such
predecessor Trustee shall execute and deliver any and all instruments of
conveyance or further assurance and do such other things as may reasonably be
required for more fully and certainly vesting in and confirming to such
successor Trustee all the right, title and interest of such predecessor Trustee
in and to any property held by it under this Indenture and shall pay over,
transfer, assign and deliver to the successor Trustee any money or other
property subject to the trusts and conditions herein set forth. Upon request of
the successor Trustee, the Authority shall execute and deliver any and all
instruments as may be reasonably required for more fully and certainly vesting
in and confirming to such successor Trustee all such moneys, estates,
properties, rights, powers, trusts, duties and obligations. Upon the acceptance
of the appointment by a successor Trustee as provided in this subsection, the
Authority shall mail a notice of the succession of such Trustee to the trusts
hereunder to the Rating Agency and to the Bondholders at the addresses shown on
the registration books maintained by the Trustee. If the Authority fails to mail
such notice within fifteen (15) days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be mailed at
the expense of the Authority.
(E) Any Trustee appointed under the provisions of this
Section in succession to the Trustee shall be a trust company or bank having the
powers of a trust company, having a corporate trust office in the Commonwealth,
having a combined capital and surplus of at least One Hundred Million Dollars
($100,000,000), subject to supervision or examination by federal or state
authorities and shall be rated at least Baa3/P-3 by Xxxxx'x if the Bonds are
then rated by Xxxxx'x
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or has received written evidence from Xxxxx'x that the use of such Trustee would
not result in a reduction or withdrawal of the rating on the Bonds. If such bank
or trust company publishes a report of condition at least annually, pursuant to
law or to the requirements of any supervising or examining authority above
referred to, then for the purpose of this subsection the combined capital and
surplus of such bank or trust company shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published.
Section 9.02. Merger or Consolidation. Any company into which the
Trustee may be merged or converted or with which it may be consolidated or any
company resulting from any merger, conversion or consolidation to which it shall
be a party or any company to which the Trustee may sell or transfer all or
substantially all of its corporate trust business, provided such company shall
be eligible under subsection (E) of Section 9.01, shall be the successor to such
Trustee without the execution or filing of any paper or any further act,
anything herein to the contrary notwithstanding.
Section 9.03. Liability of Trustee. (A) The recitals of facts herein
and in the Bonds contained shall be taken as statements of the Authority, and
the Trustee shall assume no responsibility for the correctness of the same, or
make any representations as to the validity or sufficiency of this Indenture or
of the Bonds or shall incur any responsibility in respect thereof, other than in
connection with the duties or obligations herein or in the Bonds assigned to or
imposed upon it. The Trustee shall, however, be responsible for its
representations contained in its certificate of authentication on the Bonds. The
Trustee shall not be liable in connection with the performance of its duties
hereunder, except for its own gross negligence or willful misconduct. The
Trustee may become the owner of Bonds with the same rights it would have if it
were not Trustee and, to the extent permitted by law, may act as depositary for
and permit any of their officers or directors to act as a member of, or in any
other capacity with respect to, any committee formed to protect the rights of
Bondholders, whether or not such committee shall represent the Holders of a
majority in principal amount of the Bonds then Outstanding.
(B) The Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts.
(C) The Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in aggregate principal
amount of the Bonds at the time Outstanding relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Indenture.
(D) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture (other than the making of
a draw under the Letter of Credit in accordance with its terms and the terms
hereof, declaring the principal of the Bonds to be immediately due and payable
when required hereunder or making payments on the Bonds when due)
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at the request, order or direction of any of the Bondholders pursuant to the
provisions of this Indenture unless such Bondholders shall have offered to the
Trustee indemnification to its satisfaction for indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby.
(E) The Trustee shall not be liable for any action taken by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
Section 9.04. Right of Trustee to Rely on Documents. The Trustee may
conclusively rely, and shall be protected in acting upon any notice, resolution,
request, consent, order, certificate, report, opinion, bond or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Trustee may consult with counsel, who may be
counsel of or to the Authority, with regard to legal questions, and the opinion
of such counsel shall be full and complete authorization and protection in
respect of any action taken or suffered by it hereunder in good faith and in
accordance therewith.
The Trustee shall not be bound to recognize any person as the Holder of
a Bond unless and until such Bond is submitted for inspection, if required, and
his title thereto is satisfactorily established, if disputed.
Whenever in the administration of the trusts imposed upon it by this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
Certificate of the Authority, and such Certificate shall be full warrant to the
Trustee for any action taken or suffered in good faith under the provisions of
this Indenture in reliance upon such Certificate, but in its discretion the
Trustee may, in lieu thereof, accept other evidence of such matter or may
require such additional evidence as it may deem reasonable.
Section 9.05. Preservation and Inspection of Documents.
(A) All documents received by the Trustee under the
provisions of this Indenture shall be retained in its possession and shall be
subject during normal business hours of the Trustee to the inspection of the
Authority, the Company and any Bondholder, and their agents and representatives
duly authorized in writing, at reasonable hours and under reasonable conditions.
(B) The Trustee covenants and agrees that it shall maintain
a current list of the names and addresses of all the Bondholders.
Section 9.06. Compensation. The Trustee shall be paid (solely from
Additional Payments) from time to time reasonable compensation for all services
rendered under this Indenture, and also all reasonable expenses, charges, legal
and consulting fees and other disbursements and those of its
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attorneys, agents and employees, incurred in and about the performance of its
powers and duties under this Indenture.
Section 9.07. The Tender Agent. Dauphin Deposit Bank and Trust Company,
the initial Tender Agent appointed by the Company, and each successor tender
agent appointed in accordance herewith, shall designate its office and signify
its acceptance of the duties and obligations imposed upon it as described herein
by a written instrument of acceptance delivered to the Trustee and the Company
under which the Tender Agent shall, among other things:
(a) hold all Bonds delivered to it hereunder in trust for the
benefit of the respective Owners of Bonds which 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 or to the order of such Owners of Bonds. Upon
delivery of moneys representing the Purchase Price of such Bonds to or for the
account of or to the order of such Owners of Bonds, the Tender Agent shall hold
all such Bonds which are required to be delivered to the Pledged Bonds Custodian
pursuant to Section 5.06(b) hereof, as the agent of the Bank for the purpose of
perfecting the Bank's security interest therein under the Pledge Agreement
(which agency shall terminate upon delivery of such Bonds by the Tender Agent to
or upon the order of the Bank in accordance with such Section 5.06(b); and
(b) hold all moneys delivered to it hereunder and under the
Tender Agent Agreement for the purchase of such Bonds in a separate account in
trust for the benefit of the person or entity which shall have so delivered such
moneys until required to transfer such funds as provided herein.
Section 9.08. Qualifications of Tender Agent.
(a) The Tender Agent shall be a bank or trust company duly
organized under the laws of the United States or any state or territory thereof,
having a combined capital stock, surplus and undivided profits of at least Fifty
Million Dollars ($50,000,000) or that is a wholly-owned subsidiary of such a
bank or trust company, and authorized by law to perform all duties imposed upon
it by this Indenture and shall be rated at least Baa3/P-3 by Xxxxx'x if the
Bonds are then rated by Xxxxx'x, or has received written evidence from Xxxxx'x
that the use of such Tender Agent would not result in a reduction or withdrawal
of the rating on the Bonds. The Tender Agent may at any time resign and be
discharged of its duties and obligations by giving at least sixty (60) days'
written notice to the Authority, the Trustee, the Remarketing Agent, the Bank,
and the Company; provided that such resignation shall not take effect until the
appointment of a successor Tender Agent, and in accordance with the provisions
hereof. Upon the written approval of the Bank, the Tender Agent may be removed
at any time by the Company upon written notice to the Authority, the Trustee and
the Remarketing Agent. Successor Tender Agents may be appointed from time to
time by the Company, with the prior written consent of the Bank.
(b) Upon the resignation or removal of the Tender Agent, the
Tender Agent shall deliver any Bonds and moneys held by it in such capacity to
its successor.
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(c) The Tender Agent shall have the same rights and immunities
granted to the Trustee hereunder.
Section 9.09. Qualifications of Remarketing Agent; Resignation;
Removal. The Remarketing Agent shall be a financial institution or registered
broker/dealer authorized by law to perform all the duties imposed upon it by
this Indenture. The Remarketing Agent may at any time resign and be discharged
of its duties and obligations created by this Indenture giving at least thirty
(30) days' written notice to the Authority, the Company and the Trustee. The
Remarketing Agent may be removed at any time, upon not less than thirty (30)
days' written notice from the Company filed with the Trustee. Upon the
resignation or removal of the Remarketing Agent, the Company shall appoint a
successor Remarketing Agent and shall provide written notice thereof to the
Trustee. The resignation or removal of the Remarketing Agent shall not become
effective until a successor Remarketing Agent is appointed and accepts such
appointment. If the Bonds are rated by a Rating Agency, any successor
Remarketing Agent shall be rated at least Baa3/P-3 or otherwise be acceptable to
such Rating Agency.
Section 9.10. Construction of Ambiguous Provisions. The Trustee may
construe any provision hereof insofar as such may appear to be ambiguous or
inconsistent with any other provision hereof; and any construction of any such
provision by the Trustee, in good faith shall be binding upon the Owners of the
Bonds.
ARTICLE X
MODIFICATION OR AMENDMENT OF THE INDENTURE
Section 10.01. Amendments Permitted. This Indenture and the rights and
obligations of the Authority, of the Trustee and of the Holders of the Bonds may
be modified or amended, from time to time, and at any time, for any lawful
purpose, by an indenture or indentures supplemental hereto, which the Authority
and the Trustee may enter into without the consent of any Bondholders but with
the prior written consent of the Company and the Bank (as long as the Bank is
not in default under the Letter of Credit). The foregoing to the contrary
notwithstanding, no such modification or amendment shall, without the written
consent of the Company and the holders of all Bonds then Outstanding: (i) extend
the maturity date of any Bond; (ii) reduce the amount of principal thereof;
(iii) extend the time of payment or change the method of computing the rate of
interest thereon, without the consent of the Holder of each Bond so affected, or
eliminate the Holders' rights to tender the Bonds; (iv) extend the due date for
the purchase of Bonds tendered by the Holders thereof; or (v) reduce the
purchase price of such Bonds. It shall not be necessary for the consent of the
Bondholders to approve the particular form of any Supplemental Indenture, but it
shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Authority and the Trustee of any
Supplemental Indenture pursuant to this Section 10.01, the Trustee shall mail a
notice, setting forth in general terms the substance of such Supplemental
Indenture, to each rating agency then rating the Bonds and the Holders of the
Bonds at the address shown on the registration books of the Trustee. Any failure
to give such notice, or any defect therein, shall not, however, in
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any way impair or affect the validity of any such Supplemental Indenture.
Section 10.02. Effect of Supplemental Indenture. Upon the execution of
any Supplemental Indenture pursuant to this Article, this Indenture shall be
deemed to be modified and amended in accordance therewith, and the respective
rights, duties and obligations under this Indenture of the Authority, the
Trustee and all Holders of Bonds Outstanding shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modification
and amendment, and all the terms and conditions of any such Supplemental
Indenture shall be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 10.03. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to join with the
Authority in the execution and delivery of any supplemental indenture or
amendment permitted by this Article X and in so doing shall be fully protected
by an opinion of Counsel that such supplemental indenture or amendment is so
permitted and has been duly authorized by the Authority and that all things
necessary to make it a valid and binding agreement have been done.
ARTICLE XI
DEFEASANCE
Section 11.01. Discharge of Indenture. The Bonds may be paid by the
Authority in any of the following ways, provided that the Authority also pays or
causes to be paid any other sums payable hereunder by the Authority:
(a) by paying or causing to be paid the principal of and
interest on the Bonds of such Series, as and when the same become due and
payable;
(b) with respect to Bonds which bear interest at a Fixed Rate,
by depositing with the Trustee, in trust, Available Moneys or securities
purchased with Available Moneys in the necessary amount (as provided in Section
11.03) to pay or redeem all Bonds then Outstanding; or
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(c) by delivering to the Trustee, for cancellation by it, the
Bonds then Outstanding.
If the Authority shall also pay or cause to be paid all Bonds then
Outstanding and shall also pay or cause to be paid all other sums payable
hereunder by the Authority, then and in that case, at the election of the
Authority (evidenced by a Certificate of the Authority filed with the Trustee,
signifying the intention of the Authority to discharge all such indebtedness and
this Indenture), and notwithstanding that any Bonds shall not have been
surrendered for payment, this Indenture, the assignment of the Agreement and the
pledge of Revenues and other assets made under this Indenture and all covenants,
agreements and other obligations of the Authority under this Indenture shall
cease, terminate, become void and be completely discharged and satisfied. In
such event, upon request of the Authority, the Trustee shall cause an accounting
for such period or periods as may be requested by the Authority to be prepared
and filed with the Authority and shall execute and deliver to the Authority all
such instruments, as prepared by or caused to be prepared by the Authority, that
may be necessary or desirable to evidence such discharge and satisfaction, and
the Trustee shall pay over, transfer, assign or deliver all moneys or securities
or other property held by it pursuant to this Indenture, which are not required
for: (i) the payment of all the charges and reasonable expenses of the Trustee
under this Indenture; (ii) the payment or redemption of Bonds not theretofore
surrendered for such payment or redemption; (iii) the payment of amounts owed to
the Bank by the Company under the Reimbursement Agreement, to the Company; or
(iv) the payment of any and all sums due to the United States pursuant to
Section 6.13 hereof.
Section 11.02. Discharge of Liability on Bonds. During the Fixed Rate
Period, upon the deposit with the Trustee, in trust, at or before maturity, of
money or securities in the necessary amount (as provided in Section 11.03) to
pay or redeem any Outstanding Bond (whether upon or prior to the end of the
Fixed Rate Period or the redemption date of such Bond), provided that, if such
Bond is to be redeemed prior to maturity, notice of such redemption shall have
been given as in Article IV provided or provision satisfactory to the Trustee
shall have been made for the giving of such notice, then all liability of the
Authority in respect of such Bond shall cease, terminate and be completely
discharged, and the Holder thereof shall thereafter be entitled only to payment
out of such money or securities deposited with the Trustee as aforesaid for
their payment, subject, however, to the provisions of Section 11.04.
The Authority may at any time surrender to the Trustee for cancellation
by it any Bonds previously issued and delivered, which the Authority may have
acquired in any manner whatsoever, and such Bonds, upon such surrender and
cancellation, shall be deemed to be paid and retired.
Section 11.03. Deposit of Money or Securities with Trustee. During the
Fixed Rate Period, whenever in this Indenture it is provided or permitted that
there be deposited with or held in trust by the Trustee money or securities in
the necessary amount to pay or redeem any Bonds, the money or securities so to
be deposited or held shall be cash or Government Obligations, which Government
Obligations shall be noncallable and not subject to prepayment, the principal of
and interest on which when due will provide money sufficient to pay the
principal of, premium, if any, and all
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unpaid interest to maturity, or to the redemption date, as the case may be, on
the Bonds to be paid or redeemed, as such principal, premium, if any, and
interest become due, provided that, in the case of Bonds which are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given as provided in Article IV or provision satisfactory to the Trustee
shall have been made for the giving of such notice; provided, in each case, that
the Trustee shall have been irrevocably instructed (by Request of the Authority)
to apply such money to the payment of such principal and interest with respect
to such Bonds.
Whenever Government Obligations are deposited with the Trustee in
accordance with Section 11.03 hereof, the Company shall provide to the Trustee
and the Rating Agency: (i) a verification report from an independent public
accountant, satisfactory in form and content to the Trustee, demonstrating that
the Government Obligations so deposited and the income therefore shall be
sufficient to pay the principal of, premium, if any, and all unpaid interest to
maturity, or to the redemption date, as the case may be, on the Bonds to be paid
or redeemed, as such principal or premium, if any, and interest become due; and
(ii) an opinion acceptable to the Rating Agency, of nationally recognized
bankruptcy counsel, to the effect that the provision for payment of the Bonds
contemplated to be made pursuant to this Section 11.03 will not constitute or
result in such payments constituting voidable preferences under Section 547 of
the Bankruptcy Code.
Section 11.04. Payment of Bonds After Discharge of Indenture.
Notwithstanding any provisions of this Indenture, any moneys held by the Trustee
in trust for the payment of the principal of, premium, if any, or interest on,
any Bonds and remaining unclaimed for five years after the principal of all of
the Bonds has become due and payable (whether at maturity or upon call for
redemption or by acceleration as provided in this Indenture), if such moneys
were so held at such date, or five years after the date of deposit of such
moneys if deposited after said date when all of the Bonds became due and
payable, shall be repaid to the Company, upon its written request, free from the
trusts created by this Indenture and all liability of the Trustee with respect
to such moneys shall thereupon cease; provided, however, that before the
repayment of such moneys to the Company as aforesaid, the Trustee may (at the
cost and request of the Company) first mail to the Holders of Bonds which have
not been paid, at the addresses last shown on the registration books maintained
by the Trustee, a notice, in such form as may be deemed appropriate by the
Trustee with respect to the Bonds so payable and not presented and with respect
to the provisions relating to the repayment to the Company of the moneys held
for the payment thereof.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Liability of Authority Limited to Revenues.
Notwithstanding anything to the contrary contained in this Indenture or in the
Bonds, the Authority shall not be required to advance any moneys derived from
any source other than the Revenues and other assets pledged under this Indenture
for any of the purposes in this Indenture mentioned, whether for the payment of
the principal of or interest on the Bonds or for any other purpose of this
Indenture.
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Notwithstanding any provisions of this Indenture to the contrary, no recourse
under or upon any obligation, covenant or agreement contained herein or in any
Bond shall be had against the Authority, it being expressly agreed and
understood that the obligations of the Authority hereunder, and under the Bonds
and elsewhere, are solely corporate obligations of the Authority and shall be
enforceable only out of the Authority's interest in this Indenture and the
Agreement (except for the Authority's rights to payment of certain costs, fees
and expenses as set forth in this Indenture, the Agreement and elsewhere) and
there shall be no other recourse against the Authority or any property now or
hereafter owned by it and after entry of judgment against the Authority by
virtue of the power herein contained, the Authority shall mark the judgment
index to the effect that the judgment is limited as aforesaid.
Section 12.02. Limitation of Liability of Directors, Etc., of
Authority. No covenant, agreement, provision or obligation contained herein
shall be deemed to be a covenant, agreement or obligation of any present or
future director, commissioner, officer, employee, member or agent of the
Authority in his individual capacity, and neither the members of the Authority
nor any officer thereof shall be liable personally on this Indenture or any of
the Bonds or be subject to any personal liability or accountability by reason of
the issuance thereof or this Indenture. No director, commissioner, officer,
employee, member or agent of the Authority shall incur any personal liability
with respect to any other action taken by him pursuant to this Indenture or the
Act. Notwithstanding anything contained herein to the contrary, the liability of
the Authority, including its officers, members, and employees, under any and all
of the documentation executed in connection with the issuance of the Bonds shall
not constitute its general obligation and recourse against the Authority on the
documentation executed in connection with the issuance of the Bonds shall be had
only against the property specifically pledged as security therefor and any
rents, issues or profits thereof. It is expressly understood that the Authority
shall not otherwise be obligated and that none of its members, officers, or
employees shall be in any way obligated for any costs, expenses, fees or other
obligations or liabilities incurred or imposed in connection with the issuance
of the Bonds, whether incurred prior to or after closing, and that recourse
against the Authority and its members, officers, or employees, shall be limited
as set forth herein.
Section 12.03. Covenant Not to Sue. The forms of Bonds provide that the
owners of the Bonds agree not to sue the Authority or any of its board members,
officers, agents or employees, past, present or future except as provided herein
and in the Agreement as a condition of, and in consideration for, the issuance
of the Bonds; accordingly, except as provided herein and in the Agreement, the
Trustee shall not be permitted to sue the Authority, on behalf of the owners of
the Bonds.
Section 12.04. Successor Is Deemed Included in All References to
Predecessor. Whenever in this Indenture either the Authority or the Trustee is
named or referred to, such reference shall be deemed to include the successors
or assigns thereof, and all the covenants and agreements in this Indenture
contained by or on behalf of the Authority or the Trustee shall bind and inure
to the benefit of the respective successors and assigns thereof whether so
expressed or not.
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Section 12.05. Limitation of Rights to Parties, Bank, Company and
Bondholders. Nothing in this Indenture or in the Bonds expressed or implied is
intended or shall be construed to give to any person other than the Authority,
the Trustee, the Bank, the Company and the Holders of the Bonds, any legal or
equitable right, remedy or claim under or in respect of this Indenture or any
covenant, condition or provision therein or herein contained; and all such
covenants, conditions and provisions are and shall be held to be for the sole
and exclusive benefit of the Authority, the Trustee, the Bank, the Company and
the Holders of the Bonds.
Section 12.06. Waiver of Notice. Whenever in this Indenture the giving
of notice by mail or otherwise is required, the giving of such notice may be
waived in writing by the person entitled to receive such notice and in any such
case the giving or receipt of such notice shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
Section 12.07. Severability of Invalid Provisions. If any one or more
of the provisions contained in this Indenture or in the Bonds shall for any
reason be held to be invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from the remaining provisions
contained in this Indenture and such invalidity, illegality or unenforceability
shall not affect any other provision of this Indenture, and this Indenture shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein. The Authority hereby declares that it would have entered
into this Indenture and each and every other Section, paragraph, sentence,
clause or phrase hereof and authorized the issuance of the Bonds pursuant
thereto irrespective of the fact that any one or more Sections, paragraphs,
sentences, clauses or phrases of this Indenture may be held illegal, invalid or
unenforceable.
Section 12.08. Notices. All notices to Bondholders shall be given by
telex, telegram, telecopier or other telecommunication device unless otherwise
provided herein and confirmed in writing as soon as practicable. All such
notices shall also be sent to the Holder and any person designated by any Holder
to receive copies of such notices. Any notice to or demand upon the Trustee may
be served or presented, and such demand may be made, at the Principal Corporate
Trust Office of the Trustee, or at such other address as may have been filed in
writing by the Trustee with the Authority. Any notice to or demand upon the
Trustee, the Authority, the Company, the Remarketing Agent, the Tender Agent or
the Bank shall be deemed to have been sufficiently given or served for all
purposes by being delivered or sent by telex or by being deposited, postage
prepaid, in a post office letter box, addressed, as the case may be,
To the Trustee: Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
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To the Authority: Xxxxxxxxxx County Industrial Development Authority
0 Xxxxx Xxxxx Office Center
Norristown, Pennsylvania 19401
Attention: Executive Director
(or such other address as may have been filed in writing by the Authority with
the Trustee),
To the Company: Apple Fresh Foods Limited
Box 000
Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Controller
(or such other address as may have been filed in writing by the Company with the
Trustee),
To the Remarketing Agent: CoreStates Capital Markets
000 Xxxx Xxxxxx
Xxxx Xxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Sales and Underwriting Department
(or such other address as may have been filed in writing by the Remarketing
Agent with the Trustee),
To the Tender Agent: Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
(or such other address as may have been filed in writing by the Tender Agent
with the Trustee),
To the Bank: CoreStates Bank, N.A.
Great Valley Corporate Center
00 Xxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxxx, Vice President
(or such other address as may have been filed in writing by the Bank with the
Trustee).
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Section 12.09. Evidence of Rights of Bondholders. Any request, consent
or other instrument required or permitted by this Indenture to be executed by
Bondholders may be in any number of concurrent instruments of substantially
similar tenor and shall be signed or executed by such Bondholders in person or
by an agent or agents duly appointed in writing. Proof of the execution of any
such request, consent or other instrument or of a writing appointing any such
agent, or of the holding by any person of Bonds transferable by delivery, shall
be sufficient for any purpose of this Indenture and shall be conclusive in favor
of the Trustee and of the Authority if made in the manner provided in this
Section.
The fact and date of the execution by any person of any such request,
consent or other instrument or writing may be proved by the certificate of any
notary public or other officer of any jurisdiction, authorized by the laws
thereof to take acknowledgments of deeds, certifying that the person signing
such request, consent or other instrument acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution duly sworn to before
such notary public or other officer.
The ownership of Bonds shall be proved by the bond registration books
held by the Trustee.
Any request, consent, or other instrument or writing of the Holder of
any Bond shall bind every future Holder of the same Bond and the Holder of every
Bond issued in exchange therefor or in lieu thereof, in respect of anything done
or suffered to be done by the Trustee or the Authority in accordance therewith
or in reliance thereon.
Section 12.10. Disqualified Bonds. In determining whether the Holders
of the requisite aggregate principal amount of Bonds have concurred in any
demand, request, direction, consent or waiver under this Indenture, Bonds which
are owned or held by or for the account of the Authority or the Company, or by
any other obligor on the Bonds, or by any person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
the Authority, the Company, or any other obligor on the Bonds, shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination. Bonds so owned which have been pledged in good faith may be
regarded as Outstanding for the purposes of this Section if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Bonds and that the pledgee is not a person directly or indirectly controlling or
controlled by, or under direct or indirect common control with, the Authority or
the Company, or any other obligor on the Bonds. In case of a dispute as to such
right, any decision by the Trustee taken upon the advice of counsel shall be
full protection to the Trustee.
Section 12.11. Money Held for Particular Bonds. The money held by the
Trustee for the payment of the interest, principal or premium due on any date
with respect to particular Bonds (or portions of Bonds in the case of registered
Bonds redeemed in part only) shall, on and after such date and pending such
payment, be set aside on its books and held uninvested in trust by it for the
Holders of the Bonds entitled thereto, subject, however, to the provisions of
Section 11.04 hereof.
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Section 12.12. Funds. Any fund required by this Indenture to be
established and maintained by the Trustee may be established and maintained in
the accounting records of the Trustee, either as a fund or an account, and may,
for the purposes of such records, any audits thereof and any reports or
statements with respect thereto, be treated either as a fund or as an account;
but all such records with respect to all such funds shall at all times be
maintained in accordance with current industry standards, to the extent
practicable, and with due regard for the requirements of Section 7.05 hereof and
for the protection of the security of the Bonds and the rights of every holder
thereof.
Section 12.13. Payments Due on Days other than Business Days. If a
payment day is not a Business Day at the place of payment, then payment may be
made at that place on the next Business Day and no interest shall accrue for the
intervening period.
Section 12.14. Execution in Several Counterparts. This Indenture may be
executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original; and all such counterparts, or as many
of them as the Authority and the Trustee shall preserve undestroyed, shall
together constitute but one and the same instrument.
Section 12.15. Notices to Rating Agency. Written notice shall be
provided by the Trustee to each Rating Agency of: (i) the appointment of any
successor Trustee, Tender Agent, Paying Agent or Remarketing Agent; (ii) any
Supplemental Indenture or any amendment to the Agreement or the Letter of
Credit; (iii) the expiration, termination, extension or substitution of the
Letter of Credit; (iv) the payment of all Outstanding Bonds; (v) the conversion
of the Bonds to the Fixed Rate; (vi) the mandatory tender of Bonds in accordance
with Sections 5.01 or 5.03 hereof; or (vii) the acceleration of the Bonds. Any
notice required to be delivered to Moody's hereunder shall be deemed to have
been sufficiently given or served for all purposes by being delivered or by
being deposited, postage prepaid, in a post office letter box, addressed to
Xxxxx'x Investors Service, 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention, Secured Finance Group.
-65-
IN WITNESS WHEREOF, XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
has caused this Indenture to be executed in its name by its Chairperson or Vice
Chairman and attested by its Secretary, and DAUPHIN DEPOSIT BANK AND TRUST
COMPANY, as evidence of its acceptance of the trusts created hereunder, has
caused this Indenture to be signed in its corporate name by its duly authorized
officer and attested, all as of the day and year first above written.
XXXXXXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
By__________________________________
Chairperson
(Vice) Chairman
[SEAL]
Attest:_______________________________
(Assistant) Secretary
DAUPHIN DEPOSIT BANK AND TRUST
COMPANY, as Trustee and Tender Agent
By_____________________________________
Authorized Officer
[SEAL]
Attest:________________________________
Authorized Officer
-66-
EXHIBIT "A"
No. VR- (FLOATING RATE FORM OF BOND) $1,000,000
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Authority or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner (the
"Registered Owner") hereof, Cede & Co., has an interest herein.
XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
VARIABLE RATE DEMAND/FIXED RATE
REVENUE BOND
(APPLE FRESH FOODS LTD PROJECT)
SERIES OF 1996
MATURITY DATE: December 1, 2016 CUSIP______________
DATE OF ISSUANCE: December 26, 1996
THIS BOND IS SUBJECT TO MANDATORY TENDER FOR PURCHASE AT THE TIME AND
IN THE MANNER HEREINAFTER DESCRIBED, AND MUST BE SO TENDERED OR WILL BE DEEMED
TO HAVE BEEN SO TENDERED UNDER CERTAIN CIRCUMSTANCES DESCRIBED HEREIN.
KNOW ALL MEN BY THESE PRESENTS that the XXXXXXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY (the "Authority"), for value received, promises to pay
from the source and as hereinafter provided, to CEDE & CO. or registered
assigns, on the maturity date hereof (or upon prior redemption as hereinafter
provided), upon surrender hereof, the principal sum of One Million Dollars
($1,000,000), and in like manner to pay interest on said sum at the rate
described below on the first Wednesday of each calendar month, or if such date
is not a Business Day, the next succeeding Business Day and on the Conversion
Date (hereinafter defined), commencing February 5, 1997 (each an "Interest
Payment Date"), from the Interest Payment Date next preceding the date of
authentication hereof to which interest has been paid or duly provided for,
unless the date of authentication hereof is an Interest Payment Date to which
interest has been paid or duly provided for, in which case from the date of
authentication hereof, or unless no interest has been paid or duly provided for
on the Bonds (as hereinafter defined), in which case from the date of issuance
set forth above (the "Date of Issuance"), until payment of the principal hereof
has been
A-1
made or duly provided for. Notwithstanding the foregoing, if this Bond is
authenticated after any date which is the seventh calendar day next preceding
any Interest Payment Date (a "Record Date") and before the following Interest
Payment Date, this Bond shall bear interest from such Interest Payment Date;
provided, however, that if the Authority shall default in the payment of
interest due on such Interest Payment Date, then this Bond shall bear interest
from the next preceding Interest Payment Date to which interest has been paid or
duly provided for, or, if no interest has been paid or duly provided for on the
Bonds, from the Date of Issuance. The principal of this Bond is payable in
lawful money of the United States of America at the principal corporate trust
office of Dauphin Deposit Bank and Trust Company, as trustee (together with its
successors in trust, the "Trustee") or at the duly designated office of any
successor Trustee under the Trust Indenture, dated December 26, 1996, between
the Authority and the Trustee (which, as from time to time amended and
supplemented, is hereinafter referred to as the "Indenture"). Payment of
interest on this Bond shall be made on each Interest Payment Date to the
registered Owner hereof as of the applicable Record Date and shall be paid by
check mailed by the Trustee to such registered Owner at his address as it
appears on the registration books of the Authority or at such other address as
is furnished to the Trustee in writing by such registered Owner, or in such
other manner as may be permitted by the Indenture. The purchase price (the
amount equal to 100% of the principal amount of any Bond tendered or deemed
tendered pursuant to the terms of the Indenture plus accrued and unpaid interest
thereon to the date of purchase (the "Purchase Price") of this Bond shall be
payable by Dauphin Deposit Bank and Trust Company (together with any successor
Tender Agent, the "Tender Agent") to the registered Owner hereof at the
principal corporate trust office of the Tender Agent. As used herein, the term
"Business Day" means any day other than: (i) a Saturday or Sunday; (ii) a legal
holiday or any day on which banking institutions in the State of New York, the
Commonwealth of Pennsylvania, the City of New York, or the city in which the
principal office of the Trustee, the Tender Agent or the Bank are authorized to
remain closed; or (iii) a day on which the New York Stock Exchange is closed.
This Bond is one of the duly authorized bonds designated as the
Variable Rate Demand/Fixed Rate Revenue Bonds (Apple Fresh Foods Ltd Project)
Series of 1996 of the Authority issued in the aggregate principal amount of
$1,000,000 (herein referred to as the "Bonds") under and by virtue of the
Pennsylvania Economic Development Financing Law, Act of August 23, 1967, P.L.
251, as amended and supplemented (the "Act"), and by virtue of a resolution duly
adopted by the Authority (the "Bond Resolution"), and equally and ratably
secured under the Indenture, for the purpose of raising funds to finance a
portion of the costs of a project consisting of, among other things: (i) the
acquisition, construction, installation and renovation of certain equipment to
be used in connection with a cook-chill system of batch food processing; and
(ii) the payment of a portion of the costs of issuing the Bonds (the "Project").
Pursuant to a Loan Agreement, dated December 26, 1996 (the "Agreement") by and
between the Authority and Apple Fresh Foods Limited, a Pennsylvania corporation
(the "Company"), installment payments sufficient for the prompt payment when due
of the principal and Purchase Price of, premium, if any, and interest on the
Bonds are to be paid to the Trustee for the account of the Authority and
deposited in the Bond Fund established by the Indenture and have been duly
pledged for that purpose, all to the extent and in the manner provided in the
Indenture.
A-2
The Bonds are all issued under and are equally and ratably secured by
and entitled to the protection of the Indenture, pursuant to which all payments
due from the Company to the Authority under the Agreement (other than certain
indemnification payments and the payment of certain expenses of the Authority)
are assigned to the Trustee to secure the payment of the principal and Purchase
Price of, and premium, if any, and interest on the Bonds and certain costs, fees
and expenses of the Trustee. The Company has caused to be delivered to the
Trustee an irrevocable direct pay letter of credit (together with any Substitute
Letter of Credit, the "Letter of Credit") issued by CoreStates Bank, N.A. (in
such capacity, the "Bank") and dated the Date of Issuance of the Bonds, which
will expire, unless earlier terminated or extended, on December 24, 2000.
Subject to certain conditions, the Letter of Credit may be replaced by a
Substitute Letter of Credit of another commercial bank, savings and loan
association or savings bank. Under the Letter of Credit, the Trustee will be
entitled to draw up to an amount sufficient to pay: (a) the principal of the
Bonds or the portion of the Purchase Price corresponding to the principal of the
Bonds; and (b) accrued interest (at the maximum rate of 15% per annum based on
365/366 day year and the actual number of days elapsed) on the Bonds or the
portion of the Purchase Price of the Bonds corresponding to accrued interest
thereon.
Reference is hereby made to the Indenture, the Agreement and the Letter
of Credit for a description of the property pledged and assigned, the
provisions, among others, with respect to the nature and extent of the security,
the rights, duties and obligations of the Authority, the Trustee and the Owners
of the Bonds and the terms upon which the Bonds are issued and secured; and the
Owner of this Bond, by acceptance hereof, hereby consents to the terms and
provisions of all of the foregoing as a material portion of the consideration
for the issuance of this Bond.
This Bond shall bear interest as follows:
(A) From the Date of Issuance of this Bond to the Conversion
Date, this Bond shall bear interest at the "Floating Rate." The "Floating Rate"
shall be a variable rate of interest equal to the minimum rate of interest
necessary, in the sole judgment of the Remarketing Agent (hereinafter defined),
to sell the Bonds on any Business Day at a price equal to the principal amount
thereof, exclusive of accrued interest, if any, thereon. The Floating Rate shall
be determined weekly by CoreStates Capital Markets, a division of CoreStates
Bank, N.A., Reading, Pennsylvania (the "Remarketing Agent") by 9:30 a.m. on each
Wednesday (or if such Wednesday is not a Business Day, on the next succeeding
Business Day) and shall be effective on such Wednesday for the immediately
following Weekly Period (as hereinafter defined), all as more fully set forth in
the Indenture. The determination of the Floating Rate shall be conclusive and
binding upon the Authority, the Trustee, the Bank, the Company, the Remarketing
Agent, the Tender Agent and the Owners of this Bond.
Anything herein to the contrary notwithstanding, the Floating
Rate shall in no event exceed 15% per annum.
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(B) The Bonds shall bear interest at the "Fixed Rate" from and
after the Conversion Date. In such event, the Fixed Rate shall be applicable
until the maturity of the Bonds. The "Fixed Rate" shall be a fixed annual
interest rate on the Bonds established by the Remarketing Agent as the rate of
interest for which the Remarketing Agent has received commitments on or prior to
the 5th Business Day preceding the Conversion Date, at a price of par without
discount or premium.
Prior to the Conversion Date, interest on the Bonds shall be computed
on the basis of a 365/366-day year, actual number of days elapsed. On and after
the Conversion Date, interest on the Bonds shall be computed on the basis of a
360-day year of twelve 30-day months.
As used herein, the term "Conversion Date" means the Optional
Conversion Date; the term "Letter of Credit Termination Date" means the later
of: (i) that date upon which the Letter of Credit shall expire or terminate
pursuant to its terms; or (ii) that date to which the expiration or termination
of the Letter of Credit may be extended, from time to time, either by extension
or renewal of the existing Letter of Credit or the issuance of a Substitute
Letter of Credit (as such phrase is defined in the Indenture); the term
"Optional Conversion Date" means that date on or after February 5, 1997 which
shall be a Business Day, from and after which the interest rate on the Bonds is
converted from the Floating Rate to the Fixed Rate as a result of the exercise
by the Company of the Conversion Option; the term "Conversion Option" means the
option granted to the Company in the Indenture pursuant to which the interest
rate on the Bonds is converted from the Floating Rate to the Fixed Rate as of
the Optional Conversion Date; the term "Purchase Price" means an amount equal to
100% of the principal amount of any Bond tendered or deemed tendered for
purchase pursuant to the Indenture or with respect to which the Demand Purchase
Option has been exercised, plus accrued and unpaid interest thereon to the date
of purchase.
The interest rate on the Bonds may be converted from the Floating Rate
to the Fixed Rate upon satisfaction of certain conditions and notice given by
the Trustee at the direction of the Company to the Owners of the Bonds at least
twenty (20) days but not more than thirty (30) days prior to the Conversion Date
in accordance with the requirements of the Indenture, and the Bonds shall be
subject to mandatory tender by the Owners thereof on the Conversion Date. On and
after the Conversion Date, the Demand Purchase Option will not be available to
the Owners of the Bonds. On or prior to the Conversion Date, an Owner of Bonds,
shall be required to deliver their Bonds to the Tender Agent for purchase at the
Purchase Price. Accrued interest on the Bonds will be payable on the Conversion
Date to the Owners of Bonds as of the Conversion Date. Any Bonds not delivered
to the Tender Agent on or prior to the conversion Date ("Undelivered Bonds"),
for which there has been irrevocably deposited in trust with the Trustee or the
Tender Agent an amount of money sufficient to pay the Purchase Price of the
Undelivered Bonds, shall be deemed to have been purchased at the Purchase Price
and are deemed to be no longer outstanding with respect to such prior Owners. IN
THE EVENT OF A FAILURE BY AN OWNER OF BONDS TO DELIVER ITS BONDS ON OR PRIOR TO
THE CONVERSION DATE, SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING
ANY INTEREST TO ACCRUE ON OR SUBSEQUENT TO THE CONVERSION DATE) OTHER THAN THE
PURCHASE PRICE FOR
A-4
SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO
THE BENEFIT OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE
PRICE THEREFOR.
Notwithstanding the foregoing provisions, to the extent that at the
close of the fifth Business Day prior to the proposed Optional Conversion Date,
the Remarketing Agent has not presented to the Company firm commitments for the
purchase of all of the Bonds, the Company, at its option, may rescind an
optional conversion of the Bonds. Any such election to rescind must be made by
the close of the fourth Business Day prior to the proposed Conversion Date and
the Company shall give written notice to the Trustee, the Tender Agent and the
Bank of its decision to rescind the optional conversion by such time. The
Company shall cause the Trustee to immediately notify the Owners of such
rescission and thereafter the Bonds shall bear interest at the Floating Rate in
effect for the then current Weekly Period and thereafter the Bonds shall bear
interest at the Floating Rate until any subsequent Conversion Date effected in
accordance with the Indenture. As used herein, "Weekly Period" means, while this
Bond bears interest at the Floating Rate, the weekly period that begins on and
includes Wednesday of each calendar week and ends at the close of business on
Tuesday of the next succeeding week.
At any time prior to the Record Date preceding the first Interest
Payment Date following the Conversion Date, the Trustee or the Tender Agent, as
the case may be, shall deliver a replacement Bond evidencing interest payable at
the Fixed Rate.
Prior to the Conversion Date, this Bond shall be purchased, at the
option of the Owner hereof ("Demand Purchase Option") at the Purchase Price,
upon:
(a) delivery by such Owner to the Trustee and the Tender Agent
at their principal corporate trust office and Delivery Office (hereinafter
defined) respectively, and to the Remarketing Agent at its principal office of a
notice (a "Demand Purchase Notice") (said notice to be irrevocable and effective
upon receipt) which states: (i) the aggregate principal amount and the bond
numbers of Bonds to be purchased; and (ii) the date on which such Bonds are to
be purchased, which date shall be a Business Day not prior to the seventh (7th)
day next succeeding the date of delivery of such notice and which date shall be
prior to the Conversion Date;
(b) if such Bonds are to be purchased prior to an Interest
Payment Date and after the Record Date in respect thereof, delivery to the
Tender Agent together with the Demand Purchase Notice described in (a) above, of
a non-recourse due-bill, payable to bearer, for interest due on such Interest
Payment Date; and
(c) delivery to the Tender Agent at its Delivery Office
(hereinafter defined) at or prior to 10:00 a.m., New York City time, on the date
designated for purchase in the applicable Demand Purchase Notice of such Bonds
to be purchased with an appropriate endorsement for transfer or accompanied by a
bond power endorsed in blank.
A-5
Any Bond as to which a Demand Purchase Notice has been delivered
pursuant to (a) above, must be delivered to the Tender Agent as provided in (c)
above, and any such Bonds not so delivered ("Undelivered Bonds"), for which
there has been irrevocably deposited in trust with the Trustee or the Tender
Agent an amount of money sufficient to pay the Purchase Price thereof, shall be
deemed to have been purchased at the Purchase Price and are deemed to be no
longer outstanding with respect to such tendering Owner. IN THE EVENT OF A
FAILURE BY AN OWNER OF BONDS TO DELIVER ITS BONDS AS SPECIFIED ABOVE, SAID OWNER
SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON OR
SUBSEQUENT TO THE DATE DESIGNATED FOR PURCHASE IN THE APPLICABLE DEMAND PURCHASE
NOTICE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNDELIVERED BONDS, AND ANY
UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFIT OF THE INDENTURE,
EXCEPT FOR THE PAYMENT OF THE PURCHASE PRICE THEREFOR.
Notwithstanding the foregoing provisions, in the event any Bond as to
which the Owner thereof has exercised the Demand Purchase Option is remarketed
to such Owner pursuant to the Remarketing Agreement, such Owner need not deliver
such Bond to the Tender Agent as provided in (c) above, although such Bond shall
be deemed to have been delivered to the Tender Agent, redelivered to such Owner,
and remarketed for purposes of the Indenture.
The Agreement provides that the Company, upon satisfaction of certain
conditions precedent, may, at any time, at its option, provide for the delivery
to the Trustee of a Substitute Letter of Credit. The Bonds shall be subject to
mandatory tender by the Owners thereof on the date of delivery of the Substitute
Letter of Credit (the "Substitution Date"). On or prior to the Substitution
Date, Owners of Bonds shall be required to deliver their Bonds to the Tender
Agent for purchase at the Purchase Price. Accrued interest on the Bonds will be
payable on the Substitution Date to the Owners of Bonds as of the Substitution
Date. Any Bonds not delivered to the Tender Agent on or prior to the
Substitution Date ("Undelivered Bonds"), for which there has been irrevocably
deposited in trust with the Trustee or the Tender Agent an amount of money
sufficient to pay the Purchase Price of the Undelivered Bonds, shall be deemed
to have been purchased at the Purchase Price and are deemed to be no longer
outstanding with respect to such Owners. IN THE EVENT OF A FAILURE BY AN OWNER
OF BONDS TO DELIVER ITS BONDS ON OR PRIOR TO THE SUBSTITUTION DATE, SAID OWNER
SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON OR
SUBSEQUENT TO THE SUBSTITUTION DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH
UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE
BENEFIT OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE
PRICE THEREFOR.
Any delivery of a notice required to be made to the Trustee at its
principal corporate trust office pursuant to (a) above shall be delivered to the
Trustee at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention
Corporate Trust Services, or to the office designated for such purpose by any
successor Trustee; any delivery of a notice required to be made to the
Remarketing
A-6
Agent at its principal office pursuant to (a) above shall be delivered to the
Remarketing Agent at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxxx
00000, Attention: CoreStates Capital Markets, Sales and Underwriting Department,
or to the office designated for such purpose by any successor Remarketing Agent;
and any delivery of Bonds required to be made to the Tender Agent pursuant to
(b) above shall be delivered to the Tender Agent at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Corporate Trust Services, or to the
office designated for such purpose by any successor Tender Agent (the "Delivery
Office").
Notwithstanding any provision herein to the contrary, so long as this
Bond is subject to a system of book-entry transfers, any requirement for the
delivery of Bonds to the Tender Agent in connection with an optional or
mandatory tender shall be deemed satisfied upon the transfer, on the
registration books of DTC, of the beneficial ownership interests in the Bonds
tendered for purchase to the account of the Tender Agent, or a Participant (as
such term is defined in the Indenture) acting on behalf of or at the discretion
of such Tender Agent.
THE BONDS ARE SPECIAL LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE
SOLELY AND EXCLUSIVELY FROM THE PAYMENTS REQUIRED TO BE MADE BY THE COMPANY
UNDER THE AGREEMENT AND FROM DRAWS ON THE LETTER OF CREDIT. NO RECOURSE SHALL BE
HAD FOR THE PAYMENT OF PRINCIPAL, PURCHASE PRICE OR REDEMPTION PRICE OF, OR
INTEREST ON, THIS BOND, OR ANY CLAIM BASED HEREON OR ON THE INDENTURE OR THE
AGREEMENT, AGAINST THE AUTHORITY OR ANY SUCCESSOR BODY OR AGAINST ANY OFFICER,
MEMBER, EMPLOYEE OR AGENT PAST, PRESENT OR FUTURE OF THE AUTHORITY OR ANY
SUCCESSOR BODY, UNDER ANY CONSTITUTIONAL PROVISION, STATUTE OR RULE OF LAW, OR
BY THE ENFORCEMENT OF ANY ASSESSMENT OR BY ANY LEGAL OR EQUITABLE PROCEEDING OR
OTHERWISE, AND ALL SUCH LIABILITY OF THE AUTHORITY OR ANY SUCCESSOR BODY OR ANY
SUCH OFFICERS, MEMBERS, EMPLOYEES OR AGENTS IS RELEASED AS A CONDITION OF, AND
IN CONSIDERATION FOR, THE ISSUANCE OF THIS BOND. AS A CONDITION OF, AND IN
CONSIDERATION FOR, THE ISSUANCE OF THIS BOND, THE REGISTERED OWNER HEREOF
COVENANTS THAT HE WILL NOT SUE THE AUTHORITY OR ITS MEMBERS, OFFICERS, EMPLOYEES
OR AGENTS, PAST, PRESENT OR FUTURE, EXCEPT AS EXPRESSLY PERMITTED IN THE
INDENTURE AND THE AGREEMENT. THE BONDS AND THE INTEREST THEREON SHALL NOT BE IN
ANY WAY A DEBT OR LIABILITY OF THE COUNTY OF XXXXXXXXXX, PENNSYLVANIA (THE
"COUNTY"), THE COMMONWEALTH OF PENNSYLVANIA (THE "COMMONWEALTH") OR ANY
POLITICAL SUBDIVISION THEREOF AND SHALL NOT CREATE OR CONSTITUTE ANY
INDEBTEDNESS, LIABILITY OR OBLIGATION OF THE COUNTY, THE COMMONWEALTH OR ANY
POLITICAL SUBDIVISION THEREOF, EITHER LEGAL, MORAL OR OTHERWISE, AND THE
AUTHORITY SHALL NOT INCUR ANY INDEBTEDNESS ON BEHALF OF OR IN ANY WAY TO
OBLIGATE THE COUNTY, THE COMMONWEALTH OR ANY POLITICAL SUBDIVISION THEREOF.
NEITHER THE MEMBERS OF THE AUTHORITY NOR ANY PERSON EXECUTING THE BONDS SHALL BE
LIABLE PERSONALLY ON THE BONDS BY REASON OF THE ISSUANCE THEREOF. THE AUTHORITY
IS A CONDUIT ISSUER AND HAS NO TAXING POWER.
A-7
This Bond is transferable by the Registered Owner hereof in person or
by his attorney duly authorized in writing, at the principal corporate trust
office of the Trustee or at the Delivery Office of the Tender Agent or that of
any successor Tender Agent, but only in the manner, subject to the limitations
and upon payment of the charges provided in the Indenture, and upon surrender
and cancellation of this Bond. Upon such transfer a new registered Bond or Bonds
of authorized denomination or denominations for the same aggregate principal
amount will be issued to the transferee in exchange herefor. The Authority, the
Tender Agent and the Trustee may deem and treat the registered Owner hereof as
the absolute Owner hereof (whether or not this Bond shall be overdue) for all
purposes, and neither the Authority, the Tender Agent nor the Trustee shall be
bound by any notice or knowledge to the contrary.
Prior to the Conversion Date: (i) the Bonds are issuable as fully
registered bonds without coupons in the denominations of $100,000 or any
integral multiple of $5,000 in excess thereof; and (ii) the Bonds may not be
issued, exchanged or transferred except in authorized denominations of $100,000
or any integral multiple of $5,000 in excess thereof. From and after the
Conversion Date, the Bonds shall be issuable as fully registered bonds without
coupons in the denominations of $5,000 or any integral multiple thereof.
Extraordinary Redemption
The Bonds are callable for redemption in the event: (1) the Project
Facilities or any portion thereof is damaged or destroyed or taken in a
condemnation proceeding as provided in Section 6.04 of the Agreement; or (2) the
Company shall exercise its option to cause the Bonds to be redeemed as provided
in Section 9.02 of the Agreement. If called for redemption at any time pursuant
to (1) or (2) above, the Bonds shall be subject to redemption by the Authority
on any Interest Payment Date, in whole or in part, at a redemption price of one
hundred percent (100%) of the principal amount thereof plus accrued interest to
the redemption date.
Mandatory Redemption
The Bonds are subject to mandatory redemption, five (5) Business Days
prior to the Letter of Credit Termination Date, in whole, at a redemption price
equal to one hundred percent (100%) of the principal amount thereof being
redeemed plus accrued interest to the redemption date if, on the thirtieth
(30th) Business Day prior to the Letter of Credit Termination Date, the Trustee
shall not have received a Substitute Letter of Credit which will be effective on
or before the Letter of Credit Termination Date.
The Bonds are also subject to mandatory redemption, in whole, at any
time, within one hundred eighty (180) days after the Trustee receives notice of
the occurrence of a "Determination of Taxability" (as such phrase is hereinafter
defined), at a redemption price equal to one hundred percent (100%) of the
aggregate principal amount of Bonds Outstanding plus accrued interest to the
redemption date.
A-8
"Event of Taxability" with respect to any Bond means a change of law or
regulations, or the interpretation thereof, or the occurrence of any other event
or the existence of any other circumstance (including without limitation the
fact that any representations or warranties of the Company or the Authority made
in connection with the issuance of any Bond is or was untrue or that a covenant
of the Company has been breached) that has the effect of causing interest
payable on any Bond to be includable in gross income for federal income tax
purposes under Section 103 of the Internal Revenue Code of 1986, as amended, and
the applicable regulations thereunder (the "Code") other than by reason that
such interest: (i) is includable in the gross income of an Owner or former Owner
of any Bond while such Owner or former Owner is or was a "substantial user" or a
"related person" to a "substantial user" of the Project Facilities (as such
terms are used in Section 147(a)(1) of the Code); or (ii) is deemed an item of
tax preference including, without limitation, an item subject to any alternative
minimum tax.
"Determination of Taxability" with respect to any Bond shall be deemed
to have been made upon the first to occur of the following events:
(i) the date on which the Company determines that an Event
of Taxability has occurred by filing with the Trustee a statement to that effect
supported by one or more tax schedules, returns or documents which disclose that
such an Event of Taxability has occurred;
(ii) the date on which the Company or the Trustee is
advised by private ruling, technical advice or any other written communication
from any authorized official of the Internal Revenue Service that, based upon
any filings of the Company or any other person or entity, or upon any review or
audit of the Company or any other person or entity, or upon any other grounds
whatsoever, an Event of Taxability has occurred;
(iii) the date on which the Trustee or the Company is
advised that a court of competent jurisdiction has issued an order, declaration,
ruling or judgment to the effect that an Event of Taxability has occurred;
(iv) the date the Trustee shall have received written
notice from any owner of the Bonds that such owner has received a written
assertion or claim by any authorized official of the Internal Revenue Service
that an Event of Taxability has occurred; or
(v) the date the Trustee is notified that the Internal
Revenue Service has issued any private ruling, technical advice or any other
written communication, with or to the effect that an Event of Taxability has
occurred;
provided, however, that (x) no Determination of Taxability described in each of
clause (i), (ii), (iii), (iv) or (v) above shall be deemed to have occurred
unless the Trustee shall have received a written opinion of nationally
recognized bond counsel satisfactory to the Trustee, in form and substance
A-9
satisfactory to the Bank and the Company and not unsatisfactory to the Trustee,
to the effect that an Event of Taxability has occurred; and (y) no Determination
of Taxability described in each of clauses (i), (ii), (iii), (iv) or (v) above
shall be deemed to have occurred until 180 days shall have elapsed from the
dates described in clauses (i), (ii), (iii), (iv) or (v) above without such
Determination of Taxability having been rescinded or canceled.
Mandatory Sinking Fund Redemption
The Bonds are subject to mandatory sinking fund redemption on the
Interest Payment Date occurring in the month of December in each of the years
set forth below commencing on the Interest Payment Date occurring in December of
1997 (each, a "Mandatory Sinking Account Payment Date"), at a redemption price
equal to 100% of the principal amount thereof plus accrued interest as follows:
Mandatory Sinking
Year Account Payments
---- ----------------
1997 30,000
1998 35,000
1999 35,000
2000 40,000
2001 40,000
2002 40,000
2003 40,000
2004 45,000
2005 45,000
2006 50,000
2007 50,000
2008 50,000
2009 55,000
2010 55,000
2011 60,000
2012 60,000
2013 65,000
2014 65,000
2015 70,000
2016* 70,000
*Final maturity of the Bonds is December 1, 2016
Optional Redemption
On or prior to the Conversion Date, the Bonds are subject to redemption
by the Authority,
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at the option of the Company, at any time, subject to the notice provisions
described below, in whole or in part, at the redemption price of 100% of the
principal amount thereof being redeemed plus accrued interest to the redemption
date.
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No such optional redemption shall occur unless there shall be available
in the Bond Fund established under the Indenture sufficient Available Moneys (as
defined in the Indenture) to pay all amounts due with respect to such a
redemption.
In the event any of the Bonds or portions thereof are called for
redemption as aforesaid, notice of the call for redemption, identifying the
Bonds or portions thereof to be redeemed and the redemption price (including the
premium, if any), shall be given by the Trustee by mailing a copy of the
redemption notice by first-class mail at least thirty (30) days but not more
than sixty (60) days prior to the date fixed for redemption to the Owner of each
Bond to be redeemed in whole or in part at the address shown on the registration
books. Any notice mailed as provided above shall be conclusively presumed to
have been duly given, whether or not the Owner receives the notice. No further
interest shall accrue on the principal of any Bond called for redemption after
the redemption date if Available Moneys (as defined in the Indenture) sufficient
for such redemption have been deposited with the Trustee. Notwithstanding the
foregoing, the notice requirements contained in the first sentence of this
paragraph may be deemed satisfied with respect to a transferee of a Bond which
has been purchased pursuant to the Demand Purchase Option under certain
circumstances provided in Section 4.06 of the Indenture, after such Xxxx has
previously been called for redemption, notwithstanding the failure to satisfy
the notice requirements of the first sentence of this paragraph with respect to
such transferee.
If less than all the Bonds are to be redeemed, the particular Bonds or
portions thereof to be redeemed shall be selected by the Trustee by lot. Prior
to the Conversion Date, in case a Bond is of a denomination larger than
$100,000, a portion of such Bond ($100,000 or any integral multiple of $5,000 in
excess thereof) may be redeemed, but Bonds shall be redeemed only if the
remaining unredeemed portion of such Bond is in the principal amount of $100,000
or any integral multiple in excess of $100,000.
The Bonds are issued pursuant to and in full compliance with the
Constitution and laws of the Commonwealth, particularly the Act, and by
appropriate action duly taken by the Authority which authorizes the execution
and delivery of the Agreement and the Indenture. The Bonds have been issued
under the provisions of the Act.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Agreement, or in any other instrument or document executed by or
on behalf of the Authority in connection herewith, no stipulation, covenant,
agreement or obligation contained herein or therein shall be deemed or construed
to be a stipulation, covenant, agreement or obligation of any present or future
member, commissioner, director, trustee, officer, employee or agent of the
Authority, or of any successor to the Authority, in any such person's individual
capacity, and no such person, in his individual capacity, shall be liable
personally for any breach or nonobservance of or for any failure to perform,
fulfill or comply with any such stipulations, covenants, agreements or the
principal of or premium, if any, or interest on any of the Bonds or for any
claim based thereon or on any such stipulation, covenant, agreement or
obligation, against any such person, in his individual capacity, either directly
or through the Authority or any successor to the Authority, under any rule
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of law or equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any such person,
in his individual capacity, is hereby expressly waived and released.
The Owner of this Bond shall have no right to enforce the provisions of
the Indenture or to institute action to enforce the covenants therein, or to
take any action with respect to any default under the Indenture, or to
institute, appear in or defend any suit or other proceedings with respect
thereto, unless certain circumstances described in the Indenture shall have
occurred. In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of all the Bonds issued under
the Indenture and then outstanding may become or may be declared due and payable
before the stated maturity thereof, together with interest accrued thereon.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Authority and the rights of the Owners of the Bonds at any time by the Authority
with the consent of the Company, the Bank and the holders of all Bonds at the
time outstanding. Any such consent or any waiver by the Company, the Bank and
the holders of all Bonds at the time outstanding shall be conclusive and binding
upon the Owner and upon all future Owners of this Bond and of any Bond issued in
replacement hereof whether or not notation of such consent or waiver is made
upon this Bond. The Indenture also contains provisions which, subject to certain
conditions, permit or require the Trustee to waive certain past defaults under
the Indenture and their consequences.
It is hereby certified, recited and declared that all acts, conditions
and things required to exist, happen and be performed precedent to and in
connection with the execution and delivery of the Indenture and the issuance of
this Bond do exist, have happened and have been performed in due time, form and
manner as required by law; and that the issuance of this Bond and the issue of
which it forms a part, together with all other obligations of the Authority,
does not exceed or violate any constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate of
authentication hereon shall have been signed by the Trustee or the Tender Agent,
as authenticating agent.
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IN WITNESS WHEREOF, the Xxxxxxxxxx County Industrial Development
Authority has caused this Bond to be signed in its name and on its behalf by the
manual or facsimile signature of its Chairperson or Vice Chairman and its
corporate seal to be affixed, imprinted or reproduced hereon and attested by the
manual or facsimile signature of its Secretary all as of the Date of Issuance.
XXXXXXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
Attest:____________________________ By________________________________
Secretary Chairperson
(SEAL)
(Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the
within-mentioned Trust Indenture.
DAUPHIN DEPOSIT BANK AND TRUST
COMPANY, as Trustee and Tender Agent
By:_________________________________
Authorized Representative
Date of Authentication:____________
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(Form for Transfer)
FOR VALUE RECEIVED, __________, the undersigned, hereby sells, assigns
and transfers unto (Tax Identification or Social Security No. ___________) the
within Bond and all rights thereunder, and hereby irrevocably constitutes and
appoints _________ attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated__________________________________ _______________________________
NOTICE: Signature(s) must be guaranteed NOTICE: The signature to this
by an approved eligible guarantor institution, assignment must correspond with
an institution which is participant in a the name as it appears upon the
Securities Transfer Association recognized face of the within Bond in
signature guarantee program. every particular, without
alteration or enlargement or
any change whatever.
A-15
EXHIBIT "B"
(FIXED RATE FORM OF BOND)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Authority or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner (the
"Registered Owner") hereof, Cede & Co., has an interest herein.
UNITED STATES OF AMERICA
XXXXXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
VARIABLE RATE DEMAND/FIXED RATE
REVENUE BOND
(APPLE FRESH FOODS LTD PROJECT)
SERIES OF 1996
No. FR- $
Interest Rate: CUSIP__________
KNOW ALL MEN BY THESE PRESENTS that the XXXXXXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY (the "Authority"), for value received, promises to pay
from the source and as hereinafter provided, to CEDE & CO. or registered
assigns, on __________, upon surrender hereof, the principal sum of __________
Dollars, and in like manner to pay interest (calculated on the basis of a
360-day year of twelve 30 day months) on said sum at the rate per annum set
forth above on June 1 and December 1 of each year, commencing ___________, (each
an "Interest Payment Date") from the Interest Payment Date next preceding the
date of authentication hereof to which interest has been paid or duly provided
for, unless the date of authentication hereof is an Interest Payment Date to
which interest has been paid or duly provided for, in which case from the date
of authentication hereof or unless no interest has been paid or duly provided
for on the Bonds (as hereinafter defined), in which case from the Conversion
Date (as defined in the Indenture, as hereinafter defined), until payment of the
principal hereof has been made or duly provided for. Notwithstanding the
foregoing, if this Bond is authenticated after any date which is the fifteenth
day next preceding any Interest Payment Date (a "Record Date") and before the
following Interest Payment Date, this Bond shall bear interest from such
Interest Payment Date;
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provided, however, that if the Authority shall default in the payment of
interest due on such Interest Payment Date, then this Bond shall bear interest
from the next preceding interest payment date to which interest has been paid or
duly provided for, or, if no interest has been paid or duly provided for on the
Bonds, from the Date of Issuance. The principal of this Bond is payable in
lawful money of the United States of America at the principal corporate trust
office of Dauphin Deposit Bank and Trust Company, as trustee (together with its
successors in trust, the "Trustee") or at the duly designated office of any
successor Trustee under the Trust Indenture, dated December 26, 1996 between the
Authority and the Trustee (which Indenture, as from time to time amended and
supplemented, is hereinafter referred to as the "Indenture"). Payment of
interest on this Bond shall be made on each Interest Payment Date to the
registered Owner hereof as of the applicable Record Date and shall be paid by
check mailed by the Trustee to such registered Owner at his address as it
appears on the registration books of the Authority or at such other address as
is furnished to the Trustee in writing by such registered Owner, or in such
other manner as may be permitted by the Indenture. As used herein, the term
"Business Day" means a day which is not a Saturday, Sunday or legal holiday on
which banking institutions in the State of New York, Commonwealth of
Pennsylvania, the City of New York, or the city in which the principal office of
the Trustee, the Tender Agent or the Bank are authorized to remain closed or on
which the New York Stock Exchange is closed.
This Bond is one of the duly authorized bonds designated as the
Variable Rate Demand/Fixed Rate Revenue Bonds (Apple Fresh Foods Ltd Project)
Series of 1996 of the Authority issued in the aggregate principal amount of $
(herein referred to as the "Bonds") under and by virtue of the Pennsylvania
Economic Development Financing Law, Act of August 23, 1967, P.L. 251, as amended
and supplemented (the "Act"), and by virtue of a resolution duly adopted by the
Authority (the "Bond Resolution"), and equally and ratably secured under the
Indenture, for the purpose of raising funds to finance a portion of the costs of
a project consisting of, among other things, (i) the acquisition, construction,
installation and renovation of certain equipment to be used in connection with a
cook-chill system of batch food processing; and (ii) payment of a portion of the
costs of issuing the Bonds (the "Project"). Pursuant to a Loan Agreement, dated
December 26, 1996 (the "Agreement") by and between the Authority and Apple Fresh
Foods Limited, a Pennsylvania corporation (the "Company"), installment payments
sufficient for the prompt payment when due of the principal and Purchase Price
of, premium, if any, and interest on the Bonds are to be paid to the Trustee for
the account of the Authority and deposited in the Bond Fund established by the
Indenture and have been duly pledged for that purpose, all to the extent and in
the manner provided in the Indenture.
The Bonds are all issued under and are equally and ratably secured by
and entitled to the protection of the Indenture, pursuant to which all payments
due from the Company to the Authority under the Agreement (other than certain
indemnification payments and the payment of certain expenses of the Authority)
are assigned to the Trustee to secure the payment of the principal of and
premium, if any, and interest on the Bonds.
Reference is hereby made to the Indenture and the Agreement for a
description of the
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property pledged and assigned, the provisions, among others, with respect to the
nature and extent of the security, the rights, duties and obligations of the
Authority, the Trustee and the Owners of the Bonds, and the terms upon which the
Bonds are issued and secured; and the Owner of this Bond, by acceptance hereof,
hereby consents to the terms and provisions of all of the foregoing as a
material portion of the consideration for the issuance of this Bond.
THE BONDS ARE SPECIAL LIMITED OBLIGATIONS OF THE AUTHORITY PAYABLE
SOLELY AND EXCLUSIVELY FROM THE PAYMENTS REQUIRED TO BE MADE BY THE COMPANY
UNDER THE AGREEMENT AND FROM DRAWS ON THE LETTER OF CREDIT. NO RECOURSE SHALL BE
HAD FOR THE PAYMENT OF PRINCIPAL, PURCHASE PRICE OR REDEMPTION PRICE OF, OR
INTEREST ON, THIS BOND, OR ANY CLAIM BASED HEREON OR ON THE INDENTURE OR THE
AGREEMENT, AGAINST THE AUTHORITY OR ANY SUCCESSOR BODY OR AGAINST ANY OFFICER,
MEMBER, EMPLOYEE OR AGENT PAST, PRESENT OR FUTURE OF THE AUTHORITY OR ANY
SUCCESSOR BODY, UNDER ANY CONSTITUTIONAL PROVISION, STATUTE OR RULE OF LAW, OR
BY THE ENFORCEMENT OF ANY ASSESSMENT OR BY ANY LEGAL OR EQUITABLE PROCEEDING OR
OTHERWISE, AND ALL SUCH LIABILITY OF THE AUTHORITY OR ANY SUCCESSOR BODY OR ANY
SUCH OFFICERS, MEMBERS, EMPLOYEES OR AGENTS IS RELEASED AS A CONDITION OF, AND
IN CONSIDERATION FOR, THE ISSUANCE OF THIS BOND. AS A CONDITION OF, AND IN
CONSIDERATION FOR, THE ISSUANCE OF THIS BOND, THE REGISTERED OWNER HEREOF
COVENANTS THAT HE WILL NOT SUE THE AUTHORITY OR ITS MEMBERS, OFFICERS, EMPLOYEES
OR AGENTS, PAST, PRESENT OR FUTURE, EXCEPT AS EXPRESSLY PERMITTED IN THE
INDENTURE AND THE AGREEMENT. THE BONDS AND THE INTEREST THEREON SHALL NOT BE IN
ANY WAY A DEBT OR LIABILITY OF THE COUNTY OF XXXXXXXXXX, PENNSYLVANIA (THE
"COMMONWEALTH"), THE COMMONWEALTH OF PENNSYLVANIA (THE "COMMONWEALTH") OR ANY
POLITICAL SUBDIVISION THEREOF AND SHALL NOT CREATE OR CONSTITUTE ANY
INDEBTEDNESS, LIABILITY OR OBLIGATION OF THE COUNTY, THE COMMONWEALTH OR ANY
POLITICAL SUBDIVISION THEREOF, EITHER LEGAL, MORAL OR OTHERWISE, AND THE
AUTHORITY SHALL NOT INCUR ANY INDEBTEDNESS ON BEHALF OF OR IN ANY WAY TO
OBLIGATE THE COUNTY, THE COMMONWEALTH OR ANY POLITICAL SUBDIVISION THEREOF.
NEITHER THE MEMBERS OF THE AUTHORITY NOR ANY PERSON EXECUTING THE BONDS SHALL BE
LIABLE PERSONALLY ON THE BONDS BY REASON OF THE ISSUANCE THEREOF. THE AUTHORITY
IS A CONDUIT ISSUER AND HAS NO TAXING POWER.
This Bond is transferable by the Registered Owner hereof in person or
by his attorney duly authorized in writing, at the principal corporate trust
office of the Trustee but only in the manner, subject to the limitations and
upon payment of the charges provided in the Indenture, and upon surrender and
cancellation of this Bond. Upon such transfer a new registered Bond or Bonds of
authorized denomination or denominations for the same aggregate principal amount
will be issued to the transferee in exchange herefor. The Authority and the
Trustee may deem and treat the
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registered Owner hereof as the absolute Owner hereof (whether or not this Bond
shall be overdue) for all purposes, and neither the Authority nor the Trustee
shall be bound by any notice or knowledge to the contrary.
The Bonds shall be issuable as fully registered Bonds without coupons
in the denomination of $5,000 or any integral multiple thereof.
Extraordinary Redemption
The Bonds are callable for redemption in the event: (1) the Project
Facilities or any portion thereof is damaged or destroyed or taken in a
condemnation proceeding as provided in Section 6.04 of the Agreement; or (2) the
Company shall exercise its option to cause the Bonds to be redeemed as provided
in Section 9.02 of the Agreement. If called for redemption at any time pursuant
to (1) or (2) above, the Bonds shall be subject to redemption by the Authority
on any interest payment date, in whole or in part, at a redemption price of one
hundred percent (100%) of the principal amount thereof plus accrued interest to
the redemption date.
Mandatory Redemption
The Bonds are subject to mandatory redemption, five (5) Business Days
prior to the Letter of Credit Termination Date, in whole, at a redemption price
equal to one hundred percent (100% of the principal amount thereof being
redeemed plus accrued interest to the redemption date if, on the thirtieth
(30th) Business Day prior to the Letter of Credit Termination Date, the Trustee
shall not have received a Substitute Letter of Credit which will be effective on
or before the Letter of Credit Termination Date.
The Bonds are also subject to mandatory redemption, in whole, at any
time, within one hundred eighty (180) days after the Trustee receives notice of
the occurrence of a "Determination of Taxability" (as hereinafter defined), at a
redemption price equal to one hundred percent (100%) of the aggregate principal
amount of Bonds Outstanding plus accrued interest to the redemption date.
"Event of Taxability" with respect to any Bond means a change of law or
regulations, or the interpretation thereof, or the occurrence of any other event
or the existence of any other circumstance (including without limitation the
fact that any representations or warranties of the Company or the Authority made
in connection with the issuance of any Bond is or was untrue or that a covenant
of the Company has been breached) that has the effect of causing interest
payable on any Bond to be includable in gross income for federal income tax
purposes under Section 103 of the Internal Revenue Code of 1986, as amended, and
the applicable regulations thereunder (the "Code") other than by reason that
such interest: (i) is includable in the gross income of an Owner or former Owner
of any Bond while such Owner or former Owner is or was a "substantial user" or a
"related person" to a "substantial user" of the Project Facilities (as such
terms are used in Section 147(a)(1) of the Code); or (ii) is deemed an item of
tax preference including, without limitation, an item subject to any alternative
minimum tax.
B-4
"Determination of Taxability" with respect to any Bond shall be deemed
to have been made upon the first to occur of the following events:
(i) the date on which the Company determines that an Event
of Taxability has occurred by filing with the Trustee a statement to that effect
supported by one or more tax schedules, returns or documents which disclose that
such an Event of Taxability has occurred;
(ii) the date on which the Company or the Trustee is advised
by private ruling, technical advice or any other written communication from any
authorized official of the Internal Revenue Service that, based upon any filings
of the Company or any other person or entity, or upon any review or audit of the
Company or any other person or entity, or upon any other grounds whatsoever, an
Event of Taxability has occurred;
(iii) the date on which the Trustee or the Company is
advised that a court of competent jurisdiction has issued an order, declaration,
ruling or judgment to the effect that an Event of Taxability has occurred;
(iv) the date the Trustee shall have received written notice
from any owner of the Bonds that such owner has received a written assertion or
claim by any authorized official of the Internal Revenue Service that an Event
of Taxability has occurred; or
(v) the date the Trustee is notified that the Internal
Revenue Service has issued any private ruling, technical advice or any other
written communication, with or to the effect that an Event of Taxability has
occurred;
provided, however, that (x) no Determination of Taxability described in each of
clauses (i), (ii), (iii), (iv) or (v) above shall be deemed to have occurred
unless the Trustee shall have received a written opinion of other nationally
recognized bond counsel satisfactory to the Bank and the Company and not
unsatisfactory to the Trustee, and in form and substance satisfactory to the
Bank and the Company and not unsatisfactory to the Trustee, to the effect that
an Event of Taxability has occurred; and (y) no Determination of Taxability
described in each of clauses (i), (ii), (iii), (iv) or (v) above shall be deemed
to have occurred until 180 days shall have elapsed from the dates described in
clauses (i), (ii), (iii), (iv) or (v) above without such Determination of
Taxability having been rescinded or canceled.
Mandatory Sinking Fund Redemption
The Bonds are subject to mandatory redemption on the Interest Payment
Date occurring in the month of ____________ in each of the years set forth below
(except _______) commencing on the Interest Payment Date occurring in __________
of __________ (each, a "Mandatory Sinking Account Payment Date"), at a
redemption price equal to 100% of the principal amount thereof plus accrued
interest as follows:
B-5
Mandatory Sinking
Year Account Payments
---- ----------------
*Final maturity
Optional Redemption
If the length of time from the Conversion Date to the final maturity
date of the Bonds is seven (7) years or more, the Bonds are subject to
redemption by the Authority, at the option of the Company, on or after the fifth
(5th) anniversary of the Conversion Date, in whole at any time or in part on any
Interest Payment Date, at the redemption price of 100% of the principal amount
thereof being redeemed plus accrued interest to the redemption date.
In the event any of the Bonds or portions thereof are called for
redemption as aforesaid, notice of the call for redemption, identifying the
Bonds or portions thereof to be redeemed and the redemption price, shall be
given by the Trustee by mailing a copy of the redemption notice by first-class
mail at least thirty (30) days but not more than sixty (60) days prior to the
date fixed for redemption to the Owner of each Bond to be redeemed in whole or
in part at the address shown on the registration books. Any notice mailed as
provided above shall be conclusively presumed to have been duly given, whether
or not the Owner receives the notice. No further interest shall accrue on the
principal of any Bond called for redemption after the redemption date if moneys
sufficient for such redemption have been deposited with the Trustee.
If less than all the Bonds are to be redeemed, the particular Bonds or
portions thereof to be redeemed shall be selected by the Trustee by lot.
The Bonds are issued pursuant to and in full compliance with the
Constitution and laws of the Commonwealth, particularly the Act, and by
appropriate action duly taken by the Authority which authorizes the execution
and delivery of the Agreement and the Indenture. The Bonds have been issued
under the provisions of the Act.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Agreement, or in any other instrument or document executed by or
on behalf of the Authority in connection herewith, no stipulation, covenant,
agreement or obligation contained herein or therein shall be deemed or construed
to be a stipulation, covenant, agreement or obligation of any present or future
member, commissioner, director, trustee, officer, employee or agent of the
Authority, or of any successor to the Authority, in any such person's individual
capacity, and no such person, in his individual capacity, shall be liable
personally for any breach or nonobservance of or for any failure to perform,
fulfill or comply with any such stipulations, covenants, agreements or
obligations, nor shall any recourse be had for the payment of the principal of
or premium, if any, or interest on
B-6
any of the Bonds or for any claim based thereon or on any such stipulation,
covenant, agreement or obligation, against any such person, in his individual
capacity, either directly or through the Authority or any successor to the
Authority, under any rule of law or equity, statute or constitution or by the
enforcement of any assessment or penalty or otherwise, and all such liability of
any such person, in his individual capacity, is hereby expressly waived and
released.
The Owner of this Bond shall have no right to enforce the provisions of
the Indenture or to institute action to enforce the covenants therein, or to
take any action with respect to any default under the Indenture, or to
institute, appear in or defend any suit or other proceedings with respect
thereto, unless certain circumstances described in the Indenture shall have
occurred. In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of all the Bonds issued under
the Indenture and then outstanding may become or may be declared due and payable
before the stated maturity thereof, together with interest accrued thereon.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Authority and the rights of the Owners of the Bonds at any time by the Authority
with the consent of the Company, the Bank and the holders of all Bonds at the
time outstanding. Any such consent or any waiver by the Company, the Bank and
the holders of all Bonds shall be conclusive and binding upon the Owner and upon
all future Owners of this Bond and of any Bond issued in replacement hereof
whether or not notation of such consent or waiver is made upon this Bond. The
Indenture also contains provisions which, subject to certain conditions, permit
or require the Trustee to waive certain past defaults under the Indenture and
their consequences.
It is hereby certified, recited and declared that all acts, conditions
and things required to exist, happen and be performed precedent to and in
connection with the execution and delivery of the Indenture and the issuance of
this Bond do exist, have happened and have been performed in due time, form and
manner as required by law; and that the issuance of this Bond and the issue of
which it forms a part, together with all other obligations of the Authority does
not exceed or violate any constitutional or statutory limitation.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the certificate of
authentication hereon shall have been signed by the Trustee or a duly appointed
authenticating agent pursuant to the Indenture.
B-7
IN WITNESS WHEREOF, the Xxxxxxxxxx County Industrial Development
Authority has caused this Bond to be signed in its name and on its behalf by the
manual or facsimile signature of its Chairperson or Vice Chairman and its
corporate seal to be affixed, imprinted or reproduced hereon and attested by the
manual or facsimile signature of its Secretary or Assistant Secretary, all as of
the Date of Issuance.
XXXXXXXXXX COUNTY INDUSTRIAL
DEVELOPMENT AUTHORITY
Attest:____________________ By:______________________________
Secretary Chairperson
(SEAL)
(Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the
within-mentioned Trust Indenture.
DAUPHIN DEPOSIT BANK AND TRUST
COMPANY, as Trustee
By___________________________________
Authorized Representative
Date of Authentication:_________________
B-8
(Form for Transfer)
FOR VALUE RECEIVED, , the undersigned, hereby sells, assigns and
transfers unto (Tax Identification or Social Security No. ) the within Bond and
all rights thereunder, and hereby irrevocably constitutes and appoints attorney
to transfer the within Bond on the books kept for registration thereof with full
power of substitution in the premises.
Dated:_________________________________ __________________________________
NOTICE: Signature(s) must be guaranteed NOTICE: The signature to this
by an approved eligible guarantor assignment must correspond with the
institution, an institution which is name as it appears upon the face of
participant in a Securities Transfer the within Bond in every particular,
Association recognized signature without alteration or enlargement or
guarantee program. any change whatever.
B-9
EXHIBIT "C"
CONSTRUCTION FUND REQUISITION
NO._________________
Date:_________________
Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Services
Mail Code 000-00-00
Ladies and Gentlemen:
On behalf of the Xxxxxxxxxx County Industrial Development Authority
(the "Authority"), I hereby requisition pursuant to Section 6.06 of a Trust
Indenture, dated December 26, 1996 (the "Indenture") between the Authority and
Dauphin Deposit Bank and Trust Company, as Trustee, the sum of $ to be paid as
follows:
Name and Address of Payee: Purpose of Obligation:
-------------------------- ----------------------
I hereby certify that: (a) such obligation has been incurred by Apple
Fresh Foods Limited, as applicable, in connection with the acquisition,
construction and equipping of the Project Facilities, as defined in the
Indenture; (b) each item is a proper charge against the Construction Fund; (c)
such obligation has not been the basis for a prior requisition which has been
paid; (d) no written notice of any lien, right to lien or attachment upon, or
claim affecting the right to receive payment of, any of the moneys payable under
the requisition above has been received; (e) the payment of such requisition
will not violate the prohibitions or requirements relating to the use of
proceeds set forth in the Agreement; and (f) no Event of Default, as such phrase
defined in the Indenture and in the Agreement or event which after notice or
lapse of time or both would constitute such an Event of Default has occurred and
not been waived or cured.
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NOTE: THIS REQUISITION IS NOT COMPLETE AND IS NOT TO BE PAID UNTIL THE
APPROVAL OF THE BANK IS RECEIVED IN THE FORM OF EXHIBIT "D" TO THE INDENTURE.
APPLE FRESH FOODS LIMITED
By_________________________________
Authorized Representative
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EXHIBIT "D"
BANK APPROVAL
CoreStates Bank, N.A., Reading, Pennsylvania, issuer of the Letter of
Credit hereby approves the Company's Requisition No. ___________.
CORESTATES BANK, N.A.
By______________________________
Dated:__________________________
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