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EXHIBIT 10.53
CITY OF SALEM MUNICIPAL PORT AUTHORITY
TO
THE FARMERS AND MERCHANTS NATIONAL BANK OF BRIDGETON,
AS TRUSTEE
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TRUST INDENTURE
Dated as of December 1, 1984
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Securing Port Development Revenue Bonds, Series of 1984
(South Jersey Process Technology, Inc. Project)
DRINKER ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ESQUIRE
1100 PNB Building Golf View at Hollywood
Broad and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Authority Solicitor
Bond Counsel
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TABLE OF CONTENTS
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Section Page
Number Title Number
------ ----- ------
Recitals ...............................................
Form of Notes ..........................................
1.01 Definitions ............................................ 4
2.01 Amounts and Terms of the Bonds ......................... 15
2.02 Interest on the Bonds .................................. 16
2.03 Disposition of Proceeds of the Bonds ................... 18
2.04 Closing Statement; Payment by Trustee .................. 18
2.05 Execution .............................................. 19
2.06 Authentication ......................................... 19
2.07 Forms of Bonds ......................................... 19
2.08 Registration and Transfered; Persons Treated as Owners . 20
2.09 Mutilated, Destroyed, Lost or Stolen Bonds ............. 21
2.10 Temporary Bonds ........................................ 22
2.11 Cancellation and Destruction of Surrendered Bonds ...... 22
3.01 Conversion of Interest Rate on Optional Conversion Date 23
3.02 Conversion of Interest Rate on Automatic Conversion Date 24
3.03 Exchange of Bonds after Conversion Date ................ 25
3.04 Condition to Conversion ................................ 25
3.05 Additional Notices ..................................... 25
3.06 Demand Purchase Option ................................. 25
3.07 Funds for Purchase of Bonds ............................ 26
3.08 Delivery of Purchased Bonds ............................ 26
3.09 Delivery of Proceeds of Sale of Purchased Bonds ........ 27
3.10 Duties of Trustee and Tender Agent with Respect
to Purchase of Bonds ................................. 27
4.01 Covenant to Complete Project in Conformity to Plans
and Specifications; Changes .......................... 29
4.02 Compliance with Laws, etc .............................. 29
4.03 Performance by Authority under Construction Contracts .. 29
4.04 Builder's Risk, Liability, and Workmen's
Compensation Insurance ............................... 29
5.01 Establishment of Construction Fund ..................... 31
5.02 Payments from Construction Fund ........................ 31
5.03 Payment to Relate to Underlying Obligations ............ 32
5.04 Procedure Upon Completion of Project ................... 32
5.05 Use of Money in Construction Fund Upon Default ......... 32
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Section Page
Number Title Number
------ ----- ------
6.01 Rentals, etc. to be Sufficient .......................... 33
6.02 Pledged Revenues to Be Paid Over to Trustee ............. 33
6.03 Bond Fund ............................................... 34
6.04 Custody of Separate Trust Funds ......................... 34
6.05 Sinking Fund Account .................................... 35
6.06 Moneys To Be Held for All Owners of Bonds, with
Certain Exceptions .................................... 35
6.07 Nonpresentment of Bonds ................................. 35
6.08 Repayment to the Bank and Company from
Bond Fund or Construction Fund ........................ 36
6.09 Letter of Credit ........................................ 36
7.01 Deposits and Security Therefor .......................... 37
7.02 Investment or Deposit of Funds .......................... 37
7.03 Valuation of Funds ...................................... 38
8.01 Extraordinary Redemption ................................ 39
8.02 Optional Redemption by the Company ...................... 39
8.03 Determination of Taxability ............................. 40
8.04 Mandatory Partial Redemption ............................ 41
8.05 Notice of Redemption .................................... 42
8.06 Redemption Payments ..................................... 42
8.07 Cancellation ............................................ 42
8.08 Partial Redemption of Bonds ............................. 42
9.01 Payment of Principal and Interest on Bonds .............. 44
9.02 Corporate Existence and Maintenance of Project Facilities 44
9.03 Subleasing, etc. of Facilities .......................... 44
9.04 Enforcement, Execution and Amendment of Sublease and
Other Contracts; Notice of Default .................... 44
9.05 Insurance Requirements .................................. 45
9.06 Annual Certificate Regarding Insurance .................. 45
9.07 Sale, Lease or Encumbrance of Premises
Prohibited; Exceptions ................................ 47
9.08 Payment of Taxes; Discharge of Liens .................... 47
9.09 Extension of Time for Payment of
Interest, etc. Prohibited ............................. 47
9.10 Employment of an Architect .............................. 47
9.11 Employment of Certified Public Accountant ............... 48
9.12 Annual Budget and Statements ............................ 48
9.13 Financing Statements and Other Action to Project
Security Interests .................................... 48
9.14 Further Assurances; Additional Revenues ................. 49
9.15 Investments to Comply with Internal Revenue Code ........ 49
10.01 Events of Default Defined ............................... 50
10.02 Acceleration ............................................ 51
10.03 Entry by Trustee ........................................ 51
10.04 Legal Proceedings by Trustee ............................ 52
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Section Page
Number Title Number
------ ----- ------
10.05 Discontinuance of Proceedings by Trustee ................ 52
10.06 Owners of Bonds May Direct Proceedings .................. 52
10.07 Limitations on Actions by Owners of Bonds ............... 53
10.08 Trustee May Enforce Rights Without
Possession of Bonds ................................... 53
10.09 Remedies Not Exclusive .................................. 53
10.10 Delays and Omissions Not to Impair Rights ............... 53
10.11 Application of Moneys in Event of Default ............... 53
10.12 Trustee's Right to Receiver; Compliance with Act ........ 54
10.13 Waivers of Default ...................................... 54
10.14 Trustee and Owners of Bonds Entitled to
all Remedies under Act ................................ 55
11.01 Acceptance of Trust ..................................... 56
11.02 No Responsibilities for Recitals, etc ................... 56
11.03 Trustee May Act Through Agents; Answerable Only for
Willful Misconduct or Negligence ...................... 56
11.04 Compensation and Indemnity .............................. 56
11.05 No Duty as to Insurance ................................. 57
11.06 Notice of Default; Right to Investigate ................. 57
11.07 Reliance on Requisitions, etc ........................... 57
11.08 Trustee May Deal in Bonds ............................... 57
11.09 Allowance of Interest ................................... 58
11.10 Construction of Ambiguous Provisions .................... 58
11.11 Intervention by the Trustee ............................. 58
11.12 Resignation of Trustee .................................. 58
11.13 Removal of Trustee ...................................... 58
11.14 Appointment of Successor Trustee ........................ 58
11.15 Qualification of Successor .............................. 59
11.16 Instruments of Succession ............................... 59
11.17 Merger of Trustee ....................................... 59
11.18 Reports of Trustee ...................................... 59
11.19 Successor Tender Agent .................................. 59
11.20 Notice to Rating Agencies ............................... 61
12.01 Acts of Owners of Bonds; Evidence of Ownership .......... 62
13.0l Amendments and Supplements Without Consents of
the Owners of Bonds ................................... 63
13.02 Amendments with Consent of the Owners of Bonds .......... 63
13.03 Amendments to Sublease Without Consent of Owners of Bonds 64
13.04 Amendments to Agreement With Consent of Owners of Bonds . 64
13.05 Trustee Authorized to Join in Amendments
and Supplements; Reliance on Counsel .................. 64
14.01 Discharge of Indenture .................................. 66
14.02 Defeasance of Bonds ..................................... 66
15.01 No Recourse ............................................. 69
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Section Page
Number Title Number
------- ----- ------
15.02 No Recourse against State, County or
Authority, etc .............................. 69
15.03 No Rights Conferred on Others ................. 69
15.04 Illegal, etc. Provisions Disregarded .......... 69
15.05 Notice to Owners of Bonds ..................... 70
15.06 Notices ....................................... 70
15.07 Controlling Law ............................... 70
15.08 Successors and Assigns ........................ 71
15.09 Headings for Convenience Only ................. 71
15.10 Counterparts .................................. 71
15.11 Information Under Commercial Code ............. 71
15.12 Payments Due on Saturdays, Sundays and Holidays 71
15.13 Certain References Ineffective After Letter
of Credit Termination Date .................. 71
Testimonium ...................................
Signatures and Seals ..........................
Exhibit A .....................................
Exhibit B .....................................
Acknowledgments ............................... 73
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THIS INDENTURE, dated as of December 1, 1984 between CITY OF SALEM
MUNICIPAL PORT AUTHORITY (the "Authority"), a public body corporate and politic
organized and existing under the laws of the State of New Jersey, and THE
FARMERS AND MERCHANTS NATIONAL BANK OF BRIDGETON (the "Trustee"), a national
banking association organized and existing under the laws of the United States
of America, having its principal corporate trust office in Bridgeton, New
Jersey, as Trustee;
W I T N E S S E T H:
WHEREAS, the Authority is a public body corporate and politic
constituting a political subdivision of the State of New Jersey established as
an instrumentality exercising public and essential governmental functions under
the provisions of the New Jersey Municipal Port Authorities Law (N.J. Stat. ▇▇▇.
Sec 40:68A 29 et seg. (West)) (the "Act"); and
WHEREAS, the Authority is empowered pursuant to the Act to issue bonds
for the purpose of raising funds to pay the cost of any part of its port system;
and
WHEREAS, pursuant to the Act, and in order to obtain funds necessary to
pay the costs of the Project (hereinafter defined), the Authority has duly
adopted a resolution authorizing the execution and delivery of this Indenture
and the initial issuance of $2,500,000 principal amount of its Port Development
Revenue Bonds, Series of 1984 (South Jersey Process Technology, Inc. Project)
(the "Bonds"), to be issued and to bear interest as hereinafter set forth; and
WHEREAS, in furtherance of the purposes of the Act, the Authority
proposes to undertake a project (the "Project") consisting of, inter alia, the
application of the proceeds of the Bonds to the cost of (1) constructing,
improving and equipping a radiation processing system, with related facilities
(collectively, the "Project Facilities"), for the irradiation of agricultural
products prior to shipping thereof, to be situated on certain real estate leased
by the Authority from the City of Salem, more particularly described in Exhibit
A to the Sublease (hereinafter defined) (the "Premises"), and (2) the payment of
costs of issuance of the Bonds; and
WHEREAS, the Authority and South Jersey Process Technology, Inc. (the
"Company") have entered into a Sublease and Security Agreement dated as of
December 1, 1984 (the "Sublease"), pursuant to which the Authority will sublease
the Premises to the Company and under which the Company has agreed to construct,
or cause to be constructed, the Project Facilities on the Premises, and certain
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the Authority under said Sublease have been assigned to the Trustee for the
benefit of the Owners of the Bonds pursuant to an Assignment (the "Assignment");
and
WHEREAS, the execution and delivery of the Bonds and of this Indenture
have in all respects been duly authorized and all acts and things necessary to
make such Bonds, when executed by the Authority and authenticated by the
Trustee, valid and binding legal obligations of the Authority, and to make this
Indenture a valid and binding agreement, have been done;
NOW THEREFORE, THIS INDENTURE WITNESSETH, That to secure the Bonds
issued and outstanding under this Indenture, the payment of the principal
thereof, premium, if any, and interest thereon, the rights of the Owners of the
Bonds and the performance by the Authority of the covenants contained in the
Bonds and herein, the Authority does hereby sell, assign, transfer, set over and
pledge unto The Farmers and Merchants National Bank of Bridgeton, as Trustee,
its successors in the trust and its assigns forever, the following property
(collectively referred to herein as the "Trust Estate"): all of the right, title
and interest of the Authority in and to (i) the Sublease (except for the right
of the Authority to receive amounts payable to the Authority under Sections
4.01(b), 9.03 and 9.05 of the Sublease) and (ii) all moneys, investments and
deposits in the Funds created hereunder and the income and receipts derived
therefrom, subject to the terms hereof.
TO HAVE AND TO HOLD the same and any other revenues (including all
income and receipts earned on the Funds held by the Trustee hereunder except as
otherwise herein set forth), contracts or contract rights or other property of
any nature whatsoever which may, by delivery, assignment or otherwise, be
subject to the lien and security interest created by this Indenture.
IN TRUST NEVERTHELESS for the equal and ratable benefit and security of
all present and future Owners of the Bonds issued and to be issued under this
Indenture, except as otherwise provided in this Indenture, and for the
enforcement and payment of the Bonds when payable according to their true
meaning, tenor and effect, and to secure the performance of, and compliance with
the covenants and conditions of the Bonds and of the Indenture, without
preference, priority or distinction as to lien or otherwise, of any one Bond
over any other Bond, except in the case of funds held hereunder for the benefit
of particular Owners of Bonds, and for the benefit of the Bank to the extent
provided herein, so that each and every Bond issued and to be issued under this
Indenture, shall have the same right, lien and privilege under this Indenture
and so that the principal of and
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interest on all Bonds shall be equally and proportionately secured hereby,
except as aforesaid.
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. In this Indenture and any indenture
supplemental hereto (except as otherwise expressly provided or unless the
context otherwise requires) terms used as defined terms in the recitals hereto
shall have the same meanings throughout this Indenture, and, in addition, the
following terms shall have the meanings specified below:
"Act" shall mean the New Jersey Municipal Port Authorities Law, N.J.
Stat. ▇▇▇. Sec 40:68A-29 et. seg., and all acts supplemental or amendatory
thereof.
"Act of Bankruptcy" shall mean the filing of a petition in bankruptcy
(or other commencement of a bankruptcy or similar proceeding) by or against the
Company or the Authority under any applicable bankruptcy, insolvency,
reorganization or similar law, now or hereafter in effect.
"Administrative Expenses" shall mean those reasonable expenses of the
Authority which are properly chargeable 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; (b) fees and expenses of the Tender Agent; and (c) fees and expenses of
the Authority which are reasonably necessary and fairly attributable to the
Project, including, without limiting the generality of the foregoing, fees and
expenses of the Authority's Counsel and other professional advisors.
"Architect" shall mean an architect, engineer or firm thereof or other
Person qualified to pass on questions relating to the construction and
maintenance of the Project who has been appointed by the Company and who is in
fact Independent.
"Authority" shall mean the City of Salem Municipal Port Authority.
"Automatic Conversion Date" shall mean the interest payment date
immediately preceding the Letter of Credit Termination Date.
"Available Moneys" means (a) with respect to any payment date occurring
during the term of the Letter of Credit, (i) moneys drawn under the Letter of
Credit, or (ii) moneys deposited into the Bond Fund pursuant to Section 6.03(a)
or 6.03(b) hereof or moneys deposited directly by the Company with the Trustee,
in any such case, which moneys
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have been on deposit in the Bond Fund for at least 123 days during and prior to
which no Act of Bankruptcy shall have occurred, or (iii) the proceeds of the
sale of refunding obligations, if, in the opinion of nationally recognized
counsel experienced in bankruptcy matters, the application of such moneys will
not constitute a voidable preference in the event of the occurrence of an Act of
Bankruptcy, or (iv) the proceeds from investment of moneys qualifying as
Available Moneys under clause (i), (ii), or (iii) above, and (b) with respect to
any payment date not occurring during the term of the Letter of Credit, any
moneys held by the Trustee and the proceeds from the investment thereof.
Notwithstanding; the foregoing, when used with respect to payment of any amounts
due in respect of any Pledged Bonds, the term "Available Moneys" shall mean any
moneys held by the Trustee and the proceeds from the investment thereof, except
for moneys drawn under the Letter of Credit.
"Bank" shall mean Bankers Trust Company, a banking corporation
organized and existing under the laws of the State of New York in its capacity
as issuer of the Letter of Credit, and any Substitute Bank.
"Bond" or "Bonds" shall mean the Port Development Revenue Bonds, Series
of 1984 (South Jersey Process Technology, Inc. Project) authenticated and
delivered under this Indenture.
"Bond Fund" means the fund created pursuant to Section 6.03 hereof.
"Business Day" means a day on which the Bank, the Trustee and banks
located in New York City are open for the purpose of conducting a commercial
banking business.
"Certified Public Accountant" shall mean a Person, who shall be
Independent, appointed by the Company, actively engaged in the business of
public accounting and duly certified as a certified public accountant under the
laws of New Jersey.
"Certified Resolution of the Authority" shall mean a copy of a
resolution certified by the Secretary or an Assistant Secretary of the
Authority, under its seal, to have been duly adopted by the Authority and to be
in full force and effect on the date of such certification.
"Certified Resolution of Company" shall mean a copy of a resolution of
the Board of Directors of the Company or a duly authorized committee thereof,
certified by the Secretary or an Assistant Secretary of the Company or other
officer serving in a similar capacity, under its corporate
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seal, to have been duly adopted and to be in full force and effect as of the
date of such certification.
"Code" means the Internal Revenue Code of 1954, as amended from time to
time.
"Company" shall mean South Jersey Process Technology, Inc., a New
Jersey Corporation, and any surviving, resulting, or transferee entity as
provided in the Sublease.
"Completion Date" shall mean the date of completion of the acquisition,
construction, improving, and equipping of the Project Facilities, as that date
shall be certified as provided in Section 3.07 of the Sublease.
"Construction Fund" shall mean the fund or funds so designated to be
established by the Trustee pursuant to Section 5.01 hereof.
"Conversion Date" shall mean the earlier to occur of either the
Optional Conversion Date or the Automatic Conversion Date.
"Conversion Option" means the option granted to the Company in Section
3.01 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", in connection with the Project, shall mean all
expenses which are properly chargeable thereto under generally accepted
accounting principles or which are incidental to the financing, acquisition, and
construction of such Project including without limiting the generality of the
foregoing:
(a) Amounts payable to contractors and costs incident to the
award of contracts;
(b) Costs of labor, facilities and services furnished by or
for the Company, or the Authority and their employees, or others,
materials and supplies purchased by the Company, or the Authority or
others, and permits and licenses obtained by the Company, the Authority
or others;
(c) Engineering, legal, accounting and other professional and
advisory fees;
(d) Premiums for contract bonds and insurance during
construction, and costs resulting from personal injuries and property
damage in the course of construction, and insurance against the same;
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(e) Interest during construction;
(f) Administrative Expenses of the Authority;
(g) Printing, engraving and other expenses of financing;
(h) Costs, fees and expenses in connection with the
acquisition of real and personal property or rights therein, including
premiums for title insurance;
(i) Costs of equipment purchased by the Authority or the
Company and necessary to the completion and proper operation of the
Project Facilities or property in question;
(j) Amounts required to repay temporary or bond anticipation
loans or advances from other funds of the Company made to finance the
costs of the Project;
(k) Amounts required to pay premiums for municipal bond
insurance, fees for financial rating services and fees for issuance of
bank letters of credit or similar banking arrangements;
(1) Moneys necessary to fund the Funds created hereunder; and
(m) The reimbursement to the Bank for any amounts drawn under
the Letter of Credit to pay interest on the Bonds prior to the
Completion Date.
Whenever Costs are required to be itemized, such itemization shall, to
the extent practicable, correspond with the items listed above. Whenever Costs
are to be paid hereunder, such payment may be made by way of reimbursement to
the Authority or others who have paid the same.
"Counsel" shall mean an attorney-at-law or law firm (who may be counsel
for the Company or for the Authority) satisfactory to the Trustee.
"Credit Agreement" shall mean the Letter of Credit Agreement dated as
of this date between the Company and Bankers Trust Company, and any amendments
and supplements thereto and the letter of credit agreement or reimbursement
agreement between the Company and any Substitute Bank, and any amendments and
supplements thereto.
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"Demand Purchase Option" shall mean the option granted to Owners of the
Bonds to require that their Bonds be purchased prior to the Conversion Date
pursuant to Section 3.06 hereof.
"Event of Default" shall mean any of the events described in Section
10.01 hereof.
"First Optional Redemption Date" shall mean the December 1 occurring in
the year which is a number of years after the Conversion Date equal to the
number of years between the December 1 immediately following the Conversion Date
(unless the Conversion Date is December 1, in which case from such December 1)
and December 1, 1999, multiplied by 1/2 and rounded up to the nearest whole
number.
"Fiscal Year" shall mean the period of twelve (12) months beginning
January 1 of each year.
"Fixed Rate" shall mean the interest rate in effect on the Bonds from
and after the Conversion Date, as said rate is determined in accordance with
Section 2.02(b) hereof.
"Floating Rate" shall mean the interest rate in effect on the Bonds
from the date of issuance of the Bonds until (but not including) the Conversion
Date, as said rate is determined in accordance with Section 2.02(b) hereof.
"Government Obligations" shall mean direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America.
"Indenture" shall mean this Indenture as amended or supplemented at the
time in question.
"Independent" shall mean with respect to the Certified Public
Accountant, the Insurance Consultant, the Architect and any Counsel, a Person
who is neither a member of the Company Board of Directors or the Authority, nor
an officer or employee of the Authority nor an officer or employee of the
Company, or which is not a partnership, corporation or association having a
partner, director, officer, member or substantial stockholder who is a member of
the Company Board of Directors or the Authority, an officer or employee of the
Authority or an officer or employee of the Company; provided, however, that the
fact that such Person is retained regularly by or transacts business with the
Authority or the Company shall not make such Person an employee within the
meaning of this definition.
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"Insurance Consultant" shall mean a Person who shall be Independent,
appointed by the Company and not unsatisfactory to the Authority or the Trustee,
and qualified to survey risks and to recommend insurance coverage for
organizations engaged in like operations to that of the Company, and having a
favorable reputation for skill and experience in such surveys and such
recommendations, and who may be a broker or agent with whom the Company
regularly transacts business.
"Investment Securities" shall mean and include any of the following
securities, if and to the extent the same are at the time legal for investment
of Authority funds:
(a) Government Obligations;
(b) Bonds, debentures, participation certificates, notes or
other evidences of indebtedness issued by any of the following: Bank
for Cooperatives, Federal Intermediate Credit Banks, Federal Financing
Bank, Federal Home Loan Bank System, Export-Import Bank of the United
States, Government National Mortgage Association, Farmers Home
Administration, Federal Land Banks, Tennessee Valley Authority or
Washington Metropolitan Area Transit Authority or any other agency or
corporation which has been or may hereafter be created by or pursuant
to an act of the Congress of the United States as an agency or
instrumentality thereof and which is rated "AAA" or the equivalent by a
nationally recognized rating agency;
(c) Public housing bonds issued by public agencies or
municipalities or temporary notes, preliminary loan notes or project
notes issued by public agencies of municipalities, but only if such
obligations are rated "AAA" or the equivalent by a nationally
recognized rating agency;
(d) Direct and general obligations of, or obligations
guaranteed by, the State or any political subdivision thereof, to the
payment of the principal of and interest on which the full faith and
credit of the State or any political subdivision thereof is pledged,
but only if at the time of their purchase such obligations are rated in
any of the three highest rating categories by either S&P or ▇▇▇▇▇'▇ or,
upon the discontinuance of either or both of such services, such other
nationally recognized rating service or services;
(e) Repurchase agreements or similar arrangements: (1) with
banking institutions,
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including the Trustee if applicable, or brokerdealers registered under
the Securities Exchange Act of 1934, as amended, (having or the parent
company of which shall have a current S&P or other equivalent rating
for any purpose, including outstanding indebtedness, of at least "A")
pursuant to which there shall have been delivered to the Trustee, or
his designee, Investment Securities of the types set forth in
subsection (a) and/or (b) above having at all times a fair market value
of at least 100% of the value of such agreement; or (2) with banking
institutions, including the Trustee if applicable, not meeting the
rating requirements of (1) above, pursuant to which there shall have
been delivered to the Trustee, or his designee, Investment Securities
of the types set forth in subsection (a) and/or (b) above and at all
times having a fair market value of at least 102% of the value of such
agreement;
(f) Negotiable or non-negotiable certificates of deposit, time
deposits or other similar banking arrangements, issued by any bank or
trust company (which may be the commercial banking department of the
Trustee) which are insured by the Federal Deposit Insurance Corporation
or Federal Savings and Loan Insurance Corporation, or secured as to
principal by the securities listed in subsections (a) or (b) above and
in a manner satisfactory to the Authority;
(g) Shares of an open-end, diversified investment company
which is registered under the Investment Company Act of 1940 whose
shares are registered under the Securities Act of 1933, as amended, and
which invests exclusively in Investment Securities of the types listed
in subsections (a), (b), (e) and/or (f) above, seeks to maintain a
constant net asset value per share, and has aggregate net assets of not
less than $10,000,000 on the date of purchase; and
(h) Commercial paper of the highest credit rating of S&P or
Moody's or their respective successors, if any, and having a maturity
at the time of purchase not in excess of six months.
"Late Payment Rate" shall mean with respect to the Bonds the rate of
interest on the Bonds, and for all other purposes means fourteen percent (14%)
per annum.
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"Letter of Credit" shall mean that certain Letter of Credit dated the
date of issuance of the Bonds issued by Bankers Trust Company and any Substitute
Letter of Credit.
"Letter of Credit Termination Date" shall mean 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" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, its successors
and assigns, and, if such corporation shall be dissolved or liquidated or shall
no longer perform the functions of a securities rating agency, "Moody's" shall
be deemed to refer to any other nationally recognized securities rating agency
designated by the Company, with the consent of the Bank, by notice to the
Trustee.
"Officers' Certificates" shall mean (a) in the case of the Authority, a
certificate, duly executed by its Chairman or Vice Chairman and by its
Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or other person
authorized to execute such certificate by a Certified Resolution of the
Authority under its official seal, and (b) in the case of the Company, a
certificate, duly executed by the Chairman of the Company Board of Directors, or
President of the Company and its Secretary or Assistant Secretary or Treasurer,
or such other officers as shall be authorized by the Company's Board of
Directors to act on behalf of the Company, under its corporate seal; in the case
of either such certificate, one person shall not, however, be permitted to
execute the certificate in more than one capacity.
"Optional Conversion Date" shall mean that date on or after July 1,
1985, 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.
"Outstanding", in connection with the Bonds, shall mean, as of the time
in question, all the Bonds authenticated and delivered hereunder, except:
(a) Bonds theretofore cancelled or required to be cancelled
hereunder after purchase in the open market or because of payment at or
redemption prior to maturity;
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(b) Bonds which are deemed to have been paid pursuant to
Section 14.02 hereof; and
(c) Bonds in substitution for which other Bonds have been
authenticated and delivered Pursuant to Article II hereunder.
"Owner" or "Owner of Bonds" shall mean the Registered Owner of a Bond.
"Person" shall mean an individual, a corporation, a partnership, an
association, a joint stock company, a trust, any unincorporated organization, a
governmental body, any other political subdivision, municipality or municipality
authority or any other group or entity.
"Pledge Agreement" shall mean the Pledge and Security Agreement dated
as of this date made by the Company to Bankers Trust Company, and any amendments
or supplements thereto and the pledge and security agreement made by the Company
to any Subsitute Bank, and any amendments or supplements thereto.
"Pledged Bonds" shall mean any Bonds which shall, at the time of
determination thereof, be held by the Bank pursuant to the Pledge Agreement.
"Premises" shall mean the tract of land described in Exhibit A to the
Sublease, together with all buildings, and improvements and other tenements,
hereditaments and appurtenant facilities and property, real, personal or mixed,
located thereon or appurtenant thereto and all future improvements, additions or
betterments.
"Principal Office", with respect to the Trustee, shall mean the
Trustee's principal corporate trust office at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
"Project" shall mean the financing of the Costs of construction,
improvement and equipping of the Project Facilities, together with the cost of
issuance of the Bonds.
"Project Facilities" shall mean and be defined as described in the
recitals hereto.
"Purchase Price" shall mean an amount equal to 100% of the principal
amount of any Bond tendered or deemed tendered pursuant to Section 3.01, 3.02 or
3.06 hereof, plus, in the case of purchase pursuant to Section 3.06 hereof,
accrued and unpaid interest thereon to the date of purchase.
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"Record Date" shall mean with respect to any interest payment date the
fifth Business Day next preceding such interest payment date.
"Registered Owner", in connection with a Bond, shall mean the person in
whose name the Bond is registered on the books held by or on behalf of the
Authority.
"Remarketing Agent" shall mean the Remarketing Agent acting as such
under the Remarketing Agreement. "Principal Office" of such Remarketing Agent
means the principal office of the Remarketing Agent designated in the
Remarketing Agreement.
"Remarketing Agreement" shall mean the TENR Services and Remarketing
Agreement dated as of this date between the Company and Bankers Trust Company,
and any amendments or supplements thereto.
"State" shall mean the State of New Jersey.
"S&P" shall mean Standard & Poor's Corporation, a corporation organized
and existing under the laws of the State of New York, its successors and
assigns, and, if such corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Company, with the consent of the Bank, by notice to the
Trustee.
"Sublease" shall mean the Sublease and Security Agreement dated as of
December 1, 1984 between the Authority, as sublessor, and the Company, as
sublessee, and all modifications, alterations, amendments and supplements
thereto.
"Substitute Bank" shall mean a commercial bank or savings and loan
association which has issued a Substitute Letter of Credit.
"Substitute Letter of Credit" shall mean a letter of Credit delivered
to the Trustee in accordance with Section 4.06 of the Sublease (i) issued by the
Bank or a Substitute Bank, (ii) replacing any existing Letter of Credit, (iii)
dated as of a date prior to the expiration 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 with respect to the Bonds and (v) issued
on substantially identical terms and conditions as the then existing Letter of
Credit, except that the Substitute Letter of Credit may expire on a date which
is later than the expiration of the Letter of Credit being replaced, and except
that the stated amount of the Substitute Letter of
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Credit shall equal the sum of (A) the aggregate principal amount of Bonds at the
time Outstanding, plus (B) an amount equal to at least 120 days' interest
(computed at the maximum interest rate applicable to the Bonds) on all Bonds at
the time Outstanding.
"Tender Agent" shall mean Bankers Trust Company, a New York banking
corporation 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.
"Delivery Office" of the Tender Agent means ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Securities Services Division or such other address as may
be designated in writing to the Authority, the Trustee, the Remarketing Agent
and the Company. "Principal Office" of the Tender Agent means the address
specified in Section 15.06 hereof or such other address as may be designated in
writing to the Authority, the Trustee, the Remarketing Agent and the Company.
"Trust Estate" shall mean the property conveyed to the Trustee pursuant
to the granting clause hereof.
"Trustee" shall mean The Farmers and Merchants National Bank of
Bridgeton, a banking association organized and existing under the laws of the
United States of America and having its principal corporate trust office in
Bridgeton, New Jersey, and its successor or successors as trustee hereunder.
The words "hereof", "herein", "hereto", "hereby" and "hereunder"
(except in the form of Bond) refer to the entire Indenture.
Every "request", "requisition", "order", "demand" "application",
"notice", "statement", "certificate", "consent" or similar action hereunder by
the Authority shall, unless the form thereof is specifically provided, be in
writing signed by the Chairman, the Vice-Chairman, the Treasurer, the Assistant
Treasurer, the Secretary or Assistant Secretary of the Authority.
All words importing persons include firms, associations and
corporations, and all words importing the singular number include the plural
number and vice versa.
All words and terms used in this Indenture and not defined above or
elsewhere herein shall have the same meanings as set forth in the Sublease, if
defined therein.
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ARTICLE II
THE BONDS
SECTION 2.01. Amount and Terms of the Bonds. The Bonds shall be
designated "Port Development Revenue Bonds, Series of 1984 (South Jersey Process
Technology, Inc. Project)", shall be limited to $2,500,000 in aggregate
principal amount and shall contain substantially the terms recited herein.
Prior to the Conversion Date, the Bonds shall be issuable as fully
registered Bonds, without coupons, in the denomination of $100,000, or any
integral multiple of $5,000 in excess thereof; provided that the Bonds may be
issued in the denomination of $5,000 or any integral multiple thereof if
necessary to evidence the unredeemed portion of any Bond. From and after the
Conversion Date, the Bonds shall be issuable as fully registered Bonds, without
coupons, in the denomination of $5,000 or any integral multiple thereof. Unless
the Authority shall otherwise direct, the Bonds shall be lettered "R" and shall
be numbered consecutively from 1 upward.
The Bonds shall provide that principal or redemption price of and
interest on the Bonds shall be payable only out of the Trust Estate (or such
particular portion of the Trust Estate as may be therein designated), but the
Authority, at its option and upon deposit with the Trustee by the Company of the
moneys required for such payment, may, subject to Section 6.03 hereof, make
other moneys available for the purpose of paying the principal or redemption
price of and interest with respect to the Bonds provided that such other moneys
constitute Available Moneys. The Authority in issuing its Bonds may use "CUSIP"
numbers, and the Trustee may use such CUSIP numbers in notices of redemption as
a convenience to Owners of the Bonds, provided that any such notice shall state
that no representation is made as to the correctness of such numbers either as
printed on the Bonds or as contained in any notice of redemption and that
reliance may be placed only on the identification numbers printed on the Bonds.
The Authority may cause a copy of the text of the opinion of bond counsel to be
printed on its Bonds and shall deposit with the Trustee an executed counterpart
of such opinion.
Each Bond shall be dated the date of its authentication and shall
mature on December 1, 1999.
The Authority may issue the Bonds upon execution of this Indenture. The
Trustee shall, at the Authority's request, authenticate such Bonds and deliver
them as specified in the request.
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SECTION 2.02. Interest on the Bonds. The Bonds shall bear interest as
follows:
(a) Prior to the Conversion Date, the Bonds shall bear
interest at the Floating Rate. The Floating Rate shall be a variable rate of
interest equal to TENR plus an amount (as adjusted from time to time as
hereinafter provided, the "TENR Amount") initially equal to one-half of one
percent (1/2 of 1%), provided that:
(i) if the Trustee and Remarketing Agent shall have
received a notice requiring the purchase of any Bond(s)
pursuant to Section 3.06 hereof, and if the Remarketing Agent
shall remarket all or a portion of such Bond(s) pursuant to
the Remarketing Agreement, the TENR Amount for all Bonds shall
be the TENR Amount required for the Remarketing Agent to
remarket such Bond(s) at par, which adjusted TENR Amount shall
become effective as of the day next following the next
announcement of TENR, unless such announcement of TENR occurs
during the period of five Business Days prior to an interest
payment date or a date fixed for redemption, in which case
such adjusted TENR Amount shall become effective as of the day
next following the first announcement of TENR subsequent to
such interest payment date or date fixed for redemption, as
the case may be. In connection with any such remarketing, the
Remarketing Agent shall determine what increments of 1/8th of
1% per annum will, when added to or subtracted from the TENR
Amount at the time applicable to the Bonds, produce the
minimum interest rate per annum necessary to enable the
Remarketing Agent to remarket such Bond(s) at par; provided,
that the TENR Amount shall not be more than two and one-half
percent (2-1/2%);
(ii) if the TENR Amount is adjusted pursuant to the
preceding clause (i), such adjusted TENR Amount shall remain
in effect until a further adjustment to the TENR Amount is
made pursuant to such clause (i) or until the interest rate
hereunder is otherwise determined as provided for in this
Indenture; provided that if the Remarketing Agent shall have
advised the Company, the Authority and the Trustee at least
two Business Days prior to any interest payment date that the
Bonds are bearing interest at a rate higher than the minimum
interest rate per annum necessary to enable the Remarketing
Agent to remarket the Bonds at par, as of such interest
payment date, the TENR Amount shall be such amount as the
Remarketing Agent
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shall specify as being the minimum amount necessary to enable
the Remarketing Agent to remarket the Bonds at par;
(iii) if the TENR Amount is adjusted pursuant to the
preceding clause (ii), such adjusted TENR Amount shall remain
in effect until such time as the TENR Amount may again be
adjusted pursuant to the preceding clause (i) or clause (ii)
or until the interest rate hereunder is otherwise determined
as provided for in this Indenture; and
(iv) notwithstanding the foregoing, no adjustment
shall be made to the Floating Rate during the period of five
Business Days prior to an interest payment date or a date
fixed for redemption.
TENR is the rate announced by Bankers Trust Company, New York, New York
at its principal office as the annual rate of interest which is indicative of
current bid-side yields on high-quality, short-term, tax-exempt obligations,
which rate shall be announced by Bankers Trust Company, New York, New York as of
the close of business on Wednesday in each calendar week until the earlier of
the Conversion Date or payment in full of the Bonds or, if Wednesday in any
calendar week shall not be a business day in New York, New York, on the next
succeeding business day in New York, New York. TENR shall be effective during
the period from and including the day next succeeding the day on which Bankers
Trust Company announces TENR, to aid including the day on which Bankers Trust
Company next announces TENR. TENR shall be communicated by Bankers Trust
Company, New York, New York to the Trustee and Remarketing Agent on the same day
that TENR is announced. The Remarketing Agent shall inform the Trustee in
writing of any adjustments to the TENR Amount required by clause (i) above. The
Trustee shall inform the Company of TENR and of any such adjustments to the TENR
Amount. TENR is a Service ▇▇▇▇ of Bankers Trust Company, New York, New York.
Anything herein to the contrary notwithstanding, the Floating Rate
shall in no event exceed 15% per annum.
The announcement of TENR and the determination of any adjustments to
the TENR Amount as contemplated by the foregoing paragraphs shall be conclusive
and binding upon the Trustee, the Tender Agent, the Authority, the Company and
the Owners of the Bonds.
(b) 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
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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 20th day preceding the Optional Conversion Date or Automatic
Conversion Date, as the case may be, to purchase all the Outstanding Bonds on
the Optional Conversion Date or Automatic Conversion Date, as the case may be,
at a price of par without discount or at a premium not to exceed the then
customary underwriting discount (but in no event may the premium exceed 3
percent).
(c) Prior to the Conversion Date, interest on the Bonds shall
be computed on the basis of a 360-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. Payment of interest on the
Bonds shall be made at the time, place and in the manner described in the form
of Bond attached hereto as Exhibit A with respect to interest paid at the
Floating Rate, and in the form of Bond attached hereto as Exhibit B with respect
to interest paid at the Fixed Rate.
SECTION 2.03. Disposition of Proceeds of the Bonds. The Authority shall
deliver the proceeds of the sale of the Bonds to the Trustee. The Trustee shall
deposit the same in a special fund, which shall be designated the Clearing Fund
(the "Clearing Fund"), from which the Trustee shall make transfers or payments
as follows:
(1) there shall be deposited in the Bond Fund an amount equal
to accrued interest, if any, on the Bonds, and, thereafter, the
aforesaid funds so deposited into and transferred within the Bond Fund
shall be held for payment of interest on the Bonds;
(2) there shall be paid to the Company an amount equal to the
Costs of the Project incurred prior to the issuance of the Bonds and
for which it is entitled to be reimbursed;
(3) there shall be paid upon the order of the Authority and on
behalf of the Authority all Costs in connection with the issuance of
the Bonds; and
(4) there shall be deposited in the Construction Fund the
remaining balance in the Clearing Fund not reserved for any of the
above purposes to pay the remaining Costs of the Project.
SECTION 2.04. Closing Statement; Payment by Trustee. The Trustee is
authorized to pay from the Clearing
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Fund in connection with the issuance of the Bonds in amounts set forth in a
closing statement signed by the Chairman or Vice Chairman and Secretary or
Assistant Secretary of the Authority and approved by an authorized officer of
the Company, any and all Costs of the Project, which may include amounts to
reimburse the Company.
SECTION 2.05. Execution. The Bonds shall be executed by the manual or
facsimile signature of the Chairman or Vice-Chairman of the Authority, and its
corporate seal shall be imprinted thereon (which may be in facsimile) and be
attested by the manual or facsimile signature of its Secretary or Assistant
Secretary. Bonds executed as above provided may be issued and shall, upon
request of the Authority, be authenticated by the Trustee or any other duly
appointed authenticating agent, notwithstanding that one or both of the officers
signing such Bonds shall have ceased to hold office at the time of issuance or
authentication or shall not have held office at the date of the Bonds.
SECTION 2.06. Authentication.
(a) The Trustee hereby appoints the Tender Agent as an
authenticating agent for the Bonds.
(b) No Bonds shall be valid or obligatory for any purpose or
be entitled to any security or benefit under this Indenture unless and until the
certificate of authentication on such Bond substantially in the form set forth
in Exhibits A and B attached hereto shall have been duly executed by the Tender
Agent or the Trustee, and such executed certificate of authentication upon any
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 Tender Agent if signed
by an authorized signatory of the Trustee or 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 3.01 or 3.02 hereof but is not physically delivered
to the Tender Agent, the Authority shall execute and the Trustee or Tender Agent
shall authenticate a new Bond of like denomination as that deemed tendered.
SECTION 2.07. Forms of Bonds. The 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 attached hereto, with appropriate
variations, omissions and insertions as permitted or
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required by this Indenture. The Bonds which bear interest at the Fixed Rate and
the certificate of authentication to be endorsed thereon are to be in
substantially the form set forth in Exhibit B attached hereto, with appropriate
variations, omissions and insertions as permitted or required by this Indenture.
SECTION 2.08. Registration and Transfer; Persons Treated as Owners.
The Authority shall keep, or cause to be kept at the Principal Office
of the Trustee, books for the registration and transfer of Bonds. The Trustee is
hereby constituted and appointed the registrar of the Authority. The Tender
Agent is hereby constituted and appointed co-registrar of the Authority.
Upon surrender for transfer of any Bond at the Principal Office of the
Trustee or Principal Office of the Tender Agent, the Trustee or Tender Agent, as
the case may be, shall authenticate and deliver in the name of the transferee or
transferees one or more new fully registered Bonds of authorized denominations
for the aggregate principal amount which the Registered Owner is entitled to
receive.
Any Bond shall be exchangeable for Bonds of any authorized
denomination, in an aggregate principal amount equal to the principal amount of
the Bond presented for exchange.
All Bonds presented for transfer or exchange shall be accompanied by a
written instrument or instruments of transfer or authorization for exchange, in
form satisfactory to the Trustee or Tender Agent, duly executed by the Owner or
by his attorney duly authorized in writing.
No service charge shall be made for any exchange or transfer of Bonds;
but the Authority may require payment by the Owner thereof of a sum sufficient
to cover any tax, fee or other governmental charge that may be imposed in
relation thereto. The Company will pay the costs of any transfer of any Bond,
except for payment of any tax, fee or governmental charge imposed in connection
with the exchange or transfer of the Bonds.
The Trustee and the Tender Agent shall not be required to exchange or
register a transfer of (a) any Bonds during the 15-day period next preceding the
selection of Bonds to be redeemed and thereafter until the date of the mailing
of a notice of redemptions of Bonds selected for redemption, or (b) any Bonds
selected, called or being called for redemption in whole or in part except, in
the case of any Bond to be redeemed in part, the portion thereof
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not so to be redeemed; provided that the foregoing shall not apply to the
registration of transfer of any Bond which has been tendered to the Tender Agent
pursuant to Section 3.06 hereof, and in any such case, for purposes of selection
for redemption, the Bond so tendered and the Bond issued to the transferee
thereof pursuant to Section 3.08 hereof shall be deemed and treated as the same
Bond. If any Bond shall be transferred and delivered pursuant to Section 3.08(b)
hereof after such Bond has been called for redemption, the Tender Agent shall
deliver to such transferee a copy of the applicable redemption notice,
indicating that the Bond delivered to such transferee has previously been called
for redemption.
The Authority, the Trustee, the Tender Agent and any paying agent may
deem and treat the person in whose name a Bond shall be registered as the
absolute owner thereof, whether the Bond shall be overdue or not, for the
purpose of receiving payment of, or on account of, the principal of the Bond and
for all other purposes, and all such payments so made to any such Registered
Owner or upon his order shall be valid and effectual to satisfy and discharge
the liability upon the Bond to the extent of the sum or sums so paid, and
neither the Authority nor the Trustee nor the Tender Agent shall be affected by
any notice to the contrary.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Bonds. If any Bond
shall become mutilated, the Authority shall execute and the Trustee shall
thereupon authenticate and deliver a new Bond of like tenor and denomination in
exchange and substitution for the Bond so mutilated but only upon surrender to
the Trustee of such mutilated Bonds for cancellation, and the Authority and the
Trustee may require reasonable indemnity therefor, which indemnity shall, in any
event, name the Tender Agent as a beneficiary. If any Bond shall be reported
lost, stolen or destroyed, evidence as to the ownership and the loss, theft or
destruction thereof shall be submitted to the Authority and the Trustee; and if
such evidence shall be satisfactory to both and indemnity satisfactory to both
shall be given, which indemnity shall, in any event, name the Tender Agent as a
beneficiary, the Authority shall execute, and thereupon the Trustee shall
authenticate and deliver, a new Bond of like tenor and denomination. The cost of
providing any substitute Bond under the provisions of this Section shall be
borne by the Owner of the Bond for whose benefit such substitute Bond is
provided. If any such mutilated, lost, stolen or destroyed Bond shall have
matured, the Authority may, with the consent of the Trustee, pay to the Owner
the principal amount of such Bond and compliance with the aforesaid conditions
by such Owner, without the issuance of a substitute Bond therefor.
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Every substituted Bond issued pursuant to this Section 2.09 shall
constitute an additional contractual obligation of the Authority, whether or not
the Bond alleged to have been destroyed, lost or stolen may be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Bonds duly issued
hereunder.
All Bonds shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Bonds, and shall preclude any and all other
rights or remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments, investments or other securities without their surrender.
SECTION 2.10.Temporary Bonds. Pending preparation of definitive Bonds,
or by agreement with the purchasers of all of the Bonds, the Authority may issue
and, upon its request, the Trustee shall authenticate in lieu of definitive
Bonds one or more temporary printed or typewritten Bonds of substantially the
tenor recited above. Upon request of the Authority, the Trustee shall
authenticate definitive Bonds in exchange for and upon surrender of an equal
principal amount of temporary Bonds. Until so exchanged, temporary Bonds shall
have the same rights, remedies and security hereunder as definitive Bonds.
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, or
purchased by the Company and surrendered to the Trustee in lieu of mandatory
redemption pursuant to Section 8.04 hereof shall, at the time of such payment or
redemption, be cancelled and destroyed by the Trustee. The Trustee shall deliver
to the Authority a certificate of destruction in respect of all Bonds destroyed
in accordance with this Section.
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ARTICLE III
CONVERSION OF INTEREST RATE; DEMAND
PURCHASE OPTION
SECTION 3.01. Conversion of Interest Rate on Optional 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 Optional Conversion Date. To exercise the Conversion Option, the Company
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 Optional Conversion Date to the
Owner of each Bond at the address shown on the registration books of the
Authority. 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. The Fixed Rate which will take effect on the Conversion
Date.
3. That from and after the Conversion Date the Demand Purchase
Option will not be available to Owners of Bonds.
4. That all Owners of Bonds who have not given notice of their
desire to retain Bonds as provided in this Section shall be deemed to
have tendered their Bonds for purchase on the Conversion Date.
5. That the Letter of Credit will expire fifteen (15) days
after the Conversion Date.
Any Owner of Bonds desiring to retain Bonds after the Optional
Conversion Date must notify the Company and the Trustee in writing which notice
must be received no later than fifteen (15) days prior to the Optional
Conversion Date. Said notice shall state in substance the following:
(a) The Bond numbers and principal amounts of the Bonds which
the Owner thereof wishes to retain after the Conversion Date;
(b) That the Owner thereof recognizes that the events set
forth in 1 through 5 above will occur;
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(c) That the Owner thereof recognizes that the rating assigned
to the Bonds based on the Letter of Credit will no longer apply to the
Bonds; and
(d) That the Owner thereof wishes to continue to own the Bonds
specified in (a) above after the Conversion Date.
Owners of Bonds not providing the Trustee and the Company with the notice
described above shall be required to tender 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 Optional Conversion Date ("Undelivered Bonds"), for
which there has been irrevocably deposited in trust with the Trustee an amount
of moneys sufficient to pay the Purchase Price of the Undelivered Bonds, shall
be deemed to have been purchased pursuant to this Section 3.01. IN THE EVENT OF
A FAILURE BY AN OWNER OF BONDS (OTHER THAN AN OWNER OF BONDS WHO HAS GIVEN
NOTICE AS PROVIDED ABOVE) TO DELIVER ITS BONDS ON OR PRIOR TO THE OPTIONAL
CONVERSION DATE, SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY
INTEREST TO ACCRUE 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 BENEFITS OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF
PAYMENT OF THE PURCHASE PRICE THEREFOR.
SECTION 3.02. Conversion of Interest Rate on Automatic Conversion Date.
The interest rate on the Bonds shall be converted from the Floating Rate to the
Fixed Rate on the Automatic Conversion Date, and the Bonds shall be subject to
mandatory tender for purchase by the Owners thereof on the Automatic Conversion
Date. The Company shall deliver or mail by first class mail a notice, conforming
to the requirements set forth in Section 3.01 above, at least twenty (20) days
but not more than thirty (30) days prior to the Automatic Conversion Date to the
Owner of each Bond at the address shown on the registration books of the
Authority. 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.
Any Owner of Bonds desiring to retain Bonds after the Automatic
Conversion Date must notify the Company and the Trustee in writing which notice
must be received no later than fifteen (15) days prior to the Automatic
Conversion Date. Said notice shall conform to the requirements set forth in
Section 3.01 above. Owners of Bonds not providing the Trustee and the Company
with the notice described above shall be required to tender 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 Automatic
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Conversion Date ("Undelivered Bonds"), for which there has been irrevocably
deposited in trust with the Trustee an amount of moneys sufficient to pay the
Purchase Price of the Undelivered Bonds, shall be deemed to have been purchased
pursuant to this Section 3.02. IN THE EVENT OF A FAILURE BY AN OWNER OF BONDS
(OTHER THAN AN OWNER OF BONDS WHO HAS GIVEN NOTICE AS PROVIDED ABOVE) TO DELIVER
ITS BONDS ON OR PRIOR TO THE AUTOMATIC CONVERSION DATE, SAID OWNER SHALL NOT BE
ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE SUBSEQUENT TO THE
AUTOMATIC CONVERSION DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNDELIVERED
BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFITS OF
THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE THEREFOR.
SECTION 3.03. Exchange of Bonds after Conversion Date. At any time
prior to the first interest payment date following the Conversion Date, an Owner
of Bonds who has given notice of its desire to continue to hold Bonds as
provided in Section 3.01 or 3.02 above may deliver said Bonds to the Trustee or
the Tender Agent, and upon such delivery, the Trustee or the Tender Agent, as
the case may be, shall exchange said Bonds for replacement Bonds in the form of
Exhibit B hereto. Such exchange 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 3.04. Condition to Conversion. As a condition to the giving of
notice as provided in Section 3.01 or 3.02 above, the Company shall provide the
Trustee with an opinion of nationally recognized bond counsel to the effect that
the proposed conversion of the interest rate on the Bonds will not adversely
affect the exemption of the interest on the Bonds from federal income taxation.
SECTION 3.05. Additional Notices. The Company shall provide the Tender
Agent with a copy of any notice delivered to the Owners of the Bonds pursuant to
Section 3.01 or 3.02 hereof. The Trustee shall provide the Tender Agent with a
copy of any notice received by the Trustee from any Owner of a Bond pursuant to
Section 3.01 or 3.02 hereof.
SECTION 3.06. Demand Purchase Option. Any Bond shall be purchased at
the Purchase Price from the Owner thereof upon:
(i) delivery to the Trustee at its Principal Office and to the
Remarketing Agent at its Principal Office of a notice (said notice to
be irrevocable and effective upon receipt) which (1) states the
aggregate principal amount and Bond numbers of the Bonds to be
purchased; and (2) states the date on which such Bonds are to be
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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; and
(ii) 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 notice described in (i) above of such Bonds to be
purchased, with an appropriate endorsement for transfer or accompanied
by a bond power endorsed in blank, and if such Bonds are to be
purchased prior to the next succeeding interest payment date and after
the Record Date in respect thereof, a non-recourse due-▇▇▇▇, payable to
bearer, for interest due on such interest payment date.
SECTION 3.07. Funds for Purchase of Bonds. On the date Bonds are to be
purchased pursuant to Section 3.01, 3.02 or 3.06 hereof, such Bonds shall be
purchased at the Purchase Price only from the funds listed below. Subject to the
provisions of Section 6.09(b), funds for the payment of the Purchase Price shall
be derived from the following sources in the order of priority indicated:
(i) moneys deposited into the Bond Fund pursuant to Section
6.03(a) hereof which constitute Available Moneys;
(ii) the proceeds of the sale of such Bonds which have been
remarketed by the Remarketing Agent prior to 4:00 P.M., New York City
time, on the Business Day preceding the date such Bonds are to be
purchased, to any entity other than the Company or the Authority;
(iii) moneys drawn by the Trustee under the Letter of Credit;
and
(iv) any other moneys furnished to the Trustee and available
for such purpose.
SECTION 3.08. Delivery of Purchased Bonds.
(a) Bonds purchased with moneys described in Section 3.07(i)
hereof shall be delivered to the Trustee for cancellation.
(b) Bonds purchased with moneys described in Section 3.07(ii)
hereof shall be delivered by the Tender Agent, at its Delivery Office, to or
upon the order of the purchasers thereof.
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(c) Bonds purchased with moneys described in Section 3.07(iii)
hereof shall be delivered by the Tender Agent to or upon the order of the Bank
pursuant to the Pledge Agreement.
(d) Bonds purchased with moneys described in Section 3.07(iv)
shall, at the direction of the Company, be (A) delivered as instructed by the
Company or (B) 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.
(e) The Tender Agent shall deliver to the person to whom the
Tender Agent is to deliver such Bonds the non-recourse due-bills, if any,
delivered to the Tender Agent with such Bonds in accordance with Section 3.06
hereof.
Bonds delivered as provided in this Section shall be registered in the
manner directed by the recipient thereof.
SECTION 3.09. 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 to the Tender Agent pursuant to
Section 3.01, 3.02 or 3.06 hereof, to the extent not required to pay the
Purchase Price thereof in accordance with Section 3.07 hereof, 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 shall have directed the Bank to deliver such
Pledged Bonds to the Tender Agent pursuant to Paragraph 2B of the Credit
Agreement, such Bonds shall be delivered by the Tender Agent in accordance with
Section 3.08(b) hereof and the proceeds of sale of such Bonds shall be delivered
to the Bank; provided that any accrued interest in excess of amounts then due to
the Bank pursuant to Paragraph 2A(i) of the Credit Agreement received upon the
sale of such Bonds shall be delivered by the Bank to or upon the order of the
Company.
SECTION 3.10. 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 Section 3.01, 3.02 or 3.06 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
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been delivered to or for the account of or to the order of such Owners of Bonds;
(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 person or entity which shall
have so delivered such moneys until the Bonds purchased with such moneys shall
have been delivered to or for the account of such person or entity;
(c) The Trustee shall deliver to the Tender Agent, the Company
and the Bank a copy of each notice delivered to it in accordance with Section
3.06 hereof;
(d) Immediately upon the delivery to it of Bonds in accordance
with Section 3.06, the Tender Agent shall give telephonic or telegraphic notice
to the Company, the Trustee and the Bank specifying the principal amount of the
Bonds so delivered; and
(e) The Trustee shall draw moneys under the Letter of Credit
in accordance with the terms thereof to the extent required by Sections 3.07 and
6.09 hereof to provide for timely payment of the Purchase Price of Bonds.
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ARTICLE IV
ACQUISITION AND CONSTRUCTION OF PROJECTS
SECTION 4.01. Covenant to Complete Project in Conformity to Plans and
Specifications; Changes. The Authority will cause the Company to proceed with
reasonable dispatch to complete the construction portions of the Project in
accordance with the plans and specifications therefor, copies of which shall be
filed with the Trustee before construction for each phase of the Project is
begun. The Authority shall allow the Company, as sublessee of the Authority, or
the Architect in connection with the Project, to issue change orders under
construction contracts, provided that each such change is in writing and is
verified by the Architect, approved by an authorized officer of the Company and
filed with the Authority and the Trustee. The Company shall be responsible for
any additional Costs attributable to such change orders.
SECTION 4.02. Compliance with Laws, etc. Authority will comply or cause
the Company and its agent to comply with all present and future laws, acts,
rules, regulations, orders and requirements lawfully made relating to any
acquisition or construction hereby undertaken.
SECTION 4.03. Performance by Authority under Construction Contracts.
The Authority will faithfully perform or will require the Company to perform all
agreements on their respective parts to be performed under construction
contracts and will not do or refrain from doing any act whereby any surety or
any bond may be released in whole or in part from any obligation assumed by it
or from any agreement to be performed by it under the bond.
SECTION 4.04. Builder's Risk, Liability, and Workmen's Compensation
Insurance. The Authority will maintain or cause the Company or the contractors
to maintain, builders risk (or equivalent coverage) insurance upon any work done
or materials furnished under construction contracts except excavations
foundations and any other structures not customarily covered by such insurance.
The policies shall be issued by responsible companies qualified to do business
in New Jersey and satisfactory to the Authority, Company and Insurance
Consultant, and shall be written in completed value form for 100% of the
insurable value of the contract or Project Facilities in the name of Company,
the Authority, the Trustee and any contractor or sub-contractor as their
interests may appear with loss payable to the Trustee. Any amounts payable to
the Company, the Authority, or the Trustee thereunder shall be deposited in the
Construction Fund.
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During the period of construction of the Project, the Authority will
also maintain or cause Company to maintain or cause to be maintained, (a)
workmen's compensation insurance and employer's liability insurance,
underwritten by responsible companies qualified to do business in New Jersey and
satisfactory to the Authority, the Company and the Insurance Consultant,
covering all employees of contractors and subcontractors in amounts required by
law, and (b) public liability and property insurance, including umbrella
coverage, in amounts not less than $1,000,000 for personal injury for each
occurrence and in the aggregate per annum and $100,000 for property damage for
each occurrence with an annual aggregate property damage limitation of not less
than $1,000,000, and (c) automobile liability insurance covering owned,
non-owned and hired automobiles in amounts not less than $500,000 liability for
injury to any one person, $500,000 liability for each occurrence, and $100,000
for property damage for each occurrence.
Each policy of insurance required by this Section, or a copy thereof,
or an insurance certificate in respect thereof, shall be deposited with the
Authority and the Trustee.
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ARTICLE V
CONSTRUCTION FUND
SECTION 5.01. Establishment of Construction Fund. There is hereby
created and established with the Trustee a Construction Fund for the payment of
Costs of the Project. The Construction Fund shall consist of the amounts
deposited therein pursuant to this Indenture and any other amounts the Authority
may deposit therein including contributions by Company. The amounts in the
Construction Fund, until applied as hereinafter provided, shall be held for the
security of all the Bonds Outstanding hereunder and invested as provided in
Article VII. Separate accounts within the Construction Fund shall be maintained
by the Trustee upon request of the Authority whenever, in the opinion of the
Authority, it is appropriate to have a separate accounting in respect of the
Costs of any designated portion of the Project. The Authority may permit the
Company, from time to time, to deposit moneys in the Construction Fund for the
purpose of paying the Costs of the Project.
The investment earnings on moneys deposited in the Construction Fund
shall be added to the Construction Fund and may be expended at any time or from
time to time to pay Costs of the Project in the same manner as the proceeds of
the Bonds are expended.
SECTION 5.02. Payments from Construction Fund. The Trustee shall make
payments from the Construction Fund only upon receipt of:
(1) in every case, a requisition signed by such officer or
officers of the Company as are authorized by a written certificate of
the Company submitted to the Trustee, and such requisition shall
certify that the work to which the payment relates has been
accomplished in a manner satisfactory to Company.
Such requisition shall state (a) the name and address of the
person to whom the payment is to be made (who may be the Authority or
Company if either is to be reimbursed for advances made or work done by
it and properly chargeable against the Construction Fund); (b) the
amount to be paid; (c) the obligation on account of which the payment
is to be made, showing the total obligation, any amount previously
paid, and the unpaid balance; (d) that the obligation was properly
incurred and is a proper charge against the Construction Fund; and (e)
that the amount requisitioned is due and unpaid;
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(2) in the case of payments under construction, renovation or
repair contracts, a certificate of the Architect certifying (a) his
approval of the requisition; (b) that the obligation was properly
incurred (c) that the amount requisitioned is due and unpaid; (d) that,
insofar as the payment is to be made for work, material, supplies or
equipment, the work has been performed and the materials supplied or
equipment have been installed in the Project Facilities or have been
delivered either at the Premises or at a proper place for fabrication;
and (e) that all work, material, supplies and equipment for which
payment is to be made are, in the signer's opinion, in accordance with
the plans and specifications or duly approved change orders; and
(3) in case the payment is to discharge indebtedness of the
Authority or Company, incurred in connection with payments properly
chargeable against the Construction Fund, or to reimburse the Company,
such notes or other evidences of the indebtedness, if any, upon
satisfaction thereof shall be thereupon cancelled by the Trustee and
returned to the issuer thereof.
SECTION 5.03. Payment to Relate to Underlying Obligations. Whenever
payments are to be made to reimburse the Authority or Company for advances
(except to discharge indebtedness of the Authority or Company) the requisition
and an Architect's certificate, if appropriate shall relate to the underlying
obligation for which the Authority or Company is being reimbursed or for the
payment of which the indebtedness was incurred.
SECTION 5.04. Procedure Upon Completion of Project. Upon the completion
of the Project, the Company shall promptly furnish the Trustee with its
certificate in accordance with the requirements of Section 3.07 of the Sublease.
The Trustee shall, as soon as practicable and in any event not more than sixty
days from the date of the certificate referred to in the preceding sentence,
transfer, without further authorization, the balance in the Construction Fund
not reserved for the payment of unpaid Costs to a separate sub-account of the
Bond Fund and thereafter apply such moneys in the manner provided in Section
3.07 of the Sublease.
SECTION 5.05. Use of Money in Construction Fund Upon Default. If the
principal of the Bonds shall have become due and payable pursuant to Article X
hereof, any balance remaining in the Construction Fund shall without further
authorization be transferred into the Bond Fund.
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ARTICLE VI
REVENUES OF THE AUTHORITY, RECEIPTS AND
REVENUES OF COMPANY, AND THE APPLICATION
THEREOF TO FUNDS
SECTION 6.01. Rentals, etc. to be Sufficient.
(a) The Authority shall fix the rentals under the Sublease and
other fees and charges derived from the Company so that the Trust Estate in any
Fiscal Year is sufficient, after giving effect to any credits available to the
Company under the terms of the Sublease:
(i) to pay the Administrative Expenses of the
Authority for said Fiscal Year; and
(ii) to pay when due the interest on and principal of
(whether at maturity or upon redemption or otherwise) the Bonds during
said Fiscal Year.
In determining the Authority's compliance with (ii) above, interest due
on the Bonds for the Fiscal Year in question shall be deemed exclusive of
interest requirements to be satisfied from moneys held in the Bond Fund
representing capitalized interest.
(b) The Authority shall cause the Company to operate the
Project Facilities for port and public related uses and to otherwise comply with
the covenants contained in the Sublease.
SECTION 6.02. Trust Estate to Be Paid Over to Trustee. The Authority
hereby pledges to the Trustee the Trust Estate, including but not limited to all
income and receipts earned on funds held by the Trustee under this Indenture and
the Sublease as security for the performance of any obligation of the Authority
under this Indenture. The pledge is made, and the covenants and agreements set
forth herein to be performed by or on behalf of the Authority shall be, for the
equal and ratable benefit, protection and security of the Owners of the Bonds,
all of which, regardless of their times of issue and maturity, shall be of equal
rank, without preference, priority or distinction of any Bond except as
expressly provided herein or permitted by this Indenture. The Trust Estate
including all income and receipts on funds held by the Trustee under this
Indenture shall immediately be subject to the lien of the pledge without any
physical delivery thereof or further act. Pursuant to the assignment of the
Authority's rights under the Sublease, the rentals owed by the Company under the
Sublease (except amounts payable under Sections 4.01(b), 9.03 or 9.05
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thereof) shall be paid directly to the Trustee by Company. Upon receipt of any
such rentals or other payments hereunder, the Trustee shall deposit the same in
the Bond Fund except as otherwise required pursuant to any other provision
hereof.
SECTION 6.03. Bond Fund. There is hereby created and established with
the Trustee a Bond Fund which shall be used as provided in this Section.
There shall be deposited in 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 5.04 or 5.05 hereof; (b)
any amount to be deposited in the Bond Fund pursuant to Section 6.04 hereof; (c)
all payments specified in Section 4.01(a) of the Sublease; (d) any moneys drawn
under the Letter of Credit which moneys shall be deposited in a separate account
of the Bond Fund and shall not be commingled with any other moneys held by the
Trustee; (e) amounts held by the Trustee pursuant to Section 3.10 hereof; and
(f) all other moneys received by the Trustee pursuant to Section 6.02 hereof.
Except as provided in Section 3.07, 3.10 and 6.08 hereof, moneys in the
Bond Fund shall be used solely for the payment of principal of, premium, if any,
and interest on the Bonds and for the redemption of the Bonds prior to maturity.
Subject to the provisions of Section 6.09 hereof, funds for such payments of
principal of and premium, if any, and interest on the Bonds shall be derived
from the following sources in the following order of priority indicated: (i)
amounts required to be transferred from the Construction Fund to the Bond Fund
in accordance with clause (a) of the preceding paragraph which constitute
Available Moneys; (ii) any amount deposited into the Bond Fund pursuant to
Section 6.04 hereof which constitutes Available Moneys; (iii) any moneys drawn
by the Trustee under the Letter of Credit; and (iv) any other moneys furnished
to the Trustee and available for such purpose.
The foregoing notwithstanding, amounts deposited into the Bond Fund in
accordance with Section 5.04 hereof shall be applied only to the payment of the
principal of, or the portion of the Purchase Price corresponding to the
principal of, the Bonds, and amounts deposited into the Bond Fund pursuant to
Section 6.04 hereof shall be applied only to the payment of the principal of the
Bonds.
SECTION 6.04. Custody of Separate Trust Fund. The Trustee is authorized
and directed to hold all proceeds from any insurance policies or condemnation
awards and disburse such proceeds in accordance with Article VI of the
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Sublease. If the Company directs that any Portion of such proceeds be applied to
redeem Bonds, the Trustee shall deposit such 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. Mandatory Redemption. The Trustee shall establish as part
of the Bond Fund a Mandatory Redemption Account. The Trustee shall use the
Mandatory Redemption Account to redeem Bonds as required by Section 8.04 hereof.
Sufficients funds shall be transferred to the Mandatory Redemption Account on
December I of each year from 1990 through 1998 to effect the redemptions
required by Section 8.04 hereof. If at any time all the Bonds shall have been
purchased, redeemed or paid, no further deposits shall be made to the Mandatory
Redemption Account.
SECTION 6.06. Moneys to be Held for all Owners of Bonds, With Certain
Exceptions. Moneys and investments in the various funds created under or
pursuant to this Article VI shall, until applied as provided with respect to the
fund in question, be held in trust by the Trustee for the benefit of the Owners
of all Outstanding Bonds except as otherwise provided herein.
SECTION 6.07. 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, without liability for interest thereon,
for the benefit of the Owner of such Bond 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 Bond.
Any moneys so deposited with and held by the Trustee which remain
unclaimed five (5) years after the date payment thereof becomes due shall, upon
request of the Company, if the Company is not at the time, to the knowledge Of
the Trustee, in default with respect to any covenant in this Indenture or the
Bonds, be paid to the Company; and the Owners of the Bonds for which the deposit
was made shall thereafter be limited to a claim against the Company 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
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such money; provided, however, that the Trustee, before making payment to the
Company, may, at the expense of the company, cause a notice to be mailed to
those Owners who have not claimed their payment, stating that the moneys
remaining unclaimed will be returned to the Company after a specified date.
SECTION 6.08. Repayment to the Bank and Company from Bond Fund or
Construction Fund. Any amounts remaining in the Bond Fund, 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,
shall be paid immediately to the Bank to the extent of any indebtedness of the
Company to the Bank under the Credit Agreement, and after repayment of all such
indebtedness, to the Company.
SECTION 6.09. 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 (x)
to the extent moneys described in Section 6.03 (i) and (ii) hereof are not
available therefor, to pay when due (whether by reason of maturity, redemption,
acceleration or otherwise) the principal of, premium, if any, and interest on
the Bonds, and (y) to the extent that moneys described in Section 3.07 (i) and
(ii) hereof are not available therefor, to pay when due the Purchase Price of
Bonds.
(b) Notwithstanding any provision to the contrary which may be
contained in this Indenture, including without limitation, Section 6.09(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, or premium, if any, or interest
on the Bonds, the Trustee shall exclude any such amounts in respect of any Bonds
which are Pledged Bonds on 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 principal or Purchase Price of, or premium, if any, or interest on, any
Bonds which are Pledged Bonds on the date such payment is due.
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ARTICLE VII
SECURITY FOR AND INVESTMENT OF DEPOSIT OF FUNDS
SECTION 7.01. Deposits and Security Therefor. All moneys received by
the Trustee under this Indenture for deposit in any Fund established hereunder
shall be considered trust funds, shall not be subject to lien or attachment
(except the lien created hereunder) and shall, except as hereinafter provided,
be deposited with the Trustee, until or unless invested or deposited as provided
in Section 7.02. If at any time the Trustee is unwilling to accept such
deposits, the Trustee may deposit such moneys with any other depository which is
authorized to receive them and the deposits of which are insured by the Federal
Deposit Insurance Corporation or Federal Savings and Loan Insurance
Corporations.
SECTION 7.02. Investment or Deposit of Funds. The Trustee shall, at the
request of the Authority, as directed by the Company (or in the absence of such
request, on its own initiative), invest moneys held in the Construction Fund or
any other fund other than the Bond Fund in Investment Securities maturing, or
being subject to redemption by the Trustee without penalty, at the time when the
funds will foreseeably be needed for the purposes of this Indenture. Absent
specific instructions as aforesaid, all investments shall be subject to the
discretion and judgment of the Trustee, subject, however, to the limitations
contained herein, and subject however to the limitations contained in Section
9.15 hereof.
Moneys in any of the Funds, other than the Bond Fund, established
pursuant to the Indenture or Sublease when held by the Trustee shall be
continuously invested and reinvested and deposited or redeposited by the Trustee
in the highest yield that may be reasonably known to the Trustee, with a view to
maximizing yield and minimizing the instances of uninvested funds, and subject
to all written directions from the Authority and the Company, as aforesaid. All
investments shall mature or be subject to redemption by the owner at not less
than the principal amount thereof or the cost of acquisition, whichever is
lower, and all investments of the types set forth in subparagraph (f) of the
definition of Investment Securities shall be subject to withdrawal without
penalty not later than the date when the amounts will foreseeably be needed for
purposes of this Indenture.
Any moneys held as a part of the Bond Fund shall be invested or
reinvested by the Trustee, to the extent permitted by law, in United States
Treasury bills with maturities of no more than thirty days from the date of
acquisition thereof.
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All securities securing investments under this Section shall be
deposited with a Federal Reserve Bank, with the trust department of the Trustee
as authorized by law, or with a bank or trust company having a combined net
capital and surplus of not less than $10,000,000. The interest and income
received from time to time upon such deposits and investments and any profit
realized or loss sustained from the sale of such securities shall be added or
charged to the appropriate Fund for computation of any surplus or deficiency in
any such Fund.
Upon request of the Authority as directed by Company, or on its own
initiative whenever payment is to be made out of any Fund, the Trustee shall
sell such securities as may be required to make the payment and restore the
proceeds to the Fund in which the securities were held. Neither the Trustee nor
the Authority shall be accountable for any depreciation in the value of any such
security or for any loss resulting from the sale thereof except as provided
hereinafter. Notwithstanding the foregoing provisions of this Section 7.02, the
Trustee shall not knowingly make any investment of any moneys held in any Fund
inconsistent with Section 9.15 hereof relating to "arbitrage bonds."
SECTION 7.03. Valuation of Funds. In computing the assets of any Fund
or account, investments and accrued interest thereon shall be deemed a part
thereof, subject to Section 7.02 hereof. Such investments shall be valued at the
face value or the current market value thereof, whichever is lower, or at the
redemption price thereof, if then redeemable at the option of the owner.
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ARTICLE VIII
REDEMPTION OF BONDS BEFORE MATURITY
SECTION 8.01. Extraordinary Redemption. The Bonds are callable for
redemption in the event (1) the Premises or any portion thereof are damaged or
destroyed or taken in a condemnation proceeding to which Section 6.04(b) of the
Sublease is applied, or (2) the Company shall exercise its option to cause the
Bonds to be redeemed as provided in Section 6.05 of the Sublease. 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 the
case of redemption pursuant to Section 6.04(b) of the Sublease) in part, less
than all of such Bonds to be selected in such manner as the Trustee may
determine (except as otherwise provided in Section 8.08 hereof), at a redemption
price equal to 100% of the principal amount thereof plus accrued interest to the
redemption date.
In addition, the Bonds are subject to mandatory redemption, in whole,
on the Automatic Conversion Date, at a redemption price equal to 100% of the
principal amount thereof, in the event that (a) the opinion of bond counsel
required to be furnished to the Trustee pursuant to Section 3.04 hereof shall
not have been furnished on or prior to the 20th day prior to the Automatic
Conversion Date or (b) the Fixed Rate has not been established on or prior to
the 20th day preceding the Automatic Conversion Date.
SECTION 8.02. Optional Redemption by the Company. 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 on or after July 1, 1985, in whole or in
part, less than all of such Bonds to be selected in such manner as the Trustee
shall determine (except as otherwise provided in Section 8.08 hereof), at the
redemption price of 100% of the principal amount thereof plus accrued interest
to the redemption date.
After the Conversion Date, the Bonds are subject to redemption by the
Authority, at the option of the Company, on or after the First Optional
Redemption Date, in whole at any time or in part on any interest payment date,
less than all of such Bonds to be selected in such manner as the Trustee shall
determine (except as otherwise provided in Section 8.08 hereof), at the
redemption prices (expressed as percentages of principal amount) set forth in
the following table plus accrued interest to the redemption date:
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Redemption
Redemption Dates Prices
---------------- ----------
First Optional Redemption Date through
the following November 30 103%
First Anniversary of the First Optional
Redemption Date through the following
November 30 102%
Second Anniversary of the First Optional
Redemption Date through the following
November 30 101%
Third Anniversary of the First Optional
Redemption Date and thereafter 100%
SECTION 8.03. Determination of Taxability. The Company is obligated,
under the Sublease, to give prompt notice to the Trustee of any Determination of
Taxability (as defined below) of which it is aware. The Trustee shall be
obligated to cause the Bonds to be redeemed within one hundred eighty (180) days
after a Determination of Taxability shall have occurred at a redemption price
equal to 100% of the principal amount thereof plus accrued interest to the
redemption date.
A "Determination of Taxability" shall be deemed to occur if a final
decree or judgment of any federal court or a final action of the Internal
Revenue Service determines that interest paid or payable on any Bond is or was
includable in the gross income of an Owner of the Bonds for federal income tax
purposes under the Code (other than an Owner who is a substantial user or
related person within the meaning of Section 103(b) of the Code). No such
decree, judgment, or action will be considered final for this purpose, however,
unless the Company has been given written notice and, if it is so desired and is
legally allowed, has been afforded the opportunity to contest the same, either
directly or in the name of any Owner of a Bond, and until conclusion of any
appellate review, if sought. If the Trustee receives written notice from any
Owner of Bonds stating that (i) the Owner of Bonds has been notified in writing
by the Internal Revenue Service that it proposes to include the interest on any
Bond in the gross income of such Owner of Bonds for the reasons described herein
or any other proceeding has been instituted against such Owner of Bonds which
may lead to a final decree, judgment, or action as described herein, and (ii)
such Owner of Bonds will afford the Company the opportunity to contest the same,
either directly or in the name of the owner of Bonds, until a conclusion of any
appellate review, if sought, then the Trustee shall promptly
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give notice thereof to the Company, the Authority, the Bank and the Owner of
each Bond Outstanding. The Trustee shall thereafter coordinate any similar
requests or notices it may have received from other Owners of Bonds and shall
keep them informed of the progress of any administrative proceedings or
litigation. If a Determination of Taxability is made, the Trustee shall give
notice of the redemption of the Bonds at the earliest practicable date, but not
later than the date specified in this Section, and in the manner provided by
Section 8.05 of this Indenture.
SECTION 8.04. Mandatory Partial Redemption. There shall be called for
redemption on December 1 of each year from December 1, 1990 to and including
December 1, 1998, the following principal amounts of Bonds chosen in such manner
as the Trustee shall determine (subject to Section 8.08 hereof) at the principal
amount thereof plus accrued interest:
Year Amount Year Amount
---- ------ ---- ------
(December 1) (December 1)
1990 $250,000 1994 $250,000
1991 250,000 1995 250,000
1992 250,000 1996 250,000
1993 250,000 1997 250,000
1998 250,000
At its option, to be exercised on or before the 45th day prior to each
of the mandatory redemption dates set forth in this Section 8.04, the Authority,
through (or at the direction of) the Company, may do any one or more of the
following: (a) deliver to the Trustee for cancellation Bonds or (b) receive a
credit in respect of its mandatory partial redemption obligation for any Bonds
which prior to said date have been redeemed or purchased (otherwise than through
the operation of such mandatory partial redemption) and cancelled by the Trustee
and not theretofore applied as a credit against such mandatory partial
redemption obligations. Each Bond so delivered, redeemed or purchased in
accordance with clauses (a) or (b) of this Section 8.04 shall be credited by the
Trustee at 100% of the principal amount thereof to the obligation of the
Authority with respect to the Mandatory Redemption Account; any excess over such
amount shall be credited to such future obligations with respect to the
Mandatory Redemption Account in accordance with the instructions of the Company.
The Authority, through (or at the direction of) the Company, will, on or before
the 45th day next preceding each mandatory partial redemption date, furnish the
Trustee with its certificate indicating to what extent, if any, the provisions
of clauses (a) or (b) of this paragraph are to be availed of with respect to
each such mandatory partial redemption payment.
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SECTION 8.05. Notice of Redemption. Notice of the call for redemption,
identifying the Bonds or portions thereof to be redeemed, shall be given by the
Trustee by mailing a copy of the redemption notice by registered or certified
mail at least fifteen (15) 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 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. Notwithstanding the foregoing
provisions of this Section 8.05, delivery by the Tender Agent of a copy of a
redemption notice to a transferee of a Bond which has been called for
redemption, pursuant to the requirements of Section 2.08, shall be deemed to
satisfy the requirements of the first sentence of this Section 8.05 with respect
to any such transferee.
SECTION 8.06. Redemption Payments. 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 8.07. Cancellation. All Bonds which have been redeemed shall
not be reissued but shall be canceled and cremated or otherwise destroyed by the
Trustee in accordance with Section 2.11 hereof.
SECTION 8.08. Partial Redemption of Bonds. (a) 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.
(b) 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 in the principal amount of $5,000 or any
integral multiple thereof.
(c) Notwithstanding anything to the contrary contained in this
Indenture, whenever the Bonds are to be redeemed in part, Bonds which are
Pledged Bonds at the time of selection of Bonds for redemption shall be selected
for redemption prior to the selection of any other bonds. If the aggregate
principal amount of Bonds to be redeemed exceeds the aggregate principal amount
of Pledged Bonds at the time of selection, the Trustee may select for redemption
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Bonds in an aggregate principal amount equal to such excess in such manner as
the Trustee may determine.
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ARTICLE IX
COVENANTS OF AUTHORITY
Section 9.01. Payment of Principal and Interest on Bonds. The Authority
or cause to be paid the principal of and very Bond issued hereunder according to
the terms thereof, but shall be required to make such payment only out of the
Trust Estate. The Authority shall appoint one or more paying agents for such
purpose, each such agent to be a bank and trust company or a trust company or a
national banking association having trust powers. The Authority hereby appoints
the Trustee to act as plying agent and designates the Principal Office of the
Trustee as the place of payment of principal of the Bonds, such appointment and
designation to remain in effect until notice of change is filed with the
Trustee.
SECTION 9.02. Corporate Existence and Maintenance of Project
Facilities. The Authority shall maintain its corporate existence and its right
to operate or lease the Premises and shall provide for or cause the Company to
provide for (a) continuous operation of the same; (b) performance of all
repairs, renewals, replacements and improvements thereto necessary to maintain
adequate service; and (c) compliance with all valid and applicable laws, acts,
rules, regulations, permits, orders, requirements and direction of any competent
public authority.
SECTION 9.03. Subleasing, etc. of Facilities. Upon termination of the
Sublease, the Authority may sublease the Premises or any portions thereof to
third parties lawfully entitled to enter into such subleases, but the Authority
covenants that any such sublease shall be subject to, and shall not contain
terms inconsistent with, this Indenture and shall be approved by the Trustee.
The Authority may, at any time, enter into operating agreements in respect of
the Premises with the Company or with third parties lawfully entitled to enter
into such agreements, but the Authority covenants that any such agreement shall
be subject to, and shall not contain terms inconsistent with, this Indenture.
SECTION 9.04. Enforcement, Execution and Amendment of Sublease and
Other Contracts; Notice of Default. The Authority shall cause this Indenture to
be terms of the Sublease and of rentals and other amount any supplement or
amendment thereto, and any other sublease, agreement or other contract executed
pursuant to Section 9.03 or otherwise made subject to the lien and security
interest created by this Indenture, and shall otherwise
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enforce all of its rights and privileges, and honor all of its obligations
thereunder, and subject to Section 10.02 hereof, shall require every party with
which it so contracts, including the Company under the Sublease, to perform all
of its contractual obligations and covenants. So long as no Event of Default
hereunder shall have occurred and be continuing, the Authority may exercise all
its rights under any sublease, agreement or contract, or supplement or amendment
thereto, but the Authority shall not, without the consent of the Trustee, amend
any of the same so as to affect adversely the Authority's ability to perform its
covenants under this Indenture. The Authority shall file with the Trustee copies
of the Sublease and other subleases, agreements and contracts of the nature
referred to in Section 9.03 (whether heretofore or hereafter executed), together
with all amendments or supplements thereto, whether or not the Trustee's consent
is required thereto, and shall give prompt notice to the Trustee of any default
by any of the parties thereto except defaults of minor importance to the
interests of the Authority therein.
SECTION 9.05. Insurance Requirements. The Authority shall keep the
Project Facilities, or cause the same to be kept, insured by one or more
insurance companies authorized and qualified to do business under the laws of
New Jersey against such risks and in such amounts as are specified in the
Sublease. The Authority will carry or cause to be carried liability and property
damage insurance in such amounts and in such manner as is described in the
Sublease or, if the Sublease has been terminated, as is otherwise customary in
the operation of similar facilities to the Project Facilities.
The insurance policies required hereunder or copies thereof or
insurance certificates with respect thereto shall be filed with the Trustee.
Any appraisal, adjustment or settlement agreed upon among the
Authority, the Company and any insurer which is evidenced by an Officers'
Certificate of the Company (if the amount is $50,000 or less) or otherwise by a
Certified Resolution of the Authority and approved by a Consultant and the
Company as evidenced by an Officers' Certificate may be accepted by the Trustee.
SECTION 9.06. Annual Certificate Regarding Insurance. The Authority
shall, on or before the execution and delivery hereof, and thereafter prior to
the beginning of each Fiscal Year, cause the Company to deliver to the Trustee,
a certificate of the Insurance Consultant listing the insurance policies,
coverage amounts and expiration dates, stating therein whether the Company is in
compliance with the insurance requirements of the Sublease and this
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Indenture, stating the amounts and types of insurance which should be maintained
in the next ensuing Fiscal Year and specifying the insurance renewals and
replacements to be made during such next ensuing Fiscal Year.
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SECTION 9.07. Sublease of Premises Prohibited; Exceptions. The
Authority shall not sublease (other than to the Company pursuant to the Sublease
or as provided in Section 9.03 hereof), nor shall it permit the Company to
sublease (except as provided in Section 7.14 of the Sublease) the Premises.
SECTION 9.08. Payment of Taxes; Discharge of Liens. The Authority shall
pay, or cause to be paid, all taxes, assessments, or other municipal or
governmental charges lawfully imposed upon the Authority or the Premises or any
revenues therefrom and will not suffer to be created or to exist any lien or
charge thereon except the lien and charge of the Sublease, this Indenture, and
the Bonds issued under this Indenture; provided, however, that the Authority
hereby consents to the granting of a lien on or security interest in the
Company's rights in the Premises by the Company to Simon Engineering, P.L.C., as
guarantor of the Company's obligations under the Credit Agreement. The Authority
shall pay or discharge or shall make adequate provision to satisfy and
discharge, or shall cause the same to occur, within thirty (30) days after the
same shall accrue, any such lien or charge and all lawful claims and demands for
labor, materials, supplies or other objects which, if unpaid, might become such
a lien or charge; provided, however, that this shall not require the Authority
to pay or discharge or make provision for any lien or charge so long as the
validity thereof is being contested in good faith and by appropriate legal
proceedings and neither the Premises nor any rent or income therefrom or
interest therein would be in any immediate danger of being sold, forfeited,
attached or lost.
SECTION 9.09. Extension of Time for Payment of Interest, etc.
Prohibited. The Authority shall not directly or indirectly extend or assent to
the extension of the time for payment of any claim for interest on, any of the
Bonds and shall not directly or indirectly be a party to or approve any
arrangement therefor by purchasing or funding or in any manner keeping alive any
such claim for interest; and no claim for interest which in any way at or after
maturity shall have been transferred or pledged apart from the Bond to which it
relates or which shall in any manner have been kept alive after maturity by
extension or by purchase thereof by or on behalf of the Authority shall be
entitled, in case of a default hereunder, to any benefit or security under this
Indenture except after the prior payment in full of the principal of all Bonds
and of all claims for interest appertaining thereto not so transferred, pledged,
kept alive or extended.
SECTION 9.10. Employment of an Architect. The Authority shall employ or
cause Company to employ an Ar-
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chitect to the extent necessary to perform the services required hereunder and
to advise the Authority on questions relating to the Project Facilities.
SECTION 9.11. Employment of Certified Public Accountant. The Authority
shall employ or cause to be employed as required a Certified Public Accountant
to perform the accounting and auditing functions and duties required by the Act
and this Indenture.
SECTION 9.12. Annual Budget and Statements. The Authority shall furnish
or shall cause to be furnished to the Local Finance Board a budget of the
Authority for each fiscal year as required by the Act. The Authority shall
furnish to the Trustee a copy of all reports and other documents which the
Company or other third party is required to furnish the Authority under the
Sublease or similar agreement.
SECTION 9.13. Financing Statements and Other Action to Protect Security
Interests. The Authority shall cause this Indenture or a financing statement or
memorandum relating thereto to be filed, registered and recorded in such manner
and at such places as may be required by law to protect the security of the
Owners of the Bonds and the right, title and interest of the Trustee in and to
the Trust Estate or any part thereof. Concurrently with the execution and
delivery hereof and thereafter from time to time, as reasonably requested by the
Trustee, not less often than once every five (5) years, the Authority shall
obtain an opinion of Counsel and furnish a signed copy thereof to the Trustee,
setting forth what, if any, actions by the Authority or Trustee should be taken
to preserve such security. The Authority shall perform or shall cause to be
performed any such acts, and execute and cause to be executed any and further
instruments as may be required by law or as shall be reasonably requested by the
Trustee for such protection of the interests of the Trustee and the Owners of
the Bonds, and shall furnish satisfactory evidence to the Trustee for such
protection of the interests of the Trustee and the Owners of the Bonds, and
shall furnish satisfactory evidence to the Trustee of recording, registering,
filing and refiling of such instrument and of every additional instrument which
shall be necessary to preserve the lien of this Indenture upon the Trust Estate
or any part thereof until the principal of and interest on the Bonds secured
hereby shall have been paid. The Trustee shall execute or join in the execution
of any such further or additional instrument and file or join in the filing
thereof at such time or times and in such place or places as it may be advised
by an opinion of Counsel will preserve the lien of this Indenture upon the Trust
Estate or any part thereof until the aforesaid principal and interest shall have
been paid.
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SECTION 9.14. Further Assurances; Additional Revenues. The Authority
shall not enter into any contract or take any action by which the rights of the
Trustee or the Owners of the Bonds may be impaired and shall, from time to time,
execute and deliver such further instruments and take such further action as may
be required to carry out the purposes of this Indenture. If at any time the
Authority receives any income or payment from or in respect of the Premises or
the Bonds which is not assigned to the Trustee (other than payments made
pursuant to Sections 4.01(b), 9.03 or 9.05 of the Sublease), it shall promptly
pay the same to the Trustee for deposit in the Bond Fund and, at the request of
the Trustee, shall execute and deliver an assignment of its right, title and
interest in and to future income or payments of the same type to the Trustee to
be held as part of the Trust Estate and file or record such assignment as may be
appropriate to perfect the security interest created thereby.
SECTION 9.15. Investments to Comply with Internal Revenue Code. The
Authority covenants to the Owners of the Bonds that it will make no investment
or other use of the proceeds of the Bonds issued hereunder which would cause the
Bonds to be "arbitrage bonds" as that term is defined in Section 103(c) of the
Code and all applicable regulations promulgated with respect thereto, and that
it will comply with the requirements of the Code and regulations throughout the
term of the Bonds.
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ARTICLE X
EVENTS OF DEFAULTS AND REMEDIES
SECTION 10.01. Events of Default Defined. Each of the following shall
be an "Event of Default" hereunder:
(a) if payment of any installment of interest on any Bond is
not made within three days of when it becomes due and payable; or
(b) if payment of the principal of or premium, if any, on any
Bond is not made when it becomes due and payable at maturity or upon
call for redemption or upon maturity thereof by declaration; or
(c) if payment of the Purchase Price of any Bond is not made
at the time required by Section 3.01, 3.02 or 3.06 hereof;
(d) at any time prior to the Letter of Credit Termination
Date, receipt by the Trustee, within 10 "business days" (as defined in
the Letter of Credit) following a drawing under the Letter of Credit to
pay interest or the portion of the Purchase Price corresponding to
interest on the Bonds, of notice from the Bank that the Letter of
Credit will not be reinstated (in respect of interest) to an amount
equal to at least 120 days' interest on all Outstanding Bonds;
(e) receipt by the Trustee of notice from the Bank that an
"Event of Default" has occurred under the Credit Agreement;
(f) at any time after the Letter of Credit Termination Date,
the occurrence of an "Event of Default" under the Sublease;
(g) at any time after the Letter of Credit Termination Date,
if the Authority defaults in the due and punctual performance of any
other covenant in the Bonds or in this Indenture and such default
continues for thirty (30) days after written notice requiring the same
to be remedied shall have been given to the Authority and the Company
by the Trustee, which may give such notice in its discretion and shall
give such notice at the written request of the Owners of not less than
25% in aggregate principal amount of Bonds then Outstanding; provided,
however, that if such performance requires work to be done, actions to
be taken, or
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conditions to be remedied, which by their nature cannot reasonably be
done, taken or remedied, as the case may be, within such thirty (30)
day period, no Event of Default shall be deemed to have occurred or
exist if, and so long as, the Authority or the Company shall commence
such performance within such thirty (30) day period and shall
diligently and continuously prosecute the same to completion.
SECTION 10.02. Acceleration. Upon the occurrence of (i) any Event of
Default under subsection (a), (b), (c), (f) or (g) of Section 10.01, the Trustee
may, and upon written request of the Owners of not less than 25% in aggregate
principal amount of the Bonds then Outstanding, shall, or (ii) any Event of
Default under subsection (d) or (e) of Section 10.01, the Trustee shall, by
notice in writing delivered to the Authority and the Company, declare the
principal of all Bonds then Outstanding to be immediately due and payable, and
upon such declaration the said principal, together with interest accrued
thereon, shall become due and payable immediately at the place of payment
provided therein, anything in this Indenture or in the Bonds to the contrary
notwithstanding.
Upon any declaration of acceleration hereunder, the Trustee shall
immediately declare the payments required to be made by the Company under
Section 4.01 of the Sublease to be immediately due and payable and, prior to the
Letter of Credit Termination Date, shall draw moneys under the Letter of Credit
to pay the principal of all Outstanding Bonds and the accrued interest thereon
to the date of acceleration to the extent required by Section 6.09(a) hereof.
SECTION 10.03. Entry by Trustee. If any Event of Default has occurred
and is continuing, the Trustee, subject to Section 10.02 hereof, and, so long as
the Letter of Credit is in effect or any amount is owed to the Bank under the
Credit Agreement, only with the consent of the Bank, (a) may enforce each and
every right granted to the Authority under the Sublease, and all other
subleases, agreements and contracts and any supplements or amendments thereto
executed as provided in Section 9.03 hereof, and (b) insofar as such right may
be lawfully conferred upon the Trustee, may, by its agents or attorneys, with or
without process of law, enter upon and take and maintain possession of all or
any part of the Project Facilities, together with all records, documents, books,
papers and accounts of the Authority relating thereto, and may, as the attorney
in fact or agent of the Authority, being duly authorized, or in its own name as
Trustee, hold, manage, and operate such Project Facilities and collect the
amounts payable by reason of such operation. After paying the expenses of
operation and
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maintenance, including such repairs, replacements, alterations, additions and
improvements as it deems proper, the Trustee shall apply the balance of the
revenues as provided in Section 10.11 hereof.
SECTION 10.04. Legal Proceedings by Trustee. Subject to the provisions
of Section 10.02 hereof, if any Event of Default has occurred and is continuing,
the Trustee in its discretion may, and upon the written request of the Owners of
not less than 25% in aggregate principal amount of the Bonds then Outstanding
and receipt of indemnity to its satisfaction shall, in its own name:
(a) by mandamus, or other suit, action or proceeding at law or
in equity, enforce all rights of the Owners of the Bonds, including the
right to require the Authority to charge and collect rates, rentals and
other charges adequate to carry out the terms of this Indenture and to
require the Authority to carry out any other agreements with, or for
the benefit of, the Owners of the Bonds and to perform it or their
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 Owners of
the Bonds; and
(d) by action or suit in equity enjoin any acts or things
which may be unlawful or in violation of the rights of the Owners of
the Bonds.
SECTION 10.05. Discontinuance of Proceedings by Trustee. If any
proceeding taken by the Trustee on account of any default is discontinued or is
determined adversely to the Trustee, the Authority, the Trustee and the Owners
of the Bonds shall be restored to their former positions and rights hereunder as
though no such proceeding had been taken.
SECTION 10.06. Owners of Bonds May Direct Proceedings. Subject to the
provisions of Section 10.02 hereof, the Owners of a majority in aggregate
principal amount of the Bonds then Outstanding hereunder shall have the right to
direct the method and place of conducting all remedial proceedings by the
Trustee hereunder, provided such directions shall not be otherwise than in
accordance with law or the provisions of this Indenture, and that the Trustee
shall have the right to decline to follow any such directions which in the
opinion of the Trustee would be unjustly prejudicial to Owners of the Bonds not
parties to such directions.
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SECTION 10.07. Limitations on Actions by Owners of Bonds. Subject to
the provisions of Section 10.02 hereof, no Owner of Bonds shall have any right
to pursue any remedy hereunder unless (a) the Trustee shall have been given
written notice of an Event of Default, (b) the Owners of at least 25% in
aggregate principal amount of the Bonds then Outstanding shall have requested
the Trustee, in writing, to exercise the powers granted in this Indenture 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, and (d) the Trustee shall have failed to comply with such request
within a reasonable time.
SECTION 10.08. Trustee May Enforce Rights Without Possession of Bonds.
All rights under this 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 proceeding instituted by the Trustee
shall be brought in its name for the ratable benefits of the Owners of the
Bonds.
SECTION 10.09. Remedies Not Exclusive. Subject to the provisions of
Section 10.02 hereof and except as limited under Section 15.01 and 15.02 of this
Indenture, 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 10.10. Delays and Omissions Not to Impair Rights. No delay or
omission in respect of exercising any right or power accruing upon any default
shall impair such right or power or be a waiver of such default, and every
remedy given by this Article X may be exercised from time to time and as often
as may be deemed expedient.
SECTION 10.11. Application of Moneys in Event of Default. Any moneys
received by the Trustee under this Article shall be applied,
First: to the payment of the costs of the Trustee, including
counsel fees, any disbursements of the Trustee with interest thereon
and its reasonable compensation; and
Second: to the payment of principal or redemption price (as
the case may be) and interest then owing on the Bonds and in case such
moneys shall be insufficient to pay the same in full, then to the
payment of principal or redemption price and interest ratably, without
preference or priority of one over another or of any installment
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of interest over any other installment of interest.
The surplus, if any, shall be paid to the Company or the Bank, as
provided in Section 6.08 hereof.
Notwithstanding anything to the contrary herein or otherwise, moneys
drawn under the Letter of Credit shall be applied only to the payment of
principal or Purchase Price of, premium, if any, and accrued interest on the
Bonds.
SECTION 10.12. Trustee's Right to Receiver; Compliance with Act. As
provided by the Act, the Trustee shall be entitled as of right to the
appointment of a receiver; and the Trustee, the Owners of the Bonds and any
receiver so appointed shall have such rights and powers and be subject to such
limitations and restrictions as are contained in the Act.
SECTION 10.13. Waivers of Default. The Trustee shall waive any Default
hereunder and its consequences and rescind any declaration of acceleration of
principal upon the written request of the Owners of (1) more than two-thirds
(2/3) in aggregate principal amount of all Outstanding Bonds in respect of which
default in the payment of principal or interest, or both, exists or (2) more
than two-thirds (2/3) in aggregate principal amount of Outstanding Bonds in the
case of any other Event of Default; provided, however, that any Event of Default
under subsection (e) of Section 10.01 hereof may only be waived upon the written
request of the Bank (and in such case the consent of the Owners of the Bonds
shall not be required); and provided further that there shall not be waived any
Event of Default specified in subsection (a) or (b) of Section 10.01 hereof
unless prior to such waiver or rescission, all arrears of principal and interest
(other than principal of or interest on the Bonds which became due and payable
by declaration of acceleration), with interest at the Late Payment Rate on
overdue installments, to the extent permitted by law, and all expenses of the
Trustee in connection with such Event of Default shall have been paid or
provided for. In case of any waiver or rescission described above, or in case
any proceeding taken by the Trustee on account of any such Event of Default
shall have been discontinued or concluded or determined adversely, then and in
every such case the Authority, the Trustee and the Owners of Bond shall be
restored to their former positions and rights hereunder, respectively, but no
such waiver or rescission shall extend to any subsequent or other Event of
Default, or impair any right consequent thereon.
Notwithstanding the foregoing, no waiver, rescission or annulment of an
Event of Default hereunder shall be
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made if the Bank shall theretofore have honored in full a drawing under the
Letter of Credit in respect of such Event of Default.
SECTION 10.14. Trustee and Owners of Bonds Entitled to All Remedies
under Act. It is the purpose of this Article to provide such remedies to the
Trustee and Owners of the Bonds as may be lawfully granted under the provisions
of the Act; but should any remedy herein granted be held unlawful, the Trustee
and the Owners of the Bonds shall nevertheless be entitled, subject to Section
10.02 hereof, to every other remedy provided by the Act. It is further intended
that, insofar as lawfully possible, the provisions of this Article shall apply
to and be binding upon the trustee or receiver appointed under the Act.
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ARTICLE XI
THE TRUSTEE
SECTION 11.01. Acceptance of Trust. The Trustee accepts and agrees to
execute the trusts hereby created, but only upon the additional terms set forth
in this Article, to all of which the parties hereto and the Owners of the Bonds
agree.
SECTION 11.02. No Responsibilities for Recitals, etc. The recitals,
statements and representations in this Indenture or in the Bonds, save only
Trustee's Authentication Certificate upon the Bonds, have been made by the
Authority and not by the Trustee; and the Trustee shall be under no
responsibility for the correctness thereof.
SECTION 11.03. Trustee May Act Through Agents; Answerable Only for
Willful Misconduct or Negligence. The Trustee may execute any powers hereunder
and perform any duties required of it through attorneys, agents, officers, or
employees, and shall be entitled to advice of counsel concerning all questions
hereunder; and the Trustee shall not be answerable for the default or misconduct
of any attorney, agent or employee selected by it with reasonable care, except
that the Trustee shall at all times be answerable and responsible for any
liability to the Authority and Company resulting from any theft or loss of, or
unauthorized or wrongful issuance of, Bonds held by it or after an exchange as
set forth in Section 2.08 hereof. The Trustee shall not be answerable for the
exercise of any discretion or power under this Indenture nor for anything
whatever in connection with the trust hereunder, except only its own willful
misconduct or negligence or the theft or loss, for any reason whatsoever, or
unauthorized or wrongful issuance of Bonds held by the Trustee in accordance
with Section 2.08 hereof.
SECTION 11.04. Compensation and Indemnity. The Authority shall pay the
Trustee reasonable compensation for its services hereunder, and also all of its
reasonable expenses and disbursements, and shall indemnify the Trustee against
any liabilities which it may incur in the exercise and performance of its powers
and duties hereunder except with respect to any theft or loss of, or
unauthorized or wrongful issuance of, Bonds held by the Trustee in accordance
with Section 2.08 hereof. If the Authority defaults in respect of the foregoing
obligations, the Trustee may deduct the amounts owing to it from any moneys
coming into its hand (exclusive of the proceeds of any draw under the Letter of
Credit) before making any payment on any Bonds.
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SECTION 11.05. No Duty as to Insurance. The Trustee shall be under no
duty to effect or to renew any insurance policy nor shall it incur any liability
for the failure of the Authority to require or effect or renew insurance or to
report or file claims of loss thereunder.
SECTION 11.06. Notice of Default; Right to Investigate. The Trustee
shall, within ninety (90) days after the occurrence thereof, give written notice
by first class mail to the Bank and the Owners of Bonds of all defaults known to
the Trustee, unless such defaults have been remedied (the term "defaults" for
purposes of this Section being defined to include the events specified in
clauses (a) through (g) of Section 10.01, not including any notice or periods of
grace provided for therein); provided that, in the case of a default described
in clause (f) or (g), the Trustee may withhold such notice so long as it in good
faith determines that such withholding is in the interest of the Owners of the
Bonds.
The Trustee shall not be deemed to have notice of any default under
clauses (f) and (g) of Section 10.01 unless notified in writing of such default
by the Authority, the Bank or the Owners of at least 25% in aggregate principal
amount of the Bonds then Outstanding. The Trustee may, however, at any time
require of the Authority full information as to the performance of any covenant
hereunder; and if information satisfactory to it is not forthcoming, the Trustee
may make or cause to be made, at the expense of the Authority, an investigation
into the affairs of the Authority related to this Indenture and the Project
Facilities.
SECTION 11.07. Reliance on Requisitions, etc. The Trustee may act on
any requisition, resolution, notice, telegram, request, consent, waiver,
certificate, statement, affidavit, voucher, bond, or other paper or document
which it in good faith believes to be genuine and to have been passed or signed
by the proper persons or to have been prepared and furnished pursuant to any of
the provisions of this Indenture; and the Trustee shall be under no duty to make
any investigation as to any statement contained in any such instrument but may
accept the same as conclusive evidence of the accuracy of such statement.
SECTION 11.08. Trustee May Deal in Bonds. The Trustee may in good faith
buy, sell, own, hold and deal in any of the Bonds and may join in any action
which any Owners of the Bonds may be entitled to take with like effect as if the
Trustee were not a party to this Indenture. The Trustee may also engage in or be
interested in any financial or other transaction with the Authority, provided
that if the Trustee determines that any such relation is in conflict
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with its duties under this Indenture, it shall eliminate the conflict or resign
as Trustee.
SECTION 11.09. Allowance of Interest. Upon request of the Authority the
Trustee shall, to the extent permitted by law, allow interest upon any moneys
which it receives under this Indenture at such rate as it customarily allows
upon funds deposited under similar conditions.
SECTION 11.10. Construction of Ambiguous Provisions. The Trustee may
construe any ambiguous or inconsistent provisions of this Indenture, and any
construction by the Trustee shall be binding upon the Owners of the Bonds.
SECTION 11.11. Intervention by the Trustee. In any judicial proceeding
which in the opinion of the Trustee and its Counsel has a substantial bearing on
the interests of the Owners of the Bonds, the Trustee may intervene on behalf of
the Owners of the Bonds and shall do so if requested in writing by the Bank or
the Owners of at least twenty-five percent (25%) aggregate principal amount of
Bonds Outstanding.
SECTION 11.12. Resignation of Trustee. The Trustee may resign and be
discharged of the trusts created by this Indenture by written resignation filed
with the Secretary of the Authority not less than sixty (60) days before the
date when such resignation is to take effect; provided notice of such
resignation is also mailed to the Owners not less than three (3) weeks prior to
the date when the resignation is to take effect. Such resignation shall take
effect on the day specified therein unless a successor trustee is previously
appointed, in which event the resignation shall take effect immediately on the
appointment of such successor.
SECTION 11.13. Removal of Trustee. Any Trustee hereunder may be removed
at any time by an instrument appointing a successor to the Trustee so removed,
executed by the Owners of a majority in aggregate principal amount of the Bonds
then Outstanding and filed with the Trustee and the Authority.
SECTION 11.14. Appointment of Successor Trustee. If the Trustee or any
successor trustee resigns or is removed or dissolved, or if its property or
business is taken under the control of any state or federal court or
administrative body, a vacancy shall forthwith exist in the office of the
Trustee, and the Authority shall appoint a successor and shall mail a notice of
such appointment to the Owners of the Bonds. If the Authority fails to make such
appointment within thirty (30) days, the Owners of a
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majority in aggregate principal amount of the Bonds then Outstanding may do so.
SECTION 11.15. Qualification of Successor. A successor trustee shall be
a national bank with trust powers, a bank with trust powers, or a bank and trust
company or a trust company organized under the laws of the State having reported
capital and surplus of at least $50,000,000.
SECTION 11.16. Instruments of Succession. Any successor trustee shall
execute, acknowledge and deliver to the Authority an instrument accepting such
appointment hereunder; and thereupon such successor trustee, without any further
act, deed or conveyance, shall become fully vested with all the estates,
properties, rights, powers, trusts, duties and obligations of its predecessor in
the trust hereunder, with like effect as if originally named Trustee herein. The
Trustee ceasing to act hereunder shall pay over to the successor trustee all
moneys held by it hereunder; and, upon request of the successor trustee, the
Trustee ceasing to act and the Authority shall execute and deliver an instrument
transferring to the successor trustee all the estates, properties, rights,
powers and trusts hereunder of the Trustee ceasing to act.
SECTION 11.17. Merger of Trustee. Any corporation into which any
Trustee hereunder may be merged or with which it may be consolidated, or any
corporation resulting from any merger or consolidation to which any Trustee
hereunder shall be a party, shall be the successor trustee under this Indenture,
without the execution or filing of any paper or any further act on the part of
the parties hereto, anything herein to the contrary notwithstanding, provided,
however, that any such successor corporation continuing to act as Trustee
hereunder shall meet the requirements of Section 11.15 hereof, and if such
corporation does not meet the aforesaid requirements, a successor Trustee shall
be appointed pursuant to this Article XI.
SECTION 11.18. Reports of Trustee. The Trustee shall provide such
reports as may be reasonably required by Company or the Authority including
satisfactory evidence of the securing of any certificates of deposit issued by
its commercial department.
SECTION 11.19. Successor Tender Agent.
(a) Any corporation or association into which the Tender Agent
may be converted or merged, or with which it may be consolidated, or to which it
may sell or transfer its trust business and assets as a whole or substantially
as a whole, or any corporation or association resulting from any such
conversion, sale, merger,
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consolidation or transfer to which it is a party, shall be and become the
successor Tender Agent hereunder, without the execution or filing of any
instrument or any further act, deed or conveyance on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
(b) The Tender Agent may at any time resign by giving thirty
(30) days' notice to the Authority, the Trustee, the Company and the Remarketing
Agent. Such resignation shall not take effect until the appointment of a
successor Tender Agent.
(c) The Tender Agent may be removed at any time by an
instrument in writing delivered to the Trustee and the Tender Agent by the
Company, with the prior written approval of the Bank. In no event, however,
shall any removal of the Tender Agent take effect until a successor Tender Agent
shall have been appointed.
(d) In case the Tender Agent shall resign or be removed, or be
dissolved, or shall be in the course of dissolution or liquidation, or otherwise
become incapable of acting as Tender Agent, or in case it shall be taken under
the control of any public officer or officers, or of a receiver appointed by a
court, a successor may be appointed by the Company with the prior written
approval of the Authority and the Bank. Every successor Tender Agent appointed
pursuant to the provisions of this Section shall be, if there be such an
institution willing, qualified and able to accept the duties of the Tender Agent
upon customary terms, a bank or trust company within or without the State, in
good standing and having reported capital and surplus of not less than
$50,000,000. Any such successor shall have an office in the City of New York,
New York, and shall be acceptable to the Trustee. Written notice of such
appointment shall immediately be given by the Company to the Trustee and the
Trustee shall cause written notice of such appointment to be given to the Owners
of the Bonds. Any successor Tender Agent shall execute and deliver an instrument
accepting such appointment and thereupon such successor, without any further
act, deed or conveyance, shall become fully vested with all rights, powers,
duties and obligations of its predecessor, with like effect as if originally
named as Tender Agent, but such predecessor shall nevertheless, on the written
request of the Company, the Trustee or the Authority, or of the successor,
execute and deliver such instruments and do such other things as may reasonably
be required to more fully and certainly vest and confirm in such successor all
rights, powers, duties and obligations of such predecessor. If no successor
Tender Agent has accepted appointment in the manner provided above within 90
days after the Tender Agent has given notice of its resignation as provided
above, the Tender Agent may petition any court of competent jurisdiction
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for the appointment of a temporary successor Tender Agent; provided that any
Tender Agent so appointed shall immediately and without further act be
superseded by a Tender Agent appointed by the Company as provided above.
SECTION 11.20. Notice to Rating Agencies. The Trustee shall provide
Moody's or S&P, as appropriate, with written notice prior to the effective date
of such event of (i) any successor Trustee, (ii) any Substitute Bank, (iii) any
material amendments to this Indenture or the Sublease, (iv) the termination of
any Letter of Credit, (v) the redemption in whole of the Bonds, or (vi) any
amendment to the Credit Agreement or the Letter of Credit of which the Trustee
is aware.
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ARTICLE XII
ACTS OF OWNERS OF BONDS;
EVIDENCE OF OWNERSHIP OF BONDS
SECTION 12.01. Acts of Owners of Bonds; Evidence of Ownership. Any
action to be taken by the Owners of Bonds may be evidenced by one or more
concurrent written instruments of similar tenor signed or executed by such
Owners of Bonds in person or by agent 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. The fact of
the ownership of Bonds, the amount and numbers of the Bonds held, and the date
of the holding shall be conclusively determined by the books kept by, or caused
to be kept by, the Authority at the Principal Office of the Trustee for the
registration and transfer of the Bonds. Any action by the Owner of any Bond
shall bind all future Owners of the same Bond in respect of anything done or
suffered by the Authority or the Trustee in pursuance thereof.
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ARTICLE XII
AMENDMENTS AND SUPPLEMENTS
SECTION 13.01. Amendments and Supplements without Consent of Owners of
Bonds. This Indenture may the consent of the Bank, amended or supplemented from
time to time without the consent of the Owners of the Bonds by a Supplemental
Indenture authorized by a Certified Resolution of the Authority filed with the
Trustee, for one or more of the following purposes:
(a) to add additional covenants of the Authority or to
surrender any right or power herein conferred upon the Authority or to
grant or confer upon the Trustee for the benefit of the Owners of Bonds
any additional rights, remedies, powers or authorities that may
lawfully be granted to or conferred upon the Owners of Bonds or the
Trustee;
(b) to cure any ambiguity or to cure, correct or supplement
any defective provision of this Indenture in such manner as shall not
be inconsistent with this Indenture and shall not impair the security
hereof or adversely affect the Owners of the Bonds;
(c) to reflect changes in applicable law;
(d) to subject to this Indenture additional revenues,
properties or collateral;
(e) to modify, amend or supplement this Indenture to permit
qualification of the Bonds for sale under the securities laws of any
state of the United States of America;
(f) to evidence appointment of a separate or Co-Trustee or the
succession of a new Trustee hereunder; and
(g) to effect any other change herein which, in the judgment
of the Trustee, is not to the prejudice of the Trustee or Owners of the
Bonds, including any such change which is necessary to receive an
initial rating from Moody's or S&P on the Bonds.
SECTION 13.02. Amendments With Consent of the Owners of Bands. This
Indenture may be amended from time to time, as set forth below except with
respect to (1) the interest payable upon any Bonds, (2) the dates of maturity or
redemption or purchase provisions of the Bonds, (3) this
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Article XII, and (4) the security provisions hereunder, by a Supplemental
Indenture approved by the Bank and the Owners of at least 66-2/3% in aggregate
principal amount of the Bonds then Outstanding; provided, that no amendment
shall be made which affects the rights of some but less than all the Outstanding
Bonds without the consent of the Owners of 66-2/3% of the Bonds so affected.
Amendments with respect to items (1), (2), (3) and (4) of this Section 13.02
shall be effected only with the consent of the Bank and the Owners of all Bonds
then outstanding and affected by such amendments.
SECTION 13.03. Amendments to Sublease Without Consent of Owners of
Bonds. TO Sublease may, with the consent of the Bank, be amended or supplemented
from time to time, without the consent of the Owners of Bonds, for the purpose
of:
(a) curing any ambiguity or formal defect or omission in the
Sublease;
(b) more precisely identifying the Project, or to substitute
or add additional improvements or equipment to the Project or
additional rights or interests in property acquired in accordance with
the provisions of the Sublease;
(c) to effect any other change therein which, in the judgment
of the Trustee, is not to the prejudice of the Trustee or the Owners of
the Bonds, including any such change which is necessary to receive an
initial rating from Moody's or S&P on the Bonds.
SECTION 13.04. Amendments to Agreement With Consent of Owners of Bonds.
Except for the amendments, changes or modifications as provided in Section 13.03
hereof, the Sublease shall not be amended without the written approval or
consent of the Bank and the owners of at least two-thirds (2/3) in aggregate
principal amount of the Outstanding Bonds, provided that the consent of the Bank
and the Owners of all Bonds Outstanding is required for any amendment, change or
modification of the Sublease that would permit the termination or cancellation
of the Sublease or a reduction in or postponement of the payments under the
Sublease or any change in the provisions relating to payment thereunder.
SECTION 13.05. 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 XII 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
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authorized by the Authority and that all things necessary to make it a valid and
binding agreement have been done.
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ARTICLE XIV
DEFEASANCE
SECTION 14.01. Discharge of Indenture. If the Authority shall pay or
cause to be paid of Available Moneys, in accordance with the provisions of this
Indenture, to the Owners of the Bonds, the principal of, premium, if any, and
interest due thereon at the times and in the manner stipulated therein, and if
the Authority shall not then be in default in any of the other covenants and
promises in the Bonds and in this Indenture to be kept, performed and observed
by it or on its part and if the Authority shall pay or cause to be paid to the
Trustee all sums of money due according to the provisions hereof, then these
presents and the estate and rights hereby granted shall cease, determine and be
void, whereupon the Trustee shall cancel and discharge the lien of this
Indenture, and execute and deliver to the Authority such instruments in writing
as shall be requisite to release the lien hereof and reconvey, release, assign
and deliver unto the Authority any and all of the estate, right, title and
interest in and to any and all rights or property conveyed, assigned or pledged
to the Trustee or otherwise subject to the lien of this Indenture, except
amounts in the Bond Fund or Construction Fund required to be paid to the Bank or
the Company under Section 6.08 hereof and except cash held by the Trustee for
the payment of the principal or Purchase Price of, premium, if any, or interest
on particular Bonds.
Section 14.02. Defeasance of Bonds. The following provisions of this
Section 14.02 shall apply only from and after the Letter of Credit Termination
Date:
Any Bond shall be deemed to be paid within the meaning of this Article
and for all purposes of this Indenture when (a) payment of the principal of and
premium, if any, on such Bond, plus interest thereon to the due date thereof
(whether such due date is by reason of maturity or upon redemption as provided
herein) either (i) shall have been made or caused to be made in accordance with
the terms thereof, or (ii) shall have been irrevocably deposited with the
Trustee, in trust and irrevocably set aside exclusively for such payment, (1)
moneys sufficient to make such payment or (2) Government Obligations maturing as
to principal and interest in such amounts and at such times as will insure the
availability of sufficient moneys to make such payment, and (b) all necessary
and proper fees, compensation and expenses of the Trustee and the Authority
pertaining to the Bonds with respect to which such deposit is made shall have
been paid or the payment thereof provided for to the satisfaction of the
Trustee. At such time as a Bond shall be deemed to be paid hereunder, as
aforesaid, such Bond shall
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no longer be secured by or entitled to the benefits of this Indenture, except
for the purposes of any such payment from such moneys or Government Obligations.
Notwithstanding the foregoing, no deposit under clause (a)(ii) of the
immediately preceding paragraph shall be deemed payment of such Bonds as
aforesaid until (a) proper notice of redemption of such Bonds shall have been
previously given in accordance with Article VIII of this Indenture, or in the
event said Bonds are not by their terms subject to redemption within the next
succeeding sixty (60) days, until the Company shall have given the Trustee, in
form satisfactory to the Trustee, irrevocable instructions to notify, as soon as
practicable, the Owners of the Bonds, that the deposit required by (a)(ii) above
has been made with the Trustee and that said Bonds are deemed to have been paid
in accordance with this Section 14.02 and stating the maturity or redemption
date upon which moneys are to be available for the payment of the principal of
and the applicable redemption premium, if any, on said Bonds, plus interest
thereon to the due date thereof; or (b) the maturity of such Bonds.
All moneys so deposited with the Trustee as provided in this Section
14.02 may also be invested and reinvested, at the direction of the Company, in
Government Obligations, maturing in the amounts and times as hereinbefore set
forth, and all income from all Government Obligations in the hands of the
Trustee pursuant to this Section 14.02 which is not required for the payment of
the Bonds and interest and premium, if any, thereon with respect to which such
moneys shall have been so deposited shall be deposited in the Bond Fund as and
when realized and collected for use and application as are other moneys
deposited in the Bond Fund.
Notwithstanding any provision of any other Article of this Indenture
which may be contrary to the provisions of this Section 14.02, all moneys or
Government Obligations set aside and held in trust pursuant to the provisions of
this Section 14.02 for the payment of Bonds (including interest and premium
thereon, if any) shall be applied to and used solely for the payment of the
particular Bonds (including the interest and premium thereon, if any) with
respect to which such moneys or Government Obligations have been so set aside in
trust.
Anything in Article XII hereof to the contrary notwithstanding, if
moneys or Government Obligations have been deposited or set aside with the
Trustee pursuant to this Section 14.02 for the payment of Bonds and such Bonds
shall not have in fact been actually paid in full, no amendment to the
provisions of this Section 14.02 shall be made
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without the consent of the Owner of each Bond affected thereby.
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ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 15.01. No Recourse. No personal recourse shall be had for any
claim based on this Indenture or the Bonds against any member, officer or
employee, past, present or future, of the Authority or of any successor body as
such, either directly or through the Authority or any successor body, under any
constitutional provision, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise.
The Bonds are payable solely from the Trust Estate, the moneys received
under the Letter of Credit, and any other moneys held by the Trustee hereunder
for such purpose. There shall be no other recourse, under the Bonds, this
Indenture, or Sublease, or otherwise, against the Authority or any other
property now or hereafter owned by it. The Authority shall be deemed to have
complied with all of its covenants and other obligations hereunder, including
but not limited to those set forth in Articles IV, V, VI and IX hereof, upon
requiring the Company in the Sublease to agree to perform such Authority
covenants and other obligations (excepting only any approvals or consents
permitted or required to be given by the Authority hereunder) and the Authority
shall have no liability for any failure to fulfill, or breach, by the Company of
the Company's obligations under the Bonds, this Indenture, the Sublease, or
otherwise, including Company's obligation to fulfill the Authority's covenants
and other obligations under this Indenture.
SECTION 15.02. No Recourse against State or Authority, etc. No recourse
shall be had for the payment of the principal of, the interest on, or the
premium (if any) payable upon the redemption of, any Bond or for any claim based
thereon or on the Indenture or any Indenture supplemental hereto, against the
State of New Jersey or any political subdivision thereof, it being expressly
agreed and understood that the Indenture and any Indenture supplemental hereto
and the Bonds are solely corporate obligations of the Authority payable out of
the Trust Estate and from such moneys as may be made available for the purpose
and do not pledge the credit or taxing power of the State of New Jersey or of
any political subdivision thereof.
SECTION 15.03. No Rights Conferred on Others. Nothing herein contained
shall person, other than the parties hereto, the Tender Agent, the Bank and the
Owners of the Bonds.
SECTION 15.04. Illegal, etc. Provisions Disregarded. If any term or
provision of this Indenture or the
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SECTION 15.08. Successors and Assigns. All the covenants, promises and
agreements in this Indenture contained by or on behalf of the Authority or by or
on behalf of the Trustee shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed or not.
SECTION 15.09. Headings for Convenience 0nly. The table of contents and
descriptive headings in this Indenture are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 15.10. Counterparts. This Indenture may be executed in any
number of counterparts, each of which when so executed and delivered shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
SECTION 15.11. Information Under Commercial Code. The following
information is supplied to under the Uniform Commercial Code:
The secured party is The Farmers and Merchants National Bank of
Bridgeton, Trustee. Its address from which information concerning the security
interest may be obtained and its mailing address is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department. The debtor
is City of Salem Municipal Port Authority, and its address is ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
SECTION 15.12. Payments Due on Saturdays Sundays and Holidays. In any
case where the date of maturity of interest on or principal of the Bonds or the
date fixed for purchase or redemption of any Bonds shall not be a Business Day,
then payment of principal, Purchase Price, premium, if any, or interest need not
be made on such date but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of maturity or the date fixed
for purchase or redemption.
SECTION 15.13. Certain References Ineffective After Letter of Credit
Termination Date. From and after the Letter of Credit Termination Date, upon
receipt by the Trustee of a certificate from the Bank stating that all amounts
payable to the Bank under the Credit Agreement have been paid in full, all
references to the Bank, the Credit Agreement, or the Letter of Credit in the
Sublease, this Indenture and the Bonds shall be ineffective.
IN WITNESS WHEREOF, the CITY OF SALEM MUNICIPAL PORT AUTHORITY has
caused this Indenture to be executed by its Chairman or Vice-Chairman and its
corporate seal to be
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hereunto affixed, attested by its Secretary or Assistant Secretary and The
Farmers and Merchants National Bank of Bridgeton has caused this Indenture to be
executed by one of its Authorized Officers and its seal to be hereunto affixed,
attested by one of its Authorized Officers, all as of the day and year first
above written.
CITY OF SALEM MUNICIPAL PORT
AUTHORITY
By: /s ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Chairman
[SEAL]
Attest
/s/ [SIG]
----------------------------------
THE FARMERS AND MERCHANTS NATIONAL
BANK OF BRIDGETON, Trustee
[SEAL] By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Vice President and
Trust Officer
Attest:
/s/ [SIG]
----------------------------------
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ACKNOWLEDGMENTS
STATE OF NEW JERSEY :
: ss
COUNTY OF SALEM :
BE IT REMEMBERED, that on this day of December, 1984, before me, the
subscriber, personally appeared, ▇▇▇▇▇ ▇. ▇▇▇▇▇, the Chairman of City of Salem
Municipal Port Authority who I am satisfied is the person who executed the
foregoing instrument on behalf of the said Corporation; and he thereupon
acknowledged that he signed, sealed with the corporate seal and delivered said
instrument as such officer, as that said instrument is the voluntary act and
deed of said Corporation, made by virtue of authority from its Board of
Directors.
/s/ [SIG]
----------------------------------
NOTARY PUBLIC
Attorney at Law
STATE OF NEW JERSEY :
: ss
COUNTY OF SALEM :
BE IT REMEMBERED, that on this day of December, 1984, before me, the
subscriber, personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, the Vice President & Trust
Officer of The Farmers and Merchants National Bank of Bridgeton, who I am
satisfied is the person who executed the foregoing instrument on behalf of the
said Corporation; and he thereupon acknowledged that he signed, sealed with the
corporate seal and delivered said instrument as such officer, as that said
instrument is the voluntary act and deed of said Corporation, made by virtue of
authority from its Board of Directors.
/s/ [SIG]
----------------------------------
NOTARY PUBLIC
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EXHIBIT A
(FLOATING RATE FORM OF BOND)
UNITED STATES OF AMERICA
CITY OF SALEM MUNICIPAL PORT AUTHORITY
(Salem, New Jersey)
PORT DEVELOPMENT REVENUE BOND
(SOUTH JERSEY PROCESS TECHNOLOGY, INC. PROJECT)
SERIES OF 1984
No. R- $
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 City of Salem Municipal Port Authority
(the "Issuer"), for value received, promises to pay from the source and as
hereinafter provided, to
________________________________________________________ or registered assigns,
on December 1, 1999, upon surrender hereof, the principal sum of
__________________________ Dollars, and in like manner to pay interest on said
sum at the rate described below on March 1, June 1, September 1 and December 1
of each year and on the Conversion Date (hereinafter defined), commencing March
1, 1985, from the interest payment date next preceding the date hereof to which
interest has been paid or duly provided for, unless the date hereof is an
interest payment date to which interest has been paid or duly provided for, in
which case from the date hereof, or unless no interest has been paid or duly
provided for on the Bonds (as hereinafter defined), in which case from December
21, 1984, until payment of the principal hereof has been made or duly provided
for. Notwithstanding the foregoing, if this Bond is dated after any date which
is the fifth Business Day (as hereinafter defined) 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 Issuer shall default in the payment of interest due on such
interest payment date, then this Bond shall beat 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
December 21, 1984. The principal of this Bond is payable in
79
lawful money of the United States of America at the principal corporate trust
office of The Farmers and Merchants National Bank of Bridgeton, 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 as of December
1, 1984 between the Issuer 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 Issuer 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 mutually acceptable to the Trustee and the registered Owner of
this Bond. The Purchase Price (hereinafter defined) of this Bond shall be
payable by Bankers Trust Company, New York, New York (together with any
successor Tender Agent, the "Tender Agent") to the registered Owner hereof at
his address as it appears on the registration books of the Issuer or at such
other address as may be specified by such Owner at least 24 hours prior to the
time such Purchase Price is due. As used herein, the term "Business Day" means a
day on which the Bank (as hereinafter defined), the Trustee and banks located in
New York City are open for the purpose of conducting a commercial banking
business.
This Bond shall bear interest as follows:
(A) Prior 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 TENR plus an amount (as adjusted from time to time as
hereinafter provided, the "TENR Amount") initially equal to one-half of one
percent (1/2 of 1%), provided that:
(i) if the Trustee and Bankers Trust Company (in such
capacity, the "Remarketing Agent") shall have received a notice
requiring the purchase of any Bond pursuant to the exercise of the
Demand Purchase Option (hereinafter defined) and if the Remarketing
Agent shall remarket all or a portion of such Bond pursuant to the TENR
Services and Remarketing Agreement dated as of December 1, ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ Process Technology, Inc., a New Jersey corporation (the
"Company") and the Remarketing Agent (which remarketing agreement, as
from time to time amended and supplemented, is hereinafter referred to
as the "Remarketing Agreement"), the TENR Amount for all Bonds shall be
the TENR Amount required for the Remarketing Agent to remarket such
Bonds ar par, which adjusted TENR Amount shall become effective as of
the day next following the next
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announcement of TENR, unless such announcement of TENR occurs during
the period of five Business Days prior to an interest payment date or a
date fixed for redemption, in which case such adjusted TENR Amount
shall become effective as of the day next following the first
announcement of TENR subsequent to such interest payment date or date
fixed for redemption, as the case may be. In connection with any such
remarketing, the Remarketing Agent shall determine what increments of
1/8th of 1% per annum will, when added to or subtracted from the TENR
Amount at the time applicable to the Bonds, produce the minimum
interest rate per annum necessary to enable the Remarketing Agent to
remarket such Bonds at par; provided, that the TENR Amount shall not be
more than two and one-half percent (2-1/2%);
(ii) if the TENR Amount is adjusted pursuant to the
preceding clause (i), such adjusted TENR Amount shall remain in effect
until a further adjustment to the TENR Amount is made pursuant to such
clause (i) or until the interest rate hereunder is otherwise determined
as provided for in the Indenture; provided that if the Remarketing
Agent shall have advised the Company, the Issuer and the Trustee at
least two Business Days prior to any interest payment date that the
Bonds are bearing interest at a rate higher than the minimum interest
rate per annum necessary to enable the Remarketing Agent to remarket
the Bonds at par, as of such interest payment date, the TENR Amount
shall be such amount as the Remarketing Agent shall specify as being
the minimum amount necessary to enable the Remarketing Agent to
remarket the Bonds at par;
(iii) if the TENR Amount is adjusted pursuant to the
preceding clause (ii), such adjusted TENR Amount shall remain in effect
until such time as the TENR Amount may again be adjusted pursuant to
the preceding clause (i) or clause (ii) or until the interest rate
hereunder is otherwise determined as provided for in the Indenture; and
(iv) notwithstanding the foregoing, no adjustment
shall be made to the Floating Rate during the period of five Business
Days (as defined in the Indenture) prior to an interest payment date or
a date fixed for redemption.
TENR is the rate announced by Bankers Trust Company, New York, New York
at its principal office as the annual rate of interest which is indicative of
current bid-side yields on high-quality, short-term, tax-exempt obligations,
which rate shall be announced by Bankers Trust Company as of the close of
business on Wednesday in each calendar week
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until the earlier of the Conversion Date or payment in full of the Bonds or, if
Wednesday in any calendar week shall not be a business day in New York, New
York, on the next succeeding business day in New York, New York. TENR shall be
effective during the period from and including the day next succeeding the day
on which Bankers Trust Company announces TENR, to and including the day on which
Bankers Trust Company next announces TENR. TENR is a Service ▇▇▇▇ of Bankers
Trust Company, New York, New York.
Anything herein to the contrary notwithstanding, the Floating Rate
shall in no event exceed 15% per annum.
The announcement of TENR and the determination of any adjustments to
the TENR Amount as contemplated by the foregoing paragraphs shall be conclusive
and binding upon the Trustee, the Tender Agent, the Issuer, the Company and the
Owners of the Bonds.
(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 20th day
preceding the Conversion Date, at a price of par without discount or at a
premium not to exceed the then customary underwriting discount (but in no event
may the premium exceed 3 percent).
Prior to the Conversion Date, interest on the Bonds shall be computed
on the basis of a 360-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 earlier to occur
of either the Optional Conversion Date or the Automatic Conversion Date; the
term "Automatic Conversion Date" means the interest payment date immediately
preceding the Letter of Credit Termination Date; the term "Letter of Credit
Termination Date" means the later of (i) that date upon which the Letter of
Credit (hereinafter defined) 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
defined in the Indenture); the term "Optional Conversion Date" means that date
on or after July 1, 1985, which shall be a Business Day, from and after which
the interest rate on the, Bonds is converted from the Floating Rate as a result
of the exercise by the Company of the Conversion Option; the term
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"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, in the
case of a purchase pursuant to the exercise of such Demand Purchase Option,
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 Company 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. Any Owner of Bonds who desires to retain
Bonds after the Conversion late must notify the Company and the Trustee in
writing received no less than fifteen days prior to the Conversion Date in the
form described in the notice given by the Company at least twenty days but not
more than thirty days prior to the Conversion Date. Owners of Bonds who do not
provide the Trustee and the Company with said notice shall be required to tender
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 applicable Record 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 an amount of moneys
sufficient to pay the Purchase Price of the Undelivered Bonds, shall be deemed
to have been purchased at the Purchase Price. IN THE EVENT OF A FAILURE BY AN
OWNER OF BONDS (OTHER THAN AN OWNER OF BONDS WHO HAS GIVEN NOTICE AS PROVIDED
ABOVE) 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 SUBSEQUENT TO
THE CONVERSION DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNDELIVERED BONDS,
AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFITS OF THE
INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE THEREFOR.
At any time prior to the first interest payment date following the
Conversion Date, an Owner of Bonds who has given notice of its desire to
continue to hold Bonds as provided above, may deliver this Bond to the Trustee
or the Tender Agent, and upon such delivery, the Trustee or the Tender Agent
shall exchange this Bond for a replacement Bond evidencing interest at the Fixed
Rate.
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This Bond shall be purchased, at the option of the Owner hereof
("Demand Purchase Option") at the Purchase Price, upon:
(a) delivery to the Trustee at its principal corporate trust
office and to the Remarketing Agent at its principal office of a notice
(said notice to be irrevocable and effective upon receipt) which states
(i) the aggregate principal amount and the 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; and
(b) delivery to the Tender Agent at its office designated
below at or prior to 10:00 A.M., New York City time, on the date
designated for purchase in the notice described in (a) above of such
Bonds to be purchased with an appropriate endorsement for transfer or
accompanied by a bond power endorsed in blank, and if such Bonds are to
be purchased prior to the next succeeding interest payment date and
after the Record Date in respect thereof, a non-recourse due-▇▇▇▇,
payable to bearer, for interest due on such interest payment date.
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 ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Department, or to the office designated for such purpose by any
successor Trustee; any delivery of a notice required to be made to the
Remarketing Agent at its principal office pursuant to (a) above shall be
delivered to the Remarketing Agent at One Bankers Trust Plaza, 31st Floor, New
York, New York 10015, Attention: Public Finance Group, 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Securities Services Division, or to the office
designated for such purpose by any successor Tender Agent.
This Bond is one of an authorized issue of Bonds limited in aggregate
principal amount to $2,500,000 (the "Bonds") issued for the purpose of providing
funds to finance the acquisition, construction and improving of an agricultural
products processing facility to be located in the City of Salem, New Jersey
(which facility is hereinafter referred to as the "Project"), and paying
necessary expenses incidental thereto. The Authority has entered into a
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Sublease and Security Agreement with the Company dated as of December 1, 1984
(the "Sublease") under which the Company has agreed to construct the Project and
to pay as rentals amounts which are sufficient to pay, inter alia, the principal
and Purchase Price of, premium, if any, and interest on the Bonds as the same
shall become due in accordance with their terms and provisions and the terms and
provisions of 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 Issuer under the Sublease (other than certain
indemnification payments and the payment of certain expenses of the Issuer) 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. The Company has caused
to be delivered to the Trustee an irrevocable Letter of Credit (together with
any Substitute Letter of Credit, the "Letter of Credit") issued by Bankers Trust
Company (in such capacity, the "Bank") and dated the date of original issuance
of the Bonds, which will expire, unless earlier terminated or extended, on
December 15, 1994. Subject to certain conditions, the Letter of Credit may be
replaced by a Substitute Letter of Credit of another commercial bank or savings
and loan association. 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) up to 120 days' accrued interest (at maximum rate of 15% per annum) 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 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
Issuer, the Trustee and the Owners of the Bonds and the terms upon which the
Bonds are issued and secured.
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 principal corporate trust office of the 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 Issuer, 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 Issuer, the Tender Agent nor the
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Trustee shall be bound by any notice or knowledge to the contrary.
Prior to the Conversion Date, 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. 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.
The Bonds are callable for redemption in the event (1) the Project or
any portion thereof is damaged or destroyed or taken in a condemnation
proceeding to which Section 6.04(b) of the Sublease is applied, or (2) the
Company shall exercise its option to cause the Bonds to be redeemed as provided
in Section 6.05 of the Sublease; or (3) the Bonds are required to be redeemed as
provided in Section 8.03 of the Indenture. If called for redemption at any time
pursuant to (1) or (2) above, the Bonds shall be subject to redemption by the
Issuer on any interest payment date, in whole or (in the case of a redemption
pursuant to Section 6.04(b) of the Sublease) in part, less than all of such
Bonds to be selected in such manner as the Trustee may determine (except as
otherwise provided in the Indenture), at a redemption price of one hundred
percent (100%) of the principal amount thereof plus accrued interest to the
redemption date. If called for redemption at any time pursuant to (3) above, the
Bonds shall be subject to redemption by the Issuer prior to maturity in whole
within one hundred eighty (180) days after a "Determination of Taxability", as
that term is defined in Article VIII of the Indenture, at one hundred percent
(100%) of the aggregate principal amount of Bonds outstanding plus accrued
interest to the redemption date. Reference is hereby made to Section 6.04 of the
Sublease for a description of the circumstances under which the net proceeds of
insurance or condemnation may be paid into the Bond Fund (as defined in the
Indenture) for full or partial redemption of the Bonds and to Sections 6.04,
6.05 and 6.06 of the Sublease for a description of the circumstances under which
the Company may cause the Bonds to be redeemed and to Section 8.03 of the
Indenture for a description of the circumstances under which the Bonds are
required to be redeemed upon the occurrence of a Determination of Taxability.
In addition, the Bonds are subject to mandatory redemption, in whole,
on the Automatic Conversion Date, at 100% of the principal amount thereof, if on
or prior to the 20th day prior to the Automatic Conversion Date (i) the Company
has failed to provide the Trustee with an opinion of nationally recognized bond
counsel to the effect that the proposed conversion of the interest rate on the
Bonds to the
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Fixed Rate on the Automatic Conversion Date will not adversely affect the
exemption of the interest on the Bonds from federal income taxation, or (ii) the
Fixed Rate of interest to be borne by the Bonds on and after the Automatic
Conversion Date has not been established in accordance with the terms of the
Indenture.
On or prior to the Conversion Date, the Bonds are subject to redemption
by the Issuer, at the option of the Company, at any time on or after July 1,
1985, in whole or in part, less than all of such Bonds to be selected in such
manner as the Trustee shall determine (except as otherwise provided in the
Indenture), at a redemption price of 100% of the principal amount thereof plus
accrued interest to the date of redemption.
After the Conversion Date, the Bonds are subject to redemption by the
Issuer, at the option of the Company, on or after the First Optional Redemption
Date (hereinafter defined), in whole at any time or in part on any interest
payment date, less than all of the Bonds to be selected in such manner as the
Trustee shall determine (except as otherwise provided in the Indenture), at the
redemption prices (expressed as percentages of principal amount) set forth in
the following table plus accrued interest to the redemption date:
Redemption
Redemption Dates Prices
---------------- ----------
First Optional Redemption Date
through the following November 30 103%
First Anniversary of the First
Optional Redemption Date through
the following November 30 102%
Second Anniversary of the First
Optional Redemption Date through
the following November 30 101%
Third Anniversary of the First
Optional Redemption Date and
thereafter 100%
As used herein, the term "First Optional Redemption Date" means the December 1
occurring in the year which is a number of years after the Conversion Date equal
to the number of years between the December 1 immediately following the
Conversion Date (unless the Conversion Date is December 1, in which case from
such December 1) and December 1, 1999, multiplied by 1/2 and rounded up to the
nearest whole number.
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In addition, the Bonds are subject to mandatory partial redemption by
the Issuer prior to maturity, in part, in the principal amount of $250,000, on
December 1, 1990 and on each December 1 thereafter, through and including
December 1, 1998, such Bonds to be selected in such manner as the Trustee may
determine (except as otherwise provided in the Indenture), at a redemption price
equal to the principal amount thereof, plus interest accrued thereon to the date
of 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, shall be given by the Trustee by
mailing a copy of the redemption notice by registered or certified mail at least
fifteen (15) 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 after such Bond 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, as more
fully provided in Section 8.05 of the Indenture.
The Bonds are issued pursuant to and in full compliance with the
Constitution and laws of the State of New Jersey, particularly the Municipal
Port Authorities Law contained at N.J. State. ▇▇▇. Sec. 40:68A-29, et seq.,
(West) (the "Act"), and by appropriate action duly taken by the Issuer which
authorizes the execution and delivery of the Sublease and the Indenture. The
Bonds have been issued under the provisions of the Act.
No owner of any Bond has the right to compel any exercise of taxing
power of the Issuer to pay the Bonds or the interest thereon, and the Bonds do
not constitute an indebtedness of the Issuer or a loan of credit thereof within
the meaning of any constitutional or statutory provision.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Sublease, or in any other instrument or document executed by or
in behalf of the
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Issuer 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 Issuer, or of any
incorporator, member, commissioner, director, trustee, officer, employee or
agent of any successor to the Issuer, in any such person's individual capacity,
and no such person, in his individual capacity, shall be liable personally for
any breach or non-observance of or for any failure to perform, fulfill or comply
with any such stipulations, covenants, agreements or the principal of, 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 Issuer or any successor
to the Issuer, 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
Issuer and the rights of the Owners of the Bonds at any time by the Issuer with
the consent of the Bank and the Owners of two-thirds in aggregate principal
amount of the Bonds at the time outstanding. Any such consent or any waiver by
the Bank and the Owners of two-thirds in aggregate principal amount of the 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
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89
and be performed precedent to and in 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; that the issuance of this Bond and
the issue of which it forms a part, together with all other obligations of the
Issuer, does not exceed or violate any constitutional or statutory limitation;
and that the amounts payable under the Agreement and pledged to the payment of
the principal of and premium, if any, and interest on this Bond and the issue of
which it forms a part, as the same become due, will be sufficient in amount for
that purpose.
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.
IN WITNESS WHEREOF, the City of Salem Municipal Port Authority has
caused this Bond to be executed in its name by the manual or facsimile signature
of its Chairman and its corporate seal or a facsimile thereof to be imprinted
hereon and attested by the manual or facsimile signature of its Secretary.
CITY OF SALEM MUNICIPAL PORT
[SEAL] AUTHORITY
Attest:_____________________ By___________________________________
Secretary Chairman
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(Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
Date of Authentication and Registration:
This Bond is one of the Bonds of the issue described in the
within-mentioned Trust Indenture.
BANKERS TRUST COMPANY, THE FARMERS AND MERCHANTS
as Authenticating Agent NATIONAL BANK OF BRIDGETON,
as Trustee
OR
By: __________________________ By: _________________________
Authorized Officer Authorized Officer
(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: The signature to this
assignment must correspond with the
name as it appears upon the face of the
within Bond in every particular,
without alteration or enlargement or
any change whatever.
91
EXHIBIT B
(FIXED RATE FORM OF BOND)
UNITED STATES OF AMERICA
CITY OF SALEM MUNICIPAL PORT AUTHORITY
(Salem, New Jersey)
PORT DEVELOPMENT REVENUE BOND
(SOUTH JERSEY PROCESS TECHNOLOGY, INC. PROJECT)
SERIES OF 1984
No. R- $
KNOW ALL MEN BY THESE PRESENTS that the City of Salem Municipal Port
Authority (the "Issuer"), for value received, promises to pay from the source
and as hereinafter provided, to _____________________ or registered assigns, on
December 1, 1999, upon surrender hereof, the principal sum of __________________
Dollars, and in like manner to pay interest (calculated A the basis of a 360-day
year of twelve 30-day months) on said sum at the rate of ____ % per annum on
March 1, June 1, September I and December 1 of each year, commencing
_____________________, from the interest payment date next preceding the date
hereof to which interest has been paid or duly provided for, unless the date
hereof is an interest payment date to which interest has been paid or duly
provided for, in which case from the date hereof, or unless no interest has been
paid or duly provided for on the Bonds (as hereinafter defined), in which case
from December 21, 1984, until payment of the principal hereof has been made or
duly provided for. Notwithstanding the foregoing, if this Bond is dated after
any date which is the fifth Business Day (as hereinafter defined) 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 Issuer 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 December 21, 1984. The principal of this Bond is payable in lawful
money of the United States of America at the principal corporate trust office of
The Farmers and Merchants National Bank of Bridgeton, 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 as of
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December 1, 1984 between the Issuer 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 Issuer 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 mutually acceptable to the Trustee and the
registered Owner of this Bond. As used herein the term "Business Day" means a
day on which the Trustee and banks located in New York City are open for the
purpose of conducting a commercial banking business,
This Bond is one of an authorized issue of Bonds limited in aggregate
principal amount to $2,500,000 (the "Bonds") issued for the purpose of providing
funds to finance the acquisition, construction and improving of an agricultural
products processing facility to be located in the City of Salem, New Jersey
(which facility is hereinafter referred to as the "Project"), and paying
necessary expenses incidental thereto. The Authority has entered into a Sublease
and Security Agreement with the Company dated as of December 1, 1984 (the
"Sublease") under which the Company has agreed to construct the Project and to
pay as rentals amounts which are sufficient to pay, inter alia, the princi -----
---- pal of, premium, if any, and interest on the Bonds as the same shall become
due in accordance with their terms and provisions and the terms and provisions
of the Indenture.
The Bonds are all issued under and are equally and ratably secured by
and entitled Co the protection of the Indenture, pursuant to which all payments
due from the Company to the Issuer under the Sublease (other than certain
indemnification payments and the payment of certain expenses of the Issuer) 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 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 Issuer, the Trustee and the Owners of the Bonds
and the terms upon which the Bonds are issued and secured.
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
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be issued to the transferee in exchange herefor. The Issuer, 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 Issuer, 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.
The Bonds are callable for redemption in the event (1) the Project or
any portion thereof is damaged or destroyed or taken in a condemnation
proceeding to which Section 6.04(b) of the Sublease is applied, or (2) the
Company shall exercise its option to cause the Bonds to be redeemed as provided
in Section 6.05 of the Sublease, or (3) the Bonds are required to be redeemed as
provided in Section 8.03 of the Indenture. If called for redemption at any time
pursuant to (1) or (2) above, the Bonds shall be subject to redemption by the
Issuer on any interest payment date, in whole or (in the case of redemption
pursuant to Section 6.04(b) of the Sublease) in part, less than all of such
Bonds to be selected in such manner as the Trustee may determine (except as
otherwise provided in the Indenture), at a redemption price of one hundred
percent (100%) of the principal amount thereof plus accrued interest to the
redemption date. If called for redemption at any time pursuant to (3) above, the
Bonds shall be subject to redemption by the Issuer prior to maturity in whole
within one hundred eighty (180) days after a "Determination of Taxability", as
that term is defined in Article VIII of the Indenture, at one hundred percent
(100%) of the aggregate principal amount of Bonds outstanding plus accrued
interest to the redemption date. Reference is hereby made to Section 6.04 of the
Sublease for a description of the circumstances under which the net proceeds of
insurance or condemnation may be paid into the Bond Fund (as defined in the
Indenture) for full or partial redemption of the Bonds and to Sections 6.04,
6.05 and 6.06 of the Sublease for a description of the circumstances under which
the Company may cause the Bonds to be redeemed and to Section 8.03 of the
Indenture for a description of the circumstances under which the Bonds are
required to be redeemed upon the occurrence of a Determination of Taxability.
The Bonds are subject to redemption by the Issuer, at the option of the
Company, on or after _____________ 1,198 , in whole at any time or in part on
any interest payment date, less than all of the Bonds to be selected in such
manner as the Trustee shall determine (except as otherwise provided in the
Indenture), at the redemption prices (expressed as percentages of principal
amount) set forth in the
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following table plus accrued interest to the redemption date:
Redemption
Redemption Dates Prices
--------------- ----------
December 1,
through November 30 103%
December 1,
through November 30 102%
December 1,
through November 30 101%
December 1,
and thereafter 100%
In addition, the Bonds are subject to mandatory partial redemption by
the Issuer prior to maturity, in part, in the principal amount of $250,000, on
December 1 thereafter, through and including December 1, 1998, such Bonds to be
selected in such manner as the Trustee may determine (except as otherwise
provided in the Indenture), at a redemption price equal to the principal amount
thereof, plus interest accrued thereon to the date of 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, shall be given by the Trustee by
mailing a copy of the redemption notice by registered or certified mail at least
fifteen (15) 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.
The Bonds are issued pursuant to and in full compliance with the
Constitution and laws of the State of New Jersey, particularly the Municipal
Port Authorities Law contained at N.J., State. ▇▇▇. Section 40:68A-29, et seq.,
(West) (the "Act"), and by appropriate action duly taken by the Issuer which
authorizes the execution and delivery of the Sublease and the Indenture.
The Bonds have been issued under the provisions of the Act.
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No owner of any Bond has the right to compel any exercise of taxing
power of the Issuer to pay the Bonds or the interest thereon, and the Bonds do
not constitute an indebtedness of the Issuer or a loan of credit thereof within
the meaning of any constitutional or statutory provision.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Sublease, or in any other instrument or document executed by or
in behalf of the Issuer 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
Issuer, or of any incorporator, member, commissioner, director; trustee,
officer, employee or agent of any successor to the Issuer, in any such person's
individual capacity, and no such person, in his individual capacity, shall be
liable personally for any breach or non-observance of or for any failure to
perform, fulfill or comply with any such stipulations, covenants, agreements or
the principal of, 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 Issuer or any successor to the Issuer, 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
Issuer and the rights of the Owners of the Bonds at any time by the Issuer with
the consent of the Bank and the Owners of two-thirds in aggregate principal
amount of the Bonds at the time outstanding. Any such consent or any waiver by
the Bank and the Owners of two-thirds in aggregate principal amount of the Bonds
shall be conclusive and binding upon the Owner and
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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 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; that the issuance of this Bond and the issue of which it forms a part,
together with all other obligations of the Issuer, does not exceed or violate
any constitutional or statutory limitation; and that the amounts payable under
the Agreement and pledged to the payment of the principal of and premium, if
any, and interest on this Bond and the issue of which it forms a part, as the
same become due, will be sufficient in amount for that purpose.
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.
IN WITNESS WHEREOF, the City of Salem Municipal Port Authority has
caused this Bond to be executed in its name by the manual or facsimile signature
of its Chairman and its corporate seal or a facsimile thereof to be imprinted
hereon and attested by the manual or facsimile signature of its Secretary.
CITY OF SALEM MUNICIPAL PORT
AUTHORITY
[SEAL]
Attest:____________________ By___________________________
Secretary Chairman
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(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.
Date of Authentication THE FARMERS AND MERCHANTS
and Registration: NATIONAL BANK OF BRIDGETON,
as Trustee
By:_________________________
Authorized Officer
(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: The signature to this
assignment must correspond with the
name as it appears upon the face of the
within Bond in every particular,
without alteration or enlargement or
any change whatever.