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EXHIBIT 10.9(a)
INDENTURE OF TRUST
BY AND BETWEEN
THE MECKLENBURG COUNTY INDUSTRIAL FACILITIES
AND POLLUTION CONTROL FINANCING AUTHORITY
AND
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
AS TRUSTEE
____________________________________
DATED AS OF NOVEMBER 1, 1995
____________________________________
$4,500,000
THE MECKLENBURG COUNTY INDUSTRIAL FACILITIES
AND POLLUTION CONTROL FINANCING AUTHORITY
INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1995
(▇▇▇▇▇▇▇▇ MICRO SCIENCE, INC. PROJECT)
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TABLE OF CONTENTS
SECTION HEADING PAGE
ARTICLE I. DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions................................................................ 3
Section 1.02. Article and Section Headings............................................... 13
Section 1.03. Interpretation............................................................. 13
ARTICLE II. AUTHORIZATION AND ISSUANCE OF THE BONDS
Section 2.01. Authorization of Bonds; No Additional Bonds................................ 13
Section 2.02. Issuance of Bonds; Terms of Bonds.......................................... 13
Section 2.03. Optional Tender............................................................ 21
Section 2.04. Mandatory Tender........................................................... 23
Section 2.05. Form of Bonds.............................................................. 24
Section 2.06. Execution and Authentication of Bonds...................................... 25
Section 2.07. Registration and Exchange of Bonds; Persons Treated as Owners.............. 25
Section 2.08. Mutilated, Lost, Stolen or Destroyed Bonds................................. 26
Section 2.09. Cancellation of Bonds...................................................... 26
Section 2.10. Temporary Bonds............................................................ 26
Section 2.11. Conditions Precedent to Authentication and Delivery of Bonds............... 26
Section 2.12. Book-Entry System.......................................................... 27
ARTICLE III REDEMPTION OF BONDS;
PURCHASE AND REMARKETING OF BONDS
Section 3.01. Optional Redemption........................................................ 29
Section 3.02. Extraordinary Optional Redemption.......................................... 31
Section 3.03. Mandatory Redemption....................................................... 31
Section 3.04. Notice of Redemption....................................................... 32
Section 3.05. Effect of Deposit of Redemption Moneys..................................... 32
Section 3.06. Partial Redemption......................................................... 33
Section 3.07. Purchase of Tendered Bonds................................................. 33
Section 3.08. Remarketing of Tendered Bonds; Payment of Purchase Price................... 34
Section 3.09. Funds for Purchase Price of Bonds.......................................... 36
Section 3.10. Delivery of Purchased Bonds................................................ 36
Section 3.11. Pledged Bonds.............................................................. 36
ARTICLE IV. GENERAL PROVISIONS
Section 4.01. Payment of Principal, Premium, If Any, and Interest; Limited Obligations... 38
Section 4.02. Instruments of Further Assurance........................................... 38
Section 4.03. Tax-Exempt Status of Bonds................................................. 38
Section 4.04. Books, Records and Accounts................................................ 39
Section 4.05. Notice to Rating Agencies.................................................. 39
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ARTICLE V REVENUES AND FUNDS; LETTER OF CREDIT
Section 5.01. Application of Original Proceeds of Bonds.......................... 39
Section 5.02. Creation of Bond Fund.............................................. 39
Section 5.03. Letter of Credit; Alternate Credit Facility........................ 40
Section 5.04. Letter of Credit Draws and Bond Fund Moneys to Pay
Principal, Premium or Interest.................................. 42
Section 5.05. Investment of Moneys............................................... 43
Section 5.06. Moneys To Be Held in Trust; Nonpresentment of Bonds................ 44
Section 5.07. Repayment from Indenture Funds..................................... 44
Section 5.08. Tax Covenants...................................................... 45
Section 5.09. Construction Fund.................................................. 45
Section 5.10. Payments into Construction Fund; Disbursements..................... 45
Section 5.11. Completion of Project.............................................. 46
Section 5.12. Transfer of Construction Fund...................................... 46
Section 5.13. Custody of Funds and Accounts...................................... 46
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.01. Events of Default.................................................. 46
Section 6.02. Acceleration....................................................... 48
Section 6.03. Other Remedies..................................................... 48
Section 6.04. Waiver of Past Defaults............................................ 49
Section 6.05. Control by Majority................................................ 49
Section 6.06. Limitation on Suits................................................ 49
Section 6.07. Rights of Holders To Receive Payment............................... 49
Section 6.08. Collection Suit by Trustee......................................... 49
Section 6.09. Trustee May File Proofs of Claim................................... 49
Section 6.10. Priorities......................................................... 50
ARTICLE VII TRUSTEE, REMARKETING AGENT AND TENDER AGENT
Section 7.01. Trustee's Rights and Duties........................................ 50
Section 7.02. Trustee's Rights................................................... 52
Section 7.03. Trustee's Individual Rights........................................ 52
Section 7.04. Trustee's Disclaimer............................................... 52
Section 7.05. Notice of Defaults................................................. 53
Section 7.06. Trustee's Compensation and Indemnity............................... 53
Section 7.07. Eligibility of Trustee............................................. 53
Section 7.08. Resignation, Removal and Replacement of Trustee.................... 54
Section 7.09. Remarketing Agent's Duties......................................... 55
Section 7.10. Eligibility of Remarketing Agent; Replacement...................... 55
Section 7.11. Tender Agent....................................................... 55
Section 7.12. Successor Trustee, Remarketing Agent or Tender Agent by Merger..... 56
Section 7.13. Service in Several Capacities...................................... 56
ARTICLE VIII SUPPLEMENTAL INDENTURES
Section 8.01. Without Consent of Bondholders..................................... 56
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Section 8.02. With Consent of Bondholders................................................. 57
Section 8.03. Effect of Consents.......................................................... 57
Section 8.04. Notation on or Exchange of Bonds............................................ 57
Section 8.05. Execution and Delivery by Trustee of Amendments and Supplements............. 58
Section 8.06. Company and Bank Consent Required........................................... 58
Section 8.07. LGC Consent Required........................................................ 58
Section 8.08. Notice to Bondholders....................................................... 58
ARTICLE IX. AMENDMENT OF AGREEMENT OR LETTER OF CREDIT
Section 9.01. Amendments to Agreement Without Consent of Bondholders...................... 58
Section 9.02. Amendments to Agreement With Consent of Bondholders......................... 58
Section 9.03. Bank Consent Required....................................................... 59
Section 9.04. Modifications of Letter of Credit........................................... 59
ARTICLE X. DISCHARGE OF INDENTURE
Section 10.01. Bonds Deemed Paid; Discharge of Indenture................................... 59
Section 10.02. Application of Trust Money.................................................. 60
Section 10.03. Repayment to Bank and Company............................................... 60
ARTICLE XI. MISCELLANEOUS
Section 11.01. Bondholders' Consent........................................................ 61
Section 11.02. Limitation of Rights; Bank's Rights......................................... 61
Section 11.03. No Personal Liability of LGC and Issuer Representatives..................... 61
Section 11.04. Severability................................................................ 62
Section 11.05. Notices..................................................................... 62
Section 11.06. Payments or Performance Due on Other Than Business Day...................... 64
Section 11.07. Execution in Counterparts................................................... 64
Section 11.08. Applicable Law.............................................................. 64
Exhibit A - Form of Bond
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INDENTURE OF TRUST
This INDENTURE OF TRUST is made and entered into as of November 1, 1995,
by and between THE MECKLENBURG COUNTY INDUSTRIAL FACILITIES AND POLLUTION
CONTROL FINANCING AUTHORITY, a political subdivision and a body corporate and
politic of the State of North Carolina (the "Issuer"), and ▇▇▇▇▇▇ TRUST AND
SAVINGS BANK, a banking corporation organized under the laws of the State of
Illinois (the "Trustee"), as trustee.
WITNESSETH:
WHEREAS, the Issuer is authorized under the North Carolina Industrial and
Pollution Control Facilities Financing Act, which is Chapter 159C, as amended,
of the North Carolina General Carolina Statutes (the "Act"), to issue its
revenue bonds for the purpose of providing financing for "projects" located
within the Issuer's jurisdiction; and
WHEREAS, ▇▇▇▇▇▇▇▇ Micro Science, Inc., a Delaware corporation authorized
to do business in the State of North Carolina (the "Company"), proposes to
finance the costs of constructing certain leasehold improvements and acquiring
and installing certain equipment, all constituting certain manufacturing
facilities located in Mecklenburg County, North Carolina (the "Project"), and
to finance a portion of the cost of the Project through the issuance by the
Issuer of the Bonds provided for by this Indenture (the "Bonds"); and
WHEREAS, the Issuer has duly entered into a Loan Agreement (the
"Agreement") with the Company specifying the terms and conditions of such
financing, the loan of Bond proceeds to the Company, the use of the proceeds of
the Bonds for the Project and the Company's repayment of such loan;
WHEREAS, it has been determined that the amount necessary to finance the
Project will require the issuance, sale and delivery of Bonds in the aggregate
principal amount of $4,500,000, as provided in this Indenture;
WHEREAS, all things necessary to make the Bonds, when authenticated by the
Trustee and issued as in this Indenture provided, the valid, binding and legal
obligations of the Issuer according to the import thereof, and to constitute
this Indenture a valid assignment and pledge of the security pledged hereunder,
have been done and performed, and the creation, execution and delivery of this
Indenture of Trust, and the creation, execution and issuance of the Bonds,
subject to the terms hereof, have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE OF TRUST WITNESSETH:
GRANTING CLAUSE
To secure the timely payment of the principal of, premium, if any, and
interest on the Bonds according to their tenor and effect to secure the
Issuer's performance and observance of all of the covenants set forth in this
Indenture and in the Bonds and, on a subordinate basis, to
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secure the Company's obligation to reimburse to ABN AMBRO Bank N.V. (the "Bank")
amounts due and owing to the Bank under its Reimbursement Agreement with the
Company of even date (the "Reimbursement Agreement"), the Issuer hereby assigns
to the Trustee and grants to the Trustee a security interest in all the Issuer's
right, title and interest in and to (a) the Agreement, including the current and
continuing right to claim, collect, receive and give receipts for all amounts
payable by or receivable from the Company under the Agreement, to bring actions
and proceedings under the Agreement or for the enforcement of the Agreement and
to do all things that the Issuer is entitled to under the Agreement, but
excluding the Unassigned Rights, and (b) all moneys and securities held from
time to time by the Trustee under this Indenture as provided in this Indenture
(other than moneys and securities held in the Purchase Fund or the Rebate Fund),
all for the equal and proportionate benefit of all holders of the Bonds without
priority or distinction as to lien or otherwise of any Bonds over any other
Bonds, and, on a subordinate basis, for the Bank's benefit.
TO HAVE AND TO HOLD all and singular the Trust Estate (as defined below),
whether now owned or hereafter acquired, to the Trustee and its respective
successors in trust and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts set forth in this
Indenture for the equal and proportionate benefit, security and protection of
all present and future Owners of the Bonds issued under and secured by this
Indenture without privilege, priority or distinction as to the lien or
otherwise of any of the Bonds over any of the other Bonds, and, subject to the
prior interest of the Bondholders, for the equal benefit, security and
protection of the Bank to the extent of amounts owed to the Bank under the
Reimbursement Agreement;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall
well and truly pay, or cause to be paid, the principal of, premium, if any, and
interest on the Bonds due or to become due thereon, at the times and in the
manner mentioned in the Bonds and as provided in Section 4.01 according to the
true intent and meaning thereof, or shall provide, as permitted hereby, for the
payment thereof in accordance with Article X, and shall well and truly keep,
perform and observe all the covenants and conditions pursuant to the terms of
this Indenture to be kept, performed and observed by it, and shall pay or cause
to be paid to the Trustee all sums of money due or to become due in accordance
with the terms and provisions hereof and the Company shall have satisfied all
Obligations (as defined in the Reimbursement Agreement) to the Bank under the
Reimbursement Agreement, then upon such final payments or deposits as provided
in Article X, this Indenture and the rights hereby granted shall cease,
terminate and be void and the Trustee shall thereupon cancel and discharge this
Indenture and execute and deliver to the Issuer and the Company such
instruments in writing as shall be requisite to evidence such discharge.
THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is expressly declared,
that all Bonds issued and secured under this Indenture are to be issued,
authenticated and delivered and all of the Trust Estate is to be dealt with and
disposed of, under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes expressed in this Indenture,
and the Issuer has agreed and covenanted, and does hereby agree and
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covenant, with the Trustee and with the respective Owners, from time to time, of
the Bonds or any part thereof, and the Bank, as follows:
ARTICLE I. DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions. Each of the following terms shall have the
meaning assigned to it in this Section 1.01 whenever it is used in this
Indenture, unless the context in which it is used clearly requires otherwise
(certain terms used, and not defined, in this Indenture are defined in the
Agreement):
"Act" shall mean the North Carolina Industrial and Pollution Control
Facilities Financing Act, which is Chapter 159C, as amended, of the North
Carolina General Statutes.
"Adequate Interest Coverage" shall have the meaning set forth in Section
2.02(g).
"Adjustable Rate" shall mean the interest rate per annum from time to time
borne by the Bonds when in the Adjustable Rate Mode, as established in
accordance with Section 2.02(e).
"Adjustable Rate Conversion Date" shall mean each Interest Payment Date on
which the Bonds, upon having been converted to the Adjustable Rate Mode from
another Mode, shall first begin to bear interest at an Adjustable Rate in
accordance with the terms of this Indenture, and each subsequent Adjustable
Rate Reset Date.
"Adjustable Rate Interest Payment Date" shall mean (i) with respect to an
Adjustable Rate Period of at least six calendar months' duration, the first day
of the sixth calendar month following the Adjustable Rate Conversion Date and
the first day of each successive sixth calendar month, if any, of such
Adjustable Rate Period; provided, however, the final Adjustable Rate Interest
Payment Date with respect to any such Adjustable Rate Period shall be the first
Business Day of the calendar month immediately following the expiration of such
Adjustable Rate Period, or the maturity date of the Bonds (if such Adjustable
Rate Period extends to the final maturity of the Bonds), and (ii) with respect
to an Adjustable Rate Period of less than six calendar months' duration, the
first Business Day of the calendar month immediately following the end of the
Adjustable Rate Period or the maturity date of the Bonds (if such Adjustable
Rate Period extends to the final maturity of the Bonds.)
"Adjustable Rate Mode" shall mean the Mode in which the Bonds bear
interest at an Adjustable Rate.
"Adjustable Rate Period" shall mean any period of not less than one month
in duration, commencing on an Adjustable Rate Conversion Date or an Adjustable
Rate Reset Date, as appropriate, and ending on the earlier to occur of the
redemption of the Bonds, the maturity of the Bonds or the earlier to occur of
the redemption of the Bonds, the maturity of the Bonds or the day preceding the
subsequent Conversion Date or Adjustable Rate Reset Date, as appropriate.
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"Adjustable Rate Reset Date" shall mean an Adjustable Rate Interest
Payment Date on which the Bonds begin to bear interest at a new Adjustable Rate
in accordance with the terms hereof.
"Agreement" shall mean the Loan Agreement dated as of November 1, 1995,
between the Issuer and the Company, as amended and supplemented.
"Alternate Credit Facility" shall mean an irrevocable letter of credit or
other credit facility described in Section 5.03(b) delivered pursuant to such
Section in substitution for a Letter of Credit, as extended or amended from
time to time.
"Authorized Company Representative" shall mean the Company's President or
any Vice President, or any other person at the time designated to act on the
Company's behalf by a written certificate furnished to the Issuer, the
Remarketing Agent, the Bank and the Trustee.
"Authorized Denomination" shall mean $100,000 and any integral multiple
thereof or, upon conversion to any Adjustable Rate Period extending to the
final maturity of the Bonds, $5,000 or any integral multiple thereof.
"Available Moneys" shall mean:
(1) During any period the Letter of Credit is in effect:
(a) proceeds from the remarketing of any Bonds tendered for
purchase pursuant to this Indenture to any person other than
the Issuer, the Company, the Guarantor or any "insider" (as
defined in the Bankruptcy Code) of the Issuer, the Company or
the Guarantor;
(b) moneys derived from any draw on the Letter of Credit;
(c) any other moneys or securities, if there is delivered to the
Trustee an opinion of an attorney-at-law, duly admitted to
practice before the highest court of the jurisdiction in which
such attorney maintains an office, who is not a full-time
employee of the Company, the Bank, the Issuer or the
Remarketing Agent, having expertise in bankruptcy matters (who,
for purposes of such opinion, may assume that no Bondholder is
an "insider," as defined in the Bankruptcy Code), to the effect
that the use of such moneys or securities to pay the principal
or purchase price of, premium, if any, or interest on the Bonds
would not be avoidable as preferential payments under Section
547 of the Bankruptcy Code recoverable under Section 550 of the
Bankruptcy Code should the Company or the Guarantor become a
debtor in a proceeding commenced thereunder, which opinion
shall also be addressed to and acceptable to any Rating Agency
then rating the Bonds; and
(d) earnings derived from the investment of any of the foregoing;
and
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(2) During any period the Letter of Credit is not in effect, any moneys
held by the Trustee in any Fund or Account under this Indenture and
available, pursuant to the provisions hereof, to be used to pay
principal of, premium, if any, or interest on, or the purchase price
of, the Bonds.
"Available Moneys Account" shall mean the account in the Bond Fund by that
name established in the Bond Fund by Section 5.02.
"Bank" shall mean the entity issuing the Letter of Credit, if any, then in
effect, and its successors in such capacity and their assigns; or if an
Alternate Credit Facility is issued, the issuer thereof, and its successors in
such capacity and their assigns. The initial Bank shall be ABN AMRO Bank N.V.,
acting by and through its Chicago branch. All references to "Bank" shall be of
no effect at any time that no Letter of Credit is issued and secures the Bonds,
except with respect to rights of any Bank established hereunder which do not,
by their terms, expire upon the expiration of the Letter of Credit by such
Bank.
"Bankruptcy Code" shall mean the United States Bankruptcy Reform Act of
1978, as amended from time to time, or any substitute or replacement
legislation.
"Beneficial Owner" means the person in whose name a Bond is recorded as
beneficial owner of such Bond by the Securities Depository or a Participant or
an Indirect Participant on the records of such Securities Depository,
Participant or Indirect Participant, as the case may be, or such person's
subrogee.
"Bond Counsel" shall mean, with respect to the original issuance of the
Bonds, The ▇▇▇▇▇▇▇ Law Firm, PLLC, Raleigh, North Carolina, and thereafter, any
firm of attorneys of nationally recognized expertise with respect to the
tax-exempt obligations of political subdivisions, selected by the Company and
acceptable to the Remarketing Agent, the Trustee and the Issuer.
"Bond Fund" shall mean the fund by that name established by Section 5.02.
"Bond Owner," "Bondowner," "Owner," "owner," "Bondholder," "bondholder,"
"holder" or "owner of the Bonds," when used with respect to a Bond, shall mean
the person or entity in whose name such Bond shall be registered.
"Bond Purchase Agreement" shall mean the Bond Purchase Agreement, dated
November 14, 1995, among the Issuer, the Company and the Underwriter, including
all amendments thereof and supplements thereto.
"Bonds" shall mean the Mecklenburg Court Industrial Facilities and
Pollution Control Financing Authority $4,500,000 Industrial Development Revenue
Bonds, Series 1995 (▇▇▇▇▇▇▇▇ Micro Science, Inc. Project), issued pursuant to
this Indenture.
"Book-Entry System" means a book-entry system established and operated for
the recordation of Beneficial Owners of the Bonds pursuant to Section 2.12.
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"Business Day" or "business day" shall mean any day which is not (i) a
Saturday or a Sunday, (ii) a day on which banking institutions in the cities of
New York, New York, Charlotte, North Carolina, or Chicago, Illinois (or, if
different, in the cities in which the principal corporate trust office of the
Trustee and the office of the Bank at which drawings under the Letter of Credit
are to be honored are located) are authorized or required by law or executive
order to close, or (iii) a day on which the New York Stock Exchange is closed.
"Cessation of Operation" means that the Company (or a permitted successor
or assign of the Company under Section 8.1 of the Agreement) has ceased, in the
concurrent opinion of the Issuer and the Trustee, to operate the Project as an
"industrial project for industry" within the meaning of the Act. A "Cessation
of Operation" shall not be deemed to have occurred (a) if the Company is
operating, in substitution or replacement for the Project, a facility in North
Carolina of similar size and employment levels as previously existed with
respect to the Project, or (b) in any event until 60 days shall have elapsed
after written notice has been given to the Company by the Issuer or the Trustee
that such operation shall have ceased, and the Company shall not have then
demonstrated, to the satisfaction of the Issuer and the Trustee, that the
Company (or a permitted successor or assign under such Section 8.1) is
operating the Project as an "industrial project for industry" within the
meaning of the Act or is in good faith seeking to arrange resumption of an
economically reasonable operation of the Project as an "industrial project for
industry" within the meaning of the Act.
"Closing Date" shall mean the date of initial issuance and delivery of the
Bonds to the purchasers thereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended, including
regulations, rulings and revenue procedures promulgated thereunder or under the
Internal Revenue Code of 1954, as amended, as applicable to the Bonds and all
proposed (including temporary) regulations which, if adopted in the form
proposed, would apply to the Bonds. Reference to any specific Code provisions
shall be deemed to include any successor provisions.
"Company" shall mean ▇▇▇▇▇▇▇▇ Micro Science, Inc., a Delaware corporation,
its successors and assigns.
"Company Bonds" shall mean Bonds purchased with moneys described in
Section 3.09(c).
"Construction Fund" shall mean the fund by that name established by
Section 5.09.
"Conversion Date" shall mean an Adjustable Rate Conversion Date, a Weekly
Rate Conversion Date, a Daily Rate Conversion Date or a CP Rate Conversion
Date, as appropriate.
"CP Rate" shall mean the interest rate per annum on each Bond established
in accordance with Section 2.02(d).
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"CP Rate Conversion Date" shall mean each Interest Payment Date on which
the Bonds, having been converted to the CP Rate Mode from another Mode, first
begin to bear interest at a CP Rate in accordance with the terms hereof.
"CP Rate Interest Payment Date" shall mean with respect to each Bond, the
Business Day which immediately succeeds the last day of any CP Rate Period
applicable to such Bond.
"CP Rate Mode" shall mean the interest rate Mode in which Bonds bear
interest at the CP Rate.
"CP Rate Period" shall mean with respect to each Bond, while the Bonds are
in the CP Rate Mode, a period (a) which begins on a CP Rate Conversion Date or
a CP Rate Reset Date, as appropriate, and (b) has a duration which shall have
been set by the Remarketing Agent as provided in Section 2.02(d), from 1 to 360
days' length, and (c) which ends on a day which immediately precedes a Business
Day and which falls on or prior to the maturity date of the Bonds.
"CP Rate Reset Date" shall mean with respect to each Bond, each CP Rate
Interest Payment Date on which commences a new CP Rate Period applicable to
such Bond, whereon a new CP Rate which shall have been set pursuant to Section
2.02(d) shall first become effective.
"Daily Interest Period" shall mean, while the Bonds are in the Daily Rate
Mode, the period from and including each day which is a Business Day to but
excluding the next succeeding day which is a Business Day.
"Daily Rate" shall mean the interest rate per annum on the Bonds
established in accordance with Section 2.02(c).
"Daily Rate Conversion Date" shall mean each date on which the Bonds,
having been converted to the Daily Rate Mode from another Mode, first begin to
bear interest at a Daily Rate in accordance with the terms.
"Daily Rate Interest Payment Date" shall mean the first Business Day of
each month during which the Bonds shall be in the Daily Rate Mode, commencing
with the first Business Day of the month next succeeding each Daily Rate
Conversion Date or, if applicable, the Closing Date.
"Daily Rate Mode" shall mean the Mode in which the Bonds bear interest at
a Daily Rate.
"Daily Rate Period" shall mean the period from the Daily Rate Conversion
Date to the earlier to occur of the following Conversion Date or the date on
which principal of the Bonds is paid in full.
"Determination of Taxability" shall mean the Trustee's receipt of evidence
of a final judgment or order of a court of competent jurisdiction, or a final
ruling, technical advice
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memorandum or decision of the Internal Revenue Service to the effect that the
interest on the Bonds (other than interest on any Bond for any period during
which such Bond is held by a "substantial user" of the Project or a "related
person," as such terms are used in the Code) is includable for Federal income
tax purposes in the gross income of the Owners or Beneficial Owners thereof;
provided, however, that in no event shall a Determination of Taxability be based
upon the inclusion of interest in any minimum tax or indirect tax. No such
judgment or order or final ruling, technical advice memorandum or decision will
be considered final for this purpose, however, unless the Company has been given
written notice and, if so desired by the Company, the Company has been afforded
the opportunity to contest the same, either directly or in the name of any
Bondholder or Beneficial Owner, and until conclusion of any appellate review, if
sought.
"Event of Default," when used with respect to this Indenture, shall mean
any event specified in Section 6.01.
"Government Obligations" shall mean direct obligations of, or obligations
the timely payment of the principal of, and interest on, which are fully and
unconditionally guaranteed by the United States of America, which, at the time
of investment, are not subject to prepayment or redemption prior to maturity
and are legal investments under State law for the moneys proposed to be
invested therein.
"Guarantor" means ▇▇▇▇▇▇▇▇ Laboratories Worldwide, Inc., as guarantor of
the Company's obligations of the Bank under the initial Reimbursement
Agreement.
"Indenture" shall mean this Indenture of Trust, as amended and
supplemented.
"Indirect Participant" means a broker-dealer, bank or other financial
institution for which the Securities Depository holds Bonds as a securities
depository through a Participant.
"Initial Letter of Credit' shall mean the irrevocable Letter of Credit
delivered on the Closing Date by the Bank for the purpose of securing the
Bonds, as extended or amended from time to time.
"Interest Payment Date" shall mean an Adjustable Rate Interest Payment
Date, a Weekly Rate Interest Payment Date, a Daily Rate Interest Payment Date,
a CP Rate Interest Payment Date (with respect to any Bond), each date upon
which Bonds shall be subject to mandatory tender for purchase pursuant to
Section 2.04 and any date upon which the Outstanding principal amount of the
Bonds becomes due.
"Investment Grade Rating" means, as of any particular time, a rating of
the Bonds (without regard to whether such rating reflects an evaluation of the
credit-worthiness of the Company or of any other entity) by any Rating Agency
within such Rating Agency's top four generic rating categories (without regard
to any refinement or gradation within such categories by a numerical modifier
or otherwise), provided that no other Rating Agency has in effect a rating of
the Bonds that is not within such Rating Agency's top four generic rating
categories.
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"Issuer" shall mean The Mecklenburg County Industrial Facilities and
Pollution Control Financing Authority, and its successors and assigns.
"Letter of Credit" shall mean the Initial Letter of Credit and, if an
Alternate Credit Facility is issued, each Alternate Credit Facility, as
extended or amended from time to time. All references to the "Letter of
Credit" shall be of no effect at any time that no Letter of Credit secures the
Bonds, except with respect to rights of any Bank created hereunder which do
not, by their terms, expire upon the termination of the Letter of Credit issued
by such Bank.
"Letter of Credit Account" shall mean the account by that name established
in the Bond Fund pursuant to Section 5.02.
"Long-Term Mode" shall mean each Adjustable Rate Period of greater than
one year's duration.
"LGC" shall mean the North Carolina Local Government Commission.
"Maximum Rate" shall mean the rate per annum equal to the lesser of (a)
15% per annum, or (b) if a Letter of Credit is then in effect, the maximum
interest rate stated in such Letter of Credit for purposes of calculating the
interest portion of the stated amount of such Letter of Credit.
"Mode" shall mean any of the interest rate modes which may exist from time
to time with respect to the Bonds, including the Adjustable Rate Mode, the
Weekly Rate Mode, the Daily Rate Mode or the CP Rate Mode, as appropriate.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, its successors and
assigns.
"Non-Available Moneys Account" shall mean the account by that name
established in the Bond Fund pursuant to Section 5.02.
"Outstanding" or "Bonds outstanding" or "Bonds then outstanding," at the
time in question, shall mean all Bonds which have been executed and delivered
by the Issuer and authenticated by the Trustee or the Tender Agent under this
Indenture, except:
(i) Bonds theretofore canceled by the Trustee or surrendered to the
Trustee for cancellation;
(ii) Bonds paid or deemed to be paid pursuant to Article X;
(iii) Bonds in lieu of or in exchange for which other Bonds shall have been
executed and delivered by the Issuer and authenticated by the Trustee
or the Tender Agent pursuant to Sections 2.07, 2.08, 2.10 or 3.06;
and
(iv) Undelivered Bonds.
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"Participant" shall mean a broker-dealer, bank or other financial
institution for which the Securities Depository holds Bonds as a securities
depository.
"Pledged Bonds" shall mean Bonds purchased with moneys provided pursuant
to Section 3.09(b).
"Principal Office" shall have the respective meanings set forth herein
under "Remarketing Agent," "Tender Agent" and "Trustee".
"Project" or "Project Facility" shall mean the manufacturing facilities
described in Exhibit B to the Agreement.
"Project Certificate" shall mean the Certificate Re: Use of Bond Proceeds
and the Project of the Company dated the Closing Date.
"Purchase Fund" shall mean the fund by that name established pursuant to
Section 3.07(b).
"Qualified Investments" shall mean, subject to any restrictions imposed by
State law, (i) Government Obligations, (ii) obligations of the Federal National
Mortgage Association, the Government National Mortgage Association or the
Federal Home Loan Mortgage Corporation, (iii) commercial paper or finance
company paper rated not less than "P-1" by ▇▇▇▇▇'▇ Investors Service or "A-1+"
by S&P, (iv) certificates of deposit or other time or demand deposits of banks
(including, without limitation, the Trustee and the Bank) that are fully
insured by the Federal Deposit Insurance Corporation or fully secured by
obligations described in (i) or (ii) above, (v) repurchase agreements secured
by obligations described in (i) or (ii) above or bonds or obligations which are
authorized by law as security for public deposits, provided that no proceeding
under any applicable insolvency or reorganization law has been commenced by or
against the issuer of such bonds or obligations, and provided, further, that
such bonds or obligations and debt of the issuer of the repurchase agreement
bear one of the three highest full credit ratings assigned by ▇▇▇▇▇'▇ Investors
Service and S&P, (vi) any investment fund or other investment pooling
arrangement which purchases and holds exclusively Government Obligations or
repurchase agreements meeting the requirements of (v) above, (vii) Tax-Exempt
Obligations (as defined in the Rebate Agreement) rated in one of the two
highest full rating categories by either of the Rating Agencies, and (viii) any
other investment approved in writing by the Bank. The Trustee may rely upon
the Company's certificate or direction as to the qualification of any specific
investment under this definition.
"Rating Agencies" shall mean S&P and/or Moody's, according to which of
such rating agencies then rates the Bonds; and provided that if neither of such
rating agencies then rates the Bonds, the term "Rating Agencies" shall refer to
any national rating agency (if any) which provides such rating. If at any time
only one Rating Agency then rates the Bonds, "Rating Agencies" shall at that
time mean only such Rating Agency as is then rating the Bonds.
"Rebate Fund" shall mean the fund by that name established pursuant to the
Rebate Agreement.
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"Record Date" shall mean (a) with respect to any Weekly Rate Interest
Payment Date, Daily Rate Interest Payment Date, CP Rate Interest Payment Date
or Adjustable Rate Period of less than six months in duration, the close of
business on the Business Day next preceding such Interest Payment Date, and (b)
with respect to any Adjustable Rate Interest Payment Date for an Adjustable
Rate Period of at least six months' duration, the close of business on the
fifteenth day (whether or not a Business Day) of the calendar month next
preceding such Interest Payment Date.
"Reimbursement Agreement" shall mean the initial Reimbursement Agreement
and with respect to each subsequent Letter of Credit, the agreement pursuant to
which such Letter of Credit is issued. All references to "Reimbursement
Agreement" shall be of no effect at any time that no Letter of Credit is issued
and secures the Bonds, except with respect to rights of any Bank which do not,
by their terms, expire upon the expiration of the Letter of Credit issued by
such Bank.
"Remarketing Agent" shall mean the Remarketing Agent appointed in
accordance with Section 7.10, and shall mean initially First Chicago Capital
Markets, Inc., Chicago, Illinois.
"Principal Office" of the Remarketing Agent shall mean the office thereof
designated in writing to the Issuer, the Trustee, the Bank and the Company, and
shall mean initially the Remarketing Agent's office located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Municipal
Bond Department/Short-Term Trading.
"Rebate Agreement" shall mean the Rebate Compliance Agreement dated the
Closing Date among the Company, the Issuer and the Trustee, as amended and
supplemented.
"Remarketing Agreement" shall mean the Remarketing Agreement dated as of
November 1, 1995, between the Company and the Remarketing Agent.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇ Inc., its successors and assigns.
"Securities Depository" means The Depository Trust Company and any
substitute for or successor to such securities depository that shall maintain a
Book-Entry System with respect to the Bonds.
"Securities Depository Nominee" means the Security Depository or the
nominee of such Securities Depository in whose name there shall be registered
on the registration books of the Issuer the Bonds to be delivered to such
Securities Depository during the continuation with such Securities Depository
of participation in its Book-Entry System.
"Short-Term Mode" shall mean the CP Rate Mode, the Daily Rate Mode, the
Weekly Rate Mode and each Adjustable Rate Period of one year or less.
"State" shall mean the State of North Carolina.
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"Tender Agent" shall mean the Tender Agent appointed in accordance with
Section 7.11 if the Bonds are not then in a Book-Entry System. "Principal
Office" of the Trustee shall mean the office thereof designated in writing to
the Issuer, the Trustee, the Bank, the Remarketing Agent and the Company.
"Trustee" shall mean ▇▇▇▇▇▇ Trust and Savings Bank, Chicago, Illinois, or
any successor trustee or co-trustee serving as such under this Indenture.
"Principal Office" of the Trustee shall mean the office thereof designated in
writing to the Issuer, the Bank, The Remarketing Agent and the Company, and
shall mean initially the trustee's office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Trust Estate" shall mean the property conveyed to the Trustee pursuant to
the Granting Clause of this Indenture.
"Unassigned Rights" shall mean the rights of the Issuer under Sections
4.3, 6.2 and 9.3 of the Agreement, the Issuer's rights to consent to amendments
to the Agreement and its rights to receive notices under the Agreement.
"Undelivered Bonds" shall mean during any period the Bonds are not in the
Book-Entry System, Bonds for which notice of optional tender shall have been
given pursuant to Section 2.03 and Bonds subject to mandatory tender pursuant
to Section 2.04, for which Available Moneys sufficient to pay the purchase
price have been deposited with the Tender Agent on or before the purchase date
of such Bonds, but which Bonds were not delivered to the Tender Agent on or
before such purchase date.
"Underwriter" shall mean First Chicago Capital Markets, Inc., Chicago,
Illinois.
"Weekly Interest Period" shall mean, while the Bonds are in the Weekly
Rate Mode, each period from and including Wednesday of each week (and, if the
first day of any Weekly Rate Period is not a Wednesday, the Weekly Rate
Conversion Date on which such Weekly Rate Period commences) through and
including the following Tuesday, whether or not such days are Business Days.
In addition, and notwithstanding the foregoing, the initial Weekly Interest
Period shall commence on the Closing Date and shall end on the next following
Tuesday.
"Weekly Rate" shall mean the interest rate per annum on the Bonds
established in accordance with Section 2.02(b).
"Weekly Rate Conversion Date" shall mean each date on which the Bonds,
having been converted to the Weekly Rate Mode from another Mode, first begin to
bear interest at a Weekly Rate in accordance with the terms hereof.
"Weekly Rate Interest Payment Date" shall mean the first Business Day of
each month during which the Bonds are in the Weekly Rate Mode, commencing with
the first Business Day of the month following the Weekly Rate Conversion Date
or, if applicable, the Closing Date.
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"Weekly Rate Mode" shall mean the mode in which the Bonds bear interest at
a Weekly Rate.
"Weekly Rate Period" shall mean the period from the Closing Date, if
applicable, or any Weekly Rate Conversion Date to the earlier of the redemption
of the Bonds, the next following Conversion Date or the maturity date of the
Bonds.
Section 1.02. Article and Section Headings. The headings or titles of
the several Articles and Sections of this Indenture, and the Table of Contents
appended hereto, are solely for convenience of reference and shall not affect
the meaning or construction of the provisions hereof.
Section 1.03. Interpretation. The singular form of any word used herein
shall include plural, and vice versa, if applicable. The use of a word of any
gender shall include all genders, if applicable. Any reference to a particular
Article, Section or Exhibit shall be to such Article, Section or Exhibit of
this Indenture unless the context shall otherwise require. Any reference to
any time of day on any date shall be to prevailing time in New York City, New
York, on such date unless otherwise specified.
ARTICLE II.
AUTHORIZATION AND ISSUANCE OF THE BONDS
Section 2.01. Authorization of Bonds; No Additional Bonds. (a) The Bonds
are hereby authorized to be issued in a single series, which shall be
designated as The Mecklenburg County Industrial Facilities and Pollution
Control Financing Authority Industrial Development Revenue Bonds, Series 1995
(▇▇▇▇▇▇▇▇ Micro Science, Inc. Project). The Bonds shall be issued in the
aggregate principal amount of $4,500,000.
(b) The Bonds shall be issued for the purpose of providing funds for a
loan from the Issuer to the Company for the Company's financing of the
acquisition, construction and equipping of the Project, as provided in the
Agreement. No Bonds may be issued pursuant to this Indenture in addition to
those authorized by this Section 2.01, except Bonds issued upon transfer or
exchange pursuant to Section 2.07, temporary Bonds issued pursuant to Section
2.10, replacement Bonds issued pursuant to Section 2.08, Bonds issued pursuant
to Section 3.06, and Bonds delivered pursuant to Section 3.10.
Section 2.02. Issuance of Bonds; Terms of Bonds.
(a) General Provisions. The Bonds shall:
(i) be dated as provided in Section 2.02(j) below,
(ii) bear interest initially in the Weekly Mode and, thereafter, at
the rates as provided and set forth in paragraphs (b) through
(f) of this Section, until paid (computed, while the Bonds are
in the Weekly Rate Mode, the CP Rate Mode or the Daily Rate
Mode, on the basis of a 365- or 366-day year,
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for the actual number of days elapsed and, while the Bonds are
in the Adjustable Rate Mode, on the basis of a 360-day year,
composed of twelve 30-day months), payable on each Interest
Payment Date,
(iii) all be in the same Mode at the same time (except as provided
pursuant to subsection (d) below), and
(iv) mature on November 1, 2007.
(b) Weekly Rate Provisions. The Bonds shall bear interest at a Weekly
Rate from the Closing Date (if applicable) and from each Weekly Rate Conversion
Date to the earlier of their redemption, the following Conversion Date or their
maturity date. The Weekly Rate for each Weekly Interest Period shall be the
lowest rate of interest which will, in the Remarketing Agent's sole judgment,
having due regard for prevailing financial market conditions, permit the Bonds
to be remarketed at par (plus accrued interest, if any) on the first day of
such Weekly Interest Period. Notwithstanding the foregoing, the Weekly Rate so
established shall be not more than the Maximum Rate. Each determination of a
Weekly Rate by the Remarketing Agent shall be conclusive and binding upon the
Issuer, the Company, the Trustee, the Tender Agent, the Bank and the
Bondholders. Notwithstanding the foregoing, if at any time the Remarketing
Agent shall fail to determine a Weekly Rate as set forth above, then, until the
Remarketing Agent shall next determine the Weekly Rate in such fashion, the
Weekly Rate shall be the rate from time to time established as the ▇.▇. ▇▇▇▇▇▇
index rate for high grade tax-exempt obligations having maturities of 30 days.
If such index rate is not available, the Weekly Rate shall be the rate from
time to time established by the Public Securities Association as its Municipal
Swap Index, and if such index is not available, the Weekly Rate shall be the
rate from time to time established by such other comparable index as may be
selected by the Company upon notice to the Trustee. In no event, however, may
the interest rate on the Bonds exceed the Maximum Rate. On Tuesday (unless
Tuesday is not a Business Day, then on the next preceding Monday; unless Monday
and Tuesday are not Business Days, then on the next subsequent Wednesday,
whether or not a Business Day) of each calendar week during a Weekly Rate
Period, with respect to each Weekly Interest Period, the Remarketing Agent
shall determine and furnish to the Trustee the Weekly Rate for the ensuing
Weekly Interest Period. On the Business Day preceding each Weekly Rate
Interest Payment Date, the Trustee shall furnish to the Company, the Bank and,
if the Bonds are not in a Book-Entry System, to the Tender Agent, the Weekly
Rates applicable to the Bonds from the time of the prior notice of such rates.
Should any Bondholder or Beneficial Owner request such in writing, the
Remarketing Agent shall also furnish (by first-class mail, postage prepaid) the
Weekly Rate to such requesting Bondholder or Beneficial Owner.
(c) Daily Rate Provisions.
(i) The Bonds shall bear interest at a Daily Rate from the Closing
Date (if applicable) and from each Daily Rate Conversion Date
to the earlier of their redemption, the following Conversion
Date or their maturity date. The Daily Rate for each Daily
Interest Period shall be the interest rate determined by the
Remarketing Agent on the first day of such Daily
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Interest Period (by not later than 10:30 a.m.), which shall be
the lowest rate of interest which will, in the Remarketing
Agent's sole judgment, having due regard for prevailing
financial market conditions, permit the Bonds to be remarketed
at par (plus accrued interest, if any) on the said first day of
such Daily Interest Period. Notwithstanding the foregoing, the
Daily Rate so established shall be not more than the Maximum
Rate. If at any time the Remarketing Agent shall fail to
determine a Daily Rate for a Daily Interest Period, then the
Bonds shall thereupon automatically bear interest at the last
Daily Rate previously determined pursuant to this Indenture.
Upon such event, the Trustee shall promptly notify the
Bondholders, the Company, the Remarketing Agent, the Tender
Agent, if any, and the Bank of such fact. Each determination of
a Daily Rate by the Remarketing Agent shall be conclusive and
binding upon the Issuer, the Company, the Trustee, the Tender
Agent, the Bank and the Bondholders.
(ii) On the Business Day preceding each Interest Payment Date during
each Daily Rate Period, the Remarketing Agent will furnish to
the Trustee, and the Trustee will furnish to the Bank, the
Company and the Tender Agent, if any, the Daily Rates
applicable to the Bonds during such Daily Rate Period. Should
the Company or any Bondholder or Beneficial Owner request in
writing the Daily Rate applicable to the Bonds for any
particular day, the Remarketing Agent will furnish such Daily
Rate to the Company or such requesting Bondholder or Beneficial
Owner.
(d) CP Rate Provisions. While the Bonds are in the CP Rate Mode, each
Bond shall bear interest at a CP Rate from each CP Rate Conversion Date or CP
Rate Reset Date, as appropriate, to the earlier of its redemption, maturity,
the following Conversion Date for all Bonds or the following CP Rate Reset Date
applicable to such Bond. Different CP Rate periods may apply to different
Bonds at any time and from time to time while the Bonds are in a CP Rate Mode.
In the case of each CP Rate Period, on the first day thereof, the
Remarketing Agent shall determine (i) the duration of such CP Rate Period and
(ii) the CP Rate which shall apply during such CP Rate Period. The duration of
the CP Rate period so determined shall be that which, together with all such
other CP Rate Periods for all Bonds then Outstanding, in the Remarketing
Agent's sole judgment, will provide the lowest overall interest cost with
respect to the Bonds, with due regard to prevailing financial market
conditions, foreseeable changes in such conditions, the anticipated duration of
the period the Bonds may remain in the CP Rate Mode and such other factors
which the Remarketing Agent, in its sole judgment, shall deem relevant and
economically advantageous to consider. Upon determination of the duration of a
CP Rate Period with respect to any Bonds, the Remarketing Agent shall determine
the CP Rate which shall be in effect with respect to such Bonds during such CP
Rate Period, which shall be the lowest rate of interest which, in the
Remarketing Agent's sole judgment, having due regard to prevailing financial
market conditions, will permit such Bonds to be sold at par on the first day of
such CP Rate Period. Notwithstanding the foregoing, the CP Rate so determined
shall not be
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more than the Maximum Rate. Unless and until the Company elects to effect a
conversion of the Bonds from the CP Rate Mode to another Mode, the Remarketing
Agent shall continually redetermine the duration of, and the CP Rate to be
effective during, each new CP Rate Period with respect to each Bond, which will
commence, without further action on the part of the Company, on each CP Rate
Reset Date with respect to such Bond. If on any CP Rate Reset Date, the
Remarketing Agent shall fail to determine either the duration of, or the CP Rate
to be effective during, the CP Rate Period which commences on such date with
respect to any Bonds, such Bonds, without further action on the part of any
person, shall automatically convert to the Weekly Rate Mode upon such date, and
the Weekly Rate which will be effective on such date will be determined as
described in Section 2.02(b). Such Bonds may not thereafter be converted from
the Weekly Rate Mode until such time as all Bonds then outstanding are in the
Weekly Rate Mode. Upon such automatic conversion of a portion of the Bonds to
the Weekly Rate Mode, any Bonds then remaining in the CP Rate Mode shall be
automatically converted to the Weekly Rate Mode upon the expiration of the CP
Rate Period applicable to such Bonds without further action on the part of any
person (and notwithstanding any attempted act to the contrary on the part of any
person). Upon such event, the Trustee shall promptly notify the affected
Bondholders, the Company, the Remarketing Agent, the Tender Agent, if any, and
the Bank of such automatic conversion. Each determination by the Remarketing
Agent pursuant to this paragraph shall be conclusive and binding upon the
Issuer, the Company, the Trustee, the Tender Agent, the Bank and the
Bondholders.
On the first day of each CP Rate Period, the Remarketing Agent shall
furnish to the Trustee, the Bank, the Company and, if the Bonds are not in a
Book-Entry System, the Tender Agent, notice of the duration of such CP Rate
period and the CP Rate to be effective during such CP Rate period. Should any
Bondholder or Beneficial Owner request notice of such items in writing, the
Remarketing Agent shall provide such notice (by first-class mail, postage
prepaid) to such requesting Bondholder or Beneficial Owner.
The Securities Depository has established separate procedures applicable
to Bonds held in the CP Rate Mode. The Issuer and the Trustee agree to comply
with such procedures whenever Bonds in the CP Rate Mode are held in a
Book-Entry System.
At any time that the Company has given notice of conversion of the Bonds
from the CP Rate Mode to another Mode as provided in Section 2.02(f), the
Remarketing Agent shall thereafter determine CP Rate Periods of such duration
so that, as soon as possible, all CP Rate Periods shall end on the same date,
which date shall be the day preceding the Conversion Date.
(e) Adjustable Rate Provisions. The Bonds shall bear interest at an
Adjustable Rate from each adjustable Rate Conversion Date or each Adjustable
Rate Reset Date, as appropriate, to the earlier of their redemption, maturity,
the following Conversion Date, the following Adjustable Rate Reset Date or the
following date on which the Bonds shall be subject to mandatory tender for
purchase pursuant to Section 2.04. Upon a conversion of the Bonds to the
Adjustable Rate Mode, the duration of the initial Adjustable Rate Period shall
be that period specified in the Company's conversion notice delivered pursuant
to Section 2.02(f)(i) for the purpose of effecting such conversion. An
Adjustable Rate Period shall be of at least one month
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in duration and shall end on the day preceding the first Business Day of a
calendar month or, if such Adjustable Rate Period extends to the final maturity
date of the Bonds, such final maturity date. The Bonds thereupon shall remain
in the Adjustable Rate Mode for as long as the Company shall continue to deliver
timely notices pursuant to Section 2.02(f)(i) specifying the duration of the
next subsequent Adjustable Rate Period which is to commence on the expiration of
any current Adjustable Rate Period. The Remarketing Agent, on or prior to the
commencement of each Adjustable Rate Period, shall determine the Adjustable Rate
to be borne by the Bonds during such Adjustable Rate Period, which shall be the
lowest rate which, in its sole judgment having due regard for prevailing
financial market conditions, will permit the Bonds to be sold at par on the
first day of such Adjustable Rate Period. Notwithstanding the foregoing, the
Adjustable Rate shall not be more than the Maximum Rate.
If, during any period the Bonds shall be in the Adjustable Rate Mode,
either (i) the Company shall not deliver a timely conversion notice specifying
the duration of the next subsequent Adjustable Rate Period, or (ii) on or prior
to any Adjustable Rate Reset Date the Remarketing Agent shall fail to determine
the Adjustable Rate to be borne by the Bonds during such Adjustable Rate
Period, then, except as set forth below, the Bonds, without further action on
the part of any other person, shall automatically convert to the Weekly Rate
Mode on the date which otherwise would have been the Adjustable Rate Reset
Date, and the Bonds shall thereupon bear interest at the Weekly Rate determined
pursuant to Section 2.02(b). Upon such event, the Trustee shall promptly
notify the Bondholders, the Company, the Remarketing Agent, the Tender Agent,
if any, and the Bank of such automatic conversion. If, however, prior to such
date, the Bonds were in a Long-Term Mode, the Bonds shall not be automatically
converted to the Weekly Mode, as described in the preceding sentence, unless
there shall have been delivered to the Trustee on or prior to such date an
opinion of Bond Counsel to the effect that such automatic conversion will not
adversely affect the exclusion of interest on the Bonds from the Federal gross
income of the Owners thereof. Absent delivery of such opinion, the Bonds will
convert automatically on such date to the shortest possible Adjustable Rate
Period of a duration of at least one year and one day. In such event, the
Bonds shall bear interest during such period at a rate to be determined by the
Remarketing Agent as described herein, or if no rate is so determined, at a
rate equal to 90% of the average interest rate for one year U.S. Treasury
Notes, as published in the Federal Reserve Bulletin (published by the Board of
Governors of the Federal Reserve System) most recently published prior to the
Conversion Date, as determined by the Trustee. Each determination of an
Adjustable Rate by the Remarketing Agent shall be conclusive and binding upon
the Issuer, the Company, the Trustee, the Tender Agent, the Bank and the
Bondholders.
(f) Conversion Options.
(i) In General. The interest rate Mode of the Bonds shall be
converted from one Mode to another, and an Adjustable Rate Period
of one duration shall be converted to an Adjustable Rate Period of
the same or another duration, at the Company's option, if the
Company shall notify the Trustee, the Tender Agent, the Bank, the
Rating Agencies and the Remarketing Agent
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of its election to effect such a conversion and each other
condition to any such conversion set forth in this Indenture
shall have been satisfied.
Notwithstanding anything in this Indenture to the
contrary, however, in no event shall any such conversion
occur as to any Bond with respect to which a deposit has been
made pursuant to Section 10.01(a)(ii) to provide for such
Bond to be deemed paid.
In addition, in no event shall the interest rate Mode of
the Bonds be converted to the Adjustable Rate Mode for an
Adjustable Rate Period extending to the final maturity of the
Bonds unless the Company shall have provided to the Issuer
and the LGC evidence reasonably acceptable to the Issuer and
the LGC that after such conversion, the Bonds will have an
Investment Grade Rating.
The Company's conversion notice shall specify the date
on which the Conversion Date will occur (which date shall be
not sooner than 25 days after the date such notice is given)
and, if the conversion is to an Adjustable Rate Period, shall
specify the Adjustable Rate Period. Notwithstanding the
foregoing, no conversion from a Short-Term Mode to a
Long-Term Mode or from a Long-Term Mode to a Short-Term Mode
and no conversion effected in connection with either a change
in the Bank issuing the Letter of Credit, a change in the
security for the Bonds or an amendment to this Indenture or
the Agreement shall be effective unless the Company has
delivered with such notice an opinion of Bond Counsel (which
opinion must be confirmed on the Conversion Date) stating
that such conversion will not adversely affect the
excludability from gross income of interest on the Bonds for
Federal income tax purposes.
The Conversion Date shall be the date specified in the
Company notice; provided that no conversion from the
Adjustable Rate Mode shall be effective prior to the Business
Day following the last day of the Adjustable Rate Period
which is then in effect, and no such optional conversion from
the CP Rate Mode shall be effective prior to the Business Day
following the day which is the last day of the CP Rate
Periods for all of the Bonds.
If any condition precedent to conversion (including, but
not limited to, the establishment by the Remarketing Agent of
the initial interest rate to be in effect after the
Conversion Date or, if required, the delivery of the Bond
Counsel opinion described above) is not satisfied on or prior
to the Conversion Date, the Bonds shall nonetheless be
subject to mandatory tender on the Conversion Date and,
subject to the same qualifications and exceptions as are set
forth in the second paragraph of Section 2.02(e), upon such
date, the Bonds, without any further action on the part of any
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person, shall automatically convert to the Weekly Rate Mode,
and the Bonds shall thereupon bear interest at a Weekly Rate
determined pursuant to Section 2.02(b).
(ii) Conversion Notice. At least 20 days prior to
each Conversion Date, the Trustee shall give to each
Bondholder notice by certified mail, stating: (A) the
Conversion Date, (B) that, on the Conversion Date, the Bonds
are subject to mandatory tender and purchase; (C) that,
subject to clause (E) below, all Owners who fail to tender
their Bonds for purchase on the mandatory tender date will
nonetheless be deemed to have tendered their Bonds for
purchase on such date; (D) that, subject to clause (E) below,
any Bonds not delivered to the Tender Agent on or prior to the
mandatory tender date, for which there has been irrevocably
deposited in trust with the Trustee or the Tender Agent on or
prior to the mandatory tender date Available Moneys sufficient
to pay the purchase price of such Undelivered Bonds on the
mandatory tender date, shall be deemed to have been so
purchased at the purchase price, and such Bonds shall no
longer be considered to be outstanding for purposes of this
Indenture and shall no longer be entitled to the benefits of
this Indenture, except for the payment of the purchase price
thereof (and no interest shall accrue thereon subsequent to
the mandatory tender date) and (E) that notwithstanding the
foregoing, while the Bonds are held in the Book-Entry System,
Bonds need not be physically tendered on the mandatory tender
date, and transfers of beneficial ownership interests will be
effected by the Securities Depository in accordance with its
rules and procedures.
(g) Letter of Credit Interest Coverage. The interest component of each
Letter of Credit in effect during any Mode shall be sufficient to provide
Adequate Interest Coverage (as defined below).
With respect to the Weekly Rate Mode, the Daily Rate Mode or the CP Rate
Mode, "Adequate Interest Coverage" shall mean the aggregate amount of interest
which would accrue on all Outstanding Bonds (other than Pledged Bonds and
Company Bonds) at a rate equal to 10% per annum, computed on the basis of a
365-day year, (i) for a period of forty-five (45) days, in the case of Bonds in
the Weekly Rate Mode or the Daily Rate Mode, and (ii) for a period of three
hundred eighty (380) days, in the case of Bonds in the CP Rate Mode or, in
either case, such shorter period acceptable to the Rating Agencies and which
will not result in a withdrawal or lowering of any rating on the Bonds from
that which would otherwise accrue from a longer interest coverage period.
Notwithstanding the foregoing, Adequate Interest Coverage during the Weekly
Rate Mode, the Daily Rate Mode or the CP Rate Mode may cover interest on Bonds
at a rate other than 10% per annum if (A) the Company provides the Trustee with
an opinion of Bond Counsel to the effect that such coverage and the effect of
such coverage upon clause (b) of the definition of "Maximum Rate" herein will
not adversely affect the exclusion from gross income of interest on the Bonds
for Federal income tax purposes, and (B) if the applicable rate is to be less
than 10% per annum, the Trustee shall have received written notice from the
Rating
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Agencies that such lower rate will not result in a withdrawal or lowering of any
rating on the Bonds from that which would otherwise accrue from a maintenance of
coverage at the 10% rate.
With respect to the Adjustable Rate Mode, "Adequate Interest Coverage"
shall mean the aggregate amount of interest which would accrue on all
Outstanding Bonds (other than Pledged Bonds and Company Bonds) at a rate equal
to the Adjustable Rate to be borne by the Bonds during such Mode, computed on
the basis of a 360-day year composed of twelve 30-day months, for a period of
two hundred (200) days, or with respect to an Adjustable Rate Period of less
than six months' duration, for a period equal to the number of days in such
Adjustable Rate Period plus twenty, or in either such case, such shorter period
acceptable to the Rating Agencies and which will not result in a withdrawal or
lowering of any rating on the Bonds from that which would otherwise accrue from
a longer interest coverage period.
(h) Denominations; Numbering. The Bonds are issuable only as registered
Bonds without coupons in Authorized Denominations. The Bonds shall be numbered
from 1 upwards, provided that the number assigned to each definitive Bond shall
be prefixed by the letter "R." Temporary Bonds shall be prefixed by the
letters "TR."
(i) Payment Terms. Principal of, and premium, if any, on the Bonds shall
be payable by the Trustee from moneys held by the Trustee in the Bond Fund to
the Bondholders upon presentation and surrender of the Bonds as the same become
due at the Trustee's Principal Office. The Trustee shall pay interest on the
Bonds by check or draft drawn upon the Trustee and mailed by first-class mail
on the respective Interest Payment Dates to the Bondholders at their addresses
shown on the registration books of the Trustee, or such other addresses as are
furnished to the Trustee (in form satisfactory to the Trustee) by such
Bondholders, as of the close of business on the Record Date with respect to
such Interest Payment Date; provided that payment of interest shall be made by
the Trustee by wire transfer to any Owner of $1,000,000 or more in aggregate
principal amount of Bonds upon such Owner's, providing the Trustee with written
wire transfer instructions acceptable to the Trustee before the applicable
Record Date. If and to the extent there shall be a default in the payment of
the interest due on an Interest Payment Date, such defaulted interest shall be
paid to the Bondholders in whose names any such Bonds (or any Bond or Bonds
issued upon registration of transfer or exchange thereof) are registered at the
close of business on the Business Day next preceding the date of payment of
such defaulted interest. Payment of the principal or purchase price of, and
the premium, if any, and interest on, the Bonds shall be made in such lawful
money of the United States of America as, at the respective times of payment,
shall be legal tender for the payment of public and private debts.
(j) Dating; Interest Accrual. The Bonds shall be dated, and interest on
the Bonds shall accrue from, the Closing Date, and thereafter the Bonds shall
bear interest from the Interest Payment Date next preceding the date of
authentication, unless (i) authenticated prior to the first Interest Payment
Date, in which event interest on such Bonds shall accrue from the Closing Date,
(ii) authenticated on an Interest Payment Date, in which event interest on such
Bonds shall accrue from the date of authentication, or (iii) authenticated
after a Record Date and before the following Interest Payment Date, in which
event interest on such Bonds shall accrue from the following Interest Payment
Date. If, as shown by the Trustee's records, interest on the Bonds is
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in default, interest on Bonds issued in exchange for Bonds surrendered for
registration of transfer or exchange shall accrue from the date to which
interest has been paid in full on the Bonds, or, if no interest has been paid on
the Bonds, from the Closing Date. The amount of interest payable on the Bonds
on each Interest Payment Date shall be the amount of interest accrued thereon
from the preceding Interest Payment Date (or other date as described above) to,
but not including, the Interest Payment Date on which interest is being paid.
Section 2.03. Optional Tender. (a) While the Bonds are in the Weekly
Rate Mode, any Outstanding Bond or portion thereof in an Authorized
Denomination (except any Pledged Bond or Company Bond) shall be purchased on
the demand of the Owner thereof on any Business Day at a price equal to 100% of
the principal amount thereof, plus accrued and unpaid interest thereon to the
purchase date, upon delivery (by facsimile or otherwise) to the Tender Agent at
its Principal Office on any Business Day, of the following:
(i) a written irrevocable notice, which will be effective upon
receipt, which (A) states the name and address of the Owner,
the principal amount of such Bond (and the portion thereof to
be tendered, if less than the full principal amount is to be
tendered) and the Bond number, and (B) states the date on which
such Bond shall be so purchased, which date shall be a Business
Day not prior to the seventh day next succeeding the date of
the delivery of such notice to the Tender Agent; and
(ii) such Bond (with all necessary endorsements and guarantee of
signature) attached to such notice; provided, however, that the
purchase price of such Bond shall be paid by the close of
business on the purchase date, but only upon the delivery of
the Bond to the Tender Agent and provided such Bond shall
conform in all material respects to the description thereof in
such notice; and provided, further, that if the Owner of the
tendered Bond is an open-ended diversified management
investment company (registered under the Investment Company Act
of 1940, as amended), the delivery required under this
paragraph (ii) need not be made until 10:30 a.m. on the date
such Bond is to be purchased from such Owner. Undelivered Bonds
shall be deemed to have been delivered at the time and on the
date required, and as of such date and time shall no longer be
deemed to be Outstanding under this Indenture. The Owner of
any Undelivered Bond shall be entitled only to the purchase
price payable for such Bond on the required delivery date
thereof, and such purchase price shall be paid to such Owner
only upon surrender of such Bond to the Tender Agent.
Notwithstanding the foregoing, if the Bonds in the Weekly Rate Mode are
held in a Book-Entry System, a Beneficial Owner shall have the right to
optionally tender for purchase its beneficial interest in any Outstanding Bonds
(or portion thereof in an Authorized Denomination) at the purchase price set
forth above. Such right shall be exercised with respect to such Bonds by the
Beneficial Owner's delivery to the Remarketing Agent, at the Remarketing
Agent's Principal Office, of an irrevocable written notice identifying the name
and address of such Beneficial
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Owner and stating that such Beneficial Owner will cause its beneficial interest
(or portion thereof in an Authorized Denomination) to be purchased, the amount
of such interest to be purchased, the date on which such interest will be
purchased (which date shall be a Business Day at least seven days after delivery
of such notice to the Remarketing Agent) and specifying the Remarketing Agent as
the Participant through which the Beneficial Owner maintains its interest. Upon
delivery of such notice, the Beneficial Owner shall cause its beneficial
ownership interest in the Bonds (or the portion thereof specified in the
foregoing notice) being purchased to be transferred to the Remarketing Agent at
or prior to 10:30 a.m. on the optional tender date, in accordance with the rules
and procedures of the applicable Securities Depository.
(b) While the Bonds are in the Daily Rate Mode, any Outstanding Bond or
portion thereof in an Authorized Denomination (except any Pledged Bond or
Company Bond) shall be purchased on the demand of the Owner thereof on any
Business Day at a price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest thereon to the date of purchase, upon delivery (by
facsimile or otherwise) to the Tender Agent at its Principal Office, of the
following:
(i) no later than 10:00 a.m. on such Business Day, of a written
irrevocable notice, which will be effective upon receipt, which
states the name and address of the Owner, the principal amount
of such Bond (and the portion thereof to be tendered, if less
than the full principal amount is to be tendered) and the Bond
number, and
(ii) no later than 10:30 a.m. on such Business Day, such Bond (with
all necessary endorsements and guarantees of signature);
provided, however, that the purchase price of such Bond shall
be paid by the close of business on the purchase date, but only
upon the delivery of the Bond to the Tender Agent and provided
such Bond shall conform in all material respects to the
description thereof in such notice.
Undelivered Bonds shall be deemed to have been delivered at the time and
on the date required, and as of such date and time shall no longer be deemed to
be Outstanding. The Owner of any Undelivered Bond shall be entitled only to
the purchase price payable for such Bond on the required delivery date thereof,
and such purchase price shall be paid to such Owner only upon surrender of such
Bond to the Tender Agent.
Notwithstanding the foregoing, if the Bonds in the Daily Rate Mode are
held in a Book-Entry System, a Beneficial Owner shall have the right to
optionally tender for purchase its beneficial interest in any Outstanding Bonds
(or portion thereof in an Authorized Denomination) at the purchase price set
forth above. Such right shall be exercised with respect to such Bonds by the
Beneficial Owner's delivery to the Remarketing Agent, at the Remarketing
Agent's Principal Office no later than 10:00 a.m. on the date on which the
beneficial interest of such Beneficial Owner is to be purchased, of an
irrevocable written notice identifying the name and address of such Beneficial
Owner and stating that such Beneficial Owner will cause its beneficial interest
(or portion thereof in an Authorized Denomination) to be purchased, the amount
of such interest
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to be purchased, and specifying the Remarketing Agent as the Participant through
which the Beneficial Owner maintains its interest. Upon delivery of such
notice, the Beneficial Owner shall cause its beneficial ownership interest in
the Bonds (or the portion thereof specified in the foregoing notice) being
purchased to be transferred to the Remarketing Agent at or prior to 10:30 a.m.
on the optional tender date, in accordance with the rules and procedures of the
applicable Securities Depository.
Section 2.04. Mandatory Tender. The Bonds are subject to mandatory
tender in whole (except as provided in (b) below) by the Bondholders to the
Tender Agent at its Principal Office on each date described below:
(a) On each Conversion Date (provided that, if less than all of the Bonds
are being converted from the CP Rate Mode to the Weekly Rate Mode as described
in this Indenture, only the Bonds being converted shall be subject to mandatory
tender);
(b) On each CP Rate Reset Date with respect to any Bond (provided that
only those Bonds whose interest rates are being reset on such date shall be
subject to mandatory tender);
(c) On the Business Day prior to either (i) the scheduled stated
expiration date or date of termination of the Letter of Credit, if the Trustee
has not received by the 25th day preceding such scheduled Letter of Credit
expiration or termination date either an extension of the then-existing Letter
of Credit or an Alternate Credit Facility meeting the requirements set forth
therefor in Section 5.03, including the Maintenance of Rating requirement (as
defined in Section 5.03(b)), or (ii) the date on which the existing Letter of
Credit is to be released pursuant to Section 5.03(c);
(d) On the date of substitution of an Alternate Credit Facility for the
then-existing Letter of Credit if the Trustee has not received evidence of a
Maintenance of Rating with respect thereto on or prior to such substitution
date; and
(e) On each optional redemption date pursuant to Section 3.01 for which
the Company has elected to purchase Bonds in lieu of an optional redemption
pursuant to Section 3.01(c) hereof.
The purchase price of Bonds subject to mandatory tender shall be 100% of
the principal amount thereof (except in the case of a mandatory tender
described in paragraphs (c), (d) or (e) above, during, but prior to the
expiration date of, an Adjustable Rate Period, in which case the purchase price
shall include a premium equal to the then-applicable optional redemption
premium, if any, on the Bonds), plus accrued and unpaid interest, if any, to
the purchase date. Not later than 20 days prior to a mandatory tender date
described in (b), (c), or (d) above, the Trustee shall mail notice to all
Owners of Bonds subject to mandatory tender, the Remarketing Agent, the Bank,
the Company, the Rating Agencies and the Tender Agent stating that (i) due to
the occurrence of one of the events described above (which event shall be
specified), such Bonds will be subject to mandatory tender on the mandatory
tender date (which date shall be specified), (ii) that, subject to clause (iv)
below, all such Owners who fail to tender their Bonds for purchase on the
mandatory tender date will nonetheless be deemed to have tendered their Bonds
for
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purchase on such date, (iii) that, subject to clause (iv) below, any such Bonds
not delivered to the Tender Agent on or prior to the mandatory tender date, for
which there has been irrevocably deposited in trust with the Trustee or the
Tender Agent on or prior to the mandatory tender date Available Moneys
sufficient to pay the purchase price of such Undelivered Bonds on the mandatory
tender date, shall be deemed to have been so purchased at the purchase price,
and such Bonds shall no longer be considered to be Outstanding for purposes of
this Indenture and shall no longer be entitled to the benefits of this
Indenture, except for the payment of the purchase price thereof (and no interest
shall accrue thereon subsequent to the mandatory tender date), and (iv) that
notwithstanding the foregoing, while the Bonds are held in the Book-Entry
System, Bonds need not be physically tendered on the mandatory tender date, and
transfers of beneficial ownership interests will be effected by the Securities
Depository in accordance with its rules and procedures. Notice of mandatory
tenders described in clauses (a) and (e) above shall be given as part of the
notice of conversion referenced in Section 2.02(f)(ii) or notice of redemption
referenced in Section 3.04, respectively. No failure on the Trustee's part to
give any such notice shall affect the requirement that Bonds be tendered on the
mandatory tender date.
When Bonds are not in a Book-Entry System, Undelivered Bonds shall, if
Available Moneys sufficient to pay the purchase price of such Bonds in full and
available for the purchase of such Bonds have been deposited with the Tender
Agent on the mandatory tender date, shall be deemed to have been tendered for
purchase on the mandatory tender date, and from such date shall no longer be
deemed to be Outstanding. Owners of such Bonds shall have no rights or
benefits under this Indenture other than to receive the purchase price for such
Bonds upon surrender of such Bonds to the Tender Agent, and no interest shall
accrue thereon subsequent to the mandatory tender date. Notwithstanding the
foregoing, if on any mandatory tender date the Bonds shall be in the Book-Entry
System, it shall not be necessary that Bonds be physically tendered to the
Tender Agent on the mandatory tender date. Transfers of beneficial ownership
interests shall be effected in accordance with the rules and procedures
established by the Securities Depository.
Upon the occurrence of any mandatory tender described in paragraphs (c),
(d), (e) or (f) above during an Adjustable Rate Period, commencing on the date
of such mandatory tender the Bonds shall bear interest in a Mode (and, in the
case of the Adjustable Rate Mode, for an Adjustable Rate Period) to be
designated by the Company by notice to the Trustee given to the Trustee at
least 25 days prior to such date; provided, however, the said designated Mode
or Adjustable Rate Period shall be effective on the mandatory tender date only
if each prerequisite to a conversion specified in Section 2.02(f) shall have
been satisfied. If the Company makes no designation of a Mode or an Adjustable
Rate Period, or if the prerequisites of Section 2.02(f) have not been
satisfied, then, upon the mandatory tender date, the Bonds, subject to the same
qualifications and exceptions as are set forth in the second paragraph of
Section 2.02(e), shall convert automatically to the Weekly Rate Mode, and the
Bonds thereupon shall bear interest at the Weekly Rate determined pursuant to
Section 2.02(b).
Section 2.05. Form of Bonds. The Bonds and the certificate of
authentication, the provision for registration and the form of assignment
thereof shall be in substantially the form set forth in Exhibit A, with such
appropriate variations, omissions, substitutions, insertions,
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notations, legends and endorsements as may be deemed necessary or appropriate by
the officers of the Issuer executing the same and as shall be permitted or
required by the Act and this Indenture.
Section 2.06. Execution and Authentication of Bonds. (a) The Bonds
shall be executed on behalf of the Issuer with the manual or facsimile
signature of the Chairman or the Vice Chairman of the Issuer's Board of
Commissioners and attested, under a manual or facsimile impression of the seal
of the Issuer, with the manual or facsimile signature of the Secretary or the
Assistant Secretary of the Issuer's Board of Commissioners. If any officer of
the Issuer whose signature or a facsimile thereof appears on a Bond shall cease
to be such officer before the delivery of such Bond, such signature or such
facsimile shall nevertheless be valid and sufficient for all purposes, the same
as if such officer had remained in the office until delivery.
(b) No Bond shall be valid or obligatory for any purpose or be entitled
to any security or benefit under this Indenture unless and until a certificate
of authentication on such Bond substantially in the form set forth in Exhibit A
shall have been duly executed by the Trustee, or, in the case of purchased
Bonds delivered by the Tender Agent pursuant to Section 3.10, by the Tender
Agent. Any such executed certificate upon any such Bond shall be conclusive
evidence that such Bond has been authenticated and delivered under this
Indenture. The certificate of authentication on any Bond shall be deemed to
have been executed by it if signed by an authorized officer or signatory of the
Trustee or the Tender Agent, but it shall not be necessary that the same
officer or signatory sign the certificate of authentication on all of the Bonds
issued hereunder.
Section 2.07. Registration and Exchange of Bonds; Persons Treated as
Owners. (a) Bonds may be transferred only on the Issuer's registration books
for the Bonds as maintained by the Trustee. Upon surrender for transfer of any
Bond to the Trustee, duly endorsed for transfer or accompanied by an assignment
duly executed by the holder or the holder's attorney duly authorized in
writing, the Trustee will authenticate a new Bond or Bonds in an equal total
principal amount and registered in the transferee's name.
(b) Bonds may be exchanged for an equal total principal amount of Bonds
of different Authorized Denominations. The Trustee will authenticate and
deliver Bonds that the Bondholder making the exchange is entitled to receive,
bearing numbers not then outstanding.
(c) The Trustee will not be required to transfer or exchange any Bond
after the mailing of notice calling such Bond or any portion of such Bond for
redemption or during the 15-day period preceding the mailing of a notice of
redemption of any Bonds, except as provided in Sections 2.03 and 2.04.
(d) The Owner of a Bond shall, except as otherwise described in this
Indenture with respect to certain rights of Beneficial Owners, be the absolute
owner of the Bond for all purposes, and payment of principal, interest or
purchase price shall be made only to or upon the written order of the Owner or
the Owner's legal representative.
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(e) The Trustee will require the payment by a Bondholder requesting
exchange or transfer of any tax or other governmental charge required to be
paid in respect of the exchange or transfer but will not impose any other
charge.
(f) Notwithstanding the foregoing, for so long as the Bonds are held
under the Book-Entry System, transfers of beneficial ownership will be effected
pursuant to rules and procedures established by the Securities Depository.
Section 2.08. Mutilated, Lost, Stolen or Destroyed Bonds. If any Bond is
mutilated, lost, stolen or destroyed, the Trustee will authenticate a new Bond
of the same denomination if any mutilated Bond shall first be surrendered to
the Trustee, and if, in the case of any lost, stolen or destroyed Bond, there
shall first be furnished to the Issuer, the Trustee, the Bank and the Company
evidence of such loss, theft or destruction, together with an indemnity
satisfactory to each of them to save each of them harmless from all risks
related thereto, however remote. If the Bond has matured, instead of issuing a
duplicate Bond, the Trustee may with the Company's consent pay the Bond without
requiring surrender of the Bond and make such requirements as the Trustee deems
fit for its protection, including a lost instrument bond. The Issuer, the
Company and the Trustee may charge their reasonable fees and expenses in this
connection.
Section 2.09. Cancellation of Bonds. Whenever a Bond is delivered to the
Trustee for cancellation (upon payment, redemption or otherwise), or for
transfer, exchange or replacement pursuant to Section 2.07 or 2.08, the Trustee
will promptly cancel the Bond and deliver the canceled Bond or a certificate of
destruction as appropriate to the Company at its request. Upon cancellation of
any tendered Bond by the Tender Agent, the Tender Agent shall forward the
canceled Bond to the Trustee.
Section 2.10. Temporary Bonds. Until definitive Bonds are ready for
delivery, the Issuer may execute, and the Trustee or the Tender Agent will
authenticate, temporary Bonds substantially in the form of the definitive
Bonds, with appropriate variations. The Issuer will, without unreasonable
delay, prepare, and the Trustee or the Tender Agent will authenticate,
definitive Bonds in exchange for the temporary Bonds. Such exchange shall be
made by the Trustee or the Tender Agent without charge.
Section 2.11. Conditions Precedent to Authentication and Delivery of
Bonds. The issuer shall execute and deliver the Bonds to the Trustee, and the
Trustee shall, upon receipt by the Trustee of those items specified in this
Section, authenticate the Bonds (or cause the Tender Agent to authenticate the
Bonds) and deliver them to, or upon the order of, the Underwriter. Prior to
and as a condition precedent to the authentication and delivery of the Bonds
there shall be filed with and delivered to the Trustee:
(a) a copy, duly certified by an authorized representative of the
Issuer, of the resolution adopted by the Issuer in accordance with the
Act authorizing the execution and delivery of this Indenture and the
issuance of the Bonds;
(b) original duly executed and delivered counterparts of this
Indenture, the Agreement, and the Rebate Agreement;
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(c) an opinion of Bond Counsel to the effect that Bonds executed,
authenticated and delivered as provided in this Indenture will be duly
and validly issued and will constitute valid and binding limited
obligations of the Issuer; and
(d) the duly executed and delivered Letter of Credit.
Section 2.12. Book-Entry System. (a) The Bonds shall be issued
pursuant to a Book-Entry System administered by the Securities Depository with
no physical distribution of Bond certificates to be made except as provided in
this Section. Any provision of this Indenture or the Bonds requiring physical
delivery of the Bonds shall, with respect to any Bonds held under the
Book-Entry System, be deemed to be satisfied by a notation on the registration
books maintained by the Trustee that such Bonds are subject to the Book-Entry
System.
(b) So long as a Book-Entry System is being used, one Bond in the
aggregate principal amount of the Bonds and registered in the name of the
Securities Depository Nominee will be issued and deposited with the Securities
Depository to be held in its custody. The Book-Entry System will be maintained
by the Securities Depository and the Participants and Indirect Participants and
will evidence beneficial ownership of the Bonds in Authorized Denominations,
with transfers of ownership effected on the records of the Securities
Depository, the Participants and the Indirect Participants pursuant to rules
and procedures established by the Securities Depository, the Participants and
the Indirect Participants. The principal or purchase price of and any premium
on, each Bond shall be payable to the Securities Depository Nominee or any
other person appearing on the registration books maintained by the Trustee as
the registered holder of such Bond or his registered assigns or legal
representative. So long as the Book-Entry System is in effect, the Securities
Depository will be recognized as the Holder of the Bonds for all purposes.
Transfers of principal, purchase price, interest and any premium payments or
notices to Participants and Indirect Participants will be the responsibility of
the Securities Depository, and transfers of principal, purchase price, interest
and any premium payments or notices to Beneficial owners will be the
responsibility of the Participants and the Indirect Participants. No other
party will be responsible or liable for such transfers of payments or notices
or for maintaining, supervising or reviewing such records maintained by the
Securities Depository, the Participants or the Indirect Participants. While
the Securities Depository Nominee or the Securities depository, as the case may
be, is the Owner of the Bonds, notwithstanding any other provisions set forth
in this Indenture, payments of principal or purchase price of, redemption
premium, if any, and interest on the Bonds shall be made to the Securities
Depository Nominee or the Securities Depository, as the case may be, by wire
transfer in immediately available funds to the account of such Holder. Without
notice to or the consent of the Beneficial Owners, the Trustee, with the
Company's consent, and the Securities Depository may agree in writing to make
payments of principal, redemption price or purchase price and interest in a
manner different from that set out herein. In such event, the Trustee shall
make payments with respect to the Bonds in such manner as if set forth herein.
(c) With the Remarketing Agent's consent, the Company may at any time
elect (i) to provide for the replacement of any Securities Depository as the
depository for the Bonds with another qualified Securities Depository, or (ii)
to discontinue the maintenance of the Bonds under
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a Book-Entry System. In such event, the Trustee shall give 30 days' prior
notice of such election to the Securities Depository (or such fewer number of
days as shall be acceptable to such Securities Depository).
(d) Upon the discontinuance of the maintenance of the Bonds under a
Book-Entry System, the Issuer will cause Bonds to be issued directly to the
Beneficial Owners of Bonds, or their designees, as further described below. In
such event, the Trustee shall make provisions to notify Participants and the
Beneficial Owners of the Bonds, by mailing an appropriate notice to the
Securities Depository, or by other means deemed appropriate by the Trustee in
its discretion, that Bonds will be directly issued to the Beneficial Owners of
Bonds as of a date set forth in such notice, which shall be a date at least 10
days after the date of mailing of such notice (or such fewer number of days as
shall be acceptable to the Securities Depository).
(e) If Bonds are to be distributed to the Beneficial Owners or their
designees, the Issuer, at the Company's expense, shall promptly have prepared
Bonds in certificated form registered in the names of the Beneficial Owners
shown on the records of the Participants provided to the Trustee, as of the
date set forth in the notice described above. Bonds issued to the Beneficial
Owners, or their designees, shall be in fully registered form and substantially
in the form set forth in Exhibit A.
(f) If any Securities Depository is replaced as the depository for the
Bonds with another qualified Securities Depository, the Issuer, at the
Company's expense, will issue to the replacement Securities Depository Bonds
substantially in the form set forth in Exhibit A, registered in the name of
such replacement Securities Depository.
(g) The Issuer, the Company, the Tender Agent, the Remarketing Agent and
the Trustee shall have no liability for the failure of any Securities
Depository to perform its obligation to any Participant, any Indirect
Participant or any Beneficial owner of any Bonds, and the Issuer, the Company,
the Tender Agent, the Remarketing Agent or the Trustee shall not be liable for
the failure of any Participant, Indirect Participant or other nominee of any
Beneficial Owner of any Bonds to perform any obligation that such Participant,
Indirect Participant or other nominee may incur to any Beneficial owner of the
Bonds.
(h) Notwithstanding any other provision of this Indenture, on or prior to
the date of issuance of the Bonds the Trustee shall have executed and delivered
to the initial Securities Depository a Letter of Representations governing
various matters relating to the Securities Depository and its activities
pertaining to the Bonds. The terms and provisions of such Letter of
Representations are incorporated herein by reference and, if there shall exist
any inconsistency between the substantive provisions of such Letter of
Representations and any provisions of this Indenture, then, for as long as the
initial Securities Depository shall serve with respect to the Bonds, the terms
of the Letter of Representations shall govern.
(i) The Issuer, the Company, the Trustee and the Tender Agent may rely
conclusively upon (i) a certificate of the Securities Depository as to the
identity of the Participants in the Book-Entry System, (ii) a certificate of
any Participant as to the identity of any Indirect
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Participant and (iii) a certificate of any Participant or Indirect Participant
as to the identity of, and the respective principal amount of Bonds beneficially
owned by, the Beneficial Owners.
ARTICLE III
REDEMPTION OF BONDS; PURCHASE AND REMARKETING OF BONDS
Section 3.01. Optional Redemption. The Bonds shall be subject to
redemption at the option of the Company, only as follows:
(a) Weekly Rate Mode, CP Rate Mode or Daily Rate Mode. While the Bonds
are in the Weekly Rate Mode or the Daily Rate Mode, the Bonds shall be subject
to optional redemption, in whole or in part in Authorized Denominations, on any
Business Day, and while the Bonds are in the CP Rate Mode, each Bond shall be
subject to optional redemption, in whole or in part in Authorized
Denominations, on any Interest Payment Date applicable to such Bond in said CP
Rate Period, in all cases at the Company's direction, upon at least 35 days'
prior written notice from the Company to the Trustee and the Remarketing Agent,
at a redemption price equal to 100% of the aggregate principal amount of the
Bonds to be redeemed, plus accrued interest thereon to the redemption date,
without premium.
(b) Adjustable Rate Mode. While the Bonds are in the Adjustable Rate
Mode, the Bonds shall be subject to optional redemption, after the dates
specified in the table below, in whole or in part on any date, at the Company's
direction, upon at least 40 days' prior written notice from the Company to the
Trustee and the Remarketing Agent, at the applicable redemption price
(expressed as a percentage of the principal amount to be redeemed) set forth
below, plus accrued interest thereon to the redemption date:
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LENGTH OF CURRENTLY DATES AFTER WHICH
APPLICABLE ADJUSTABLE REDEMPTION
RATE PERIOD(1) IS ALLOWED AND
(EXPRESSED IN WHOLE YEARS) REDEMPTION PRICES(1)
-------------------------- --------------------
greater than 10 after 10 years at 102%, declining
by 1% annually to 100%
less than or equal to 10 and greater than 7 after 5 years at 102%, declining by
1% annually to 100%
less than or equal to 7 and greater than 4 after 3 years at 102%, declining by
1% annually to 100%
less than or equal to 4 not callable
The payment of any premium upon the optional redemption of Bonds shall be
made solely from Available Moneys.
Notwithstanding the foregoing, the Bonds when in an Adjustable Rate period
may be subject to optional redemption upon terms different than those set forth
above (or not be subject to optional redemption during such period) if the
Company delivers to the Trustee on or before the first day of such Adjustable
Rate Period a certificate specifying different optional redemption dates or
prices to be in effect during such period (or that the Bonds will not be
subject to optional redemption during such Period) and an opinion of Bond
Counsel to the effect that the adoption of such optional redemption provisions
would not adversely affect the exclusion of interest on the Bonds from the
Federal gross income of the holders thereof.
(c) Purchase in Lieu of Optional Redemption. The Company shall have the
option to cause the Bonds to be subject to mandatory tender and purchase
pursuant to Section 2.04 in lieu of an optional redemption of Bonds pursuant to
Section 3.01(a) or (b) above. The Company may exercise this option by
delivering to the Trustee and Remarketing Agent on or prior to the Business Day
preceding the optional redemption date of a written notice specifying that the
Bonds shall not be redeemed, but instead shall be subject to mandatory tender
and purchase pursuant to Section 2.04. Upon delivery of such notice, the Bonds
shall not be redeemed but shall instead be subject to mandatory tender pursuant
to Section 2.04 at a tender price equal to the price at which the Bonds would
have been redeemed on the date which would have been the optional redemption
date.
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(1) Measured from the start of the currently applicable Adjustable Rate Period.
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Section 3.02. Extraordinary Optional Redemption. While the Bonds are in
the Adjustable Rate Mode or the CP Rate Mode, the Bonds are subject to
extraordinary optional redemption in whole on any date at a redemption price
equal to the principal amount of Outstanding Bonds plus accrued interest to the
redemption date, without premium, upon the Company's exercise of its option to
cause the Bonds to be redeemed as a result of the occurrence of any of the
events described below:
(a) the Project has been damaged or destroyed to such an extent
that, in the Company's judgment, (i) it cannot be reasonably restored
within a period of nine months to substantially the condition thereof
immediately preceding such damage or destruction, (ii) the Company is
thereby prevented from carrying on normal operations at the Project for a
period of nine or more consecutive months following such damage or
destruction, or (iii) it would not be economically feasible for the
Company to replace, repair, rebuild or restore the same;
(b) title in and to, or the temporary use of, all or substantially
all of the Project has been taken under the exercise of the power of
eminent domain (or sold in lieu of such a taking) by any governmental
authority, or person acting under governmental authority, and such a
taking or sale, in the Company's judgment, may result in the Company's
being prevented thereby from carrying on normal operations at the project
for a period of nine or more consecutive months; or
(c) as a result of any changes in the Constitution of the State or
the Constitution, of the United States of America or by legislative or
administrative action (whether State or Federal) or by final decree,
judgment, decision or order of any court or administrative body (whether
State or Federal), the Agreement has become void or unenforceable or
impossible of performance in accordance with the intent and purposes of
the parties as expressed therein.
To exercise its option to effect an extraordinary optional redemption, the
Company must deliver to the Trustee written notice of the occurrence of any
such event and of its election to cause the Bonds to be redeemed as a result
thereof. Such notice shall specify the redemption date, which shall be at
least 40 days (or such shorter period acceptable to the Trustee) after the date
of delivery of such notice to the Trustee.
Section 3.03. Mandatory Redemption. (a) The Bonds shall be redeemed in
whole, on the earliest redemption date with respect to which the Trustee can
give timely notice of redemption, after the occurrence of a Determination of
Taxability, at a redemption price equal to the aggregate Outstanding principal
amount of the Bonds plus accrued interest thereon to the redemption date,
without premium. The foregoing amount shall constitute the total amount
required to be paid as a result of the occurrence of a Determination of
Taxability.
(b) The Bonds shall be redeemed in whole on the first Interest Payment
Date that is at least 45 days after the next day for which timely notice of
redemption can be given by the Trustee after the Cessation of Operation, at a
redemption price equal to the aggregate
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Outstanding principal amount of the Bonds plus accrued interest thereon to the
redemption date, without premium.
Section 3.04. Notice of Redemption. (a) At least 30 days prior to the
date of any redemption of the Bonds, the Trustee shall cause notice of the call
for redemption to be sent by first-class mail, postage prepaid, to the Tender
Agent, the Bank, the Remarketing Agent, the Company, the issuer and the Owner
of each Bond to be redeemed. In addition, if the Bonds are not then in a
Book-Entry System, such notice shall also be given (at least two Business Days
before the redemption notice described in the preceding sentence) by
registered, certified or overnight mail, or by facsimile transmission promptly
confirmed in writing, to all registered securities depositories then in the
business of holding substantial amounts of obligations of types comprising the
Bonds and to one or more national information services that disseminate notices
of redemption of obligations such as the Bonds. Neither the failure to give
any such notice nor any defect in any notice so mailed shall affect the
sufficiency or the validity of any proceedings for the redemption of the Bonds.
(b) The redemption notice shall identify the Bonds or portions thereof to
be redeemed and shall state (i) the date of the said notice and the redemption
date, (ii) the redemption price, (iii) the original date of execution and
delivery of the Bonds to be redeemed, (iv) the rate of interest borne by the
Bonds to be redeemed, (v) the date of maturity of the Bonds, (vi) the numbers
and CUSIP numbers of the Bonds to be redeemed, (vii) that the redemption price
of any Bond is payable only upon the surrender of the Bond to the Trustee at
its principal corporate trust office, (viii) the address at which the Bonds
must be surrendered, (ix) that interest on the Bonds called for redemption
ceases to accrue on the redemption date provided that on such date Available
Moneys are on deposit in the Bond Fund sufficient to pay the redemption price
of the Bonds in full, and (x) such additional descriptive information
identifying the Bonds to be redeemed as the Trustee may deem appropriate to
effect the redemption.
Any notice of optional redemption shall also state that the Company may
elect that the Bonds be subject to mandatory tender and purchase in lieu of
optional redemption at a tender price equal to the redemption price. Any
notice of optional redemption may also state (and shall state, if the Company
shall so direct) that the redemption is conditioned on receipt of moneys for
such redemption by the Trustee on or prior to the redemption date; if such
moneys are not received, the redemption of the Bonds for which notice was given
shall not be made.
Section 3.05. Effect of Deposit of Redemption Moneys. If on any
redemption date Available Moneys sufficient to pay in full the redemption price
of the Bonds called for redemption have been deposited with the Trustee and
shall be available to be utilized to pay the redemption price of such Bonds,
such Bonds shall no longer be secured by or be deemed to be Outstanding under
the provisions of this Indenture. Interest shall not continue to accrue on
such Bonds after the redemption date. If sufficient Available Moneys shall not
be on deposit on the redemption date, such Bonds or portions thereof shall
continue to bear interest until paid at the same rate as they would have borne
had they not been called for redemption.
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Section 3.06. Partial Redemption. (a) Any partial redemption of Bonds
shall be made only in Authorized Denominations. if fewer than all of the Bonds
shall be called for redemption, the Trustee shall select the portion of Bonds
to be redeemed by lot from among all Outstanding Bonds; provided that the
Trustee shall first select Pledged Bonds and Company Bonds for redemption.
Each Bond shall be considered separate Bonds in Authorized Denominations for
purposes of selecting the Bonds to be redeemed. Subject to the provisions of
the Bonds with respect to the Bond-Entry System, if any Bond shall be called
for redemption only in part, then the Owner of such Bond, upon surrender of
such Bond to the Trustee for payment, shall be entitled to receive a new Bond
or Bonds in the aggregate principal amount of the unredeemed balance of the
principal amount of such Bond, without charge therefor.
(b) If the Owner of any Bond which is called for redemption only in part
shall fail to present such Bond to the Trustee for payment and exchange as
aforesaid, such Bond shall, nevertheless, become due and payable on the date
fixed for redemption, to the extent called for redemption (and to that extent
only) and to such extent such Bond shall no loner be deemed to be Outstanding
for purposes of this Indenture.
(c) Notwithstanding the foregoing, if the Bonds are held in the Book-Entry
System at the time of a partial redemption of the Bonds, beneficial ownership
interests in the series of Bonds shall be selected for redemption in accordance
with the rules and procedures established by the Securities Depository.
Section 3.07. Purchase of Tendered Bonds. (a) In performing their
duties under this Indenture, the Tender Agent and the Remarketing Agent shall
act as agents of the persons to whom purchased Bonds are to be delivered
pursuant to Section 3.10, of persons tendering such Bonds and of the Company
and shall not be considered to be purchasing Bonds for their own account and,
in the absence of written notification from the Trustee to the contrary, shall
be entitled to assume that any Bond tendered or deemed tendered to the
Remarketing Agent or the Tender Agent for purchase is entitled under the
Indenture to be so purchased. No acceptance of Bonds by the Tender Agent or
the Remarketing Agent under this Indenture shall effect any merger or discharge
of the indebtedness of the Issuer evidenced by the Bonds. The Tender Agent and
the Remarketing Agent shall accept all Bonds properly tendered for purchase in
accordance with the provisions of the Bonds and as set forth in this Indenture.
(b) During any period that no Book-Entry System for the Bonds is in
effect, a Tender Agent shall be appointed as provided in Section 7.11.
Immediately upon the effectiveness of such appointment, the Tender Agent shall
establish a special trust fund designated as the "The Mecklenburg County
Industrial Facilities and Pollution Control Financing Authority Industrial
Development Revenue Bonds, Series 1995 (▇▇▇▇▇▇▇▇ Micro Science, Inc.
Project)--Purchase Fund" (the "Purchase Fund"). The Tender Agent shall hold
all Bonds delivered to it in trust for the exclusive benefit of the respective
Owners of Bonds tendering such Bonds for sale until moneys representing the
purchase price of such Bonds have been delivered to or for the account of such
Bondholders. The Tender Agent shall hold all moneys delivered to it for the
purchase of Bonds in the Purchase Fund in trust, solely for the benefit of the
persons delivering such moneys until the Bonds purchased with such moneys have
been delivered to or for the account of such
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persons and thereafter solely for the benefit of the persons entitled to such
moneys. Moneys held in the Purchase Fund shall not be invested. The Issuer and
the Trustee hereby authorize and direct the Tender Agent to withdraw sufficient
funds from the Purchase Fund to pay the purchase price of tendered Bonds as the
same becomes due and payable, which authorization and direction the Tender Agent
accepts.
(c) During any period the Bonds are held in a Book-Entry System, the
purchase price of tendered Bonds (i) if derived from the source described in
Section 3.09(a), shall be paid on the tender date by the Remarketing Agent from
moneys received from the purchaser of the remarketed Bonds, and (ii) if derived
from any of the sources described in Section 3.09(b) or 309(c), shall be paid
on the tender date by the Trustee from moneys drawn on the Letter of Credit or
received from the Company. Moneys received and held by the Remarketing Agent
shall be held uninvested in separate accounts according to the source of such
moneys.
Section 3.08. Remarketing of Tendered Bonds; Payment of Purchase Price.
(a) The Remarketing Agent shall use its best efforts to remarket Bonds
tendered pursuant to Section 2.03 or 2.04 of which it has received notice of
tender from the Tender Agent or the Trustee (or Beneficial Owners, as the case
may be), at a price equal to 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to the purchase date. Such remarketing shall be
made in accordance with, and subject to the conditions of, the provisions of
the Remarketing Agreement. Bonds which have been duly tendered for purchase
and which have not been remarketed shall be purchased on the tender date with
the proceeds of an appropriate draw under the Letter of Credit; provided,
however, (i) during any period the Bonds are not secured by a Letter of Credit,
or (ii) if the Bank shall fail to honor a properly presented draw on the Letter
of Credit to provide for the purchase price of tendered Bonds, then the Company
will purchase such Bonds on the tender date.
(b) Upon receipt of a duly tendered written notice of an optional tender
of Bonds, the Tender Agent shall notify in writing the Remarketing Agent, the
Company, the Bank and the Trustee of the principal amount of Bonds tendered and
the date fixed for purchase of the tendered Bonds. During any period the Bonds
are in the Book-Entry System, the Remarketing Agent will give such notice in
writing to the Company, the Bank and the Trustee.
(c) Prior to 4:00 p.m. on the Business Day which immediately precedes the
purchase date for any Bonds (or, in the case of Bonds in the Daily Rate Mode,
prior to 11:00 a.m. on the purchase date of such Bonds), the Remarketing Agent
shall give notice to the Tender Agent, the Company and the Trustee of the
principal amount of such Bonds which have been remarketed, the names, addresses
and taxpayer identification numbers of the purchasers of such Bonds and the
denominations in which the Bonds are to be purchased by and delivered to each
purchaser. If less than all of the Bonds to be tendered on such purchase date
have been remarketed, the Remarketing Agent shall, in addition, notify the
Trustee, the Tender Agent and the Company prior to 10:00 a.m. (or, in the case
of Bonds in the Daily Rate Mode, 11:00 a.m.) on the purchase date of the
principal amount of Bonds which have not been remarketed and the amount of
accrued interest to be paid on such Bonds on such purchase date. Purchasers of
Bonds which have been remarketed shall be required to deliver the purchase
price thereof directly to the
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Tender Agent for deposit in the Purchase Fund (or, during any period the Bonds
are in the Book-Entry System, such moneys shall be transferred to the
Remarketing Agent's account on the records of the Securities Depository) not
later than 10:00 a.m. (or, in the case of Bonds in the Daily Rate Mode, 11:00
a.m.), on the purchase date. By 11:00 a.m. on the purchase date, the Tender
Agent shall notify the Trustee, the Remarketing Agent, the Company and the Bank
of any Bonds which have been remarketed for which payment has not been received
and the amount of remarketing proceeds which have been received. During any
period the Bonds are in the Book-Entry System, such notice shall be given by the
Remarketing Agent.
(d) Prior to 11:30 a.m. on any purchase date (whether optional or
mandatory), the Trustee shall draw upon the Letter of Credit, if any, in an
amount equal to the purchase price of all Bonds to be purchased on such
purchase date, less the amount of remarketing proceeds of which the Trustee has
notice were deposited with the Tender Agent (or the Remarketing Agent during
any period the Bonds are in the Book-Entry System) by 11:00 a.m. on such date.
Upon a draw on the Letter of Credit upon a mandatory tender due to a
substitution of an Alternate Credit Facility, the draw shall be made upon the
Letter of Credit being replaced. If the Bonds are not then secured by a Letter
of Credit by 1:00 p.m. on the purchase date for any Bonds, the Tender Agent (or
the Trustee during any period the Bonds are in the Book-Entry System) shall
receive from the Company, pursuant to Section 4.2(b) of the Agreement, an
amount equal to the purchase price of all Bonds to be purchased on such date,
less the amount of remarketing proceeds of which the Trustee has notice were on
deposit with the Tender Agent or the Remarketing Agent, as the case may be, by
11:00 a.m. on such date. No draw on the Letter of Credit shall be made with
respect to Pledged Bonds or Company Bonds.
(e) The Trustee shall, to the extent it has drawn moneys under the Letter
of Credit for the purchase of Bonds, authorize direct payment by the Bank to
the Tender Agent (or, during any period the Bonds are in the Book-Entry System,
to the payee specified by the Securities Depository) of the moneys so drawn.
(f) Notices pursuant to this Section shall be by telephone, telefacsimile
transmittal or telegram, promptly confirmed in writing, except that any drawing
under the Letter of Credit shall be in accordance with the terms thereof.
(g) Anything in this Indenture to the contrary notwithstanding, there
shall be no obligation on the Remarketing Agent's part to remarket Bonds (i) if
there shall have occurred and be continuing an Event of Default under this
Indenture or a Determination of Taxability, or (ii) which are subject to
mandatory tender under this Indenture, except as the Remarketing Agent and the
Company have otherwise agreed in the Remarketing Agreement.
(h) Any Bond optionally tendered for purchase after the date on which
such Bond has been selected for redemption or the Trustee has notified the
Bondholders of pendency of a conversion of the interest rate Mode of the Bonds
shall not be remarketed unless the purchaser has been notified by the Trustee
of the redemption or the interest rate Mode conversion, as appropriate. Any
purchaser so notified must deliver a notice to the Trustee and the Tender Agent
(or, during any period the Bonds are in the Book-Entry System, to the
Remarketing Agent)
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stating that such purchaser is aware of the pendency of the redemption or of the
interest rate Mode conversion, as appropriate, and agreeing not to resell the
Bonds prior to the date of such redemption or conversion, as the case may be.
Section 3.09. Funds for Purchase Price of Bonds. On the date Bonds are
to be purchased pursuant to the optional or mandatory tender provisions of this
Indenture, the Tender Agent shall deliver the purchase price to the tendering
Bondholder (or, if the Bonds are in a Book-Entry System, the Remarketing Agent
or the Trustee, as appropriate, shall deliver the purchase price to the
appropriate payee on the records of the Securities Depository), but only from
the funds listed below, in the order of priority indicated.
(a) the proceeds of the sale of such Bonds which have been remarketed
by the Remarketing Agent to any person other than the Company, the Issuer
or the Guarantor (or any "insider" of the Company, the Issuer or the
Guarantor within the meaning of the Bankruptcy Code) which have been
delivered to the Tender Agent or the Remarketing Agent by 11:00 a.m., on
the purchase date;
(b) moneys drawn under the Letter of Credit; and
(c) moneys deposited by the Company with the Trustee pursuant to
Section 4.2(b) of the Agreement.
Section 3.10. Delivery of Purchased Bonds. The Tender Agent shall make
available by 4:00 p.m. on the purchase date of any tendered Bonds (whether such
tender was optional or mandatory), at its Principal Office in New York City,
Bonds which have been purchased with moneys described in Section 3.09 (a) for
receipt by the purchaser thereof, which bonds shall be authenticated by the
Tender Agent. Bonds purchased with moneys described in Section 3.09(a) shall
be registered in the manner directed by the Remarketing Agent and delivered to
the Remarketing Agent for redelivery to the purchasers thereof. Bonds
purchased with moneys described in Section 3.09(b) shall be delivered by the
Tender Agent to the Trustee, and registered by the Trustee in the name of the
Company indicating their status as Pledged Bonds (or if the Bonds are held in
the Book-Entry System, such Bonds shall be recorded in the books of the
Securities Depository for the account of the Trustee and shall be deemed to be
pledged to the Bank). Bonds purchased with moneys described in Section 3.09(c)
shall be registered in the Company's name and delivered to the Company.
Notwithstanding anything in this Indenture to the contrary, so long as the
bonds are held under the Book-Entry System, Bonds will not be delivered as set
forth in the preceding paragraph; rather, transfers of beneficial ownership of
the Bonds to the persons indicated above will be effected pursuant to its rules
and procedures established by the Securities Depository.
Section 3.11. Pledged Bonds. If any Bond is purchased pursuant to
Section 3.07 with moneys drawn under the Letter of Credit pursuant to Section
3.09(b), if no Book-Entry System is then in effect, that Bond shall be
delivered to and held by the Trustee, shall be registered in the name of the
Company and shall constitute a Pledged Bond until released as herein provided.
A Pledged Bond so held by the Trustee shall be released only upon receipt by
the Trustee or the
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Bank of an amount equal tot he principal amount thereof plus accrued interest,
if any, thereon to the date of purchase and receipt by the Trustee of written
confirmation from the Bank of the reinstatement of the amounts available to be
drawn under the Letter of Credit to cover the full principal amount of all
Outstanding Bonds plus Adequate Interest Coverage. If a Book-Entry System is
then in effect, Bonds purchased with Letter of Credit proceeds pursuant to
Section 3.09(b) shall be reflected on the records of the Securities Depository
as being held for the account of the Trustee, and the Trustee agrees that it
shall hold such Bonds solely for the Bank's benefit. While a Book-Entry System
is in effect, the Trustee shall cause the release of such Bonds from its account
on the records of the Securities Depository only under the conditions for
release of Pledged bonds set forth above in this paragraph.
During the Daily Rate Mode, CP Rate Mode, and the Weekly Rate Mode and,
subject to the Remarketing Agreement, unless otherwise directed in writing by
the Bank, the Adjustable Rate Mode, the Remarketing Agent shall use its best
efforts to remarket Pledged Bonds in accordance with the provisions of the
Remarketing Agreement. If the Remarketing Agent remarkets any Pledged Bond,
the Remarketing Agent shall give the notice described in the first sentence of
Section 3.08(c), and shall direct the purchaser of such Pledged bond to
transfer, by 10:30 a.m. (or, in the case of bonds in the Daily Rate Mode, 11:30
a.m.) on the purchase date, the purchase price of such remarketed Pledged Bond
to the Bank, with notice thereof to the Company and the Trustee. The
Remarketing Agent shall deliver remarketed Pledged Bonds to the purchasers
thereof in accordance with Section 3.10.
On each Interest Payment Date prior to the release of Pledged Bonds, the
Trustee shall apply moneys in the Non-Available Moneys Account of the Bond Fund
to the payment of principal of and interest on such Pledged Bonds, but shall
not draw on the Letter of Credit or use moneys in the Letter of Credit Account
of the Bond Fund for such purpose to any extent whatsoever; and the Trustee
shall receive for the account of the Bank the interest and principal paid in
respect of such Pledged Bonds, and immediately upon such receipt the Trustee
shall pay such interest and principal over to the Bank pursuant to written wire
transfer instructions acceptable to the Trustee; provided, however, that if at
such time the Trustee has been notified in writing by the Bank that there shall
not remain any amount due and owing to the Bank under the Reimbursement
Agreement, such interest and principal payments shall be paid over to the
Company.
The Trustee recognizes and agrees in this Indenture that while it holds
Pledged Bonds, such Pledged Bonds are held by the Trustee for the benefit of
the Bank, as a first priority secured creditor.
Notwithstanding anything in this Indenture to the contrary, so long as the
bonds are held under the Book-Entry System, Pledged Bonds shall not be
delivered to and held by the Trustee; rather transfers of beneficial ownership
of Bonds to the persons indicated above will be effected pursuant to the rules
and procedures established by the Securities Depository.
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ARTICLE IV. GENERAL PROVISIONS
Section 4.01. Payment of Principal, Premium, If Any, and Interest;
Limited Obligations. The Issuer covenants that it will duly and punctually pay
or cause to be paid the principal of, premium, if any, and interest on the
Bonds issued under this Indenture at the place, on the dates and in the manner
provided herein and therein according to the true intent and meaning hereof and
thereof, but solely from the payments, revenues and receipts specifically
assigned herein for such purposes as set forth in Section 5.02.
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE A DEBT OR A PLEDGE OF THE
FAITH AND CREDIT OF THE STATE OF NORTH CAROLINA OR OF ANY POLITICAL SUBDIVISION
OR AGENCY THEREOF, INCLUDING MECKLENBURG COUNTY, NORTH CAROLINA, BUT SHALL BE
PAYABLE SOLELY FROM THE REVENUES AND OTHER FUNDS PLEDGED THEREFOR. THE ISSUER
SHALL NOT BE OBLIGATED TO PAY THE BONDS OR THE INTEREST THEREON EXCEPT FROM THE
REVENUES AND OTHER FUNDS PLEDGED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR
THE TAXING POWER OF THE STATE OF NORTH CAROLINA OR ANY POLITICAL SUBDIVISION OR
AGENCY THEREOF, INCLUDING THE ISSUER (WHICH HAS NO TAXING POWER) AND
MECKLENBURG COUNTY, NORTH CAROLINA, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL
OF OR THE INTEREST ON THE BONDS.
Section 4.02. Instruments of Further Assurance. (a) The Issuer covenants
that it will, at the Company's expense, execute and deliver such indentures
supplemental hereto and such further acts, instruments and transfers as the
Trustee or the Bank reasonably may require for the better and more effectual
assignment to the Trustee of all payments, revenues and other amounts payable
under or with respect to the Agreement, the Letter of Credit and any other
income and other moneys assigned hereby (or intended to be so assigned) to the
payment of the principal of, premium, if any, and interest on the Bonds. The
Issuer further covenants that it will not create or, to its knowledge, suffer
to be created any lien, encumbrance or charge upon its interest in the revenues
and other amounts payable under or with respect to the Trust Estate, except the
lien and charge granted by this Indenture.
(b) The Trustee agrees that it will, at the Company's expense pursuant to
the Agreement, cause the Company to file financing statements and all
supplements thereto, and such other instruments (including, but not limited to,
continuation statements) as may be required from time to time by the Issuer,
the Bank or the Company to be recorded or filed, in such manner and at such
places as from time to time may be required by law in order fully to preserve
and protect the security of the Bondholders and the Bank and the Trustee's
rights under this Indenture.
Section 4.03. Tax-Exempt Status of Bonds. The issuer and the Trustee
each covenant to commit or suffer no act within their control that would alter
the status or character of the Bonds, or the interest to be paid on the Bonds,
for purposes of Federal income taxation. The provisions of this Section shall
apply to the Trustee only to the event that the Trustee is acting under this
Indenture in its sole discretion. Toward that end, the Issuer agrees that it
will comply with and take all actions required of it by the Rebate Agreement.
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Section 4.04. Books, Records and Accounts. The Trustee agrees to keep
proper books for the registration of, and transfer of ownership of, each Bond,
and proper books, records and accounts in which complete and correct entries
shall be made of all transactions relating to the receipt, disbursement,
investment, allocation and application of the proceeds received from the sale
of the Bonds, the revenues received from the Agreement, the documents executed
by the Company in connection therewith, the Letter of Credit, the funds and
accounts created pursuant to this Indenture, and all other moneys held by the
Trustee under this Indenture. The Trustee shall, during regular business hours
and upon reasonable prior notice, make such books, records and accounts
available for inspection by the Issuer, the Company, the Bank and the Bond
Owners.
Section 4.05. Notice to Rating Agencies. The Trustee shall provide each
Rating Agency then rating the Bonds, if the Bonds are then rated, with prompt
written notice no later than the effective date of (a) the appointment of any
successor Trustee, Tender Agent or Remarketing Agent, (b) any change in the
identity of any Bank, (c) any supplements or amendments to this Indenture or
the Agreement, (d) the termination, expiration, extension or amendment of the
Letter of Credit, (e) the payment in full of all of the Bonds, (f) any
mandatory tender of the Bonds (which notice shall be given at least 20 days
prior to the mandatory date), or (g) when the Bonds are no longer to be held in
the Book-Entry System. Each notice to the Rating Agencies hereunder shall be
directed to the respective addresses provided by the Rating Agencies.
ARTICLE V
REVENUES AND FUNDS; LETTER OF CREDIT
Section 5.01. Application of Original Proceeds of Bonds. On the Closing
Date, the Trustee shall deposit the proceeds of the sale of the Bonds in the
Construction Fund.
Section 5.02. Creation of Bond Fund. There is hereby created by the
Issuer and ordered established with the Trustee a trust fund to be designated.
"The Mecklenburg County Industrial Facilities and Pollution Control Financing
Authority, Series 1995 (▇▇▇▇▇▇▇▇ Micro Science, Inc. Project)--Bond Fund" (the
"Bond Fund"). There are hereby created by the Issuer and ordered established
with the Trustee within the Bond Fund three separate and segregated trust
accounts to be designated, respectively, (a) the "Available Moneys Account,"
(b) the "Non-Available Moneys Account," and (c) the "Letter of Credit Account".
There shall be deposited into the Bond Fund when received: (i) all
payments specified in Section 4.2(a) of the Agreement; (ii) all moneys required
to be so deposited in connection with any redemption of Bonds; (iii) all monies
drawn by the Trustee under the Letter of Credit to pay interest, premium, if
any, principal or the redemption price of any Bonds; (iv) any amounts directed
to be transferred into the Bond Fund pursuant to any provision of this
Indenture; and (v) all other moneys when received by the Trustee which are
required to be deposited into the Bond Fund or which are accompanied by
directions that such moneys are to be paid into the Bond Fund.
Any amounts paid to the Trustee which do not constitute Available Moneys
shall be held in the Non-Available Moneys Account and shall not be commingled
with any other moneys held
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by the Trustee. At such time as money in the Non-Available Moneys Account shall
constitute Available Moneys, they shall be transferred to the Available Moneys
Account. Any amounts drawn under the Letter of Credit shall be held in the
Letter of Credit Account and shall not be commingled with any other moneys held
by the Trustee. Any amounts received for deposit in the Bond Fund which
constitute Available Money (other than amounts drawn under the Letter of
Credit), and any amounts deposited in the Non-Available Moneys Account which at
a later date become Available Moneys shall be held in the Available Moneys
Account and shall not be commingled with any other moneys held by the Trustee.
Section 5.03. Letter of Credit; Alternate Credit Facility. (a) Initial
Letter of Credit. The Initial Letter of Credit shall be delivered to the
Trustee simultaneously with the original issuance and delivery of the Bonds.
(b) Alternate Credit Facility. The Company may at any time substitute an
Alternate Credit Facility for an existing Letter of Credit, subject to the
limitations set forth in this Article V. An Alternate Credit Facility shall be
an irrevocable letter of credit, bank bond purchase agreement, bond insurance
policy, revolving credit agreement, surety bond or other agreement or
instrument under which any person or entity (other than the Issuer or the
Company) undertakes to make or provide funds to make payments of the principal
and purchase price of, and interest on, the Bonds, as and when due; provided
that the Alternate Credit Facility must be effective as of a date on or prior
to the expiration date of the then-existing Letter of Credit and must provide
coverage in an amount at least equal to the sum of (i) the aggregate principal
amount of Bonds (other than Pledged Bonds or Company Bonds) at the time
Outstanding, plus (ii) Adequate Interest Coverage.
The Company shall notify the Trustee of its intention to cause an
Alternate Credit Facility to be delivered to the Trustee at least 25 days prior
to the date of such delivery. Such notice shall specify the Bank which is to
deliver such Alternate Credit Facility and whether, based on the ratings then
in effect, the Company anticipates that the substitution of the Alternate
Credit Facility will or will not result in a Maintenance of Rating (as defined
below). Upon receipt of such notice, the Trustee will, at least 20 days prior
to the anticipated delivery date, mail a notice of the anticipated delivery of
the Alternate Credit Facility by first-class mail to the Issuer, the
Remarketing Agent, the Bank and each Bondholder. Such notice shall specify the
Bank which is to deliver the Alternate Credit Facility, whether it is
anticipated that such delivery will or will not result in a Maintenance of
Rating and, if it is anticipated that such delivery will not result in a
Maintenance of Rating, that the Bonds will be subject to mandatory tender on
the date of delivery of the Alternate Credit Facility in accordance with
Section 2.04.
The Trustee shall not accept any Alternate Credit Facility if the delivery
of such Alternate Credit Facility will to result in a Maintenance of Rating,
unless timely notice of such fact has been given to Bondholders as required
hereby and the Bonds are subject to mandatory tender pursuant to Section 2.04
in connection with the delivery of such Alternate Credit Facility.
During the Daily Rate Mode and the Weekly Rate mode, upon the delivery of
an Alternate Credit Facility, the Bonds shall be subject to mandatory tender
pursuant to Section
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2.04(c) unless (1) the Alternate Credit Facility is delivered to the Trustee by
the 25th day preceding the scheduled expiration or termination date of the
Letter of Credit then supporting the Bonds, and (2) the Trustee is provided by
such 25th day with written evidence form each Rating Agency having a rating in
effect for the Bonds that the Rating Agency has reviewed the Alternate Credit
Facility and that its replacement of the current Letter of Credit will not by
itself result in a withdrawal or reduction of the Rating Agency's current rating
for the Bonds (a "Maintenance of Rating").
On or prior to the delivery of any Alternate Credit Facility to the
Trustee, the company shall furnish to the trustee (A) a written opinion of
counsel acceptable to the Trustee stating that delivery of such Alternate
Credit Facility to the Trustee is authorized under this Indenture and complies
with the terms hereof, (B) an opinion of counsel to the issuer of such
Alternate Credit Facility to the effect that the Alternate Credit Facility is a
valid and binding obligation of the Bank, enforceable in accordance with its
terms, subject to usual exceptions relating to bankruptcy and insolvency, (C)
an opinion of counsel to the issuer of such Alternate Credit Facility to the
effect that such Alternate Credit Facility is exempt from the registration
requirements of the Securities Act of 1933, as amended, and (D) an opinion of
Bond Counsel stating that the delivery of the Alternate Credit Facility will
not adversely affect the exclusion of interest on the bonds from Federal gross
income of the Owners thereof.
(c) Release of Letter of Credit. The Company may at any time during a
Daily Rate Mode or a Weekly Rate Mode or, subject to the limitations described
below, during a CP Rate Mode or Adjustable Rate Mode, direct the Trustee to
release an existing Letter of Credit and surrender such Letter of Credit to the
Bank without substituting an Alternate Credit Facility therefor. If the bonds
are then in the CP Rate Mode or Adjustable Rate Mode, the Company may direct
such a release only on any date on which al Bonds may be optionally redeemed
pursuant to this Indenture. In connection with any such release of the Letter
of Credit, the Bonds shall be subject to mandatory tender; provided, however,
that if the Bonds are then in the CP Rate Mode or the Adjustable Rate Mode, the
mandatory tender price payable upon the mandatory tender of Bonds as a result
of the release of the existing Letter of Credit shall include a premium equal
to the redemption premium, if any, at the payable pursuant to the optional
redemption provisions of the Indenture. After such mandatory tender and,
subject to the limitations set forth above, the Trustee shall release the
Letter of Credit and surrender it to the Bank.
The Company shall notify the Trustee of its intention to release the
existing Letter of Credit at least 25 days prior to the date of such release.
Upon receipt of such notice, the Trustee shall promptly mail a notice of the
anticipated release of the existing Letter of Credit by first-class mail to the
Issuer, the Remarketing Agent and each Bondholder.
(d) Surrender of Letter of Credit. If at any time there shall have been
delivered to the Trustee an Alternate Credit Facility, together with the other
documents and opinions required by this Article V, then the Trustee shall
accept such Alternate Credit Facility and promptly surrender the previously
held Letter of Credit to the issuer thereof, in accordance with the terms
thereof for cancellation. If at any time there shall cease to be any Bonds
Outstanding under this Indenture, or if the Letter of Credit expires in
accordance with its terms, the Trustee shall
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surrender the Letter of Credit to the issuer thereof, in accordance with the
terms thereof, for cancellation. The Trustee shall comply with the procedures
set forth in the Letter of Credit relating to the termination thereof.
(e) Federal Income Tax Requirements Pertaining to Substitutions of
Letters of Credit Upon Certain Mode Conversions. Upon any conversion or change
from a Short-Term Mode to a Long-Term Mode or from a Long-Term Mode to a
Short-Term Mode, if the Company then proposes to either (i) add a Letter of
Credit where none was then in effect, (ii) terminate a Letter of Credit then in
effect without replacing it with an Alternate Credit Facility or (iii)
terminate an existing Letter of Credit and substitute an Alternate Credit
Facility issued by a different Bank, the following shall apply:
(A) If the change or conversion is from a Long-Term Mode to a
Short-Term Mode, the Bonds shall be supported by a Letter of
Credit (constituting an irrevocable direct-pay letter of
credit) issued by an entity with the highest generic (i.e.,
without regard to "+" or "-" symbols) short-term rating on the
effective date of such change or conversion by each Rating
Agency then rating the Bonds.
(B) If the change or conversion is from a Short-Term Mode to an
Adjustable Rate Period of greater than or equal to one but less
than five years' duration, the Bonds shall be supported by a
Letter of Credit (constituting an irrevocable direct-pay letter
of credit) issued by an entity with an "AA" long-term rating
(or its equivalent) on the effective date of such change or
conversion by each Rating Agency then rating the Bonds.
(C) If the change or conversion is from a Short-Term Mode to an
Adjustable Rate Period of greater than or equal to five years'
duration, the Bonds shall not be supported by any Letter of
Credit for at least the duration of the Adjustable Rate Period
to which the Bonds are being converted.
Notwithstanding any of the foregoing provisions of this Section 5.03(e),
the Bonds may or may not be supported by a Letter of Credit in contravention of
such provisions if there is delivered to the Trustee prior to the date of any
such change or conversion an opinion of Bond Counsel to the effect that the
deviation from the provisions of this Section will not adversely affect the
exclusion from the Federal gross income of interest on the Bonds.
Section 5.04. Letter of Credit Draws and Bond Fund Moneys to Pay
Principal, Premium or Interest. (a) On or before each Interest Payment Date,
redemption date, and date on which principal shall be due and payable on the
Bonds, whether at maturity or upon acceleration, the Trustee shall draw under
the Letter of Credit (if then in effect), an amount equal to the principal of,
premium, if any (if the Letter of Credit then covers premium) and interest due
and payable on the Bonds (other than Pledged Bonds and Company Bonds) on such
payment date. Such
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drawing shall be made in a timely manner under the terms of the Letter of Credit
in order that the Trustee may realize funds thereunder in sufficient time to pay
Bondholders on the payment date as provided herein. All amounts derived by the
Trustee with respect to the Letter of Credit shall be deposited in the Letter of
Credit Account of the Bond Fund upon receipt thereof by the Trustee, as provided
in Section 5.02. If no Letter of Credit is then in effect, by 1:00 p.m. on any
Interest Payment Date, redemption date, acceleration date, or the maturity date
of the Bonds, as the case may be, the Trustee shall receive from the Company
pursuant to Section 4.2(a) of the Agreement the full amount of principal of,
premium, if any, and interest due on the Bonds on that date.
(b) The Issuer hereby authorizes and directs the Trustee to withdraw
sufficient funds from the Letter of Credit Account of the Bond Fund to pay the
principal of, premium, if any, and interest on the Bonds as the same become due
and payable; and, in the event of a default under the Letter of Credit, or at
such time as no Letter of Credit secures the Bonds, to use all moneys then on
deposit, first in the Available Moneys Account and thereafter the Non-Available
Moneys Account, in the Bond Fund to pay principal of, premium, if any, and
interest on, the Bonds, which authorization and direction the Trustee hereby
accepts. On the Business Day which next succeeds any date on which monies are
to be disbursed from the Bond Fund pursuant to the preceding sentence, if
moneys then remain in the Bond Fund, such moneys shall be disbursed to the Bank
to the extent amounts are then owed to the Bank pursuant to the Reimbursement
Agreement. The Trustee may rely on a certificate from the Bank which certifies
the amounts owed under the Reimbursement Agreement at any time.
Section 5.05. Investment of Moneys. Subject to the restrictions set
forth in this Section and in the Rebate Agreement, any moneys held in the
Non-Available Moneys Account of the Bond Fund and the Construction Fund shall
be invested and reinvested by the Trustee upon the Company's written
instructions in Qualified Investments maturing no later than the date on which
it is estimated that such moneys will be required to be paid out hereunder.
Moneys held in the Available Moneys Account of the Bond Fund shall be invested
and reinvested solely in Government Obligations maturing no later than the date
on which such moneys will be required to be paid out hereunder. Moneys held in
the Purchase Fund and the Letter of Credit Account and moneys held pursuant to
Section 5.06 shall not be invested. The Trustee may make any and all such
investments through its own investment department, or through any of its
affiliates or subsidiaries. The Trustee shall be entitled to rely on all
written investment instructions provided by the Company hereunder, and shall
have no duty to monitor the compliance thereof with the restrictions set forth
in this Section 5.05 or in the Rebate Agreement. The Trustee, when authorized
by the Company, may trade with itself in the purchase and sale of securities
for such investment. The Trustee shall not be responsible or liable for the
performance of any such investments or for keeping the moneys held by it
hereunder fully invested at all times other than in accordance with the
instructions of the Company. Absent the provision of investment instructions
under this Indenture, the Trustee shall not make any investment of the moneys
held pursuant to the Indenture; provided, however, that the Trustee shall
notify the Company if any moneys are being held uninvested pursuant to this
Indenture. Any obligations acquired by the Trustee as a result of such
investment or reinvestment shall be held by or under the control of the Trustee
and shall be deemed to constitute a part of the Fund or Account from which the
moneys
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used for its purchase were taken. All investment income shall be retained in
the Fund or Account to which the investment is credited from which such income
is derived. Although the Issuer recognizes that it may obtain a broker
confirmation or written statement containing comparable information at no
additional cost, the Issuer hereby agrees that confirmations of investments made
by the Trustee pursuant to this Section 5.05 are not required to be issued by
the Trustee for each month in which a monthly statement is rendered. No such
statement need be rendered pursuant to the provisions of this Section if no
activity occurred in the fund or account during such preceding month.
Section 5.06. Moneys To Be Held in Trust; Nonpresentment of Bonds. (a)
All moneys required to be deposited with or paid to the Trustee for the account
of any Fund or Account under any provisions of this Indenture shall be held by
the Trustee in trust, and, except for moneys deposited with or paid to the
Trustee for redemption of Bonds, notice of the redemption for which has been
duly given, shall, while held by the Trustee, constitute part of the Trust
Estate and be subject to the security interest created hereby.
(b) If any Bond shall not be presented for payment when the principal
thereof becomes due, either at maturity or otherwise, or at the date fixed for
its redemption, if Available Moneys sufficient to pay such Bond shall have been
deposited in the Bond Fund, all the Issuer's liability to the owner thereof for
the payment of such Bond shall thereafter terminate and be completely
discharged, and thereupon it shall be the Trustee's duty to hold such moneys,
without liability for interest thereon, for the benefit of the owner of such
Bond who shall thereafter be restricted exclusively to such moneys, for any
claim of whatever nature on his part under this Indenture or on, or with
respect to, said Bond. Such moneys shall be held in a separate and segregated
fund and shall not be invested.
(c) Notwithstanding any provisions of this Indenture to the contrary, the
Trustee shall dispose of moneys held by it for the payment of principal of,
premium, if any, or interest on Bonds left unclaimed for five years after the
date the principal of the same becomes due in accordance with N.C. Gen. Stat.
Sec. 116B-18 or any successor provision. The owners of such Bonds shall
thereafter be entitled to look only to their remedies under N.C. Gen. Stat.
Chapter 116B or any successor provision, and all liability of the Issuer, the
Company and the Trustee with respect to such moneys shall cease.
Section 5.07. Repayment from Indenture Funds. Any amounts remaining in
any Fund or Account created under this Indenture, after payment or provision
for payment in full of the Bonds in accordance with Article X, the fees,
charges and expenses of the Issuer, the Trustee, the Tender Agent, the
Remarketing Agent and any co-trustee appointed under this Indenture, and all
other amounts required to be paid under this Indenture, or under the Agreement,
and after and to the extent that the Company shall determine that the payment
of such remaining amounts may be made without violation of the provisions of
the Rebate Agreement, shall be paid, upon the expiration of, or upon the sooner
termination of, the terms of this Indenture, to the Bank to the extent money
shall be owed to the Bank under the Reimbursement Agreement (as evidenced by
written notice thereof given to the Trustee by the Bank) and, thereafter, to
the Company.
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Section 5.08. Tax Covenants. The Issuer and the Trustee covenant with
the Owners of the Bonds that, notwithstanding any other provision of this
Indenture or any other instrument, they will not knowingly make any investment
or other use of the proceeds of the Bonds or any other moneys held under this
Indenture which would cause the Bonds to be "arbitrage bonds" under Code
Section 148 or "federally guaranteed" obligations under Code Section 149(b),
and they further covenant that they will comply with all applicable
requirements of Sections 103 and 141-150 of the Code (except that the Issuer
and the Trustee shall be deemed to have complied with these requirements as
long as they act at the Company's written direction).
Notwithstanding any other provision in this Indenture to the contrary, the
Trustee shall be permitted to transfer moneys on deposit in any of the trust
funds established under this Indenture (other than moneys representing
remarketing proceeds or draws under the Letter of Credit to the extent needed
to pay principal or purchase price of, premium, if any, or interest on the
Bonds) to the Rebate Fund created under the Rebate Agreement in accordance with
the provisions of the Rebate Agreement.
Section 5.09. Construction Fund. There is hereby created and established
with the Trustee a trust fund in the name of the Issuer to be designated "The
Mecklenburg County Industrial Facilities and Pollution Control Financing
Authority, Series 1995 (▇▇▇▇▇▇▇▇ Micro Science, Inc. Project)--Construction
Fund" (the "Construction Fund"), which shall be expended in accordance with the
provisions of the Agreement.
Section 5.10. Payments into Construction Fund; Disbursements. The
Trustee shall deposit the proceeds of the issuance and delivery of the Bonds in
the Construction Fund as provided in Section 5.01. Moneys in the Construction
Fund shall be expended on orders signed by an Authorized Company Representative
stating with respect to each payment to be made:
(a) The requisition number;
(b) The name and address of the person, firm or corporation to whom
payment is due or has been made, which may include the Company;
(c) That each obligation mentioned therein has been properly incurred, is
a proper charge against the Construction Fund and has not been the basis of any
previous requisition;
(d) That each item for which payment is proposed to be made is or was
necessary in connection with the Project;
(e) That after taking into account the costs proposed to be paid or
reimbursed in said certificate, at least 95% of the costs paid or reimbursed
out of the Construction Fund are amounts which will be chargeable to the
Project's capital account or which would be so chargeable either with a proper
election by the Company under the Code or but for a proper election by the
Company to deduct such amount and were incurred and paid, or are to be incurred
and paid, on or after December 14, 1993;
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(f) That after taking into account the costs proposed to be paid or
reimbursed in said certificate, no more than $90,000 of the costs paid or
reimbursed out of the Construction Fund are issuance costs within the meaning
of the Code; and
(g) That no Event of Default exists under the Agreement.
The Trustee is hereby authorized and directed to make each disbursement
required by the provisions of the Agreement and to issue its checks therefor.
The Trustee shall keep and maintain adequate records pertaining to the
Construction Fund and all disbursements therefrom, and after the Project has
been completed and a certificate of payment of all costs is or has been filed
as provided in Section 5.11, the Trustee shall file a statement thereof with
the Issuer and the Company.
Section 5.11. Completion of Project. The completion of the Project and
payment or provision made for payment of the full Cost of the Project shall be
evidenced by the filing with the Trustee of a certificate required by the
provisions of Section 3.4 of the Agreement. Any balance remaining in the
Construction Fund on the Completion Date shall be used in accordance with said
Section.
Section 5.12. Transfer of Construction Fund. If the Company should
prepay all amounts payable under Section 4.2(a) of the Agreement, the Trustee
shall then deposit any balance then remaining in the Construction Fund in the
Bond Fund without further authorization.
Section 5.13. Custody of Funds and Accounts. Except as otherwise
expressly provided herein, all Funds and Accounts created pursuant to this
Indenture and held by the Trustee shall be held in trust, in the Issuer's name,
for the benefit of the Bondholders and, to the extent of amounts owed by the
Company to the Bank under the Reimbursement Agreement, the Bank.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of Default. Each of the following shall constitute,
and is referred to in this Indenture as, an "Event of Default":
(a) a default in the payment when due of interest on any Bond;
(b) a default in the payment of principal of, or premium, if any, on any
Bond when due, whether at maturity, upon acceleration or redemption, or
otherwise;
(c) a default in the payment when due of the purchase price of any Bond
required to be purchased pursuant to Section 2.03 or Section 2.04;
(d) the Issuer's failure to perform any of its agreements in this
Indenture or the Bonds (except a failure that results in an Event of Default
under clause (a), (b) or (c) above), the performance of which is material to
the Bondholders, and which failure continues after the giving of the notice of
default and the expiration of the grace period specified in this Section;
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(e) the Company's failure to perform any of its agreements in the
Agreement (except a failure that results in an Event of Default under clause
(a), (b) or (c) of this Section or a failure to perform any covenant in the
Agreement relating to the impairment of the exclusion of interest on the Bonds
from the Federal gross income of the owners thereof), and the failure continues
after the notice and for the period specified in this Section;
(f) Pursuant to or within the meaning of any Bankruptcy Law (as defined
below) (1) the Company's commencement of a voluntary case, (2) the Company's
consenting to the entry of an order for relief against it in an involuntary
case, (3) the Company's consenting to the appointment of a Custodian (as
defined below) for the Company or any substantial part of its property or (4)
the Company's making a general assignment for the benefit of its creditors.
(g) The entry by a court of competent jurisdiction of an order or decree
under any Bankruptcy Law that (1) is for relief against the Company in an
involuntary case, (2) appoints a Custodian for the Company or any substantial
part of its property or (3) orders the winding up or liquidation of the
Company, and the decree or order remains unstayed and in effect for 60 days;
(h) The Trustee's receipt of written notice from the Bank that an "event
of default" has occurred and is continuing under the Reimbursement Agreement
and directing the Trustee to accelerate the Bonds pursuant to Section 6.02; or
(i) The Trustee's receipt of written notice from the Bank on or before
the date or dates specified in the Letter or Credit following a drawing on the
Letter of Credit to pay interest on the Bonds that it will not reinstate its
Letter of Credit in the amount of such interest drawing.
"Bankruptcy Law" means Title 11 of the United States Code or any similar
Federal or state law for the relief of debtors.
"Custodian" means any receiver, trustee, assignee, liquidator, custodian
or similar official under any Bankruptcy Law.
A default under clause (d) or (e) of this Section is not an Event of
Default until the Trustee or the holders of at least a majority in principal
amount of the Bonds then Outstanding give the Issuer and the Company a notice
specifying the default, demanding that it be remedied and stating that the
notice is a "Notice of Default," and the Issuer or the Company (if the default
is under clause (d)) or the Company (if the default is under clause (e)) does
not cure the default within 60 days after receipt of the notice, or within such
longer period as to which the Trustee shall agree. The Trustee shall not
unreasonably refuse to agree to a longer cure period if the default cannot
reasonably be cured within 60 days after receipt of the notice, and the Issuer
or the Company, as the case may be, has demonstrated to the Trustee that it has
begun within 60 days and continued diligent efforts to cure the default. The
Issuer authorizes the Company to perform, in the Issuer's name and on its
behalf, and for the purpose of preventing the occurrence of an Event of
Default, any agreement of the Issuer in this Indenture or the Bonds.
Subject to Section 7.05(b), the Trustee shall promptly notify the LGC and
the Issuer of the occurrence of any Event of Default, and the Issuer and the
Trustee, as may be applicable,
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shall send a copy of any "Notice of Default" (or described in the preceding
paragraph) to the LGC.
Section 6.02. Acceleration. Upon the occurrence of an Event of Default
under clause (h) or (i) of the foregoing Section, the Trustee will declare the
principal and accrued interest to the date of acceleration on the Bonds due and
payable immediately. If any other Event of Default occurs and is continuing,
the Trustee by notice to the Issuer and the Company, or the holders of at least
a majority in principal amount of the Bonds then Outstanding by notice to the
Issuer, the Company and the Trustee, may declare the principal of and accrued
interest on the Bonds to be due and payable immediately. If a Letter of Credit
is in effect, and (a) the Event of Default is not under clause (h) or (i) of
the foregoing Section, (b) the Event of Default is not the result of a failure
by the Bank to honor a properly presented and conforming draw on the Letter of
Credit, and (c) the Trustee believes that failure to draw immediately on the
Letter of Credit is not likely to prejudice the Bondholders' interest, the
Trustee will not declare the Bonds to be due and payable without first
obtaining the Bank's consent. Upon the principal of and accrued interest on
the Bonds becoming due and payable as provided in this Section, the Trustee
shall immediately draw on the Letter of Credit, if any, to pay the principal of
and accrued interest on the Bonds. The Trustee shall immediately give notice
of acceleration to the Bondholders. Interest on the Bonds shall cease to
accrue, and the principal of and accrued and unpaid interest on the Bonds
shall, without further action, become immediately due and payable, on the date
of acceleration.
The Trustee may, and upon the request of holders of a majority in
principal amount of the Bonds then Outstanding shall, rescind an acceleration
and its consequences if (a) all existing Events of Default have been cured or
waived, (b) the rescission would not conflict with any judgment or decree, (c)
all payments due the Trustee and any predecessor Trustee under Section 7.06
have been made and (d) when a Letter of Credit is in effect, the Bank consents
in writing to the waiver of the Event of Default under the Reimbursement
Agreement, if applicable, and to the rescission of the acceleration, and the
Trustee receives written notice from the Bank that the Letter of Credit has
been reinstated up to the amount of the principal of Outstanding Bonds plus
Adequate Interest Coverage.
Section 6.03. Other Remedies. (a) If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the principal of or interest on the Bonds or to enforce
the performance of any provision of the Bonds, this Indenture, the Agreement
and the Letter of Credit including, without limitation, the exercise of any
remedy granted to it in the Agreement.
(b) The Trustee may maintain a proceeding even if it does not possess any
of the Bonds or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Bondholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
(c) During any period the Bonds are secured by the Letter of Credit and
draws thereunder have been duly honored by the Bank in accordance with the
terms and provisions of the Letter of
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Credit, all remedies pursued by the Trustee upon the occurrence of an Event of
Default (other than draws upon the Letter of Credit) shall be taken only with
the Bank's prior consent.
Section 6.04. Waiver of Past Defaults. The holders of a majority in
principal amount of the Bonds then Outstanding, or the Bank, by written notice
to the Trustee, may waive an existing Event of Default and its consequences if
the Letter of Credit is reinstated up to the full amount available under it
immediately prior to such Event of Default. When an Event of Default is
waived, it is cured and stops continuing, but no such waiver shall extend to
any subsequent or other Event of Default or impair any right consequent to it.
Section 6.05. Control by Majority. The Bank's holders of a majority in
principal amount of the Bonds then Outstanding may (with the Bank's written
consent) direct in writing the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any trust
or power conferred on it. The Trustee, however, may refuse to follow any
direction that conflicts with law or this Indenture or, subject to Section
7.01, that the Trustee determines is unduly prejudicial to the rights of other
Bondholders, or would involve the Trustee in personal liability or would
involve an expense or liability unless the Trustee is indemnified, it being
understood that (subject to Section 7.01) the Trustee shall have no duty to
ascertain whether or not such actions or forbearance are unduly prejudicial to
such Holders.
Section 6.06. Limitation on Suits. A Bondholder may not pursue any
remedy with respect to this Indenture or the Bonds unless (a) the holder gives
the Trustee written notice stating that an Event of Default is continuing, (b)
the holders of at least 25% in principal amount of the Bonds then Outstanding
make a written request to the Trustee to pursue the remedy, (c) such holder or
holders offer to the Trustee indemnity satisfactory to the Trustee against any
loss, liability or expense and (d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of indemnity.
A Bondholder may not use this Indenture to prejudice the rights of another
Bondholder or to obtain a preference or priority over the other Bondholders.
Section 6.07. Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any holder to receive payment
of principal of and interest on a Bond, on or after the due dates expressed in
the Bond, or the purchase price of a Bond on or after the date for its purchase
as provided in the Bond, or to bring suit for the enforcement of any such
payment on or after such dates, shall not be impaired or affected without the
Bondholder's consent.
Section 6.08. Collection Suit by Trustee. If an Event of Default under
Section 6.01(a), (b) or (c) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
or the Bank for the whole amount remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Bondholders
allowed in any judicial proceedings relative to the
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Company or the Bank, its creditors or its property and, unless prohibited by law
or applicable regulations, may vote on behalf of the holders in any election of
a trustee in bankruptcy or other person performing similar functions.
Section 6.10. Priorities. If the Trustee collects any money pursuant to
this Article, it shall pay out the money in the following order:
FIRST: To the Trustee and the Tender Agent for amounts to which they
are entitled under Section 7.06 or Section 4.3 of the Agreement, but the
Trustees may not pay itself or the Tender Agent from money drawn under the
Letter of Credit, from the proceeds of the remarketing of any Bonds or from
amounts held by the Trustee pursuant to Article X or Section 5.06(b).
SECOND: To Bondholders for amounts due and unpaid on the Bonds for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Bonds for principal and
interest, respectively.
THIRD: To the Bank to the extent the Bank certifies to the Trustee that
the Company is indebted to the Bank on account of draws under the Letter of
Credit or any other amounts due and payable to the Bank under the Reimbursement
Agreement.
FOURTH: To the Company.
The Trustee may fix a payment date for any payment to the Bondholders in
accordance with this Section.
ARTICLE VII
TRUSTEE, REMARKETING AGENT AND TENDER AGENT
Section 7.01. Trustee's Rights and Duties. (a) Prior to the occurrence
of an Event of Default, the Trustee shall have no liability for any action or
omission in the performance of its duties under this Indenture, except in the
case of the Trustee's negligence or willful misconduct. During the existence
of an Event of Default, the Trustee shall exercise its rights and powers and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default,
(i) the Trustee shall be required to perform only those duties that
are specifically set forth in this Indenture and no others, and
no implied covenants or obligations should be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed, upon certificates or
opinions furnished to the Trustee and
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conforming to the requirements of this Indenture. The Trustee,
however, shall examine the certificates and opinions to
determine whether they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that
(i) this paragraph does not limit the effect of subsection (b) of
this Section,
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by any employee of the Trustee assigned by the
Trustee to administer its corporate trust matters (a
"Responsible Officer"), unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder or
in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to all the provisions of this Section.
(e) Before taking any action under this Indenture relating to an Event of
Default or in connection with its duties under this Indenture other than (i)
making payments of principal and interest on the Bonds as they become due, or
(ii) drawing on the Letter of Credit or causing an acceleration of the Bonds
whenever required by the Indenture, the Trustee may require that a satisfactory
indemnity bond be furnished for the reimbursement of all expenses to which it
may be put and to protect it against all liability, including, but not limited
to, any liability arising directly or indirectly under any Federal, state or
local statute, rule, law or ordinance related to the protection of the
environment or hazardous substances and except liability which is adjudicated
to have resulted from its negligence or willful default in connection with any
action so taken.
(f) The Trustee shall not be liable for interest on any cash held by it
except as the Trustee may agree in writing with (i) the Company or (ii) the
Issuer, with the Company's consent.
(g) The Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers or
employees, and shall be entitled to advice of counsel concerning all matters or
trusts hereof and duties hereunder, and may in all cases pay such reasonable
compensation to any attorney, agent, receiver or employee retained or employed
by it in connection herewith. The Trustee may act upon the opinion or advice
of an attorney,
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surveyor, engineer or accountant, within the scope of such person's professional
expertise, selected by it in the exercise of reasonable care or, if selected or
retained by the Issuer, approved by the Trustee in the exercise of such care.
The Trustee shall not be responsible for any loss or damage resulting from any
action or nonaction based on its good faith reliance upon such opinion or
advice.
(h) The Trustee's permissive right to do things enumerated in this
Indenture shall not be construed as a duty, and the Trustee shall not be
answerable for other than its negligence or willful default.
(i) At any and all reasonable times, the Trustee and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives shall
have the right fully to inspect any and all books, papers and records of the
Issuer pertaining to the Bonds, and to take such memoranda from and in regard
thereto as may be desired.
(j) The Trustee may (but shall be under no duty to) require of the Issuer
and the Company full information and advice as to the performance of the
covenants, conditions and agreements in the Agreement. The Trustee shall have
no obligation to perform any of the Issuer's duties under the Agreement.
Section 7.02. Trustee's Rights. Subject to the foregoing Section:
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require a
certificate of an appropriate officer or officers of the Issuer or the Company
or an opinion of counsel; provided that it may not require such a certificate
as a condition to declaring the principal of and interest on the Bonds to be
due immediately under Section 6.02 or to drawing on the Letter of Credit or to
making any payment on the Bonds. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on the certificate
or opinion of counsel.
(c) Notwithstanding anything in this Indenture to the contrary, the
Trustee and its agents shall have the right to require such additional
evidence, certificates or opinions of counsel as the Trustee may reasonably
deem appropriate to establish the Issuer's right to the withdrawal of any funds
held under this Indenture or to require the Trustee's taking of any other
action under this Indenture.
Section 7.03. Trustee's Individual Rights. The Trustee in its individual
or any other capacity may become the owner or pledgee of Bonds and may
otherwise deal with the Issuer or with the Company or its affiliates with the
same rights it would have if it were not trustee. Any paying agent may do the
same with like rights.
Section 7.04. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or any supplemental indentures
hereto, the Agreement, the
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Letter of Credit or the Bonds or of any instruments of further assurance, or for
the sufficiency of the security for the Bonds issued under or intended to be
secured by this Indenture, it shall not be accountable for the Company's use of
the proceeds from the Bonds paid to the Company, and it shall not be responsible
for any statement in the Bonds other than its certificate of authentication.
Section 7.05. Notice of Defaults. (a) If an event occurs which, with
the giving of notice or lapse of time, or both, would be an Event of Default,
and if the event is continuing and if it is known to the Trustee, the Trustee
shall mail to each Bondholder, the Company and the Bank notice of the event
within 30 days after it occurs. Except in the case of a default in payment or
purchase on any Bonds, the Trustee may withhold the notice if and so long as it
determines in good faith that withholding the notice is in the interests of
Bondholders.
(b) The Trustee shall not be required to take notice or be deemed to have
notice of any default or Event of Default hereunder, or in any other document
or instrument executed in connection with the execution and delivery of the
Bonds, except an Event of Default under Section 6.01(a), (b), (c), (h) or (i),
except in the event of actual notice or unless the Trustee shall be
specifically notified in writing of such default or Event of Default by the
Issuer, the Tender Agent, the Bank, the Company, the Issuer or the Owners of at
least 25% in aggregate principal amount of the Bonds then Outstanding. All
notices or other instruments required by this Indenture to be delivered to the
Trustee shall be delivered at the Trustee's Principal Office and, in the
absence of such actual notice or notice so delivered, the Trustee may
conclusively assume there is no default except as aforesaid.
Section 7.06. Trustee's Compensation and Indemnity. For acting under
this Indenture, the Trustee shall be entitled to payment of reasonable fees for
its services and reimbursement of advances, counsel fees and other expenses
reasonably and necessarily made or incurred by the Trustee in connection with
its services under this Indenture.
To secure the payment or reimbursement to the Trustee provided for in this
Section, the Trustee shall have a senior claim, to which the Bonds are made
subordinate, on all money or property held or collected by the Trustee, except
that funds held under Article X or otherwise held in trust to pay principal of
and interest on particular Bonds and except amounts drawn under the Letter of
Credit or remarketing proceeds held by the Trustee or Tender Agent under this
Indenture.
The Company has agreed in the Agreement to indemnify the Trustee for, and
to hold it harmless against, certain losses, liabilities and expenses incurred
by the Trustee. This right of indemnification shall survive the discharge of
this Indenture and the Trustee's resignation or removal.
Section 7.07. Eligibility of Trustee. The Trustee shall be a bank or
trust company organized and doing business under the laws of the United States
or any state or the District of Columbia, authorized under such laws to
exercise corporate trust powers, and subject to supervision or examination by
United States, any state or District of Columbia authority, and having a
combined capital and surplus of at least $100,000,000 as set forth in its most
recent published annual report of condition. Any successor Trustee must be an
institution the long-term
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debt obligations of which are rated at least "Baa3" by Moody's (or Moody's shall
have provided written evidence that such successor Trustee is otherwise
acceptable to Moody's) if the Bonds are then rated by Moody's, and at least
"BBB-" or "A-3" by S&P (or S&P shall have provided written evidence that such
successor Trustee is otherwise acceptable to S&P) if the Bonds are then rated by
S&P, and authorized by law to perform all the duties imposed upon it as Trustee
by this Indenture.
Section 7.08. Resignation, Removal and Replacement of Trustee. The
Trustee may resign by notifying the Issuer, the Company, the LGC and the Bank.
The holders of a majority in principal amount of the Bonds then Outstanding
may, with the Issuer's consent, remove the Trustee by giving written notice to
the removed Trustee, the Issuer, the Company, the Bank, the LGC and the
Remarketing Agent. If no Event of Default shall have occurred and be
continuing, the Company may cause the Trustee to be removed by giving written
notice to the removed Trustee, the Bank, the LGC and the Remarketing Agent. In
addition, the Issuer shall, at the direction of the Company, the Bank or the
Owners of a majority in principal amount of the Bonds Outstanding, remove the
Trustee if (a) the Trustee fails to comply with Section 7.07, (b) the Trustee
is adjudged a bankrupt or an insolvent, (c) a receiver or other public officer
takes charge of the Trustee or its property, or (d) the Trustee otherwise
becomes incapable of acting.
If the Trustee resigns or is removed from office for any reason, the
Company, with the prior written consent of the Bank and the Remarketing Agent,
shall promptly direct the Issuer to appoint a successor Trustee, and the Issuer
shall promptly appoint such successor Trustee; provided that if an Event of
Default shall have theretofore occurred and is continuing, the successor
Trustee may only be appointed by the holders of a majority in principal amount
of the Bonds.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee, the Issuer, the Bank, the Company, the LGC and the
Remarketing Agent. Immediately thereafter, the retiring Trustee shall transfer
all property (including the Letter of Credit) held by it as Trustee to the
successor Trustee, the resignation or removal of the retiring Trustee shall
then (but only then) become effective, and the successor Trustee shall have all
the rights, powers and duties of the Trustee under this Indenture.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, the
Company, the Bank or the Holders of a majority in principal amount of the Bonds
then Outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
Notice of a resignation or removal of the Trustee and the appointment of a
successor Trustee shall be given by the Issuer, the Company or the Trustee by
first-class mail to each Bondholder.
No corporation shall be eligible for appointment as successor Trustee
unless such corporation (a) meets the requirements of Section 7.07 and (b)
shall have previously been approved by the LGC for service as a corporate
trustee or obtains such approval from the LGC.
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Section 7.09. Remarketing Agent's Duties. The Remarketing Agent will
determine the interest rate on the Bonds and remarket Bonds as provided in this
Indenture. The Remarketing Agent may, for its own account or as broker or
agent for others, deal in Bonds and may do anything any other Bondholder may do
to the same extent as if the Remarketing Agent were not serving as such.
Section 7.10. Eligibility of Remarketing Agent; Replacement. The initial
Remarketing Agent shall be First Chicago Capital Markets, Inc., Chicago,
Illinois. Any successor Remarketing Agent must be an institution the long-term
debt obligations of which are rated at least "Baa3" by Moody's (or Moody's
shall have provided written evidence that such successor Remarketing Agent is
otherwise acceptable to Moody's) if the Bonds are then rated by Moody's, and at
least "BBB-" or "A-3" by S&P (or S&P shall have provided written evidence that
such successor Remarketing Agent is otherwise acceptable to S&P) if the Bonds
are then rated by S&P, and authorized by law to perform all the duties imposed
upon it by this Indenture.
The Remarketing Agent may at any time resign from its duties under this
Indenture by giving at least 30 days' written notice to the Issuer, the
Company, the Bank, the Tender Agent and the Trustee. The Trustee shall mail a
copy of such notice by certified mail to each Bondholder. A Remarketing Agent
may be removed at any time by the Issuer, at the Company's direction and with
the Bank's written consent, by an instrument signed by the Company and filed at
least 30 days prior to such removal with the Remarketing Agent and the Trustee.
No removal or resignation hereunder shall become effective prior to the
acceptance of appointment of a successor Remarketing Agent hereunder, which
successor shall be appointed by the Company with the Bank's consent, which
consent shall not be unreasonably withheld.
While the Bonds are in a Book-Entry System, the Remarketing Agent shall
serve as the Participant on behalf of all of the Beneficial Owners of the
Bonds.
Section 7.11. Tender Agent. (a) During any period the Bonds shall not be
in a Book-Entry System, the Company shall appoint a Tender Agent for the Bonds,
which shall be satisfactory to the Bank and the Remarketing Agent and which,
upon acceptance of its duties, will perform the obligations of the Tender Agent
set forth in this Indenture. Any Tender Agent must be an institution the
long-term debt obligations of which are rated at least "Baa3" by Moody's (or
Moody's shall have provided written evidence that such successor Tender Agent
is otherwise acceptable to Moody's) if the Bonds are then rated by Moody's, and
at least "BBB" or "A-3" by S&P (or S&P shall have provided written evidence
that such successor Tender Agent is otherwise acceptable to S&P) if the Bonds
are then rated by S&P, and authorized by law to perform all the duties imposed
upon it as Tender Agent by this Indenture. The initial Tender Agent and any
successor Tender Agent shall accept its duties under this Indenture by a
written certificate or tender agent agreement delivered to the Trustee, which
certificate or agreement shall designate the Tender Agent's Principal Office.
(b) The Tender Agent may at any time resign by giving thirty days' notice
to the Issuer, the Trustee, the Company, the Bank and the Remarketing Agent.
Promptly upon the receipt of such notice, the Trustee shall mail copies thereof
to each Bondholder.
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(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
Bank's prior written approval. In no event, however, shall any removal of the
Tender Agent take effect until a successor Tender Agent shall have been
appointed.
(d) The Tender Agent shall have an office in the City of New York, New
York. Upon receipt of written notice from the Company of the appointment of a
Tender Agent, the Trustee shall immediately give written notice of the
appointment of a Tender Agent to the Issuer and to the Bondholders. If (i) no
successor to a Tender Agent has accepted appointment in the manner provided
above within 30 days after the Tender Agent has given notice of its resignation
as provided above, or (ii) no Tender Agent shall have been appointed at such
time as the Bonds are no longer held in the Book-Entry System, then,
notwithstanding any other provision of this Indenture, the Trustee shall serve
as Tender Agent or shall appoint an agent located in New York, New York to act
in its stead.
Section 7.12. Successor Trustee, Remarketing Agent or Tender Agent by
Merger. If the Trustee, the Tender Agent or the Remarketing Agent consolidates
with, merges or converts into, or transfers all or substantially all its assets
(or, in the case of a bank or trust corporation, its corporate trust assets)
to, another corporation, the resulting, surviving or transferee corporation
without any further act shall, if otherwise eligible to serve hereunder, be the
successor Trustee, Tender Agent or Remarketing Agent.
Section 7.13. Service in Several Capacities. Anything in this Indenture
to the contrary notwithstanding, the same entity may serve under this Indenture
as the Trustee, the Tender Agent and the Remarketing Agent and in any other
combination of such capacities, or the same entity may serve hereunder as the
Bank, the Tender and the Remarketing Agent and in any other combination of such
capacities, to the extent permitted by law; provided, however, in that no event
shall the same entity serve under this Indenture as the Trustee and the Bank.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01. Without Consent of Bondholders. The Issuer and the Trustee
may amend or supplement this Indenture or the Bonds without notice to or
consent of any Bondholder:
(a) to cure any ambiguity, inconsistency or formal defect or omission;
(b) to grant to the Trustee for the benefit of the Bondholders additional
rights, remedies, powers or authority;
(c) to subject to this Indenture additional collateral or to add other
agreements of the Issuer;
(d) to modify this Indenture or the Bonds to permit qualification under
the United States Trust Indenture Act of 1939 or any similar Federal statute at
the time in effect, or to permit the qualification of the Bonds for sale under
the securities laws of any state of the United States;
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(e) to evidence the succession of new Trustee or the appointment by the
Trustee or the Issuer of a co-trustee;
(f) to make any change that does not materially adversely affect the
rights of any Bondholder;
(g) to facilitate the use of the Book-Entry System;
(h) to facilitate the substitution of an Alternate Credit Facility which
is not an irrevocable letter of credit, but without modifying the payment terms
of the Bonds; or
(i) to facilitate the transfer of Bonds when the Bonds are in the CP Rate
Mode, but not in the Book-Entry System.
Section 8.02. With Consent of Bondholders. If an amendment of or
supplement to this Indenture or the Bonds without any consent of Bondholders is
not permitted by the preceding Section, the Issuer and the Trustee may enter
into such amendment or supplement with the consent of the holders of at least a
majority in principal amount of the Bonds then Outstanding. However, without
the consent of each Bondholder affected, no amendment or supplement may (a)
extend the maturity of the principal of, or the due date of the interest on,
any Bond, (b) reduce the principal amount of, or rate of interest on, any Bond,
(c) effect a privilege or priority of any Bond or Bonds over any other Bond or
Bonds, (d) reduce the percentage of the principal amount of the Bonds required
for consent to such amendment or supplement, (e) impair the excludability from
gross income for Federal income tax purposes of interest on any Bond, (f)
eliminate the holders' rights to demand that their Bonds be purchased, or any
mandatory tender or redemption of the Bonds, (g) extend the due date for the
purchase of Bonds tendered by the holders thereof or call for mandatory tender
or redemption or reduce the purchase or redemption price of such Bonds, (h)
create a lien ranking prior to or on a parity with the lien of this Indenture
on the property described in the Granting Clause of this Indenture not
otherwise provided for in this Indenture, or (i) deprive any Bondholder of the
lien created by this Indenture on such property. In addition, if moneys or
Government Obligations have been deposited or set aside with the Trustee
pursuant to Article X for the payment of the Bonds, and the Bonds shall not
have in fact been actually paid in full, no amendment to the provisions of that
Article shall be made without the consent of the holders of each of those Bonds
affected.
Section 8.03. Effect of Consents. After an amendment or supplement
becomes effective, it will bind every Bondholder unless it makes a change
described in any of the lettered clauses of the preceding Section. In that
case, the amendment or supplement will bind each Bondholder who consented to it
and each subsequent holder of a Bond or portion of a Bond evidencing the same
debt as the consenting holder's Bond.
Section 8.04. Notation on or Exchange of Bonds. If an amendment or
supplement changes the terms of a Bond, the Trustee may require the holder to
deliver it to the Trustee. The Trustee may place an appropriate notation on
the Bond about the changed terms and return it to the holder. Alternatively,
if the Trustee, the Issuer and the Company determine, the Issuer in
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exchange for the Bond will issue and the Trustee will authenticate a new Bond
that reflects the changed terms.
Section 8.05. Execution and Delivery by Trustee of Amendments and
Supplements. The Trustee shall execute and deliver any amendment or supplement
to the Indenture or the Bonds authorized by this Article if the amendment or
supplement does not adversely affect the Trustee's rights, duties, liabilities
or immunities. If it does, the Trustee may, but need not, sign it. In signing
an amendment or supplement, the Trustee will be entitled to receive and
(subject to Section 7.01) will be fully protected in relying on an opinion of
Bond Counsel stating that such amendment or supplement is authorized by this
Indenture.
Section 8.06. Company and Bank Consent Required. An amendment or
supplement to this Indenture or the Bonds shall not become effective unless the
Company and the Bank shall deliver to the Trustee their written consents to the
amendment or supplement.
Section 8.07. LGC Consent Required. An amendment or supplement to the
Indenture (or to the Bonds or the Agreement) authorized by this Article which
has the purpose or effect of altering (a) any provision related to the Credit
Facility or any Alternate Credit Facilities, including provisions regarding
when a Credit Facility is required, (b) the permissible Authorized
Denominations, or (c) the provisions of Section 7.13, shall not take effect
without the LGC's written consent.
Section 8.08. Notice to Bondholders. The Trustee shall, at the Company's
expense, cause notice of the execution of each supplement or amendment to this
Indenture or the Agreement to be mailed to the Bondholders. The notice shall,
at the Trustee's option, either (a) briefly state the nature of the amendment
or supplement and that copies of it are on file with the Trustee for inspection
by Bondholders or (b) enclose a copy of such amendment or supplement.
ARTICLE IX.
AMENDMENT OF AGREEMENT OR LETTER OF CREDIT.
Section 9.01. Amendments to Agreement Without Consent of Bondholders.
The Issuer may enter into, and the Trustee may consent to, any amendment of or
supplement to the Agreement without notice to or consent of any Bondholder, if
the amendment or supplement is (a) required or permitted by the provisions of
the Agreement or this Indenture, (b) to cure any ambiguity, inconsistency or
formal defect or omission, (c) in connection with any authorized amendment of
or supplement to this Indenture, (d) to make any change that does not
materially adversely affect the rights of any Bondholder, (e) to amend the
description of the Project, provided in the case of (e) above, the Trustee is
provided an opinion of Bond Counsel to the effect that such amendment will not
adversely affect the excludability from gross income of interest on the Bonds
for Federal income tax purposes, or (f) to facilitate the substitution of an
Alternate Credit Facility which is not an irrevocable letter of credit, but
without modifying the payment terms of the Bonds.
Section 9.02. Amendments to Agreement With Consent of Bondholders. If an
amendment of or supplement to the Agreement without any consent of Bondholders
is not permitted by the
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foregoing Section, the Issuer may enter into, and the Trustee may consent to,
such amendment or supplement with the consent of the holders of at least a
majority in principal amount of the Bonds then Outstanding. However, without
the consent of each Bondholder affected, no amendment or supplement may result
in anything described in the lettered clauses of Section 8.02.
Section 9.03. Bank Consent Required. An amendment or supplement to the
Agreement authorized by this Article shall not become effective unless the Bank
delivers to the Trustee its written consent to the amendment or supplement.
Section 9.04. Modifications of Letter of Credit. No Letter of Credit may
be modified without the prior written consent of 100% of the Bondholders,
except to (a) correct any formal defects therein, (b) effect transfers thereof,
(c) effect extensions thereof, (d) effect reductions and reinstatements thereof
in accordance with the terms of the Letter of Credit, (e) increase the stated
amount thereof, or (f) effect any change which does not have a material adverse
effect upon the interests of the Bondholders Pursuant to this Indenture,
however, the Company has the right to obtain an Alternate Credit Facility,
subject to the requirements set forth in this Indenture, without the consent of
the Bondholders.
ARTICLE X
DISCHARGE OF INDENTURE
Section 10.01. Bonds Deemed Paid; Discharge of Indenture. Any Bond will
be deemed paid for all purposes of this Indenture when (a) payment of the
principal of and interest on the Bond to the due date of such principal and
interest (whether at maturity, upon redemption or otherwise) either (i) has
been made in accordance with the terms of the Bond or (ii) has been provided
for by depositing with the Trustee Available Moneys sufficient to make such
payment and/or Government Obligations (purchased with Available Moneys)
maturing as to principal and interest in such amounts and at such times as
will, in the opinion of an independent certified public accountant delivered to
the Trustee, ensure the availability of sufficient moneys to make such payment,
and (b) all compensation and expenses of the Trustee pertaining to each Bond in
respect of which such deposit is made have been paid or provided for to the
Trustee's satisfaction. When a Bond is deemed paid, it will no longer be
secured by or entitled to the benefits of this Indenture or be an obligation of
the Issuer, except for payment from moneys or Government Obligations under
clause (a)(ii) above.
Notwithstanding the foregoing, no deposit under clause (a)(ii) of the
first paragraph of this Section shall be deemed a payment of a Bond until the
Company has furnished the Trustee an opinion of Bond Counsel stating that the
deposit of such cash or Government Obligations will not cause the Bonds, or any
portion thereof, to become "arbitrage bonds" within the meaning of Code Section
148 and (A) notice of redemption of the Bond is given in accordance with this
Indenture or, if the Bond is not to be redeemed or paid within the next 60
days, until the Company has given the Trustee, in form satisfactory to the
Trustee, irrevocable instructions (1) to notify, as soon as practicable, the
holder of the Bond, in accordance with this Indenture, that the deposit
required by clause (a)(ii) above has been made with the Trustee and that the
Bond is
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deemed to be paid under this Article and stating the maturity or redemption date
upon which moneys are to be available for the payment of the principal of the
Bond, and, if the Bond is to be redeemed rather than paid at maturity, (2) to
give notice of redemption as provided herein for such Bond or (B) the maturity
of the Bond.
Further, in no event shall a deposit under clause (a)(ii) of the first
paragraph of this Section be deemed a payment of any Bond that at the time of
the deposit is in the Daily Rate Mode or the Weekly Rate Mode.
When all Outstanding Bonds are deemed paid under the foregoing provision
of this Section, the Letter of Credit has been surrendered to the Bank for
cancellation and all amounts due and payable to the Bank under the
Reimbursement Agreement have been paid in full, the Trustee will upon request
acknowledge the discharge of the lien of this Indenture as to the Bonds,
provided, however, that the obligations under Article II in respect of the
optional tender rights of the Owners of the Bonds and the transfer, exchange,
registration, discharge from registration and replacement of Bonds shall
survive the discharge of the lien of the Indenture.
The Trustee shall provide each Rating Agency then rating the Bonds with at
least 10 days' prior notice of any advance defeasance of the Bonds, together
with a copy of the opinion of independent certified public accountant described
in the first paragraph of this Section and any opinion of counsel delivered if
Available Moneys described in clause (c) of the definition thereof are used to
effect the defeasance. The Trustee shall notify each Bondholder of the advance
defeasance of the Bonds, within 10 days after such defeasance.
Section 10.02. Application of Trust Money. The Trustee shall hold in
trust moneys or Government Obligations deposited with it pursuant to Section
10.01 and shall apply the deposited money and the money from the Government
Obligations in accordance with this Indenture only to the payment of principal
of, premium, if any and interest on the Bonds and to the payment of the
purchase price of Bonds demanded to be purchased by holders.
Section 10.03 Repayment to Bank and Company. (a) At such time as no
Bonds remain unpaid within the meaning of Section 10.01, the Trustee shall
promptly pay first to the Bank (to the extent the Bank certifies to the Trustee
that the Company is indebted to the Bank for amounts owed under the
Reimbursement Agreement) and then to the Company upon request (i) any excess
money or securities held by the Trustee at any time under this Article and (ii)
any money held by the Trustee under any provision of this Indenture for the
payment of principal or interest or for the purchase of Bonds that remains
unclaimed for five years.
(b) Notwithstanding any provision of this Indenture to the contrary, the
Trustee shall dispose of moneys held by it for the payment of principal of,
premium, if any, or interest on Bonds left unclaimed for five years after the
date the principal of the same becomes due in accordance with N.C. Gen. Stat.
Sec. 116B-18 or any successor provision. The owners of such Bonds shall
thereafter be entitled to look only to their remedies under N.C. Gen. Stat.
Chapter 116B or any successor provision, and all liability of the Issuer and
the Trustee on such moneys shall cease.
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ARTICLE XI
MISCELLANEOUS
Section 11.01. Bondholders' Consent. Any consent or other instrument
required by this Indenture to be signed by Bondholders may be in any number of
counterpart documents and may be signed by a Bondholder or by the holder's
agent appointed in writing. Proof of the execution of such instrument or of
the instrument appointing an agent and of the ownership of Bonds, if made in
the following manner, shall be conclusive for any purposes of this Indenture
with regard to any action taken by the Trustee or the Tender Agent under the
instrument:
(a) The fact and date of a person's signing an instrument may be proved by
the certificate of any officer in any jurisdiction who by law has
power to take acknowledgments within that jurisdiction that the person
signing the writing acknowledged before the officer the execution of
the writing, or by an affidavit of any witness to the signing.
(b) The fact of ownership of Bonds, the amount or amounts, numbers and
other identification of such Bonds and the date of holding shall be
proved by the registration books kept pursuant to this Indenture.
In determining whether the holders of the required principal amount of
Bonds Outstanding have taken any action under this Indenture (and solely for
such purposes), Bonds owned by the Company or any person controlling,
controlled by or under common control with the Company shall be disregarded and
deemed not to be Outstanding, unless the Company shall be the Owner of 100% of
the Bonds. In determining whether the Trustee and the Tender Agent shall be
protected in relying on any such action, only Bonds which the Trustee or the
Tender Agent, as the case may be, knows to be so owned shall be disregarded.
Any consent or other instrument shall be irrevocable and shall bind any
subsequent owner of such Bond or any Bond delivered in substitution therefor.
Section 11.02. Limitation of Rights; Bank's Rights. Nothing expressed or
implied in this Indenture or the Bonds shall give any person other than the
Trustee, the Tender Agent, the Issuer, the Bank, the Company, the Remarketing
Agent and the Bondholders any right, remedy or claim under or with respect to
this Indenture.
Notwithstanding any other provision of this Indenture to the contrary, all
rights of a Bank under this Indenture shall only be in effect when (a) either
the Letter of Credit issued by such Bank is in effect or amounts are due and
payable by the Company to such Bank under the applicable Reimbursement
Agreement, and (b) such Bank has not wrongfully failed to honor any properly
presented drawings under the applicable Letter of Credit made under and in
compliance with the terms of such Letter of Credit.
Section 11.03. No Personal Liability of LGC and Issuer Representatives.
No covenant, agreement or obligation contained in this Indenture or in the
Bonds shall be deemed to be a covenant, agreement or obligation of any present
or future officer, employee or agent of the LGC
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or the Issuer in such person's individual capacity, and neither the officials or
officers of the LGC or the Issuer executing this Indenture or the Bonds shall be
liable personally on the Bonds or under this Indenture or be subject to any
personal liability or accountability by reason of the issuance, execution or
delivery of the Bonds. No officer, employee or agent of the LGC or the Issuer
shall incur any personal liability with respect to any other action taken, or
not taken, by such person pursuant to this Indenture, the Agreement or the Act,
provided such person does not act with malicious intent.
Section 11.04. Severability. If any provision of this Indenture shall
be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable, the same shall not affect any other provision or provisions
contained in this Indenture or render the same invalid, inoperative or
unenforceable to any extent whatever.
Section 11.05. Notices. Except as otherwise provided in this Indenture,
all notices shall be sufficiently given and shall be deemed given when
personally delivered or mailed by certified mail, postage prepaid, or when sent
by facsimile transmission (receipt confirmed by telephone) or telegram,
addressed as follows:
If to the Issuer:
The Mecklenburg County Industrial Facilities
and Pollution Control Financing Authority
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
The Mecklenburg County Industrial Facilities
and Pollution Control Financing Authority
c/o Mecklenburg County Attorney
Two First ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Trustee:
▇▇▇▇▇▇ Trust and Savings Bank
Attention: Indenture Trust Division
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Tender Agent:
At its address specified in the certificate delivered by the Tender
Agent in which it assumes its duties under this Indenture.
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If to the Company:
▇▇▇▇▇▇▇▇ Micro Science, Inc.
c/▇ ▇▇▇▇▇▇▇▇ Laboratories Worldwide, Inc.
Attention: Treasurer
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Bank:
ABN AMRO Bank N.V.
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Assistant Vice President
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Remarketing Agent:
First Chicago Capital Markets, Inc.
Attention: Public Finance Department
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With a copy to:
First Chicago Capital Markets, Inc.
Attention: Municipal Bond Department/Short-Term Trading
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to the Owner of any Bond:
The address of such Owner as reflected on the registration books
maintained by the Trustee.
If to the Rating Agency:
Standard & Poor's Ratings Group
Attention: Letter of Credit Surveillance Group/Bonds
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and/or the address of such other Rating Agency as then maintains a
rating on the Bonds
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If to the LGC:
North Carolina Local Government Regulators
Attention: Secretary to the Commission
Albermarle Building
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
A duplicate copy of each notice given under this Indenture by either party or
by any other person or entity shall be given to the Bank, the Tender Agent, the
Remarketing Agent, the Company and the Trustee. Any person or entity listed
above may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates or other communications
shall be sent.
Section 11.06. Payments or Performance Due on Other Than Business Day.
If the last day for making any payment or taking any action under this
Indenture falls on a day other than a Business Day, such payment may be made,
or such action may be taken, on the next succeeding Business Day, and, if so
made or taken, shall have the same effect as if made or taken on the date
required by this Indenture.
Section 11.07. Execution in Counterparts. This Indenture may be executed
in several counterparts, including separate counterparts, each of which shall
be an original and all of which shall constitute but one and the same
instrument.
Section 11.08. Applicable Law. The parties intend that this Indenture
shall be governed by and construed in accordance with State laws.
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IN WITNESS WHEREOF, the Issuer has caused these presents to be signed in
its name and on its behalf by its duly authorized officers, and the Trustee, to
evidence its acceptance of the trusts hereby created, has caused these presents
to be signed in its name and on its behalf by its duly authorized officer, all
as of the date first above written.
[SEAL] THE MECKLENBURG COUNTY INDUSTRIAL
FACILITIES AND POLLUTION CONTROL
FINANCING AUTHORITY
[ATTEST]
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. Putrett
-------------------- -------------------------
Assistant Secretary, Chairman, Board of Commissioners
Board of Commissioners
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
AS TRUSTEE
By:
--------------------------
Vice President
[INDENTURE OF TRUST DATED AS OF NOVEMBER 1, 1995]
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IN WITNESS WHEREOF, the Issuer has caused these presents to be signed in
its name and on its behalf by its duly authorized officers, and the Trustee, to
evidence its acceptance of the trusts hereby created, has caused these presents
to be signed in its name and on its behalf by its duly authorized officer, all
as of the date first above written.
[SEAL] THE MECKLENBURG COUNTY INDUSTRIAL
FACILITIES AND POLLUTION CONTROL
FINANCING AUTHORITY
[ATTEST]
By:
---------------------------- -------------------------------------
Secretary, Board of Commissioners Chairman, Board of Commissioners
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
AS TRUSTEE
By: /s/
--------------------------
TRUST OFFICER
[INDENTURE OF TRUST DATED AS OF NOVEMBER 1, 1995]
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EXHIBIT A
TO INDENTURE OF TRUST
FORM OF BOND
[FACE OF BOND]
NO. R-____ $_______________
UNITED STATES OF AMERICA
STATE OF NORTH CAROLINA
THE MECKLENBURG COUNTY INDUSTRIAL FACILITIES AND POLLUTION CONTROL
FINANCING AUTHORITY
INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1995
(▇▇▇▇▇▇▇▇ MICRO SCIENCE, INC. PROJECT)
DATED DATE MATURITY DATE CUSIP
---------- ------------- -----
[Date of Issuance] November 1, 2014 ______________
REGISTERED OWNER:
--------------------------------------------------------------
PRINCIPAL AMOUNT: DOLLARS
-------------------------------------------------------
The Mecklenburg County Industrial Facilities and Pollution Control
Financing Authority, a political subdivision and a body corporate and politic
of the State of North Carolina (the "State"), for value received, hereby
promises to pay to the order of the Registered Owner specified above, or
registered assigns, the Principal Amount specified above on the Maturity Date
specified above (subject to prepayment as described below) and to pay interest
on the Principal Amount from the date specified in the Indenture (as defined
below) at the rates per annum and on the dates set forth herein (but only out
of the revenues of the Issuer derived from the Agreement, as hereinafter
defined, or other moneys pledged therefor) and in accordance with the
provisions of the North Carolina Industrial and Pollution Control Facilities
Act, which is Chapter 159C of the North Carolina General Statutes (the "Act").
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72
THE BONDS SHALL NOT BE DEEMED TO CONSTITUTE A DEBT OR A PLEDGE OF THE
FAITH AND CREDIT OF THE STATE OF NORTH CAROLINA OR OF ANY POLITICAL SUBDIVISION
OR AGENCY THEREOF, INCLUDING MECKLENBURG COUNTY, NORTH CAROLINA, BUT SHALL BE
PAYABLE SOLELY FROM THE REVENUES AND OTHER FUNDS PLEDGED THEREFOR. THE ISSUER
SHALL NOT BE OBLIGATED TO PAY THE BONDS OR THE INTEREST THEREON EXCEPT FROM THE
REVENUES AND OTHER FUNDS PLEDGED THEREFOR, AND NEITHER THE FAITH AND CREDIT NOR
THE TAXING POWER OF THE STATE OF NORTH CAROLINA OR OF ANY POLITICAL SUBDIVISION
OR AGENCY THEREOF, INCLUDING THE ISSUER (WHICH HAS NO TAXING POWER) AND
MECKLENBURG COUNTY, NORTH CAROLINA, IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL
OF OR THE INTEREST ON THE BONDS.
The principal of, premium, if any, and interest on this Bond are payable
in lawful money of the United States of America. The principal of and premium,
if any, payable upon maturity or earlier redemption of this Bond are payable
when due upon the presentation and surrender hereof at the principal corporate
trust office of ▇▇▇▇▇▇ Trust and Savings Bank, in Chicago, Illinois, as trustee
(the "Trustee"), or any successor trustee. Each payment of interest on this
Bond shall be payable to the Registered Owner hereof as shown on the
registration books kept by the Trustee at the close of business on the Business
Day (but, during an Adjustable Rate Period of six months or more, the fifteenth
day of the calendar month) next preceding the date on which such interest
becomes due and payable (herein, a "Record Date"). Interest on this Bond shall
be payable to the Registered Owner hereof by check or draft mailed by
first-class mail on the respective Interest Payment Dates (as hereinafter
defined) to the address of such Registered Owner as shown on the books kept by
the Trustee at the close of business on the relevant Record Date or such other
address as is furnished to the Trustee (in form satisfactory to the Trustee) by
such owner prior to such Record Date. Registered Owners of $1,000,000 or more
in aggregate principal amount of Bonds shall be entitled to receive interest
payments by wire transfer by providing written wire instructions to the Trustee
before the Record Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH
ON THE REVERSE SIDE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF FULLY SET FORTH IN THE TEXT OF THIS BOND WRITTEN
ABOVE.(2)
This(3) 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.
------------------------
(2) Delete this sentence when bond is not in printed form.
(3) This word and all material after this word on this and the following page
is to appear on p. A-12 when bond is not in printed form.
73
IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed in its
name by the manual or facsimile signature of its Chairman or Vice Chairman to
be sealed with its corporate seal and attested with the manual or facsimile
signature of the Secretary or the Assistant Secretary, all as of the date first
above written.
[SEAL] THE MECKLENBURG COUNTY INDUSTRIAL
FACILITIES AND POLLUTION CONTROL
FINANCING AUTHORITY
[ATTEST]
------------------------ --------------------------------
ASSISTANT SECRETARY, [VICE] CHAIRMAN
BOARD OF COMMISSIONERS BOARD OF COMMISSIONERS
CERTIFICATE OF AUTHENTICATION
This Bond is hereby authenticated as required by the
within-referenced Indenture of Trust.
Date of Authentication:__________
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, AS TRUSTEE
-----------------------------------
Authorized Officer of Trustee
or Tender Agent
THIS BOND HAS BEEN APPROVED BY THE NORTH
CAROLINA LOCAL GOVERNMENT COMMISSION UNDER THE
PROVISIONS OF THE INDUSTRIAL AND
POLLUTION CONTROL FACILITIES FINANCING ACT.
-------------------------------
▇▇▇▇▇▇ ▇. High, Secretary,
North Carolina Local Government Commission
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(REVERSE OF BOND)(4)
This Bond is authorized and issued under and pursuant to authority
conferred by the Act, certain proceedings of the Issuer and the Indenture of
Trust dated as of November 1, 1995 (the "Indenture") between the Issuer and the
Trustee. Certain terms used and not defined in this Bond are defined in the
Indenture. This Bond is one of the Issuer's duly authorized Industrial
Development Revenue Bonds, Series 1995 (▇▇▇▇▇▇▇▇ Micro Science, Inc. Project)
(the "Bonds"), which Bonds have been issued in the aggregate principal amount
of $4,500,000 to provide funds to finance the costs of constructing certain
leasehold improvements and acquiring and installing certain equipment, all
constituting certain manufacturing facilities (the "Project") located in
Mecklenburg County, North Carolina.
The proceeds of the Bonds have been loaned to ▇▇▇▇▇▇▇▇ Micro Science,
Inc., a Delaware corporation (the "Company"), pursuant to a Loan Agreement
dated as of November 1, 1995 (the "Agreement"), between the Issuer and the
Company. As security for the payment of the Bonds, the Company has caused to
be delivered to the Trustee a letter of credit (the "Initial Letter of Credit")
of ABN AMRO Bank N.V. (the "Bank"), against which the Trustee shall be
entitled to draw, in accordance with the terms thereof, to pay when and as due,
the principal or purchase price of, and interest on, the Bonds during the term
of the Initial Letter of Credit. The Initial Letter of Credit expires on a
specified date prior to the maturity of the Bonds, subject to earlier
termination in certain events. Under certain conditions, the Company may cause
to be delivered an Alternate Credit Facility (an "Alternate Credit Facility")
in substitution for the Letter of Credit then in effect without the consent of
the holders of the Bonds. The Initial Letter of Credit, together with any
Alternate Credit Facility, is hereinafter referred to as the "Letter of
Credit." The Bonds are not secured by any lien on or security interest in the
Project.
The Bonds are issued under and entitled to the benefits of the Indenture.
Pursuant to the Indenture, the Issuer has pledged and assigned to the Trustee
the Trust Estate as security for its obligation to pay the principal or
purchase price of, premium, if any, and interest on the Bonds. Reference is
made to the Indenture for a description of the Trust Estate and for the
provisions thereof with respect to the nature and extent of the security
granted by the Issuer to the Trustee thereunder, the rights, duties and
obligations of the Issuer and the Trustee, the rights of the registered owners
of the Bonds, and the terms on which the Bonds are issued and secured, to all
of which provisions, and to all other provisions of the Indenture, the
Registered Owner hereof by the acceptance of this Bond assents.
I. Weekly Rate Provisions
Optional Tender. During a Weekly Rate Period, this Bond or any portion
thereof in Authorized Denominations (except during any period this Bond is a
Pledged Bond or Company Bond) shall be purchased on the demand of the
registered owner thereof on any Business Day at a price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to the
purchase date, upon delivery (by facsimile or otherwise) to the tender agent
duly appointed in
------------------------
(4) Delete when bond is not in printed form.
A-4
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accordance with the provisions of the Indenture (together with any successor
tender agent, the "Tender Agent") at its Principal Office, on any Business Day,
of (a) a written irrevocable notice setting forth the information required by
the Indenture, including the date on which such Bond, or the portion thereof
being tendered for purchase, shall be so purchased, which date shall be a
Business Day not prior to the seventh day next succeeding the date of the
delivery of such notice to the Tender Agent, together with (b) this Bond, as
provided in the Indenture; provided, that if the registered owner of the
tendered Bond is an open-ended diversified management investment company
(registered under the Investment Company Act of 1940, as amended), the delivery
required under this clause (b) need not be made until the date such Bond is to
be purchased from such registered owner, as provided in the Indenture.
Notwithstanding the foregoing, if the Bonds are held in a Book-Entry System,
separate procedures for the optional tender of Bonds are set forth in the
Indenture.
Interest. During any period this Bond is in the Weekly Rate Mode,
interest on this Bond shall be paid on the first Business Day of each month,
beginning with the first day of the month next succeeding the Closing Date (if
applicable), each Weekly Rate Conversion Date and on the Maturity Date
specified above or such other date as the outstanding principal amount of the
Bonds is paid in full if the Bonds are in the Weekly Rate Mode at such time
(each, a "Weekly Rate Interest Payment Date"), and shall be computed on the
basis of a 365- or 366-day year, as applicable, for the actual number of days
elapsed. Interest on the Bond for each Weekly Interest Period shall be
calculated as provided below and in the Indenture. During each Weekly Rate
Period, "Weekly Interest Period" shall mean the period from and including the
first day of the Weekly Rate Period through and including the following
Tuesday, and after the first Weekly Interest Period of each Weekly Rate Period,
from and including Wednesday of each week through and including the following
Tuesday, whether or not such days are Business Days, provided, however, the
initial Weekly Interest Period shall commence on the Closing Date and end on
the next following Tuesday.
On Tuesday (unless Tuesday is not a Business Day, then on the next
preceding Monday; unless Monday and Tuesday are not Business Days, then on the
next subsequent Wednesday, whether or not a Business Day) of each calendar week
during a Weekly Rate Period, with respect to each Weekly Interest Period, the
Remarketing Agent shall determine the Weekly Rate for the ensuing or current
(in the case of determinations made on Wednesday) Weekly Interest Period. The
determination of the Weekly Rate by the Remarketing Agent shall be conclusive
and binding. The Weekly Rate for each Weekly Interest Period determined by the
Remarketing Agent shall be the lowest rate of interest which will, in the
Remarketing Agent's sole judgment, having due regard for prevailing financial
market conditions, permit the Bonds to be remarketed at a price of par, plus
accrued interest, on the first day of the applicable Weekly Interest Period;
provided that in no case shall the Weekly Rate be more than the Maximum Rate.
If the Remarketing Agent fails to determine a Weekly Rate for any Weekly
Interest Period, the Weekly Rate for such Weekly Interest Period shall be the
rate from time to time established pursuant to the Indenture.
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76
II. Daily Rate Provisions
Optional Tender. During a Daily Rate Period, this Bond or any portion
thereof in Authorized Denominations (except during any period this Bond is a
Pledged Bond or Company Bond) shall be purchased on the demand of the
registered owner thereof on any Business Day at a price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of purchase, upon delivery (by facsimile or otherwise) to the Tender Agent at
its Principal Office, (a) by 10:00 a.m., New York City time, on such Business
Day, of a written irrevocable notice, which will be effective upon receipt,
setting forth the information required by the Indenture, and (b) by 10:30 a.m.,
New York City time, on such Business Day, of this Bond, as provided in the
Indenture. Notwithstanding the foregoing, if the Bonds are held in a
Book-Entry System, separate procedures for the optional tender of Bonds are set
forth in the Indenture.
Interest. During any period this Bond is in the Daily Rate Mode, interest
on this Bond shall be paid on the first Business Day of each month, beginning
with the first day of the month next succeeding the Closing Date (if
applicable), each Daily Rate Conversion Date, and on the Maturity Date
specified above or such other date as the outstanding principal amount of the
Bonds is paid in full if the Bonds are in the Daily Rate Mode at such time
(each, a "Daily Rate Interest Payment Date"), and shall be computed on the
basis of a 365- or 366-day year, as applicable, for the actual number of days
elapsed. Interest on the Bonds for each Daily Interest Period shall be
calculated as provided below and in the Indenture. During each Daily Rate
Period, "Daily Interest Period" shall mean the period from and including the
first day of the Daily Rate Period to but excluding the immediately succeeding
Business Day.
On the first day of each Daily Interest Period, the Remarketing Agent
shall determine the Daily Rate for such Daily Interest Period. The Remarketing
Agent's determination of the Daily Rate shall be conclusive and binding.
The Daily Rate for each Daily Interest Period determined by the
Remarketing Agent shall be the lowest rate of interest which will, in the
Remarketing Agent's sole judgment, having due regard for prevailing financial
market conditions, permit the Bonds to be remarketed at a price of par, plus
accrued interest, on the first day of the applicable Daily Interest Period;
provided that in no case shall the Daily Rate be more than the Maximum Rate.
If the Remarketing Agent fails to determine a Daily Rate for any Daily Interest
Period, then the Bonds shall thereupon bear interest at the last Daily Rate
previously determined pursuant to the Indenture.
III. CP Rate Provisions
From and after each CP Rate Conversion Date or a CP Rate Reset Date, as
appropriate, to the earlier of their redemption, maturity, the following
Conversion Date for all Bonds or the following CP Rate Reset Date applicable to
this Bond, the interest rate of this Bond shall be a CP Rate, determined as
provided below and in the Indenture. Different CP Rate Periods may apply to
different Bonds at any time and from time to time while the Bonds are in a CP
Rate Mode.
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In the case of each CP Rate Period, on the first day thereof, the
Remarketing Agent shall determine (i) the duration of such CP Rate Period and
(ii) the CP Rate which shall apply during such CP Rate Period. The duration of
a CP Rate Period so determined shall be that which, together with all such
other CP Rate Periods for all Bonds then outstanding, in the Remarketing
Agent's sole judgment, will provide the lowest overall interest cost with
respect to the Bonds, with due regard to prevailing financial market
conditions, foreseeable changes in such conditions, the anticipated duration of
the period the Bonds may remain in the CP Rate Mode, and such other factors
which the Remarketing Agent, in its sole judgment, shall deem relevant and
economically advantageous to consider. Upon determining the duration of a CP
Rate Period with respect to any Bonds, the Remarketing Agent shall determine
the CP Rate which shall be in effect during such CP Rate Period, which shall be
the lowest rate of interest which, in the Remarketing Agent's sole judgment,
having due regard to prevailing financial market conditions, will permit such
Bonds to be sold at par, plus accrued interest, on the first day of such CP
Rate Period. Notwithstanding the foregoing, the CP Rate so determined shall
not be more than the Maximum Rate. Unless and until the Company elects to
effect a conversion of the Bonds from the CP Rate Mode to another Mode, the
Remarketing Agent shall continually redetermine the duration of, and the CP
Rate to be effective during each new CP Rate Period with respect to each Bond,
which will commence, without further action on the Company's part, on each CP
Rate Reset Date. If on any CP Rate Reset Date the Remarketing Agent shall fail
to determine either the duration of, or the CP Rate to be effective during the
CP Rate Period which commences on such date, with respect to any Bonds, such
Bonds, without further action on the part of any person, shall automatically
convert to the Weekly Rate Mode upon such date, and the Weekly Rate which will
be effective on such date will be determined as described in the Indenture.
Such Bonds may not thereafter be converted from the Weekly Rate Mode until such
time as all Bonds then outstanding are in the Weekly Rate Mode. Upon such
automatic conversion of a portion of the Bonds to the Weekly Rate Mode, any
Bonds then remaining in the CP Rate Mode shall be automatically converted to
the Weekly Rate Mode upon the expiration of the CP Rate Period applicable to
such Bond without further action on the part of any person (and notwithstanding
any attempted act to the contrary on the part of any person). Each
determination by the Remarketing Agent shall be conclusive and binding.
While the Bonds are in the CP Rate Mode, interest on this Bond will be
payable on the first Business Day which follows each CP Rate Period applicable
to this Bond, and shall be computed on the basis of a 365- or 366-day year, as
applicable, and the actual number of days elapsed.
IV. Adjustable Rate Provisions
From and after each Adjustable Rate Conversion Date or Adjustable Rate
Reset Date, to the earlier of its maturity, redemption, the following
Conversion Date, the following Adjustable Rate Reset Date or the following date
on which the Bond shall be subject to mandatory tender, the interest rate on
this Bond shall be an Adjustable Rate, determined as provided below and in the
Indenture. When the Bonds are in the Adjustable Rate Mode, the Bonds will
remain in such Mode for as long as the Company continues to deliver timely
conversion notices specifying the duration of the next Adjustable Rate Period.
The Remarketing Agent, on or prior to the
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commencement of each Adjustable Rate Period, shall determine the Adjustable Rate
to be borne by the Bonds during such Adjustable Rate Period, which will be the
lowest rate which, in its sole judgment having due regard for prevailing
financial market conditions, will permit the Bonds to be sold at par on the
first day of such Adjustable Rate Period. Notwithstanding the foregoing, the
Adjustable Rate shall not be more than the Maximum Rate. If the Company does
not deliver a timely conversion notice specifying the duration of the next
Adjustable Rate Period or the Remarketing Agent fails to determine an Adjustable
Rate for any Adjustable Rate Period, then the Bonds shall bear interest as
provided in the Indenture.
During each Adjustable Rate Period, interest on this Bond shall be paid on
each Adjustable Rate Interest Payment Date and shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
V. Conversion Provisions
The interest rate Mode of this Bond shall be converted from one Mode to
another Mode, or from an Adjustable Rate Period of one duration to an
Adjustable Rate Period of the same or a different duration within the
Adjustable Rate Mode, if the Company shall give notice as provided in the
Indenture of its election to effect such conversion, specifying in such notice
the date on which the Conversion Date will occur (which date shall be at least
25 days after such notice is given) and, if the conversion is to an Adjustable
Rate Period, specifying the Adjustable Rate Period. The Bonds shall be subject
to mandatory tender and purchase on the Conversion Date. If any condition
precedent to the conversion of the interest rate Mode of this Bond from one
Mode to another Mode, or from an Adjustable Rate Period of one duration to an
Adjustable Rate Period of the same or a different duration, is not satisfied,
this Bond shall nonetheless be subject to mandatory tender on the Conversion
Date and the Bonds shall commence bearing interest on the Conversion Date as
provided in the Indenture.
VI. Mandatory Tender
All Bonds are subject to mandatory tender by the Bondholders to the Tender
Agent at its Principal Office on each date described in the Indenture. The
purchase price of Bonds subject to mandatory tender shall be 100% of the
principal amount thereof (except in the case of certain mandatory tenders
during, but prior to the expiration of, certain Adjustable Rate Periods, as
described in the Indenture). Notice of a mandatory tender of Bonds shall be
given as provided in the Indenture.
Any Bond subject to mandatory tender which is not tendered on or before
the mandatory tender date shall, if Available Moneys sufficient and available
for the purchase of such Bonds have been deposited with the Tender Agent on the
mandatory tender date, be deemed to have been tendered for purchase on the
mandatory tender date, and from and after such date, interest will no longer
accrue on such Bonds. Owners of such Bonds shall have no rights or benefits
under the Indenture with respect to such Bonds other than to receive the
purchase price for such Bonds upon surrender of such Bonds to the Tender Agent.
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VII. Redemption of Bonds
The Bonds shall be subject to redemption at the Company's option only as
follows:
(a) Weekly Rate Mode, CP Rate Mode or Daily Rate Mode. While the
Bonds are in the Weekly Rate Mode or the Daily Rate Mode, they are
subject to optional redemption, in whole or in part on any Business
Day in Authorized Denominations, and while the Bonds are in the CP
Rate Mode, Bonds are subject to optional redemption in whole or in
part in Authorized Denominations on any Interest Payment Date for a
given Bond, at the direction of the Company, at a redemption price
equal to 100% of the principal amount of the Bonds to be redeemed,
plus accrued interest thereon to the redemption date, without
premium.
(b) Adjustable Rate Mode. While the Bonds are in the Adjustable
Rate Mode, they are subject to optional redemption in whole or in
part on any date, at the direction of the Company, only on the dates
and at the applicable redemption prices set forth in the Indenture.
While the Bonds are in the Adjustable Rate Mode or the CP Rate Mode, the
Bonds are subject to extraordinary optional redemption in whole on any date at
a redemption price equal to the principal amount of Bonds plus accrued interest
to the redemption date, without premium, upon the occurrence of certain events
specified in the Indenture.
The Bonds in any Mode are subject to mandatory redemption in whole on the
next date for which timely notice of redemption can be given by the Trustee
after the occurrence of a Determination of Taxability, as defined in the
Indenture, at a redemption price equal to the aggregate principal amount of the
Bonds plus accrued interest thereon to the redemption date, without premium.
The Bonds in any Mode are subject to mandatory redemption in whole on the
first Interest Payment Date that is at least 45 days after the next day for
which timely notice of redemption can be given by the Trustee after the
Cessation of Operation, as defined in the Indenture, at a redemption price
equal to the aggregate Outstanding principal amount of the Bonds plus accrued
interest thereon to the redemption date, without premium.
At least 30 days prior to any redemption of Bonds, the Trustee shall cause
notice of the call for redemption to be sent by first-class mail, postage
prepaid, to the Owner of each Bond to be redeemed at the address of such Owner
shown on the registration books maintained by the Trustee. Neither the failure
to give any such notice nor any defect in any notice so mailed shall affect the
sufficiency or the validity of any proceedings for the redemption of the Bonds.
Except as otherwise provided in the Indenture, the Trustee shall not be
required to register the transfer of or exchange any Bond after notice calling
such Bond or portion thereof for redemption has been mailed or during the
15-day period next preceding the mailing of a notice of redemption of any
Bonds.
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If Available Moneys are deposited in the Bond Fund on the date Bonds are
to be redeemed, Bonds or portions thereof redeemed shall no longer be secured
by the Indenture and shall not be deemed to be outstanding under the provisions
of the Indenture. Interest shall not continue to accrue on the Bonds after the
date fixed for redemption, so long as Available Moneys are on deposit to pay
all principal of, premium, if any, and interest accrued on the Bonds on such
date. If, however, Available Moneys shall not be on deposit on the redemption
date, such Bonds or portions thereof shall continue to bear interest until paid
at the same rate as they would have borne had they not been called for
redemption.
Any partial redemption of Bonds shall be made only in Authorized
Denominations. If fewer than all of the Bonds shall be called for redemption,
the portion of Bonds to be redeemed shall be selected by the Trustee as
provided in the Indenture.
VIII. General Provisions
Except as provided in the Indenture, the ownership of this Bond may be
transferred (in Authorized Denominations) only upon presentation and surrender
of this Bond at the principal corporate trust office of the Trustee, together
with an assignment duly executed by the Registered Owner hereof or his duly
authorized attorney-in-fact in such form as shall be satisfactory to the
Trustee.
Provisions may be made for the payment of amounts represented by the Bonds
as provided in the Indenture, in which event all liability of the Issuer to the
Owners of the applicable Bonds for the payment of such Bonds shall forthwith
cease, terminate and be completely discharged, and thereupon it shall be the
duty of the Trustee to hold such funds (but only for the period specified and
as provided in the Indenture), without liability for interest thereon, for the
benefit of the Owners of such Bonds, who shall thereafter be restricted
exclusively to such funds for any claims of whatever nature under the Indenture
or on, or with respect to, said Bonds.
It is hereby certified and covenanted that this Bond has been duly and
validly authorized, issued and delivered; that all acts, conditions and things
required or proper to be performed, exist and be done precedent to or in the
authorization, issuance and delivery of this Bond have been performed, existed
and done in accordance with law.
The Bonds are secured by the Indenture, whereunder the Trustee undertakes
to enforce the rights of the owners of the Bonds and to perform other duties to
the extent and under the conditions stated in the Indenture. If an Event of
Default shall occur, the principal of and interest on the Bonds then
outstanding may, and, under certain circumstances, shall, be declared to be due
and payable immediately upon the conditions and in the manner provided in the
Indenture. Under the circumstances and conditions provided in the Indenture,
the Trustee may, or shall, waive any Event of Default under the Indenture and
its consequences.
The Issuer has reserved the right to amend the Indenture; with the Bank's
consent, as provided therein. Under some (but not all) circumstances,
amendments thereto must also be
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approved by the owners of either at least a majority or 100% in aggregate
principal amount of the Outstanding Bonds affected by such amendment.
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(Form of Assignment)
For value received, the undersigned hereby do(es) sell, assign and transfer
unto ____________________ the within Bond, and do(es) hereby irrevocably
constitute and appoint ____________________ attorney, to transfer such Bond on
the books of the Trustee kept for registration and transfer of the within Bond,
with full power of substitution in the premises.
Dated: ____________________
NOTE: THE SIGNATURE(S) TO THIS
ASSIGNMENT MUST CORRESPOND WITH THE
NAME(S) AS IT (THEY) APPEAR(S) UPON
THE FACE OF THE WITHIN BOND IN EVERY
PARTICULAR, WITHOUT ENLARGEMENT OR
ALTERATION OR ANY CHANGE WHATSOEVER.
SIGNATURE GUARANTEED BY:
_______________________________
NOTE: SIGNATURE(S) MUST BE
GUARANTEED BY AN "ELIGIBLE GUARANTOR
INSTITUTION" MEETING THE
REQUIREMENTS OF THE TRUSTEE, WHICH
REQUIREMENTS INCLUDE MEMBERSHIP OR
PARTICIPATION IN STAMP OR SUCH OTHER
"SIGNATURE GUARANTY PROGRAM" AS MAY
BE DETERMINED BY THE TRUSTEE IN
ADDITION TO OR IN SUBSTITUTION FOR
STAMP, ALL IN ACCORDANCE WITH THE
SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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[FORM OF REGISTRATION INFORMATION]
Under the terms of the Indenture, the Trustee will register a Bond in the
name of a transferee only if the owner of such Bond (or his duly authorized
representative) provides as much of the information requested below as is
applicable to such owner prior to submitting this Bond for transfer.
Name:
--------------------------------------------
Address:
-----------------------------------------
Social Security or Employer
Identification Number:
----------------------
If a Trust, Name and Address of
Trustee(s) and Date of Trust:
---------------
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