-----------------------------------------
INDENTURE OF TRUST
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Between
CLEVELAND COUNTY INDUSTRIAL AUTHORITY
and
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL ASSOCIATION
Dated as of December 1, 2004
CLEVELAND COUNTY INDUSTRIAL AUTHORITY
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(▇▇▇▇▇▇▇ FOODS, INC. PROJECT)
SERIES 2004
INDENTURE OF TRUST
This INDENTURE OF TRUST, dated as of December 1, 2004, (as supplemented
and amended, this "Indenture"), is executed by and between the CLEVELAND COUNTY
INDUSTRIAL AUTHORITY (the "Issuer"), a public trust, and ▇.▇. ▇▇▇▇▇▇ TRUST
COMPANY, NATIONAL ASSOCIATION, a national banking association, having a
corporate trust office in Oklahoma City, Oklahoma, duly organized and existing
under the laws of the State of Oklahoma, as Trustee (the "Trustee"), being
authorized to accept and execute trusts of the character herein set out under
and by virtue of the laws of the State of Oklahoma.
WITNESSETH:
WHEREAS, ▇▇▇▇▇▇▇ Foods, Inc., a corporation duly organized and existing
under the laws of the State of Oklahoma (the "Company"), requested that the
Issuer finance the acquisition, construction and equipping of certain
manufacturing facilities and certain solid waste disposal facilities located
within Cleveland County, Oklahoma, in accordance with that certain Mortgage and
Loan Agreement, dated as of December 1, 2004, (as amended, the "Loan
Agreement"), between the Issuer and the Company; and
WHEREAS, the provisions of Title 60 Oklahoma Statutes 2001 Section 176
et seq., as amended, (the "Act"), authorizes the Issuer to finance such costs;
and
WHEREAS, in order to finance such costs, the Issuer has issued its
Cleveland County Industrial Authority Industrial Development Revenue Bonds
(▇▇▇▇▇▇▇ Foods, Inc. Project) Series 2004, (the "Bonds"), same to be secured by
this Indenture; and
WHEREAS, the rights of the Issuer in the underlying Mortgage and Loan
Agreement dated as of December 1, 2004, between the Company as Mortgagor and the
Issuer as Mortgagee, pursuant to which the Issuer will loan the proceeds of the
Bonds to the Company and the Company shall obligate itself to repay such loan to
the Issuer; and
WHEREAS, the Bonds shall be secured additionally as provided herein and
in the Loan Agreement; and
WHEREAS, the Bonds and the Trustee's authentication certificate are to
be substantially in the following form, with such necessary or appropriate
variations, omissions and insertions as permitted or required by this Indenture:
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(FORM OF SERIES 2004 BOND)
**Unless this Bond is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer or its
agent for registration of transfer, exchange, or payment, and any Bond issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the Registered Owner hereof, Cede & Co., has an interest
herein.**
Except as provided in the Indenture herein described, upon any transfer of a
Beneficial Ownership Interest (as defined in the Indenture) in the Bond, the
purchaser thereof shall be deemed to have certified to the Trustee and
acknowledged, represented and agreed with the Company and the Underwriter (as
such terms are defined in the Indenture described herein) that such purchaser is
acquiring the Bond for its owns account and that it is (i) a "qualified
institutional buyer" within the meaning of Rule 144A promulgated under the
Securities Act of 1933, as amended (the "1933 Act"), or (ii) an institutional
"accredited investor," as defined in Rule 501(a)(1), (2), (3), or (7) of the
1933 Act.
CLEVELAND COUNTY INDUSTRIAL AUTHORITY
INDUSTRIAL DEVELOPMENT REVENUE BONDS
(▇▇▇▇▇▇▇ FOODS, INC. PROJECT)
SERIES 2004
No. R- $____________________
------------------------------ ---------------------------- --------------------------- ----------------------------
Original
Interest Rate Maturity Date Issue Date CUSIP
------------- ------------- ---------- -----
------------------------------ ---------------------------- --------------------------- ----------------------------
% December __, 2004
------------------------------ ---------------------------- --------------------------- ----------------------------
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT:
THE CLEVELAND COUNTY INDUSTRIAL AUTHORITY, a public trust, organized
and existing under the laws of the State of Oklahoma (the "Issuer"), for value
received, hereby promises to pay, from the sources hereinafter described, the
Principal Amount stated above, in
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lawful money of the United States of America, to the Registered Owner stated
above or the registered assigns, on the Maturity Date stated above (unless this
Bond shall have been called for prior redemption, in which case on such
redemption date), upon the presentation and surrender hereof at the designated
corporate trust office of ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association, as
Trustee (the "Trustee"), in Oklahoma City, Oklahoma, or at the principal office
of its successor in trust under an Indenture of Trust, dated as of December 1,
2004, (the "Indenture"), between the Issuer and the Trustee, and to pay, from
like sources, to the Registered Owner stated above as of the fifteenth day of
the calendar month prior to an Interest Payment Date (the "Regular Record
Date"), by check or draft mailed by the Trustee on the Interest Payment Date to
such Registered Owner at his address as it last appears on the registration
books kept for that purpose at the office of the Trustee, interest on said sum
in like coin or currency from the Original Issue Date stated above or from the
most recent date from which interest has been paid or duly provided for, at the
Interest Rate stated above, payable semiannually on June 1 and December 1 of
each year, commencing June 1, 2005, on the basis of a 360-day year composed of
twelve 30-day months, until payment of the principal hereof has been made or
provided for. Such Interest Rate shall be subject to adjustment upon certain
events as described in the Indenture and more specifically an Interest Rate
Step-up as defined in the Indenture could be implemented. The Trustee may make
payments of principal at maturity or upon redemption and payment of interest by
wire transfer within the United States to any owner of at least $1,000,000 in
aggregate principal amount of the Bonds requesting the same in writing addressed
to the Trustee as provided in this Indenture. Any interest not timely paid or
duly provided for shall cease to be payable to the Registered Owner hereof at
the close of business on the applicable Regular Record Date and shall be payable
to the Registered Owner hereof at the close of business on a Special Record Date
(as defined in the Indenture) for the payment of any defaulted interest. Such
Special Record Date shall be fixed by the Trustee whenever monies become
available for payment of the defaulted interest, and notice of such Special
Record Date shall be given to the Registered Owner hereof not less than ten days
prior thereto. If the date for making any payment or the last day for
performance of any act or the exercise of any right, as provided in this Bond,
shall not be a "Business Day" as defined in this Indenture, such payment may be
made or act performed or right exercised on the next succeeding Business Day
with the same force and effect as if done on the nominal date provided in this
Bond. Notwithstanding anything herein to the contrary, when this Bond is
registered in the name of a Depository (as defined in this Indenture) or its
nominee, the principal and redemption price of and interest on this Bond shall
be payable in same day or federal funds delivered or transmitted to the
Depository or its nominee.
This Bond is one of a duly authorized series of bonds of the Issuer
designated as "Cleveland County Industrial Authority Industrial Development
Revenue Bonds (▇▇▇▇▇▇▇ Foods, Inc. Project) Series ▇▇▇▇" (▇▇▇ "▇▇▇▇▇"). The
Bonds have been issued under the provisions of Title 60 Oklahoma Statutes 2001,
Section 176 et seq., as amended (the "Act"), to finance costs of acquiring,
constructing and equipping certain manufacturing facilities and solid waste
disposal facilities (the "Facilities"); to fund a reserve fund with respect to
the Bonds; and to fund certain costs of issuing the Bonds.
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This Bond is a limited obligation of the Issuer payable solely from and
secured by (a) a pledge of certain rights of the Issuer under and pursuant to
the Mortgage and Loan Agreement dated as of December 1, 2004, (the "Loan
Agreement"), between the Issuer and ▇▇▇▇▇▇▇ Foods, Inc., (the "Company"); (b) a
pledge of the Funds and Pledged Revenues other than the Rebate Fund (all as
defined in the Indenture); (c) an assignment of the Issuer's mortgage on the
Property (as defined in the Indenture) (including personal property and
equipment) and of the Issuer's security interest in the Pledged Revenues (as
defined in the Indenture) of the Company; the personal Guaranty of ▇▇▇▇ ▇▇▇▇▇▇▇,
as an individual; and benefits payable under a key-man life insurance policy in
the amount of $1,000,000 on the life of ▇▇▇▇ ▇▇▇▇▇▇▇.
This Bond shall not constitute or become an indebtedness, a debt or a
liability of or a charge against the general credit or taxing power of the State
of Oklahoma or any county, city, city and county, town, school district, or
other subdivision of the State of Oklahoma or of any other political subdivision
or body corporate and politic within the State of Oklahoma other than the Issuer
(but only to the extent of the revenues pledged in this Indenture), and neither
the State of Oklahoma, nor any county, city, city and county, town, school
district or other subdivision of the State of Oklahoma, except the Issuer to the
extent provided above, shall be liable hereon; nor shall this Bond constitute
the giving, pledging, or loaning of the faith and credit of the State of
Oklahoma, or any county, city, city and county, town, school district or other
subdivision of the State of Oklahoma or of any other political subdivision or
body corporate and politic within the State of Oklahoma, but shall be payable
solely from the funds pledged therefor. The issuance of this Bond shall not,
directly or indirectly or contingently, obligate the State of Oklahoma or any
subdivision of the State of Oklahoma nor empower the Issuer to levy or collect
any form of taxes or assessments therefor or to create any indebtedness payable
out of taxes or assessments or make any appropriation for the payment of this
Bond, and such appropriation or levy is prohibited. The Bonds and the interest
thereon do not constitute an indebtedness of the Issuer within the meaning of
any constitutional or statutory limitation.
Reference is hereby made to the Indenture and the Loan Agreement for a
description of the revenues pledged, the nature and extent of the security, the
rights, duties and obligations of the Issuer, the Trustee and the Registered
Owners of the Bonds and the terms and conditions upon which the Bonds are, and
are to be, secured, and a statement of the rights, duties, immunities and
obligations of the Issuer and the Trustee.
The Bonds maturing December 1, 2024, shall be subject to redemption
prior to maturity, in whole or in part, at the written direction of the Company,
on December 1, 2014, and on any date thereafter, at a redemption price set forth
below (expressed as a percentage of the principal amount so redeemed), plus
accrued interest to the redemption date:
REDEMPTION DATE REDEMPTION PRICE
---------------- ----------------
Dec.1, 2014 to Nov. 30, 2015 102%
Dec.1, 2015 to Nov. 30, 2016 101%
Dec.1, 2016 and thereafter 100%
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The Bonds are subject to optional redemption by the Issuer upon the
written direction of the Company Representative as a whole or in part at any
time, at a redemption price equal to the principal amount thereof to be redeemed
and accrued interest to the redemption date, in certain event of damage,
destruction or condemnation to the property of the Company located in ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ County, Oklahoma. The Bonds are also subject to optional redemption by
the Issuer upon the written direction of the Company Representative, as a whole,
but not in part, at redemption prices equal to 110% of the principal amount
thereof to be redeemed and accrued interest to the redemption date, as a
condition precedent to the acquisition of substantially all of the assets of the
Company or in the event of the merger or consolidation of the Company, as
provided in the Loan Agreement. The Bonds are also redeemable by the Issuer upon
the direction of the Company Representative at any time after July 1, 2005, at a
redemption price equal to the principal amount of each Series 2004 Bond
redeemed, and accrued interest thereon to the redemption date, from unexpended
proceeds of the Bonds.
The Bonds are also subject to mandatory sinking fund redemption by lot
in such manner as the Trustee may determine pursuant to the Indenture, at a
redemption price equal to 100 percent of the principal amount thereof and
accrued interest to the redemption date.
Upon the occurrence of a Determination of Taxability, as defined in
this Indenture, the Bonds are subject to mandatory redemption in whole at a
redemption price equal to 105% of the Outstanding principal amount thereof, plus
interest accrued to the redemption date, at the earliest practicable date
selected by the Trustee, after consultation with the Company, but in no event
later than 45 days following the Trustee's notification of the Determination of
Taxability. The occurrence of a Determination of Taxability with respect to the
Bonds will not constitute an Event of Default under this Indenture and the sole
remedy of the Holders of the Bonds is the mandatory redemption of the Bonds
pursuant to this paragraph.
In the event less than all Bonds are to be redeemed pursuant to the
optional or special redemption provisions of this Indenture, they shall be
redeemed in such order of maturity as the Company Representative shall determine
(less than all of the Bonds of a single maturity to be selected by lot in such
manner as the Trustee may determine). Except as hereinafter provided, notice of
the call for redemption shall be given by the Trustee by mailing by first class
mail a copy of the redemption notice not more than 45 days nor less than 30 days
prior to the redemption date to the Registered Owners of Bonds to be redeemed in
whole or in part at the address of such Registered Owner last showing on the
registration books. Failure to give such notice or any defect therein shall not
affect the validity of any proceedings for the redemption of such Bonds for
which no such failure or defect occurs. All Bonds called for redemption will
cease to bear interest after the specified redemption date, provided collected
funds for their payment are on deposit at the place of payment at the time of
redemption.
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Notwithstanding the foregoing, no additional notice shall be required
with respect to mandatory sinking fund redemption unless requested by the
holders of 100% of the principal amount of the Bonds, and Bonds need not be
presented for mandatory sinking fund redemption payment.
The Bonds are issuable only as fully registered bonds in the minimum
denominations of $100,000 and in any integral multiple of $5,000 in excess
thereof. The Bonds shall initially be registered in the name of Cede & Co., as
nominee for The Depository Trust Company ("DTC"), to be held in a book entry
system and: (i) such Bonds shall be registered in the name of the DTC or its
nominee, as Bondholder, and immobilized in the custody of DTC; (ii) unless
otherwise requested by DTC, there shall be a single Bond certificate for each
maturity; and (iii) such Bonds shall not be transferable or exchangeable, except
for transfer to another depository or another nominee of a depository, without
further action by the Issuer. The owners of beneficial interest in the Bonds
shall not have any right to receive Bonds in the form of physical certificates.
If any depository determines not to continue to act as a depository for the
Bonds for use in a book entry system, the Issuer may attempt to have established
a securities depository/book entry system relationship with another qualified
depository under this Indenture. If the Issuer does not or is unable to do so,
the Issuer and the Trustee, after the Trustee has made provision for
notification to the owners of book entry interests by the then depository, shall
permit withdrawal of the Bonds from the depository, and authenticate and deliver
Bond certificates in fully registered form (in authorized denominations of not
less than $100,000 in excess thereof) to the assignees of the depository or its
nominee.
While a depository is the sole holder of the Bonds, delivery or
notation of partial redemption of Bonds shall be effected in accordance with the
provisions of the Letter of Representations, as defined in this Indenture.
In addition to the words and terms defined elsewhere in this Bond, the
following terms shall have the following meanings:
"BENEFICIAL OWNER" means, with respect to the Bonds, a person owning a
Beneficial Ownership Interest therein, as evidenced to the satisfaction of the
Trustee.
"BENEFICIAL OWNERSHIP INTEREST" means the beneficial right to receive
payments and notices with respect to the Bonds which are held by a Depository
under a book entry system.
"BOOK ENTRY FORM" or "BOOK ENTRY SYSTEM" means, with respect to the
Bonds, a form or system, as applicable, under which (i) the Beneficial Ownership
Interests may be transferred only through a book entry and (ii) physical Bond
certificates in fully registered form are registered only in the name of a
Depository or its nominee as holder, with the physical Bond certificates
"immobilized" in the custody of the Depository. The book entry system maintained
by and the responsibility of the Depository (and not maintained by or the
responsibility of the
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Issuer or the Trustee) is the record that identifies, and records the transfer
of the interests of, the owners of beneficial (book entry) interests in the
Bonds.
"DEPOSITORY" means any securities depository that is a clearing agency
under federal law operating and maintaining, with its participants or otherwise,
a book entry system to record ownership of book entry interests in Bonds, and to
effect transfers of book entry interests in Bonds, and includes and means
initially The Depository Trust Company (a limited purpose trust company), New
York, New York.
"DIRECT PARTICIPANT" means a Participant as defined in the Letter of
Representations.
"INDIRECT PARTICIPANT" means a Person utilizing the book entry system
of the Depository by, directly or indirectly, clearing through or maintaining a
custodial relationship with a Direct Participant.
NEITHER THE ISSUER, THE COMPANY, NOR THE TRUSTEE WILL HAVE ANY
RESPONSIBILITY OR OBLIGATION TO ANY DIRECT PARTICIPANT, INDIRECT PARTICIPANT OR
ANY BENEFICIAL OWNER OR ANY OTHER PERSON NOT SHOWN ON THE REGISTRATION BOOKS OF
THE TRUSTEE AS BEING A HOLDER WITH RESPECT TO: (1) THE BONDS; (2) THE ACCURACY
OF ANY RECORDS MAINTAINED BY DTC OR ANY DIRECT PARTICIPANT OR INDIRECT
PARTICIPANT; (3) THE TIMELY OR ULTIMATE PAYMENT BY DTC OR ANY DIRECT PARTICIPANT
OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF
THE PRINCIPAL OR REDEMPTION PRICE OF OR INTEREST ON THE BONDS; (4) THE DELIVERY
BY ANY DIRECT PARTICIPANT OR INDIRECT PARTICIPANT OF ANY NOTICE TO ANY
BENEFICIAL OWNER WHICH IS REQUIRED OR PERMITTED UNDER THE TERMS OF THIS
INDENTURE TO BE GIVEN TO REGISTERED OWNERS; (5) THE SELECTION OF THE BENEFICIAL
OWNERS TO RECEIVE PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS;
OR (6) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS REGISTERED OWNER.
Except for the 15 days next preceding the mailing of notice of
redemption of the Bonds (and, if this Bond or portion thereof is called, the
period following the giving of such notice), this Bond is fully transferable by
the Registered Owner hereof in person or by his duly authorized attorney on the
registration books kept at the principal office of the Trustee upon surrender of
this Bond, together with a duly executed written instrument of transfer
satisfactory to the Trustee. Upon such transfer, a new fully registered bond or
bonds of authorized denomination or denominations for the same aggregate
principal amount and maturity will be issued to the transferee in exchange
therefor, all upon payment of the charges and subject to the terms and
conditions set forth in this Indenture. The Issuer and the Trustee may deem and
treat the person in whose name this Bond is registered as the absolute owner
hereof, whether or not this Bond shall be overdue, for the purpose of receiving
payment (except as provided above with respect to
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Regular and Special Record Dates) and for all other purposes, and neither the
Issuer nor the Trustee shall be affected by any notice to the contrary. Bonds
which are reissued upon transfer, exchange or other replacement shall bear
interest from the most recent Interest Payment Date to which interest has been
paid or duly provided for, or if no interest has been paid, then from the
Original Issue Date.
To the extent permitted by, and as provided in the Indenture,
modifications or amendments of the Indenture, or of any indenture supplemental
thereto, and of the rights and obligations of the Issuer and of the owners of
the Bonds may be made with the consent of the Issuer and, in certain instances,
with the consent of the owners of not less than a majority in aggregate
principal amount of the Bonds then Outstanding; provided, however, that no such
modification or amendment shall be made which will affect the terms of payment
of the principal of, premium, if any, or interest on any of the Bonds which are
unconditional, unless consented to by all Bondholders. Any such consent by the
owner of this Bond shall be conclusive and binding upon such owner and upon all
future owners of this Bond and of any bond issued upon the transfer or exchange
of this Bond whether or not notation of such consent is made upon this Bond.
The owner of this Bond shall have no right to enforce the provisions of
the Indenture, the provisions of which are incorporated herein by this
reference, or to institute action to enforce the pledge, assignment or covenants
made therein or to take any action with respect to an Event of Default under the
Indenture or to institute, appear in or defend any suit, action or other
proceeding at law or in equity with respect thereto, except as provided in this
Indenture. In case an Event of Default under the Indenture shall occur, the
principal of all the Bonds at any such time Outstanding under the Indenture may
be declared or may become due and payable, upon the conditions and in the manner
and with the effect provided in this Indenture. The Indenture provides that such
declaration may in certain events be rescinded and annulled by the Trustee under
certain circumstances.
Neither the Chairman and Secretary of the Issuer, nor any person
executing the Bonds shall be liable personally on the Bonds or be subject to any
personal liability or accountability by reason of the issuance thereof.
It is hereby certified, recited and declared that all conditions, acts
and things required by the Constitution or statutes of the State of Oklahoma or
by the Act or the Indenture to exist, to have happened or to have been performed
precedent to or in the issuance of this Bond exist, have happened and have been
performed.
This Bond shall not be entitled to any benefit under this Indenture or
any indenture supplemental thereto, or become valid or obligatory for any
purpose until the Trustee shall have signed the certificate of authentication
hereon.
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IN WITNESS WHEREOF, the CLEVELAND COUNTY INDUSTRIAL AUTHORITY has
caused this Bond to be signed in its name and on its behalf by the manual or
facsimile signature of its Chairman, and an imprint of its corporate seal to be
affixed hereon and attested by the manual or facsimile signature of its
Secretary.
[SEAL]
CLEVELAND COUNTY INDUSTRIAL
AUTHORITY
By:
-------------------------------------
Attest: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
Chairman
By:
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
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(FORM OF ASSIGNMENT)
FOR VALUE RECEIVED, _________________ the undersigned, hereby sells. assigns and
transfers unto:
--------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
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TAX IDENTIFICATION OR SOCIAL SECURITY NO.
the within Bond and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney to transfer the within Bond on the books kept for
registration thereof, with full power of substitution in the premises.
Dated:
---------------- -----------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face
of the within Bond in every particular, without
alteration or enlargement or any change whatever.
Signature must be guaranteed by a member of a
Medallion Signature Program.
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
This is one of the Bonds described in the within mentioned Indenture of Trust.
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY,
NATIONAL ASSOCIATION
By
--------------------------------------
Authorized Officer
Date of Authentication:
-----------------------
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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 and to constitute this Indenture a valid,
binding and legal instrument for the security of the Bonds in accordance with
its terms, have been done and performed;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That the Issuer, in consideration of the premises and of the mutual
covenants herein contained and of the purchase and acceptance of the Bonds by
the owners thereof and of the sum of One Dollar to it duly paid by the Trustee
at or before the execution and delivery of these presents, and for other good
and valuable consideration, the receipt of which is hereby acknowledged, in
order to secure the payment of the principal of, premium, if any, and interest
on all Bonds at any time Outstanding under this Indenture according to their
tenor and effect and to secure the performance and observance of all the
covenants and conditions in the Bonds and herein contained, and to declare the
terms and conditions upon and subject to which the Bonds are issued and secured,
has executed and delivered this Indenture and has granted, bargained, sold,
alienated, assigned, pledged, set over and confirmed, and by these presents does
grant, bargain, sell, alienate, assign, pledge, set over and confirm unto ▇.▇.
▇▇▇▇▇▇ Trust Company, National Association, as Trustee, and to its successors
and assigns forever, all and singular the following described property,
franchises and income:
A. The Loan Agreement, including the rights of the Issuer
under and pursuant to the Loan Agreement (other than the rights of the Issuer
under Sections 5.1(f), 8.5 and 10.4 of the Loan Agreement and other than the
rights of the Issuer to perform certain discretionary acts as reserved in the
Loan Agreement) and the rights, title and interests granted, pledged, bargained,
sold, conveyed and mortgaged by the Company therein, including Pledged Revenues
(as herein defined).
B. All Funds (except the Rebate Fund) established under this
Indenture, except for monies deposited with or paid to the Trustee for the
redemption of Bonds, notice of the redemption or tender of which has been duly
given, and all Pledged Revenues payable to the Trustee by or for the account of
the Issuer pursuant to the Loan Agreement and this Indenture, subject only to
the provisions of this Indenture permitting the application thereof for the
purposes and on the terms and conditions set forth in this Indenture.
C. The Principal Guaranty.
D. Key-Man Life Insurance Policy
E. Any and all other interests in real or personal property of
every name and nature from time to time hereafter by delivery or by writing of
any kind specifically mortgaged, pledged or hypothecated, as and for additional
security hereunder by the Issuer or by anyone in its behalf or with its written
consent in favor of the Trustee, which is hereby authorized to
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receive any and all such property at any and all times and to hold and apply the
same subject to the terms hereof.
TO HAVE AND TO HOLD the same with all privileges and appurtenances
hereby conveyed and assigned, or agreed or intended to be, to the Trustee and
its successors in said trust and assigns forever;
IN TRUST, NEVERTHELESS, upon the terms herein set forth for the equal
and proportionate benefit, security and protection of all 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 other of
the Bonds except as specifically provided herein:
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns shall
well and truly pay, or cause to be paid, the principal of the Bonds and the
premium, if any, and the interest due or to become due thereon, at the times and
in the manner mentioned in the Bonds according to the true intent and meaning
thereof, and shall cause the payments to be made into the Bond Principal Fund
and the Bond Interest Fund as hereinafter required or shall provide, as
permitted hereby, for the payment thereof by depositing with the Trustee the
entire amount due or to become due thereon, or certain securities as herein
permitted, 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 to it in accordance with the terms and provisions
hereof, then upon such final payments, this Indenture and the rights hereby
granted shall cease, terminate and be void; otherwise, this Indenture to be and
remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH and it is expressly declared that all
Bonds issued and secured hereunder are to be issued, authenticated and
delivered, and all said property, rights, interests and revenues and funds
hereby pledged and assigned are to be dealt with and disposed of under, upon and
subject to the terms, conditions, stipulations, covenants, agreements, trusts,
uses and purposes as hereinafter expressed, and the Issuer has agreed and
covenanted, and does hereby agree and covenant with the Trustee and with the
respective owners from time to time of the Bonds as follows:
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ARTICLE I
DEFINITIONS; BOND INDENTURE TO CONSTITUTE CONTRACT
Section 1.1 DEFINITIONS. All words and phrases not otherwise defined
herein shall have the same meanings as assigned to such words and phrases in
Article I of the Loan Agreement and in Article I of this Indenture. In addition,
the following terms, except where the context indicates otherwise, shall have
the respective meanings set forth below:
"Act" means, Title 60 Oklahoma Statutes 2001, Section 176 et seq., as
amended.
"Additional Indebtedness" means all Indebtedness of the Company other
than the Loan.
"Assignment" means the Assignment of Mortgage and Loan Agreement, dated
as of December 1, 2004, from the Issuer to the Trustee.
"Audited Financial Statements" means, as to the Company, financial
statements for a Fiscal Year, or for such other period for which an audit has
been performed, prepared in accordance with generally accepted accounting
principles, which have been audited and reported upon by independent certified
public accountants.
"Balloon Long-Term Indebtedness" means Long-Term Indebtedness 20
percent or more of the principal payments of which are due in any 12-month
period, which portion of the principal is not required by the documents pursuant
to which such Indebtedness is issued to be amortized by redemption prior to such
date.
"Beneficial Owner" means, with respect to any Bonds in Book Entry Form,
a Person owning a Beneficial Ownership Interest therein, as evidenced to the
satisfaction of the Trustee.
"Beneficial Ownership Interest" means the beneficial right to receive
payments and notices with respect to the Bonds which are held by a Depository
under a book entry system.
"Board" means the Board of Directors of the Company.
"Bonds" or "Series 2004 Bonds" means Cleveland County Industrial
Authority Industrial Development Revenue Bonds (▇▇▇▇▇▇▇ Foods, Inc. Project)
Series 2004.
"Bond Interest Fund" means the Bond Interest Fund created in this
Indenture.
"Bond Principal Fund" means the Bond Principal Fund created in this
Indenture.
"Bondholder" or "holder" or "owner" of Bonds means the Registered Owner
of any Bond.
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"Book Entry Form" or "book entry system" means, with respect to any
Bonds, a form or system, as applicable, under which (i) the Beneficial Ownership
Interests may be transferred only through a book entry and (ii) physical Bond
certificates in fully registered form are registered only in the name of a
Depository or its nominee as Holder, with the physical Bond certificates
"immobilized" in the custody of the Depository. The book entry system maintained
by and the responsibility of the Depository (and not maintained by or the
responsibility of the Issuer or the Trustee) is the record that identifies, and
records the transfer of the interests of, the owners of book entry interests in
such Bonds.
"Business Day" means any day other than a Saturday, a Sunday or any
other day on which the New York Stock Exchange or banks are authorized or
obligated by law or executive order to close in New York, New York, or any city
in which the principal corporate trust office of the Trustee is located.
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations issued from time to time thereunder.
"Commitment Indebtedness" means the obligation of the Company to repay
amounts disbursed pursuant to a commitment from a financial institution to
refinance when due other Indebtedness (including accrued and unpaid interest
thereon) of the Company or to purchase when tendered for purchase by the holder
thereof in accordance with the terms thereof other Indebtedness (including
accrued and unpaid interest thereon) of the Company, which other Indebtedness
was incurred in accordance with the provisions of the Loan Agreement, plus any
fees payable to such financial institution for such commitment and any other
expenses (including collection) thereunder, including, without limitation,
amounts disbursed and fees and expenses payable in connection with any Credit
Facility.
"Company" or "Corporation" means ▇▇▇▇▇▇▇ Foods, Inc., an Oklahoma
corporation, and its successors and assigns.
"Company Representative" or "Corporation Representative" means the
executive director or chief financial officer of the Company or any other person
designated as such by an instrument in writing delivered to the Issuer and the
Trustee by the chief executive officer of the Company or chief financial
officer.
"Completion Date" means the date of the completion of the acquisition,
construction, improvement and equipping of the Facilities described in Exhibit B
to the Loan Agreement, as evidenced by the certificate of the Company filed with
the Trustee as required by the Loan Agreement.
"Completion Indebtedness" means any Long-Term Indebtedness incurred by
the Company for the purpose of financing the completion of the acquisition,
construction or
- 14 -
equipping of the facilities for which Long-Term Indebtedness has theretofore
been incurred in accordance with the provisions of the Loan Agreement, to the
extent necessary to provide a completed and equipped facility of the type and
scope contemplated at the time that such Long-Term Indebtedness theretofore
incurred was originally incurred, and, to the extent the same shall be
applicable, in accordance with the general plans and specifications for such
facility as originally prepared with only such changes as have been made in
conformance with the documents pursuant to which such Long-Term Indebtedness
theretofore incurred was originally incurred.
"Consultant" means a firm or firms designated in a certificate of the
Company Representative which is not, and no member, stockholder, director,
officer, trustee or employee of which is, an officer, director, trustee or
employee of the Company, and which is a professional management consultant of
national repute for having the skill and experience necessary to render the
particular report required by the provision of the Loan Agreement in which such
requirement appears.
"Cost of Issuance Fund" means the Cost of Issuance Fund created
pursuant to this Indenture.
"Cost of the Project" means the sum total of all reasonable or
necessary costs incidental to the financing of the Facilities described in the
Loan Agreement.
"Credit Facility" means a line of credit, letter of credit, standby
bond purchase agreement or similar credit enhancement or liquidity facility
established in connection with the issuance of Indebtedness to provide credit or
liquidity support for such Indebtedness.
"Current Assets" means unrestricted cash of the Company or other assets
of the Company which are expected to be converted into cash or consumed in the
production of income within the greater of one year and the normal operating
cycle of the Company, all determined in according with generally accepted
accounting principles.
"Current Liabilities" means liabilities of the Company expected to be
liquidated in the greater of one year and the normal operating cycle of the
Company, excluding any liability otherwise classified as current which will be
settled from other than Current Assets, all determined in according with
generally accepted accounting principles.
"Current Ratio" means the ratio of Current Assets to Current
Liabilities.
"Debt to Equity Ratio" means the ratio of (i) Indebtedness to (ii)
excess of total assets of the Company over total liabilities.
"Depository" means any securities depository that is a clearing agency
under federal law operating and maintaining, with its participants or otherwise,
a book entry system to record
- 15 -
ownership of book entry interests in bonds, and to effect transfers of book
entry interests in bonds in book entry form, and includes and means initially
The Depository Trust Company (a limited purpose trust company), New York, New
York.
"Determination of Taxability" means and shall occur when, (i) the
Trustee receives written notice from the Company or a majority of Bondholders,
supported by an Opinion of Bond Counsel which shall be a nationally recognized
firm with expertise in the area of federal taxation of municipal bonds, that
interest on the Bonds is includable in the gross income of Holders of the Bonds
of any series for federal income tax purposes or (ii) the Internal Revenue
Service shall claim in writing that interest on the Bonds of any series is
includable in the gross income of Holders of such Bonds for federal income tax
purposes.
"Direct Participant" means a Participant as defined in the Letter of
Representations.
"Environmental Law" means (i) the Comprehensive Environmental Response,
Compensation and Liability Act of 1976, 42 U.S.C. ▇▇.▇▇. 9601 ET SEQ.; (ii) the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended by ▇▇▇▇, 42 U.S.C. ▇▇.▇▇. 1820 ET SEQ.; (iii) the Hazardous Materials
Transportation Act, 49 U.S.C. ▇▇.▇▇. 1810 ET SEQ.; (iv) the Toxic Substances
Control Act, 15 U.S.C. ▇▇.▇▇. 2601 ET SEQ.; (v) the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. ▇▇.▇▇. 9601 ET SEQ.; (vi) the Clean Water
Act, 33 U.S.C. ▇▇.▇▇. 1251 ET SEQ.; (vii) the Clean Air Act, 42 U.S.C. ▇▇.▇▇.
7412 ET SEQ.; and (viii); and any related laws of the State of Oklahoma or
ordinances or resolutions of the Issuer, as any such acts, powers and duties may
be amended, modified or supplemented and any regulations promulgated pursuant to
any of the foregoing statutes.
"Escrowed Interest" means amounts (but not including any interest
earnings thereon, except as otherwise provided in the Loan Agreement) deposited
in escrow in connection with the issuance of Long-Term Indebtedness and either
held as cash or invested in noncallable Government Obligations to pay interest
on such Long-Term Indebtedness (but shall not include capitalized or borrowed
interest).
"Equipment" means those items of machinery, equipment or other personal
property installed in the Improvements and pledged to the repayment of the Loan
pursuant to the Loan Agreement, and any item of machinery, equipment or other
personal property or fixtures acquired and installed in substitution or
replacement thereof, less such machinery, equipment or other personal property
or fixtures as may be released from such pledge pursuant to the Loan Agreement
or taken by exercise of the power of eminent domain as provided in the Loan
Agreement, as such items may at any time exist.
"Event of Default" or "event of default" means those defaults specified
in this Indenture or the Loan Agreement, as appropriate.
- 16 -
"Facilities" means collectively, the manufacturing facilities and solid
waste disposal facilities of the Company financed with proceeds of the Bonds,
located in ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ County, Oklahoma, as more particularly described in
Exhibit B to the Loan Agreement.
"Fiscal Year" means the fiscal year of the Company.
"Funds" means the Project Fund, the Bond Principal Fund, the Bond
Interest Fund, the Cost of Issuance Fund, the Reserve Fund and the Rebate Fund,
and any account created therein, all as established and created by this
Indenture.
"Governing Body" means the Board of Directors of the Company.
"Government Obligations" means:
1. (a) Direct obligations (other than an obligation
subject to variation in principal repayment) of the United States of America;
(b) obligations fully and unconditionally guaranteed
as to timely payment of principal and interest by the United States of America;
(c) obligations fully and unconditionally guaranteed
as to timely payment of principal and interest by any agency or instrumentality
of the United States of America when such obligations are backed by the full
faith and credit of the United States of America;
(d) evidences of ownership or proportionate interests
in future interest and principal payments on obligations described above held by
a bank or trust company as custodian, under which the owner of the investment is
the real party in interest and has the right to proceed directly and
individually against the obligor and the underlying government obligations are
not available to any person claiming through the custodian or to whom the
custodian may be obligated, provided, however, that Government Obligations
described in this subsection (d) may only be used in connection with a
defeasance of the Bonds under this Indenture; or
(e) securities of or other interests in any open-end
or closed-end management type investment company or investment trust registered
under the federal "Investment Company Act of 1940," 15 U.S.C. Section 80(a)-1 ET
SEQ., if the portfolio of such investment company or investment trust is limited
to United States of America obligations which are backed by the full faith and
credit of the United States of America and to repurchase agreements fully
collateralized by such obligations and if any such investment company or
investment trust actually takes delivery of such collateral, either directly or
through an authorized custodian.
- 17 -
2. Pre-refunded municipal obligations rated "AAA" by Standard
& Poor's Rating Services and "Aaa" by ▇▇▇▇▇'▇ Investors Service meeting the
following requirements:
(a) the municipal obligations are (i) not subject to
redemption prior to maturity or (ii) the bond trustee therefor has been given
irrevocable instructions concerning their call and redemption and the issuer of
the municipal obligations has covenanted not to redeem such municipal
obligations other than as set forth in such instructions;
(b) the municipal obligations are secured by cash or
obligations described in paragraphs (1)(a), (b), (c), (d) or (e) above, which
may be applied only to payment of the principal of, interest and premium on such
municipal obligations;
(c) the principal of and interest on the obligations
described in paragraphs (1)(a), (b), (c), (d) or (e) above (plus any cash in the
escrow) has been verified by the report of independent certified public
accountants to be sufficient to pay in full all principal of, interest and
premium, if any, due and to become due to the municipal obligations
("Verification");
(d) the cash or obligations described in paragraph
(1) above serving as security for the municipal obligations are held by an
escrow agent or trustee in trust for owners of the municipal obligations;
(e) no substitution of an obligation described in
paragraph (1) above shall be permitted except with another obligation described
in paragraph (1) above and upon delivery of a new Verification; and
(f) the cash or obligations described in paragraph
(1) above are not available to satisfy any other claims, including those by or
against the bond trustee or escrow agent.
"Guarantor" means ▇▇▇▇ ▇▇▇▇▇▇▇, as guarantor under the Principal
Guaranty.
"Guaranty" means any obligation of the Company guaranteeing in any
manner, directly or indirectly, any obligation of any Person, which obligation
of such other Person would, if such obligation were the obligation of the
Company, constitute Indebtedness under the Loan Agreement. For the purposes of
the Loan Agreement, so long as no payments are required to be made under such
Guaranty and so long as such Guaranty constitutes a contingent liability under
generally accepted accounting principles, the aggregate principal amount of any
indebtedness in respect of which the Company shall have executed and delivered
its Guaranty shall be deemed to be equal to 20 percent of the principal amount
borrowed under such guaranteed indebtedness Outstanding at the time any
computation is being made, and the aggregate annual principal and interest
payments on any indebtedness in respect of which the Company shall have executed
and delivered its Guaranty shall be deemed to be equal to 20 percent of the
amount which would be
- 18 -
payable as principal of and the interest on the indebtedness for which a
Guaranty shall have been issued during the Fiscal Year for which any computation
is being made, provided that if there shall have occurred a default under the
guaranteed obligation of any direct or indirect payment by the Company on such
Guaranty, then, during the period commencing on the date of such default of
payment and ending as the case may be on the day on which such default is cured
or on the day which is two years after such other Person resumes making all
payments on such guaranteed obligation, 100 percent of such guaranteed
indebtedness shall be taken into account.
"Hazardous Material" means: (i) any substances defined as "hazardous
substances," "pollutants," "contaminants," "hazardous materials," "hazardous
wastes," or "hazardous or toxic substances" or related materials as now or
hereafter defined in any Environmental Law, (ii) those substances listed or
otherwise identified as substances of the type referred to in the preceding
subsection (i) in the regulations adopted and issued pursuant to any
Environmental Law, as the same may be amended, modified or supplemented; (iii)
any friable asbestos, airborne asbestos in excess of that generally found in the
atmosphere, respectively, where the facilities of the Company are located, or
any substance or material containing asbestos, excluding any such materials
located on the solid waste disposal or manufacturing facilities of the Company
prior to the date of the Loan Agreement so long as such materials are contained,
maintained, abated, or removed in compliance with all applicable Environmental
Laws; and (iv) any substance the presence of which on the Facilities is
prohibited by any applicable Environmental Law; provided that Hazardous Material
shall not include any such substances used in or resulting from the ordinary
operation of a facility constituting solid waste recycling facilities or for the
cleaning of the Facilities; provided that such substances are stored, handled
and disposed of in compliance with all applicable Environmental Laws and other
applicable laws and regulations.
"Improvements" means the real property improvements located on the Site
and pledged pursuant to the Loan Agreement.
"Income Available for Debt Service" means, as to any Fiscal Year or
other specified period, (i) excess of revenues over expenses of the Company
before depreciation, amortization and interest expense on Long-Term
Indebtedness, as determined from the Audited Financial Statements or as
otherwise herein provided, provided that unrealized gains and losses on
investments will not be recognized in the calculation of Income Available for
Debt Service, plus (ii) capitalized or funded interest available for and
scheduled to be applied to interest obligations accrued during such period;
provided, however, that (1) no determination thereof shall take into account any
gain or loss resulting from either the extinguishment of Indebtedness or the
sale, exchange or other disposition of capital assets not made in the ordinary
course of business, and (2) revenues shall not include earnings from the
investment of Escrowed Interest or earnings constituting Escrowed Interest.
"Indebtedness" means (i) all obligations of the Company for borrowed
money including, but not limited to, the Loan, (ii) all installment sales,
conditional sales and capital lease obligations incurred or assumed by the
Company as purchaser, and (iii) all Guaranties, whether
- 19 -
constituting Long-Term Indebtedness or Short-Term Indebtedness. Indebtedness
shall not include any other obligation incurred by the Company in the ordinary
course of business, any obligation to contribute to self-insurance, pension or
other risk management programs, indemnification obligations incurred with
respect to Commitment Indebtedness, or any fees or expenses payable in
connection with the incurrence of Indebtedness.
"Indenture" means this Indenture of Trust between the Issuer and the
Trustee, including any indentures supplemental thereto made in conformity
therewith, pursuant to which the Bonds are authorized to be issued and secured.
"Independent Architect" means an architect, engineer or firm of
architects and engineers selected by the Company with the approval of a majority
in principal amount of the Bondholders.
"Indirect Participant" means a Person utilizing the book entry system
of the Depository by, directly or indirectly, clearing through or maintaining a
custodial relationship with a Direct Participant.
"Initial Bondholder" means ▇▇▇▇▇▇▇▇▇▇▇ Limited Term Municipal Fund
and/or ▇▇▇▇▇▇▇▇▇▇▇ Rochester National Municipals or any successor beneficial
holder of the Bonds that is an affiliate of ▇▇▇▇▇▇▇▇▇▇▇ Funds, Inc.
"Insurance Consultant" means a firm or Person selected by the Company
Representative and approved by a majority of the Bondholders or Beneficial
Owners which is not, and no member, stockholder, director, trustee, officer or
employee of which is, an officer, director, trustee or employee of the Company
and which is qualified to survey risks and to recommend insurance coverage for
solid waste recycling facilities and services and organizations engaged in such
operations and which may provide insurance coverage for the Company.
"Interest Payment Dates" means June 1 and December 1 of each year,
commencing June 1, 2005.
"Interest Rate Step-up" means that, under certain circumstances
relating to compliance with financial covenants set forth in Section 8.16 of the
Loan Agreement, the interest rate on the Bonds will increase one per cent (1%)
commencing thirty (30) days following the quarterly report disclosing failure to
maintain the specified ratios, until such time as the Company shall return to
compliance with the required ratios.
"Issuer" means the Cleveland County Industrial Authority, an Oklahoma
public trust.
"Issuer Representative" means the Chairman or other officer of the
Issuer, and, when used with reference to an act or document, also means any
other person authorized by resolution of the Issuer to perform such act or sign
such document.
- 20 -
"Key-Man Life Insurance Policy means the Key-Man Life Insurance policy
on the life of ▇▇▇▇ ▇▇▇▇▇▇▇ in an amount of not less than $1,000,000 reflecting
the beneficiary as Trustee herein.
"Letter of Representations" means any Letter of Representations from
the Issuer and the Trustee to the Depository which may be entered into in
connection with the issuance of the Bonds in a book entry system, as
supplemented and amended from time to time.
"Lien" means any mortgage, deed of trust or pledge of, security
interest in, or encumbrance on, the assets of the Company or sale of accounts
receivable with recourse of, the Company which secures any Indebtedness.
"Loan" means the loan by the Issuer to the Company of the proceeds from
the sale of the Bonds (exclusive of accrued interest paid by the initial
purchasers of any Bonds) pursuant to the Loan Agreement.
"Loan Agreement" means the Mortgage and Loan Agreement between the
Issuer and the Company, dated as of December 1, 2004, and any amendments and
supplements thereto made in conformity with the requirements thereof and of this
Indenture.
"Loan Payments" means those payments required to be paid by the Company
identified as Loan Payments pursuant to the Loan Agreement.
"Long-Term Debt Service Coverage Ratio" means, except as otherwise
provided in the Loan Agreement, for any Fiscal Year or other specified period,
the ratio determined by dividing the Income Available for Debt Service by
Maximum Annual Debt Service. When calculating the Long-Term Debt Service
Coverage Ratio, (i) capitalized interest shall not be counted as income unless
it will be available and applied in the same year as the Maximum Annual Debt
Service will occur, and (ii) payments to be made in respect of principal and
interest on any revolving credit or similar agreement secured solely by a pledge
of accounts receivable and inventory shall not be included in determining
Maximum Annual Debt Service.
"Long-Term Debt Service Requirement" means, for any Fiscal Year or
other specified period, the aggregate of the payments to be made in respect of
principal and interest (whether or not separately stated) on Outstanding
Long-Term Indebtedness of the Company during such period, also taking into
account:
(i) with respect to Balloon Long-Term Indebtedness,
(a) the amount of principal which would be payable in such period if such
principal were amortized from the date of incurrence thereof over a period of 20
years on a level debt service basis at an interest rate equal to the rate borne
by such Indebtedness on the date calculated, except that if the date of
calculation is within 12 months of the actual maturity of such Indebtedness, the
full amount of principal payable at maturity shall be included in such
calculation, or (b) principal
- 21 -
payments or deposits with respect to Indebtedness secured by an irrevocable
letter of credit issued by, or an irrevocable line of credit with a bank having
a combined capital and surplus of at least $50,000,000, or insured by an
insurance policy issued by any insurance company rated at least "A" by ▇▇▇▇▇▇ ▇.
Best Company or its successors in BEST'S INSURANCE REPORTS or its successor
publication, nominally due in the last Fiscal Year in which such Indebtedness
matures may, at the option of the Company Representative, be treated as if such
principal or interest payments or deposits were due as specified in any loan
agreement issued in connection with such letter of credit, line of credit or
insurance policy or pursuant to the repayment provisions of such letter of
credit, line of credit or insurance policy, and interest on such Indebtedness
after such Fiscal Year shall be assumed to be payable pursuant to the terms of
such loan agreement or repayment provisions;
(ii) with respect to Long-Term Indebtedness which is
Variable Rate Indebtedness, the interest on such Indebtedness shall be
calculated at the rate which is equal to the average of the actual interest
rates which were in effect (weighted according to the length of the period
during which each such interest rate was in effect) for the most recent 12-month
period immediately preceding the date of calculation for which such information
is available (or such shorter period, but not less than six months, if such
information is not available for a 12-month period), except that with respect to
new Variable Rate Indebtedness, and Variable Rate Indebtedness issued within the
last six months, the interest rate for such Indebtedness for the initial
interest rate period shall be such interest rate as determined in writing
delivered to the Trustee by a banking, investment banking or financial advisory
firm, which shall be knowledgeable in matters relating to finance for solid
waste recycling facilities; and
(iii) with respect to any Commitment Indebtedness
providing for payment of other Long-Term Indebtedness, to the extent that
amounts are not then due and owing for advances made by the creditor with
respect thereto, the principal and interest relating to such Commitment
Indebtedness shall not be included in any computations with respect to Income
Available for Debt Service or the Long-Term Debt Service Requirement; provided,
however, that interest shall be excluded from the determination of Long-Term
Debt Service Requirement to the extent that Escrowed Interest is available to
pay such interest (but the amount excluded shall not take into account interest
earnings on such Escrowed Interest unless there shall have been delivered to the
Trustee a report of an independent firm of nationally recognized certified
public accountants verifying that such amount of interest can be timely paid
from such escrow).
"Long-Term Indebtedness" means all Indebtedness having a maturity
longer than one year incurred or assumed by the Company, including:
(i) money borrowed for an original term, or renewable
at the option of the borrower for a period from the date originally incurred,
longer than one year;
- 22 -
(ii) leases which are required to be capitalized in
accordance with generally accepted accounting principles having an original
term, or renewable at the option of the lessee for a period from the date
originally incurred, longer than one year;
(iii) installment sale or conditional sale contracts
incurred or assumed by the Company as purchaser having an original term in
excess of one year;
(iv) Short-Term Indebtedness if a commitment by a
financial lender exists to provide financing to retire such Short-Term
Indebtedness and such commitment provides for the repayment of principal on
terms which would, if such commitment were implemented, constitute Long-Term
Indebtedness; and
(v) the current portion of Long-Term Indebtedness.
"Maximum Annual Debt Service" means the highest Long-Term Debt Service
Requirement for any current or succeeding Fiscal Year or other specified period.
"Monthly Payments" means monthly payments to be made by the Company
pursuant to the Loan Agreement in an amount equal to (a) the sum of (i) the
quotient obtained by dividing the amount of principal and redemption premium, if
any, of the Bonds due and payable on the next succeeding payment date for
principal (whether at their stated maturities, date called for optional
redemption or by mandatory sinking fund redemption) by twelve (12), and (ii) the
quotient obtained by dividing the interest due and payable on the Bonds on the
next succeeding Interest Payment Date by six (6), and (b) any deposits to the
Reserve Fund required pursuant to the Loan Agreement as follows:
(a) for the period from January 15, 2005 through June 14, 2005,
inclusive, an amount equal to the quotient obtained by dividing the interest due
and payable on the Bonds on the next succeeding Interest Payment Date by five
(5), plus any deposits to the Reserve Fund required pursuant to the Loan
Agreement;
(b) for the period from June 15, 2005 through December 14, 2005,
inclusive, an amount equal to the quotient obtained by dividing the interest due
and payable on the Bonds on the next succeeding Interest Payment Date by six
(6), plus any deposits to the Reserve Fund required pursuant to the Loan
Agreement; and
(c) for the period from December 15, 2005 and thereafter, the sum of
(i) the quotient obtained by dividing the amount of principal and redemption
premium, if any, of the Bonds due and payable on the next succeeding payment
date for principal (whether at their stated maturities, date called for option
redemption or by mandatory sinking fund redemption) by twelve (12), and (ii) the
quotient obtained by dividing the interest due and payable on the Bonds on the
next succeeding Interest Payment Date by six (6), and (b) any deposits to the
Reserve Fund required pursuant to the Loan Agreement.
- 23 -
"Net Book Value" when used in connection with Property, Plant and
Equipment or other property means the value of such property, net of accumulated
depreciation or amortization, if applicable and as the case may be, as it is
carried on the books of the Company in conformity with generally accepted
accounting principles.
"Net Proceeds" means the gross proceeds of any insurance or
condemnation awards or the gross proceeds received pursuant to any title
insurance policy with respect to any Property, Plant and Equipment pledged to
the payment of the Loan pursuant to the Loan Agreement, less such fees and
expenses incurred in collecting the same.
"Nonrecourse Indebtedness" means any Indebtedness incurred to finance
the purchase by the Company of tangible property secured solely by a Lien on
such property, the liability for which is limited to the property subject to
such Lien with no recourse, directly or indirectly, to any other assets of the
Company.
"Notice Beneficial Owners" means those Beneficial Owners who have given
their addresses and facsimile numbers to the Company.
"Officer's Certificate" means a certificate signed by the Company
Representative. Each Officer's Certificate presented pursuant to the Loan
Agreement shall state that it is being delivered pursuant to (and shall identify
the section or subsection of), and shall incorporate by reference and use in all
appropriate instances all terms defined in, the Loan Agreement.
"Operating Expenses" shall mean all expenditures required in the
operation and maintenance of the Improvements including those that result in
both current period expenses as well as current assets or current liabilities
under generally accepted accounting principles, and including, the following
items, without intending to limit the generality of the foregoing:
(a) expenditures for operation (including all
utilities and fees payable under management and/or operating agreements),
maintenance, repair, alterations, insurance and inspection;
(b) salaries and expenditures for professional,
managerial, supervisory, administrative, engineering, architectural, legal,
financial, auditing and consulting services, including the reasonable annual
compensation and expenses of the officers and directors of the Company allocable
to the Improvements and including the fees of and other amounts payable to the
Trustee and the Issuer;
(c) all taxes or contributions or payments in lieu
thereof, assessments and charges, including, without intending to limit the
generality of the foregoing, income, profits, sales, use, property, franchise,
and excise taxes;
- 24 -
(d) obligations under contracts for supplies,
services and pensions and other employee benefits;
(e) purchases of merchandise and other inventory
items; and
(f) rentals payable under leases not intended by the
Company to evidence the acquisition of capital assets, as determined in
accordance with generally accepted accounting principles; provided, however,
that rentals payable under leases which, under generally accepted accounting
principles would be treated as evidencing the acquisition of a capital asset
shall be includable within Operating Expenses, if so designated by the
Company,provided, however, the term "Operating Expenses" shall not be construed
to include (i) depreciation, (ii) amortization, and (iii) the annual Long-Term
Debt Service Requirement.
"Opinion of Bond Counsel" means an opinion in writing signed by an
attorney or firm of attorneys acceptable to the Trustee and experienced in the
field of municipal bonds whose opinions are generally accepted by purchasers of
municipal bonds.
"Opinion of Counsel" means an opinion in writing signed by an attorney
or firm of attorneys, acceptable to the Trustee, who may be counsel for the
Company or other counsel acceptable to the Trustee.
"Outstanding" means, as of any particular time, all Bonds which have
been duly authenticated and delivered by the Trustee under this Indenture,
except:
(a) Bonds theretofore canceled by the Trustee or
delivered to the Trustee for cancellation after purchase in the open market or
because of payment at or redemption prior to maturity;
(b) Bonds for the payment or redemption of which cash
funds (or securities to the extent described in this Indenture) shall have been
theretofore deposited with the Trustee (whether upon or prior to the maturity or
redemption date of any such Bonds); provided that, if such Bonds are to be
redeemed prior to the maturity thereof, notice of such redemption shall have
been given or arrangements satisfactory to the Trustee shall have been made
therefor, or waiver of such notice satisfactory in form to the Trustee shall
have been filed with the Trustee; and
(c) Bonds in lieu of which other Bonds have been
authenticated under this Indenture.
Bonds which do not pay interest currently in accordance with their
terms shall be deemed to be Outstanding in an amount equal to their accreted
value at the applicable time.
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"Parity Indebtedness" means Indebtedness of the Company secured on a
parity basis with the Bonds, except to the extent provided in Section 8.13 of
the Loan Agreement.
"Permitted Investments" means any of the following which at the time
are legal investments under the laws of the State of Oklahoma for moneys held
under this Indenture and then proposed to be invested therein:
(a) Government Obligations;
(b) negotiable certificates of deposit issued by, or
banker's acceptances drawn on and accepted by, any bank, including the Trustee,
the certificate of deposit or debt obligations of which (or if such bank, is the
principal bank in a bank holding company, debt obligations of the bank holding
company) are rated, at the time such certificates or acceptances are issued, in
one of the two highest Rating Categories;
(c) repurchase agreements with any U.S. commercial
bank, or with any United States Government securities dealer, provided that such
repurchase agreements are fully secured by Government Obligations, and provided
further that (i) such collateral is held by the Trustee or any agent acting
solely for the Trustee during the term of such repurchase agreement, (ii) such
collateral is not subject to liens or claims of third parties and the Trustee
has a perfected first security interest in the collateral, (iii) such collateral
has a market value (determined at least once every 14 days) at least equal to
102% of the amount invested in the repurchase agreement, and (iv) the failure to
maintain such collateral at the level required in (iii) above will require the
Trustee to liquidate the collateral;
(d) certificates of deposit issued by any bank,
savings institution or trust company, including the Trustee, and time deposits
in any bank, savings institution or trust company, including the Trustee, as to
which principal is fully insured by a federally sponsored deposit insurance
program; and
(e) guaranteed investment contracts issued by a
provider rated "AA" or better or "Aa" or better by Standard & Poor's Rating
Services or Moody's Investor's Services, Inc., respectively
(f) money market funds which are rated in the highest
Rating Category and are fully collateralized by Government Obligations.
"Permitted Liens" shall have the meaning assigned to it in Section
8.10(b) of the Loan Agreement.
"Person" means an individual, association, unincorporated organization,
corporation, partnership, joint venture, business trust or a government or an
agency or a political subdivision thereof, or any other entity.
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"Pledged Revenues" means the rights to receive all the receipts,
revenues, cash and income of the Company from whatever source derived, whether
in the form of accounts receivable, contract rights, chattel paper, general
intangibles, profits and income, or other rights, and the proceeds of such
rights, whether now owned or held or hereafter coming into existence.
"Pledged Property" means the Improvements, the Site and the Equipment,
pledged pursuant to the Loan Agreement.
"Principal Guaranty" means the Guaranty Agreement, executed by ▇▇▇▇
▇▇▇▇▇▇▇, dated as of the date hereof.
"Project" means collectively, the acquisition, construction and
equipping of the Company's manufacturing facilities and solid waste disposal
facilities located in ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ County, Oklahoma.
"Project Fund" means the Project Fund created pursuant to this
Indenture.
"Property" means collectively the Improvements and the Site.
"Property, Plant and Equipment" means real and personal, tangible and
intangible property owned by the Company which is property, plant and equipment
under generally accepted accounting principles.
"Rating Agency" means ▇▇▇▇▇'▇ Investors Service, Inc. or Standard &
Poor's Ratings Services, a Division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and
their respective successors and assigns.
"Rating Category" or "Categories" means the rating category or
categories respectively of each Rating Agency.
"Rebate Analyst" means an attorney or firm of attorneys or accountant
or firm of accountants or other Person hired by the Company to assist the
Company in compliance with the arbitrage rebate requirements of Section 4.6 of
the Loan Agreement.
"Rebate Fund" means the Rebate Fund created in this Indenture.
"Registered Owner" or "Registered Owner" means the Registered Owner of
any Bonds, as shown on the registration books of the Trustee.
"Regular Record Date" means the fifteenth day of the calendar month
prior to a regularly scheduled Interest Payment Date for the Bonds.
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"Reserve Fund" means the Reserve Fund created pursuant to this
Indenture.
"Reserve Fund Credit Enhancement" means any letter of credit credited
to the Reserve Fund or any account therein as provided in the Loan Agreement in
lieu of cash or Permitted Investments on deposit in the Reserve Fund.
"Reserve Requirement" means $500,000.
"Senior Loan" means the loan to the Company from CNL Commercial Finance
Inc., secured as of the date hereof by an interest in the Pledged Property, and
any Indebtedness of the Company incurred to pay, discharge or refinance the
Senior Loan.
"Short-Term Indebtedness" means Indebtedness with a term of less than
one year.
"Significant Bondholder" shall mean any one Beneficial Owner of greater
than 50% of the Beneficial Ownership Interest in Bonds then Outstanding, and if
no one Beneficial Owner owns greater than 50% of the Beneficial Ownership
Interest in Bonds then Outstanding, then the provisions relating to the
Significant Bondholder shall not apply
"Site" means the real property described as the Site in the Loan
Agreement, less any such real property released under the provisions of the Loan
Agreement.
"Special Record Date" means a special record date fixed to determine
the names and addresses of Registered Owners for purposes of paying interest on
a special Interest Payment Date for the payment of defaulted interest, all as
further provided in this Indenture.
"Subordinated Debt" means any Indebtedness the payment of which is
specifically subordinated to the payment of principal and interest on the Bonds
and evidenced by a writing which contains provisions substantially as provided
in the Loan Agreement and for which the Company has received an Opinion of
Counsel to the effect that such Indebtedness constitutes Subordinated Debt.
"Tax Certificates" means the certificates of the Issuer or the Company
relating to the tax-exempt status of the Bonds and including any amendments or
supplements thereto.
"Transfer" means any act or occurrence the result of which is to
dispossess any Person of any asset or interest therein, including specifically,
but without limitation, the forgiveness of any debt, but shall not include
leases and operating contracts governed by the Loan Agreement.
"Trust Estate" means the property pledged, assigned and mortgaged to
the Trustee pursuant to the granting clauses of this Indenture.
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"Trustee" means ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association,
Oklahoma City, Oklahoma, as trustee, and its successors and assigns.
"Underwriter" means Gates Capital Corporation, New York, New York, and
its successors and assigns; provided that any purchaser of a Bond from the
Underwriter shall not be considered as successor or assign thereof.
"Variable Rate Indebtedness" means any portion of Indebtedness the
interest rate on which has not been established at a fixed or constant rate to
maturity.
Section 1.2 INDENTURE TO CONSTITUTE CONTRACT. In consideration of the
purchase and acceptance of any or all of the Bonds by those who shall own the
same from time to time, the provisions of this Indenture shall be part of the
contract of the Issuer with the owners of the Bonds, and shall be deemed to be
and shall constitute contracts among the Issuer, the Trustee and the owners from
time to time of the Bonds. The pledge made in this Indenture and the provisions,
covenants and agreements herein set forth to be performed by or on behalf of the
Issuer shall be for the equal benefit, protection and security of the owners of
any and all of the Bonds except as specifically provided herein. All of the
Bonds, regardless of the time or times of their issuance or maturity, shall be
of equal rank without preference, priority or distinction of any of the Bonds
over any other thereof, except as expressly provided in or pursuant to this
Indenture.
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ARTICLE II
AUTHORIZATION, TERMS,
Section 2.1 AUTHORIZED AMOUNT OF BONDS. No Bonds may be issued under
this Indenture except in accordance with this Article. The total principal
amount of Bonds that may be issued hereunder is hereby expressly limited to, and
the amount hereby authorized to be issued shall be, $5,000,000.
Section 2.2 ALL BONDS EQUALLY AND RATABLY SECURED BY TRUST ESTATE
EXCEPT AS EXPRESSLY PROVIDED HEREIN; LIMITED OBLIGATION OF BONDS AND PLEDGES
SECURING THE SAME. All Bonds issued under this Indenture and at any time
Outstanding shall in all respects be equally and ratably secured hereby, without
preference, priority or distinction as to date or dates or the actual time or
times of the issue or maturity of the Bonds, so that all Bonds at any time
issued and Outstanding hereunder shall have the same right, lien and preference
under and by virtue of this Indenture, and shall all be equally and ratably
secured hereby, except as otherwise expressly provided herein. The Bonds shall
be limited obligations of the Issuer payable solely out of the security
specified in this Indenture. The Bonds shall not constitute or become an
indebtedness, a debt or a liability of or a charge against the general credit or
taxing power of the State of Oklahoma, or of any county, city, city and county,
town, school district or other subdivision of the State of Oklahoma, or of any
other political subdivision or body corporate and politic within the State of
Oklahoma other than the Issuer (but only to the extent provided in this
Indenture) and neither the State of Oklahoma, nor any county, city, city and
county, town, school district or other subdivision of the State of Oklahoma,
except the Issuer to the extent provided above, shall be liable thereon; nor
shall the Bonds constitute the giving, pledging or loaning of the faith and
credit of the State of Oklahoma, or any county, city, city and county, town,
school district or other subdivision of the State of Oklahoma or of any other
political subdivision or body corporate and politic within the State of Oklahoma
but shall be payable solely from the funds herein provided therefor. The
issuance of the Bonds shall not, directly or indirectly or contingently,
obligate the State of Oklahoma or any subdivision of the State of Oklahoma nor
empower the Issuer to levy or collect any form of taxes or assessments therefor
or to create any indebtedness payable out of taxes or assessments or make any
appropriation for their payment, and such appropriation or levy is prohibited.
Nothing in the Act shall be construed to authorize the Issuer to create a debt
of the State of Oklahoma within the meaning of the Constitution or statutes of
the State of Oklahoma or authorize the Issuer to levy or collect taxes or
assessments. Neither the members of the Issuer nor any person executing the
Bonds shall be liable personally on the Bonds or be subject to any personal
liability or accountability by reason of the issuance thereof. The State of
Oklahoma shall not in any event be liable for the payment of the principal of,
premium, if any, or interest on the Bonds or for the performance of any pledge,
mortgage, obligation or agreement of any kind whatsoever undertaken by the
Issuer. No breach of any such pledge, mortgage, obligation or agreement shall
impose any pecuniary liability upon the State of Oklahoma or any charge upon its
general credit or against its taxing power.
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Section 2.3 AUTHORIZATION OF BONDS. There is hereby authorized to be
issued hereunder and secured hereby an issue of bonds, designated as the
"Cleveland County Industrial Authority Industrial Development Revenue Bonds
(▇▇▇▇▇▇▇ Foods, Inc Project) Series 2004." They shall be issuable only as fully
registered bonds in the minimum denomination of $100,000 plus integral multiples
of $5,000 in excess thereof. The Bonds shall be separately lettered "R" and
shall be numbered separately from 1 upward.
The Bonds shall be dated as of their date of original
issuance, and shall mature serially on December 1 in each of the principal
amounts and years, and shall bear interest payable semiannually on June 1 and
December 1, commencing June 1, 2005, at the interest rate per annum set forth
below:
Maturity Principal Interest Rate
(December 1) Amount (Per Annum)
------------ ------- -----------
2012 $2,635,000 6.750%
2024 $2,365,000 7.100%
Notwithstanding the foregoing, in the event that (i) the Long-Term Debt
Service Coverage Ratio of the Company reported to the Trustee under Section
8.16(a) of the Loan Agreement shall be less than 1.50 to 1.00, or (ii) the
Current Ratio reported to the Trustee under Section 8.12(b) of the Loan
Agreement above shall be less than less than 1.10 to 1.00, or (iii) the Debt to
Equity Ratio reported to the Trustee under Section 8.12(c) of the Loan Agreement
shall to be more than 4.00 to 1.00, the failure to satisfy any such requirement
shall not result in an Event of Default hereunder. Unless the Company shall
notify the Trustee within thirty days following the date of any such reported
failure that the Company is then in compliance with each of such ratios, the
interest rate on each of the Bonds shall increase one percent (100 basis points)
as of the end of such thirty-day period, until the date the Company shall
certify to the Trustee that each of such requirements has been satisfied.
Interest shall be computed on the basis of a 360-day year composed of
twelve 30-day months, payable semiannually on June 1 and December 1 of each
year, with the first interest payment to be made on June 1, 2005, except that
Bonds which are reissued upon transfer, exchange or other replacement shall bear
interest from the most recent Interest Payment Date to which interest has been
paid, or if no interest has been paid, from the date of the Bonds.
The Bonds shall be originally issued in Book Entry Form, and shall be
registered in the name of Cede & Co., as nominee of The Depository Trust
Company. While the Bonds are held in Book Entry Form, (i) such Bonds shall be
registered in the name of the Depository or its nominee, as Bondholder, and
immobilized in the custody of the Depository; (ii) unless otherwise requested by
the Depository, there shall be a single Bond certificate for each Bond maturity;
and
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(iii) such Bonds shall not be transferable or exchangeable, except for transfer
to another Depository or another nominee of a Depository, without further action
by the Issuer. While the Bonds are in Book Entry Form, Bonds in the form of
physical certificates shall only be delivered to the Depository.
So long as a book entry system is in effect for the Bonds, the
Issuer and Trustee shall recognize and treat the Depository, or its nominee, as
the Holder of the Bonds for all purposes, including payment of debt service,
giving of notices, and enforcement of remedies. The crediting of payments of
debt service on the Bonds and the transmittal of notices and other
communications by the Depository to the Direct Participant in whose Depository
account the Bonds are recorded and such crediting and transmittal by Direct
Participants to Indirect Participants or Beneficial Owners and by Indirect
Participants to Beneficial Owners are the respective responsibilities of the
Depository and the Direct Participants and the Indirect Participants and are not
the responsibility of the Issuer or the Trustee; provided, however, that the
Issuer and the Trustee understand that neither the Depository nor its nominee
shall provide any consent requested of the Registered Owners of Bonds pursuant
to this Indenture, and that the Depository will mail an omnibus proxy (including
a list identifying the Direct Participants) to the Issuer which assigns the
Depository's, or its nominee's, voting rights to the Direct Participants to
whose account at the Depository the Bonds are credited (as of the record date
for mailing of requests for such consents). Upon receipt of such omnibus proxy,
the Issuer shall promptly provide such omnibus proxy (including the list
identifying the Direct Participants attached thereto) to the Trustee, who shall
then treat such owners as Registered Owners of the Bonds for purposes of
obtaining any consents pursuant to the terms of this Indenture.
As long as the Bonds are registered in the name of a
Depository, or its nominee, the Trustee agrees to comply with the terms and
provisions of the Letter of Representations including the provisions of the
Letter of Representations with respect to any delivery of the Bonds to the
Trustee shall supersede the provisions of this Indenture with respect thereto.
If any Depository determines not to continue to act as a
Depository for the Bonds held in a book entry system, the Issuer may attempt to
have established a securities depository/book entry system relationship with
another Depository under this Indenture. If the Issuer does not or is unable to
do so, the Issuer and the Trustee, after the Trustee has made provision for
notification of the Beneficial Owners by appropriate notice to the then
Depository, shall permit withdrawal of the Bonds from the Depository and shall
authenticate and deliver Bonds certificates in fully registered form to the
assignees of the Depository or its nominee or to the Beneficial Owners. A
majority of the Beneficial Owners also may request that the Bonds be withdrawn
from the Depository and that the Trustee authenticate and deliver Bonds
certificates in fully registered form to the Beneficial Owners. Such withdrawal,
authentication and delivery shall be at the cost and expense (including costs of
printing or otherwise preparing and delivering such replacement Bonds) of the
Company. Such replacement Bonds shall be in the denominations specified in the
first paragraph of this Section 2.3.
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NEITHER THE ISSUER, THE COMPANY NOR THE TRUSTEE WILL HAVE ANY
RESPONSIBILITY OR OBLIGATION TO ANY DIRECT PARTICIPANT, INDIRECT PARTICIPANT OR
ANY BENEFICIAL OWNER OR ANY OTHER PERSON NOT SHOWN ON THE REGISTRATION BOOKS OF
THE TRUSTEE AS BEING A HOLDER WITH RESPECT TO: (1) THE BONDS; (2) THE ACCURACY
OF ANY RECORDS MAINTAINED BY DTC OR ANY DIRECT PARTICIPANT OR INDIRECT
PARTICIPANT; (3) THE TIMELY OR ULTIMATE PAYMENT BY DTC OR ANY DIRECT PARTICIPANT
OR INDIRECT PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF
THE PRINCIPAL OR REDEMPTION PRICE OF OR INTEREST ON THE BONDS; (4) THE DELIVERY
BY ANY DIRECT PARTICIPANT OR INDIRECT PARTICIPANT OF ANY NOTICE TO ANY
BENEFICIAL OWNER WHICH IS REQUIRED OR PERMITTED UNDER THE TERMS OF THIS
INDENTURE TO BE GIVEN TO REGISTERED OWNERS; (5) THE SELECTION OF THE BENEFICIAL
OWNERS TO RECEIVE PAYMENT IN THE EVENT OF ANY PARTIAL REDEMPTION OF THE BONDS;
OR (6) ANY CONSENT GIVEN OR OTHER ACTION TAKEN BY DTC AS HOLDER.
Proceeds of the Bonds shall be applied as provided in the
Indenture and the Loan Agreement.
The principal of and premium, if any, on the Bonds shall be
payable at the principal corporate trust office of the Trustee currently located
in Oklahoma City, Oklahoma, or at the principal office of its successor in trust
upon presentation and surrender of the Bonds. Payment of interest on any Bond
shall be made to the Registered Owner thereof by check or draft mailed on the
Interest Payment Date by the Trustee to the Registered Owner at his address as
it last appears on the registration books kept by the Trustee at the close of
business on the Regular Record Date for such Interest Payment Date, but any such
interest not so timely paid or duly provided for shall cease to be payable to
the Registered Owner thereof at the close of business on the Regular Record Date
and shall be payable to the Registered Owner thereof at the close of business on
a Special Record Date for the payment of any such defaulted interest. Such
Special Record Date shall be fixed by the Trustee whenever monies become
available for payment of the defaulted interest, and notice of such Special
Record Date shall be given to the Registered owners of the Bonds not less than
10 days prior thereto by first-class mail to each such Registered owner as shown
on the Trustee's registration books on the date selected by the Trustee, stating
the date of the Special Record Date and the date fixed for the payment of such
defaulted interest. Notwithstanding the foregoing, at the written request
addressed to the Trustee of any Bondholder of at least $1,000,000 in aggregate
principal amount of the Bonds, payments of principal at maturity or upon
redemption and payments of interest may be paid by wire transfer within the
United States to the bank account number filed no later than the Regular Record
Date with the Trustee for such purpose. All payments on the Bonds shall be made
in lawful money of the United States of America upon collection of immediately
available funds.
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The Bonds are subject to prior redemption as herein set forth.
The Bonds shall be substantially in the form and tenor hereinabove recited with
such appropriate variations, omissions and insertions as are permitted or
required by this Indenture.
Notwithstanding anything herein to the contrary, when any Bond
is registered in the name of a Depository or its nominee, the principal and
redemption price of and interest on such Bond shall be payable in same day or
federal funds delivered or transmitted to the Depository or its nominee.
Section 2.4 EXECUTION OF BONDS. The Bonds shall be executed in the name
and on behalf of the Issuer, by the manual or facsimile signature of the
Chairman of the Issuer, and its corporate seal or a facsimile thereof shall be
thereunto affixed, imprinted, engraved or otherwise reproduced thereon and
attested by the manual or facsimile signature of the Secretary. Any Bond may be
signed (manually or by facsimile), sealed or attested on behalf of the Issuer by
any person who, at the date of such act, shall hold the proper office,
notwithstanding that at the date of authentication, issuance or delivery, such
person may have ceased to hold such office.
Section 2.5 REGISTRATION, TRANSFER AND EXCHANGE OF BONDS, PERSONS
TREATED AS OWNER. The Issuer shall cause books for the registration and for the
transfer of the Bonds as provided in this Indenture to be kept by the Trustee
which is hereby appointed the transfer agent of the Issuer for the Bonds.
Notwithstanding such appointment, the Trustee is hereby authorized to make any
arrangements with other institutions that it deems necessary or desirable in
order that such institutions may perform the duties of transfer agent for the
Bonds. Subject to the provisions of Section 2.03 hereof, upon surrender for
transfer of any Bond at the designated corporate trust office of the Trustee,
duly endorsed for transfer or accompanied by an assignment duly executed by the
Registered Owner or his attorney duly authorized in writing, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new fully registered Bond or Bonds for a like
aggregate principal amount of the same maturity.
Bonds may be exchanged at the designated corporate trust
office of the Trustee for a like aggregate principal amount of fully registered
Bonds of the same maturity in authorized denominations, which shall be no less
than $100,000. The Issuer shall execute and the Trustee shall authenticate and
deliver Bonds which the Bondholder making the exchange is entitled to receive,
bearing numbers not contemporaneously Outstanding. The execution by the Issuer
of any fully registered Bond of any denomination shall constitute full and due
authorization of such denomination and the Trustee shall thereby be authorized
to authenticate and deliver such fully registered Bond.
The Trustee shall not be required to transfer or exchange any
Bond during the period from the Regular Record Date next preceding the mailing
of notice of redemption as herein provided. After the giving of such notice of
redemption, the Trustee shall not be required to transfer or exchange any Bond,
which Bond or portion thereof has been called for redemption.
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Payment of either principal or interest on any fully
registered Bond shall be made only to or upon the written order of the
Registered Owner thereof or his legal representative, on the Regular Record Date
or the Special Record Date but such registration may be changed as hereinabove
provided. All such payments shall be valid and effectual to satisfy, and
discharge the liability upon such Bond to the extent of the sum or sums paid. As
to any Bond, for all other purposes and on any other date, the Registered Owner
shall be regarded as the absolute owner hereof.
The Trustee shall require the payment by any Bondholder
requesting exchange or transfer of any tax or other governmental charge required
to be paid with respect to such exchange or transfer. The Company shall, under
the Loan Agreement, be liable to pay all expenses and charges of the Issuer and
of the Trustee in connection with such exchange or transfer.
Section 2.6 LOST, STOLEN, DESTROYED AND MUTILATED BONDS. Upon receipt
by the Issuer and the Trustee of evidence satisfactory to them of the ownership
of and the loss, theft, destruction or mutilation of any Bond and, in the case
of a lost, stolen or destroyed Bond, of indemnity satisfactory to them. and upon
surrender and cancellation of the Bond, if mutilated, (i) the Issuer shall
execute, and the Trustee shall authenticate and deliver, a new Bond of the same
maturity, series and denomination in lieu of such lost, stolen, destroyed or
mutilated Bond or (ii) if such lost, stolen, destroyed or mutilated Bond shall
have matured or have been called for redemption, in lieu of executing and
delivering a new Bond as aforesaid, the Issuer may pay such Bond. Any such new
Bond shall bear a number not contemporaneously Outstanding. The applicant for
any such new Bond may be required to pay all expenses and charges of the Issuer
and of the Trustee in connection with the issuance of such Bond. All Bonds shall
be held and owned upon the express condition that, to the extent permitted by
law, the foregoing conditions are exclusive with respect to the replacement and
payment of mutilated, destroyed, lost or stolen bonds, negotiable instruments or
other securities.
Section 2.7 DELIVERY OF BONDS. Upon the execution and delivery of this
Indenture, the Issuer shall execute and deliver to the Trustee and the Trustee
shall authenticate the Bonds and deliver them to the initial purchasers thereof
as directed by the Issuer and as hereinafter in this Section provided.
Prior to the delivery by the Trustee of any of the Bonds, all
conditions precedent to the disbursal of proceeds of the Bonds from the Project
Fund, as specified in Section 3.9 hereof, shall have been satisfied or waived by
the holders of 100% of the Bonds, and there shall have been filed with or
delivered to the Trustee the following:
(a) a resolution duly adopted by the Issuer,
certified by the Secretary thereof, authorizing the financing of the Cost of the
Project, the execution and delivery of the Loan Agreement and this Indenture and
the issuance of the Bonds;
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(b) a duly executed copy of this Indenture;
(c) a duly executed copy of the Loan Agreement;
(d) a duly executed copy of the Assignment;
(e) a duly executed copy of the Principal Guaranty;
and
(f) the written order of the Issuer as to the
delivery of the Bonds signed by an Issuer Representative.
(g) a duly executed copy of the application for
key-man life insurance in the amount of $1,000,000 on the life of ▇▇▇▇ ▇▇▇▇▇▇▇.
Section 2.8 TRUSTEE'S AUTHENTICATION CERTIFICATE. The Trustee's
authentication certificate upon the Bonds shall be substantially in the form and
tenor hereinbefore provided. No Bond shall be secured hereby or entitled to the
benefit hereof, or shall be valid or obligatory for any purpose, unless the
certificate of authentication, substantially in such form, has been duly
executed by the Trustee; and such certificate of the Trustee upon any Bond shall
be conclusive evidence and the only competent evidence that such Bond has been
authenticated and delivered hereunder. The Trustee's certificate of
authentication shall be deemed to have been duly executed by it if manually
signed by an authorized officer of the Trustee, but it shall not be necessary
that the same person sign the signed certificate of authentication on all of the
Bonds issued hereunder.
Section 2.9 CANCELLATION AND DESTRUCTION OF BONDS BY THE TRUSTEE.
Whenever any Outstanding Bonds shall be delivered to the Trustee for the
cancellation thereof pursuant to this Indenture, upon payment of the principal
amount or interest represented thereby, or for replacement pursuant to Section
2.6 hereof such Bonds shall be promptly canceled and destroyed by the Trustee
and counterparts of a certificate of destruction evidencing such destruction
shall be furnished by the Trustee to the Issuer and the Company.
Section 2.10 TEMPORARY BONDS. Pending the preparation of definitive
Bonds, the Issuer may execute and the Trustee shall authenticate and deliver
temporary Bonds. Temporary Bonds shall be issuable as fully registered Bonds
without coupons, of any denomination, and substantially in the form of the
definitive Bonds but with such omissions, insertions and variations as may be
appropriate for temporary Bonds, all as may be determined by the Issuer. Every
temporary Bond shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Bonds. As promptly as practicable the Issuer
shall execute and shall furnish definitive Bonds and thereupon temporary Bonds
may be surrendered in exchange therefor at the principal office of the Trustee
and the Trustee shall authenticate and deliver in exchange for such temporary
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Bonds a like aggregate principal amount of definitive Bonds. Until so exchanged
the temporary Bonds shall be entitled to the same benefits under this Indenture
as definitive Bonds.
Section 2.11 TRANSFER RESTRICTIONS. Upon a transfer of a Beneficial
Ownership Interest in a Series 2003 Bond (other than a transfer by the
Underwriter pursuant to the initial sale of the Series 2003 Bonds), each
purchaser of such Beneficial Ownership Interest shall be deemed to have
certified to the Trustee and acknowledged, represented and agreed with the
Company and the Underwriter that such purchaser is acquiring the Bond for its
own account, and that it is (i) a "qualified institutional buyer" within the
meaning of Rule 144A promulgated under the Securities Act of 1933, as amended,
or (ii) an institutional "accredited investor," as defined in Rule 501(a)(1),
(2), (3), or (7) of the Securities Act of 1933, as amended. The foregoing
transfer restrictions shall not apply if (i) the Trustee has received a
municipal bond insurance policy or other form of credit enhancement securing
payment of principal and interest on the Bonds, provided that the policy
provider or credit enhancer is rated in one of the three highest categories by a
Rating Agency and such insurance policy or credit enhancement has a term not
less than the final maturity of the Bonds (or, if shorter, may be drawn upon in
full upon its expiration), or (ii) a Rating Agency has assigned the Bonds a
rating of at least "Baa3" or "BBB," without any form of third party credit
enhancement. A legend shall be printed on the face of each Bond indicating the
foregoing.
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ARTICLE III
REVENUES AND FUNDS
Section 3.1 PLEDGE OF TRUST ESTATE. Subject only to the rights of the
Issuer to apply amounts under the provisions of this Article III, a pledge of
the Trust Estate to the extent provided herein is hereby made, and the same is
pledged to secure the payment of the principal of, premium, if any, and interest
on the Bonds. The Issuer hereby covenants that it has not, as of the date
hereof, granted and shall not grant any pledge on the Trust Estate which is
prior to the pledge in favor of the Bonds. The pledge hereby made shall be valid
and binding from and after the time of the delivery by the Trustee of the first
Bond authenticated and delivered under this Indenture. The security so pledged
and then or thereafter received by the Issuer shall immediately be subject to
the lien of such pledge and the obligation to perform the contractual provisions
hereby made shall have priority over any or all other obligations and
liabilities of the Issuer, and the lien of such pledge shall be valid and
binding as against all parties having claims of any kind in tort, contract or
otherwise against the Issuer irrespective of whether such parties have notice
thereof.
Section 3.2 ESTABLISHMENT OF FUNDS AND ACCOUNTS. The Issuer hereby
establishes and creates the following Funds for the Bonds and may create
accounts within such Funds, all of which shall be special trust funds and
accounts held by the Trustee:
(a) Bond Principal Fund;
(b) Bond Interest Fund;
(c) Reserve Fund;
(d) Project Fund;
(e) Cost of Issuance Fund; and
(f) Rebate Fund.
Section 3.3 PAYMENTS INTO THE BOND PRINCIPAL FUND AND THE BOND INTEREST
FUND. There shall be deposited into the Bond Interest Fund all accrued interest,
if any. In addition, there shall be deposited into the Bond Principal Fund or
the Bond Interest Fund, as appropriate, and as and when received (i) all
required Monthly Payments pursuant to the Loan Agreement, (ii) all moneys
transferred to the Bond Interest Fund and the Bond Principal Fund from the
Project Fund pursuant to this Indenture, (iii) all moneys transferred to the
Bond Interest Fund and the Bond Principal Fund from the Reserve Fund pursuant to
this Indenture, (iv) all other moneys required
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or permitted to be deposited into the Bond Principal Fund or Bond Interest Fund
pursuant to the Loan Agreement or this Indenture, including any supplements to
the Indenture, and (v) all other moneys received by the Trustee when accompanied
by directions not inconsistent with the Loan Agreement or the Indenture that
such moneys are to be paid into the Bond Principal Fund or Bond Interest Fund.
There shall also be retained in the Bond Principal Fund and Bond Interest Fund,
interest and other income received on investment of moneys in the Bond Principal
Fund and Bond Interest Fund to the extent provided in Section 6.3 hereof.
Section 3.4 USE OF MONIES IN THE BOND PRINCIPAL FUND AND THE BOND
INTEREST FUND. Except as provided in this Section and in Sections 3.11, 3.16,
6.3 and 8.5 hereof, monies in the Bond Principal Fund shall be used solely for
the payment of the principal of and premium, if any, on the Bonds, and monies in
the Bond Interest Fund shall be used solely for the payment of the interest on
the Bonds. Whenever the total amount in the Bond Principal Fund and the Bond
Interest Fund is sufficient to redeem all of the Bonds Outstanding and to pay
interest to accrue thereon prior to such redemption, and redemption premium, if
any, the Issuer, subject to the requirements of the Loan Agreement, covenants to
take and cause to be taken the necessary steps to redeem all of the Bonds on the
redemption date for which the required redemption notice has been given.
Section 3.5 CUSTODY OF THE BOND PRINCIPAL FUND AND THE BOND INTEREST
FUND. The Bond Principal Fund and the Bond Interest Fund shall be in the custody
of the Trustee but in the name of the Issuer, and the Issuer authorizes and
directs the Trustee to withdraw sufficient funds from the Bond Principal Fund to
pay the principal of and premium, if any, on the Bonds as the same become due
and payable, and to withdraw sufficient funds from the Bond Interest Fund to pay
the interest on the Bonds as the same becomes due and payable or to make
transfers to the Rebate Fund pursuant to Section 3.16 hereof.
Section 3.6 PAYMENTS INTO THE RESERVE FUND. There shall be deposited
into the Reserve Fund $500,000 of proceeds of the Bonds.
There shall also be deposited into the Reserve Fund (i) all
moneys required to be deposited therein pursuant to the Loan Agreement or the
Indenture, and (ii) all other moneys received by the Trustee when accompanied by
directions not inconsistent with the Loan Agreement or this Indenture that such
moneys are to be paid into such account.
Income from investment of the Reserve Fund shall be retained
in the Reserve Fund to the extent described in Section 6.3 hereof. Anything in
this Indenture to the contrary notwithstanding, moneys on deposit in the Reserve
Fund shall be invested so as not to be in violation of the yield restrictions
set forth in the Tax Certificates. Permitted Investments relating to moneys in
the Reserve Fund shall be valued by the Trustee in the manner contemplated in
the Indenture. If any such valuation reveals that the value of such Permitted
Investments is less than the Reserve Requirement with respect to the Bonds then
Outstanding, the Trustee shall immediately notify the Company and the Issuer of
the amount of the difference between the
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amount derived by such valuation and the Reserve Requirement, which difference
shall be deposited by the Company in the Reserve Fund by making the deposits
required by the Loan Agreement.
Section 3.7 USE OF MONEYS IN THE RESERVE FUND. Except as required with
respect to Section 3.16 hereof, moneys in the Reserve Fund shall be used solely
for the payment of the principal of, premium, if any, and interest on the Bonds
in the event moneys in the Bond Principal Fund and Bond Interest Fund are
insufficient to make such payments when due, whether on an Interest Payment
Date, redemption date, sinking fund redemption date, maturity date or otherwise.
Notwithstanding the foregoing, in the event that the Initial Bondholder
beneficially owns 100% of the Bonds, the Trustee shall apply monies transferred
from the Debt Service Reserve Fund by the Trustee to satisfy unpaid installments
of interest or principal due under the Bonds (i) first to the satisfaction of
unpaid installments of interest and then principal due under the bonds maturing
December 1, 2012, and then, to the extent monies remain thereafter available,
(ii) to the satisfaction of unpaid installments of interest and then principal
due under the Bonds maturing December 1, 2024.
(a) Upon the occurrence of an Event of Default hereunder, any
moneys in the Reserve Fund shall be transferred by the Trustee, but only upon
the direction of a Significant Bondholder to the Bond Interest Fund, and with
respect to any moneys in excess of the amount required to be transferred to the
Bond Interest Fund, to the Bond Principal Fund and applied in accordance with
this Indenture, provided, however, that the amounts on deposit in the Reserve
Fund shall be used to pay only the respective series of Bonds for which the
Issuer has determined that a deposit to the Reserve Fund shall be made in
accordance with this Indenture.
(b) Any moneys in the Reserve Fund may be used to pay the
principal of and interest on such Bonds on the final maturity date.
(c) In the event of the redemption of the Bonds in whole, any
moneys in the Reserve Fund shall be transferred to the Bond Principal Fund and
applied to the payment of the principal of and premium, if any, on such Bonds.
Section 3.8 CUSTODY OF THE RESERVE FUND. The Reserve Fund shall be in
the custody of the Trustee but for the benefit of the Bondholders and the Issuer
hereby authorizes and directs the Trustee to withdraw sufficient funds from the
Reserve Fund to pay the principal of, premium, if any, and interest on the Bonds
and for the purpose described in Section 3.16 hereof, which authorization and
direction the Trustee hereby accepts.
Section 3.9 PROJECT FUND. The proceeds of the Bonds, after required
deposits to the Reserve Fund and the Cost of Issuance Fund, shall be deposited
in the Project Fund. In addition, there shall be deposited in the Project Fund
any moneys required to be transferred to the Project
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Fund pursuant to the investment provisions of this Indenture, and all other
moneys the Company may make available in its discretion to pay the reasonable or
necessary costs incidental to the acquisition, construction, improvement or
equipping of the Facilities and all other necessary and incidental expenses in
connection with the foregoing.
The Trustee shall keep and maintain adequate records
pertaining to the Project Fund, and all payments therefrom, which shall be open
to inspection by the Company, Registered Owners of the Bonds, the Beneficial
Owners or their duly authorized agents during normal business hours of the
Trustee. After the Completion Date, the Trustee shall file a statement of income
and disbursements with respect to the Project Fund with the Company. Any moneys
then remaining in the Project Fund shall be transferred to the Bond Principal
Fund or Bond Interest Fund and used, at the option and written direction of the
Company, (i) to redeem Bonds on the next succeeding Interest Payment Date on
which the Bonds shall be subject to redemption, or (ii) to provide for
additional solid waste disposal or manufacturing improvements to the Facilities.
At or prior to the initial disbursement of proceeds of the
Series 2004 Bonds from the Project Fund hereof, the Company shall deliver the
following to the Trustee:
(a) a detailed estimate of the costs of the
Facilities, indicating the gross costs, including all hard and soft costs,
including, without limitation, all equipment to be acquired, showing that the
moneys in the Project Fund, together with the Company's reasonable estimate of
the investment earnings to be deposited therein, are sufficient to pay all costs
of completing the Facilities, certified by the Company Representative to the
best of his or her knowledge and belief, upon due inquiry, to be correct;
(b) a satisfactory commitment for an ALTA policy of
mortgagee's title insurance with liability not less than the maximum principal
amount of the Outstanding Bonds, showing the Loan Agreement to be a valid
second, junior and inferior lien on the Property subject only to Permitted Liens
in such form, containing only such exceptions and containing such endorsements
as are satisfactory to the Trustee. The expense of such policy endorsements
shall be borne by the Company;
(c) a property survey on the Site;
(d) appraisal of the Property;
(e) certificates satisfactorily evidencing continuing
compliance with the insurance requirement of the Loan Agreement;
(f) Phase One Environmental Survey of the Site; and
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(g) such other certificates of the Trustee or the
Company as may reasonably be required by Bond Counsel to evidence compliance
with the terms of this Indenture.
(h) a copy of ▇▇▇▇ ▇▇▇▇▇▇▇'▇ application from Key-Man
Life Insurance and a copy of the policy when it becomes available, but no later
than ninety days after delivery of the Bonds.
Delivery of any of the foregoing may be waived by the holders
of 100% of the Bonds.
Upon the occurrence of an Event of Default under the Indenture
and the exercise by the Trustee of the remedies specified in the Loan Agreement
and the Indenture, any moneys in the Project Fund shall be transferred by the
Trustee to the Bond Interest Fund and thereafter, with respect to any moneys in
excess of the amount required to pay interest on the Bonds, to the Reserve Fund,
and, with respect to any moneys in excess of the Reserve Requirement to the Bond
Principal Fund, and applied in accordance with the Indenture.
Section 3.10 CUSTODY OF THE PROJECT FUND. The Project Fund shall be in
the custody of the Trustee but in the name of the Issuer, and the Issuer
authorizes and directs the Trustee, on the requisition of the Company
Representative, to withdraw sufficient funds from the Project Fund to pay the
Cost of the Project, and without such requisition to make required transfers to
the Rebate Fund pursuant to Section 3.16 hereof, which authorization and
direction the Trustee hereby accepts.
Section 3.11 NONPRESENTMENT OF BONDS. In the event any Bonds shall not
be presented for payment when the principal thereof becomes due, either at
maturity, the date fixed for redemption thereof, or otherwise, if collected
funds sufficient for the payment thereof shall have been deposited in the Bond
Principal Fund and the Bond Interest Fund or otherwise made available to the
Trustee for deposit therein, all liability of the Issuer to the owner or owners
thereof 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 fund or funds in a separate trust account for the benefit of the owner or
owners of such Bonds, who shall thereafter be restricted exclusively to such
fund or funds for any claim of whatever nature on his, her or their part under
this Indenture with respect to said Bond or on, or with respect to, said Bond.
The Trustee shall be under no obligation to, and shall not be required to,
invest such funds pending payment of the Bonds. If any Bond shall not be
presented for payment within the period of five years following the date when
such Bond becomes due, whether by maturity or otherwise, the Trustee shall
return to the Company the funds theretofore held by it for payment of such Bond,
and such Bond shall, subject to the defense of any applicable statute of
limitation, thereafter be an unsecured obligation of the Company.
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Section 3.12 MONIES TO BE HELD IN TRUST. All monies required to be
deposited with or paid to the Trustee under any provision of this Indenture
shall be held by the Trustee in trust for the purposes specified in this
Indenture and, except for monies deposited with or paid to the Trustee for the
redemption of Bonds for which the notice of redemption has been duly given,
shall, while held by the Trustee, constitute part of the Trust Estate (other
than the Rebate Fund) and be subject to the lien hereof and not subject to
attachment or any other lien by any other creditor in the event of bankruptcy
nor available for general operations of the Company in the event of bankruptcy.
Section 3.13 REPAYMENT FROM THE FUNDS. Any amounts remaining in the
Funds after payment in full of the Bonds (or making provision for such payment
in accordance with Article VII), the fees and expenses of the Trustee, and all
other amounts required to be paid hereunder and under the Loan Agreement to the
Issuer and all other amounts required to be paid hereunder and under the Loan
Agreement shall, upon the expiration of the term of the Loan Agreement, be paid
as the Company Representative shall direct in writing.
Section 3.14 CREATION OF ADDITIONAL ACCOUNTS AND SUBACCOUNTS; TRANSFERS
OF MONIES AMONG FUNDS. The Trustee may, and at the written request of the
Company Representative and the Issuer, shall establish such additional accounts
within any of the Funds established under this Indenture, and subaccounts within
any of the accounts established under this Indenture, as shall be specified in
such written request, for the purpose of identifying more precisely the sources
of payments into and disbursements from such Funds, accounts and subaccounts;
but the establishment of any such additional accounts or subaccounts shall not
alter or modify any of the requirements of this Indenture with respect to the
deposit or use of the monies in any Fund established hereunder.
Section 3.15 REBATE FUND. There is hereby created and established with
the Trustee for the benefit of the United States of America a Rebate Fund in the
name of the Issuer which shall be expended in accordance with the provisions
hereof, the Tax Certificates. The Company shall be responsible for making all
such deposits to the Rebate Fund as required in the Tax Certificates and Section
5.1(g) of the Loan Agreement. The Trustee shall invest the Rebate Fund at the
written direction (or by oral instruction promptly confirmed in writing) of the
Company Representative and shall deposit income from said investments
immediately upon receipt thereof in the Rebate Fund. For purposes of determining
rebate calculations that may be required with respect thereto pursuant to the
Tax Certificates, the Company may employ, at its own expense, a Rebate Analyst.
The Tax Certificates may be superseded or amended by a certificate of the
Company, accompanied by an Opinion of Bond Counsel addressed to, the Company and
the Trustee to the effect that the use of said new certificate will not
adversely affect the exclusion of interest on the Bonds from gross income of the
recipients thereof for purposes of federal income taxation.
Section 3.16 REBATE DEPOSITS. The Trustee shall make the rebate deposit
described in the Tax Certificates based upon the written instructions of the
Company Representative. If a
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withdrawal from the Rebate Fund is permitted as a result of such computation
because no rebate payments are required to be made, the amount withdrawn shall
be deposited in the Bond Principal Fund in accordance with written instructions
furnished to the Trustee. Record of the determinations required by this Section
must be retained by the Company Representative and the Trustee until six years
after the final retirement of the Bonds.
If the monies on deposit in the Rebate Fund are insufficient
for the purposes thereof, the Trustee shall transfer monies to the Rebate Fund
from the following Funds in the following order of priority: the Project Fund,
the Reserve Fund, the Bond Principal Fund and the Bond Interest Fund.
Section 3.17 REBATE DISBURSEMENTS. Not later than 60 days after the
last day of the fifth Bond Year, as defined in the Tax Certificates, and every
five years thereafter, the Trustee shall pay to the United States 90 percent of
the amount, at the written direction of the Rebate Analyst, on deposit in the
Rebate Fund as of such payment date. No later than 60 days after the final
retirement of the Bonds, the Trustee shall pay to the United States 100 percent
of the balance remaining in the Rebate Fund (or such lesser amount as shall be
due and owing to the United States). Nothing herein shall relieve the Company of
its obligation to pay the rebate amount in accordance with Section 5.1(g) of the
Loan Agreement. Each payment required to be paid to the United States pursuant
to this Section shall be filed with the Internal Revenue Service Center,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Each payment shall be accompanied by a copy of
the Internal Revenue Form 8038 originally filed with respect to the Bonds,
Internal Revenue Form 8038-T and, if necessary, a statement summarizing the
determination of the amount to be paid to the United States.
Section 3.18 TAX CERTIFICATES. The use and investment of monies in any
of the Funds shall be subject to the provisions of the Tax Certificates, and the
Issuer and the Trustee, in the performance of their duties thereunder, agree to
comply with the same. Trustee shall have no responsibility for rebate
calculations and shall have no liability for actions taken at the direction of
the Company or Rebate Analyst
Section 3.19 (Reserved).
Section 3.20 COST OF ISSUANCE FUND. The Company shall deposit to the
Cost of Issuance Fund an amount sufficient to pay a portion of the costs
incurred in connection with the authorization, issuance and sale of the Bonds,
to the extent the same are approved by the Company. The Trustee shall transfer
amounts from the Cost of Issuance Fund as directed by the Company. The Trustee
shall keep and maintain adequate records pertaining to the Cost of Issuance
Fund, and all payments therefrom, which shall be open to inspection by the
Company, Registered Owners of the Bonds, the Beneficial Owners or their duly
authorized agents during normal business hours of the Trustee.
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Section 3.21 CUSTODY OF THE COST OF ISSUANCE FUND. The Cost of Issuance
Fund shall be in the custody of the Trustee but in the name of the Issuer, and
the Issuer authorizes and directs the Trustee, on the requisition of the Company
Representative, to withdraw sufficient funds from the Cost of Issuance Fund to
pay a portion of the costs incurred in connection with the authorization,
issuance and sale of the Bonds, which authorization and direction the Trustee
hereby accepts.
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ARTICLE IV
COVENANTS OF THE ISSUER
Section 4.1 PERFORMANCE OF COVENANTS. The Issuer covenants that it will
faithfully perform at all times any and all covenants, undertakings,
stipulations and provisions contained in this Indenture, in any and every Bond
and in all proceedings of the Issuer pertaining thereto. The Issuer covenants,
represents, warrants and agrees that it is duly authorized under the laws of the
State of Oklahoma, including particularly and without limitation, the Act, to
issue the Bonds and to execute this Indenture, to pledge the property described
herein and pledged hereby and to pledge the Trust Estate in the manner and to
the extent herein set forth, that all actions on its part required for the
issuance of the Bonds and the execution and delivery of this Indenture have been
duly and effectively taken or will be duly taken as provided herein, and that
this Indenture is a valid and enforceable instrument of the Issuer and that the
Bonds in the hands of the owners thereof are and will be valid and enforceable
obligations of the Issuer according to the terms thereof.
Section 4.2 INSTRUMENTS OF FURTHER ASSURANCE. The Issuer covenants that
it will do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered, such indentures supplemental hereto and such further
acts, instruments and transfers as the Trustee may reasonably require for the
better assuring, transferring, pledging and hypothecating unto the Trustee all
and singular the Trust Estate to the payment of the principal of, premium, if
any, and interest on the Bonds.
Promptly after any filing, registration or recording (other
than the filing of the Loan Agreement, this Indenture and any financing
statements in connection with the issuance of the Bonds) or any re-filing,
re-registration or re-recording of this Indenture or the Loan Agreement or any
filing, registration, recording, re-filing, re-registration or re-recording of
any supplement to either of said instruments, any financing statement or
instrument of similar character relating to any of said instruments or any
instrument of further assurance which is required pursuant to the preceding
paragraph, the Issuer will cause the Company Representative to deliver to the
Trustee an opinion of independent counsel to the effect that such filing,
registration, recording, re-filing, re-registration or re-recording has been
duly accomplished and setting forth the particulars thereof.
Section 4.3 PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST. The
Issuer will promptly pay or cause to be paid the principal of, premium, if any,
and interest on all Bonds issued hereunder according to the terms hereof. The
principal, premium, if any, and interest payments are payable solely from the
Trust Estate, which is hereby specifically pledged to the payment thereof in the
manner and to the extent herein specified. Nothing in the Bonds or in this
Indenture shall be considered or construed as pledging any funds or assets of
the Issuer other
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than those pledged hereby or creating any liability of the Issuer's trustees,
employees or other agents.
Section 4.4 CONDITIONS PRECEDENT. Upon the date of issuance of any of
the Bonds, the Issuer hereby covenants that all conditions, acts and things
required of the Issuer by the Constitution or statutes of the State of Oklahoma
or by the Act or by this Indenture to exist, to have happened or to have been
performed precedent to or in the issuance of the Bonds shall exist, have
happened and have been performed.
Section 4.5 SUPPLEMENTAL INDENTURES; RECORDATION OR FILING OF SECURITY
INSTRUMENTS. As set forth in Section 12.9 of the Loan Agreement, the Issuer
shall cause the Trustee to cause such continuation statements under the Oklahoma
Uniform Commercial Code at all times to be recorded, registered and filed by the
Trustee and to be kept, recorded, registered and filed in such manner and in
such places as may be required by law in order fully to preserve and protect the
security of the Bondholders and all rights of the Trustee hereunder.
Section 4.6 RIGHTS UNDER THE LOAN AGREEMENT. The Issuer will observe
all of the obligations, terms and conditions required on its part to be observed
or performed under the Loan Agreement. The Issuer agrees that wherever in the
Loan Agreement it is stated that the Issuer will notify the Trustee, whenever
the Loan Agreement gives the Trustee some right or privilege, or in any way
attempts to confer upon the Trustee the ability for the Trustee to protect the
security for payment of the Bonds, that such part of the Loan Agreement shall be
as though it were set out in this Indenture in full.
The Issuer agrees that the Trustee as assignee of the Loan
Agreement, to the extent provided herein, may enforce, in its name or in the
name of the Issuer, all rights of the Issuer (other than the rights of the
Issuer under Sections 5.1(f), 8.5 and 10.4 of the Loan Agreement and other than
the rights of the Issuer to perform certain discretionary acts reserved in the
Loan Agreement) and all obligations of the Company under and pursuant to the
Loan Agreement for and on behalf of the Bondholders, whether or not the Issuer
is in default hereunder.
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ARTICLE V
REDEMPTION OF BONDS PRIOR TO MATURITY
Section 5.1 Optional REDEMPTION. Series 2004 Bonds maturing
December 1, 2024, shall be subject to redemption prior to maturity, in whole or
in part, at the written direction of the Company ("Optional Redemption"), on
December 1, 2014, and on any date thereafter, at a redemption price set forth
below (expressed as a percentage of the principal amount so redeemed), plus
accrued interest to the redemption date:
Redemption Date Redemption Price
--------------- ----------------
Dec.1, 2014 to Nov. 30, 2015 102%
Dec.1, 2015 to Nov. 30, 2016 101%
Dec.1, 2016 and thereafter 100%
Section 5.2 REDEMPTION OF BONDS UPON OCCURRENCE OF CERTAIN EVENTS.
(a) The Bonds are redeemable by the Issuer upon the direction of the
Company Representative in whole or in part at any time at a redemption price
equal to the principal amount of each Bond redeemed, and accrued interest
thereon to the redemption date, upon the occurrence of events described in
Section 7.1 of the Loan Agreement.
(b) The Bonds are also redeemable by the Issuer upon the direction of
the Company Representative in whole but not in part at any time at a redemption
price equal to 110% of the principal amount thereof, and accrued interest
thereon to the redemption date, as a condition precedent to the acquisition by
any Person of substantially all of the assets of the Company or as a condition
precedent of the merger or consolidation of the Company, as provided in Section
8.14 of the Loan Agreement.
(c) The Bonds are redeemable by the Issuer upon the direction of the
Company Representative in whole or in part at any time after July 1, 2005, at a
redemption price equal to the principal amount of each Bond redeemed, and
accrued interest thereon to the redemption date, from unexpended proceeds of the
Bonds on deposit in the Project Fund.
Section 5.3 REDEMPTION OF BONDS UPON A DETERMINATION OF TAXABILITY.
Upon the occurrence of a Determination of Taxability, the Bonds are subject to
mandatory redemption in whole at a redemption price equal to 105% of the
Outstanding principal amount thereof, plus interest accrued to redemption date,
at the earliest practicable date selected by the Trustee, after consultation
with the Company, but in no event later than 45 days following receipt by the
Trustee of notice of the Determination of Taxability. The occurrence of a
Determination of
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Taxability with respect to the Bonds will not constitute an Event of Default
under this Indenture and the sole remedy of the Holders will be mandatory
redemption of the Bonds in accordance with this Section 5.2. Within five
Business Days after receipt by the Trustee of written notice of a Determination
of Taxability, the Trustee shall give written notice thereof to the Holders of
all Bonds then Outstanding and shall also give written notice to the Company and
the Issuer.
Section 5.4 SINKING FUND. The Bonds maturing December 1, 2012, are
subject to mandatory sinking fund redemption at a redemption price equal to 100
percent of the principal amount thereof and accrued interest to the redemption
date. As and for a sinking fund for the redemption of such Bonds, there shall be
deposited pursuant to Section 5.1(a) of the Loan Agreement in the Bond Principal
Fund and Bond Interest Fund a sum which is sufficient to redeem (after credit as
provided below) the following principal amounts of such Bonds and accrued
interest to the redemption date:
December 1 Principal December 1 Principal
of the Year Amount of the Year Amount
----------- ------ ----------- ------
2006 $310,000 2010 $400,000
2007 325,000 2011 425,000
2008 350,000 2012 455,000
2009 370,000
The Bonds maturing December 1, 2024, are subject to mandatory sinking
fund redemption at a redemption price equal to 100 percent of the principal
amount thereof and accrued interest to the redemption date. As and for a sinking
fund for the redemption of such Bonds, there shall be deposited pursuant to
Section 5.1(a) of the Loan Agreement in the Bond Principal Fund and Bond
Interest Fund a sum which is sufficient to redeem (after credit as provided
below) the following principal amounts of such Bonds and accrued interest to the
redemption date:
December 1 Principal December 1 Principal
of the Year Amount of the Year Amount
----------- ------ ----------- ------
2013 $485,000 2019 $130,000
2014 515,000 2020 140,000
2015 100,000 2021 150,000
2016 105,000 2022 160,000
2017 110,000 2023 170,000
2018 120,000 2024 180,000
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Not more than 45 days nor less than 30 days prior to a sinking
fund payment date for the Bonds, the Trustee shall proceed to select for
redemption (by lot in such manner as the Trustee may determine) from all Bonds
Outstanding which are subject to sinking fund redemption on such date a
principal amount of such Bonds equal to the aggregate principal amount of Bonds
redeemable with the required sinking fund payment, and shall call such Bonds for
redemption from the particular sinking fund on the next December 1, and give
notice of such call.
At the option of the Company Representative (so long as no
Event of Default has occurred and is continuing) to be exercised by delivery of
a written certificate to the Trustee and the Issuer not less than 45 days next
preceding any sinking fund redemption date, it may (i) deliver to the Trustee
for cancellation Bonds which are subject to sinking fund redemption on such date
in an aggregate principal amount designated by the Company Representative, or
(ii) specify a principal amount of such Bonds which prior to said date have been
redeemed (otherwise than through the operation of such sinking fund) and
canceled by the Trustee and not theretofore applied as a credit against any
sinking fund redemption obligation for such Bonds. Each Bond so delivered or
previously redeemed shall be credited by the Trustee at 100% of the principal
amount thereof against the obligation of the Company on such sinking fund
redemption date, and any excess shall be so credited against future sinking fund
redemption obligations for Bonds proportionately to all remaining sinking fund
payments. In the event the Company Representative shall avail itself of the
provisions of clause (i) of the first sentence of this paragraph the certificate
required by the first sentence of this paragraph shall be accompanied by the
Bonds to be canceled.
Notwithstanding any provision of this Indenture to the
contrary, in the event all Bonds are held by a single holder, no additional
notice shall be required with respect to mandatory sinking fund redemption
unless requested by the holders of 100% of the principal amount of the Bonds,
and Bonds need not be presented for mandatory sinking fund redemption payment.
Section 5.5 METHOD OF SELECTING BONDS. Except in the case of mandatory
sinking fund redemption pursuant to Section 5.4 hereof, in the event that less
than all of the Outstanding Bonds shall be redeemed, the Bonds redeemed shall be
redeemed in inverse order of maturity (less than all of the Bonds of a single
maturity to be selected by lot in such manner as the Trustee may determine).
Section 5.6 NOTICE OF REDEMPTION. Bonds shall be called for redemption
by the Trustee as herein provided but only if funds have been deposited with the
Trustee on or before the date fixed for redemption sufficient to pay the
applicable redemption price of the Bonds to be redeemed. Except as otherwise
herein provided, the Company shall provide to the Trustee, at least 45 days
prior to the redemption date, a Certificate of the Company Representative
specifying the principal amount of the Bonds to be called for redemption, the
applicable redemption price or prices and the provision or provisions of this
Indenture pursuant to which
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such Bonds are to be called for redemption, provided that such certificate shall
not be required with respect to a sinking fund redemption pursuant to Section
5.3 hereof and Bonds shall be called for redemption by the Trustee pursuant to
such Section without the necessity of any action by the Issuer or the Company.
In the case of any redemption or tender other than as provided in Section 5.3
hereof, the Trustee shall cause notice of such redemption to be given by mailing
not more than 45 days nor less than 30 days prior to the redemption date by
first class mail a copy of the redemption notice to the Registered Owner of any
Bonds designated for redemption in whole or in part, at their address as the
same shall last appear upon the registration books; provided, however, that
failure to give such notice or any defect therein, shall not affect the validity
of any proceedings for the redemption of such Bonds for which no such failure or
defect occurs.
Notice of any redemption hereunder with respect to Bonds held
under a book entry system shall be given by the Registrar only to the
Depository, or its nominee, as the Holder of such Bonds. Selection of book entry
interests in the Bonds called for redemption, and notice of call to the owners
of those interests called, is the responsibility of the Depository, the Direct
Participant and the Individual Participant and any failure of the Depository to
advise any Direct Participant and any failure of a Direct Participant or any
Indirect Participant to notify the Beneficial Owner of any such notice and its
contents or effect will not affect the validity of such notice of any
proceedings for the redemption of such Bonds.
Each notice of redemption shall specify the name of the Bonds,
the date the Bonds were originally issued, the date fixed for redemption, the
date of mailing of the notice, the redemption price, the place or places of
payment (including contact person and phone number) the CUSIP numbers of Bonds
being redeemed, the rate of interest borne by each Bond being redeemed or
tendered, the maturity date of each Bond being redeemed or tendered, that
payment will be made upon presentation and surrender of the Bonds to be
redeemed, that interest accrued to the date fixed for redemption will be paid as
specified in said notice, any conditions to the redemption (including, but not
limited to, deposit of the applicable redemption price) and that on and after
said date interest thereon will cease to accrue. If less than all the
Outstanding Bonds are to be redeemed, the notice of redemption shall specify the
Bonds to be redeemed, and the numbers of the Bonds or portions thereof to be
redeemed.
Section 5.7 BONDS DUE AND PAYABLE ON REDEMPTION DATE; INTEREST CEASES
TO ACCRUE. On or before any redemption pursuant to this Article V, collected
funds sufficient to redeem all the Bonds called for redemption at the
appropriate redemption price, including accrued interest to the date fixed for
redemption, shall be deposited with the Trustee. On the redemption date, the
principal amount of each Bond to be redeemed, together with the accrued interest
thereon to such date, and redemption premium, if any, shall become due and
payable; from and after such date, notice of redemption having been given, and
deposit having been made in accordance with the provisions of this Article V,
then, notwithstanding that any Bonds called for redemption shall not have been
surrendered, no further interest shall accrue on any of such Bonds. From and
after such date of redemption (such notice having been given and such deposit
having been made), the
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Bonds to be redeemed shall not be deemed to be Outstanding hereunder, and the
Issuer shall be under no further liability in respect thereof.
Section 5.8 CANCELLATION. All Bonds which have been redeemed shall be
canceled by the Trustee and destroyed as provided in Section 2.9 hereof.
Section 5.9 PARTIAL REDEMPTION OF BONDS. Upon surrender of any Bond for
redemption in part only, the Issuer shall execute, and the Trustee shall
authenticate and deliver to the owner thereof, the cost of which shall be paid
by the Company, a new Bond or Bonds of the same maturity and of authorized
denominations, in an aggregate principal amount equal to the unredeemed portion
of the Bond surrendered; provided that the Trustee shall select Bonds for
redemption so as to assure that after such redemption no Registered Owner or
Owner of Beneficial Interests shall retain Bonds in authorized denominations of
not less than $100,000; and provided further that, if less than all of an
Outstanding Bond of one maturity in a book entry system is to be called for
redemption, the Trustee shall give notice to the Depository or the nominee of
the Depository that is the Holder of such Bond, and the selection of the
Beneficial Interests in that Bond to be redeemed shall be at the sole discretion
of the Depository and its participants. In the case of a partial redemption of
Bonds by lot, each unit of face value of principal thereof equal to $5,000 (each
such $5,000 unit is hereinafter referred to as a "Unit") shall be treated as
though it were a separate Bond in the amount of such Unit. If it is determined
that one or more, but not all, of the Units represented by a Bond are to be
called for redemption, then upon notice of redemption of a Unit or Units of
Bonds, the holder of that Bond shall surrender the Bond to the Trustee (a) for
payment of the redemption price of the Unit or Units of Bonds called for
redemption (including without limitation. the interest accrued to the date fixed
for redemption and any premium), and (b) for issuance, without charge to the
holder thereof, of a new Bond or Bonds of $100,000 or amounts in excess thereof
in such integrals as are permitted hereunder, aggregating a principal amount
equal to the unmatured and unredeemed portion of, and bearing interest at the
same rate and maturing on the same date as, the Bond surrendered.
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ARTICLE VI
INVESTMENTS
Section 6.1 INVESTMENT OF FUNDS. Subject to the Section 3.18 hereof,
any monies held as part of the Funds shall, on instructions signed by a
Corporation Representative, be invested by the Trustee in Permitted Investments
(i) with respect to the Project Fund and the Reserve Fund maturing in the
amounts and at the times necessary to provide funds to make the payments to
which such monies are applicable as estimated in a certificate of a Corporation
Representative from time to time filed with the Trustee and (ii) with respect to
the Bond Principal Fund, the Bond Interest Fund and the Rebate Fund maturing in
the amounts and at the times necessary to provide funds to make the payments to
which such monies are applicable as determined by the Trustee. To the extent
practicable, all such Permitted Investments purchased shall mature or be
redeemable on a date or dates prior to the time when the monies so invested will
be required for expenditure. Permitted Investments in the Reserve Fund shall
have a maturity of not more than one year. The Trustee shall sell and reduce to
cash a sufficient portion of such investments whenever the cash balance in a
Fund is insufficient for the purposes of such Fund. The Trustee may make any and
all investments permitted by the provisions of this Section through its trust or
bond department.
Investments in any of the Funds hereof shall be valued by the
Trustee not less often than annually, on or before December 1 of each year, at
the market value thereof, exclusive of interest. Deficiencies in the amount on
deposit in the Reserve Fund resulting from a decline in market value shall be
restored by the Company beginning not later than three months after the
valuation date by making the deposits required by Section 5.1(e)(iii) of the
Loan Agreement.
As to any investment agreement, the Trustee shall give notice
to any provider of an investment agreement in accordance with the terms of the
investment agreement so as to receive funds thereunder when needed with no
penalty or premium paid.
Section 6.2 ARBITRAGE. In reliance upon the covenant of the Company in
Section 4.6 of the Loan Agreement, the Issuer hereby covenants for the benefit
of each owner of the Bonds that no use will be made of the proceeds of the Bonds
or of any monies in the Funds and that no other action shall be taken which will
cause the Bonds or any obligations subsequently issued by the Issuer to be
"arbitrage bonds" within the meaning of Section 148 of the Code and the
regulations prescribed thereunder.
Unless otherwise required by Section 148 of the Code, the
Secretary or any other Issuer Representative having responsibility with respect
to the issuance of the Bonds shall, on or prior to the date of issuance of the
Bonds, if applicable, either alone or in conjunction with any other officer,
employee, consultant or agent of the Issuer, deliver to the Trustee the
certification required by the regulations promulgated under Section 148 of the
Code to evidence that such
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Bonds will not be "arbitrage bonds" within the meaning of Section 148 of the
Code and the regulations thereunder. Such certificates may rely upon the
certificates of the Company delivered to the Issuer pursuant to Section 4.6 of
the Loan Agreement.
Section 6.3 ALLOCATION AND TRANSFERS OF INVESTMENT INCOME. Any
investments shall be held by or under the control of the Trustee and shall be
deemed at all times a part of the Fund from which the investment was made. Any
loss resulting from such investments shall be charged to such Fund. Any interest
or other gain from any Fund from any investment or reinvestment shall be
allocated and transferred subject to the Tax Certificates, as follows:
(a) any interest or other gain realized as a result of any
investments or reinvestments of moneys in the Project Fund shall be retained in
or transferred to the Project Fund;
(b) any interest or other gain realized as a result of any
investments or reinvestments of moneys in the Bond Principal Fund and the Bond
Interest Fund shall be retained in the respective Fund;
(c) any interest or other gain realized as a result of any
investments or reinvestments of moneys in the Reserve Fund shall be transferred
to the Project Fund during the construction of the Improvements and thereafter
shall be credited to the Reserve Fund if the amount therein is less than the
Reserve Requirement. If the amount in the Reserve Fund is equal to or greater
than the Reserve Requirement, such interest or other gain realized shall be paid
into the Project Fund, and after the Completion Date, to the Bond Interest Fund;
(d) (Reserved);
(e) any interest or other gain realized as a result of any
investment or reinvestment of moneys in the Rebate Fund shall be retained in the
Rebate Fund; and
(f) notwithstanding the foregoing, any interest or other gain
realized as a result of any investments or reinvestments of moneys in Funds
pursuant to the Indenture shall first be deposited in the Rebate Fund to the
extent amounts required to be deposited therein pursuant to the Indenture have
not been so deposited.
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ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.1 DISCHARGE OF THIS INDENTURE. If, when the Bonds secured
hereby shall be paid in accordance with their terms (or payment of the Bonds has
been provided for in the manner set forth in the following paragraph), together
with all other sums payable hereunder, then this Indenture and the Trust Estate
and all rights granted hereunder shall thereupon cease, terminate and become
void and be discharged and satisfied. Also, if all Outstanding Bonds secured
hereby shall have been purchased by the Company and delivered to the Trustee for
cancellation, and all other sums payable hereunder have been paid, or provision
shall have been made for the payment of the same, then this Indenture and the
Trust Estate and all rights granted hereunder shall thereupon cease, terminate
and become void and be discharged and satisfied. In such events, upon the
request of the Issuer, the Trustee shall assign and transfer to the Issuer all
property then held by the Trustee hereunder and shall execute such documents as
may be reasonably required by the Issuer (including undertakings by the Company
to continue to comply with its covenants contained in Sections 4.6, 5.1(f),
5.1(g), 8.5 and 10.4 of the Loan Agreement until all Bonds are actually paid)
and shall turn over any surplus in any Fund the Company Representative shall
direct in writing, other than the Rebate Fund.
Payment of any Outstanding Bonds prior to the maturity or
redemption date thereof shall be deemed to have been provided for within the
meaning and with the effect expressed in this Section if (i) in case said Bonds
are to be redeemed on any date prior to their maturity, the Company
Representative shall have given to the Trustee in form satisfactory to it
irrevocable instructions to give on a date in accordance with the provisions of
Section 5.5 hereof notice of redemption of such Bonds on said redemption date,
such notice to be given in accordance with the provisions of Section 5.5 hereof,
(ii) there shall have been deposited with the Trustee Government Obligations
described in Section 1(a) of the definition of such term as set forth herein
which shall not contain provisions permitting the redemption thereof at the
option of the issuer before the date the principal thereof will be required, the
principal of and the interest on which when due, and without any reinvestment
thereof, will provide monies which, together with any other available monies, if
any, deposited with or held by the Trustee at the same time, shall be sufficient
to pay when due the principal of and premium, if any, and interest due and to
become due on said Bonds on and prior to the redemption date or maturity date
thereof, as the case may be (and if on the date of such deposit, the Bonds are
not actually paid in full, then there shall be provided to the Trustee and the
Issuer (a) report of an independent firm of nationally recognized certified
public accountants verifying the sufficiency of the escrow established to pay
the Bonds in full and (b) an opinion of nationally recognized bond counsel to
the effect that the Bonds are no longer Outstanding under this Indenture), and
(iii) in the event said Bonds are not by their terms subject to redemption
within the next 45 days, the Company Representative shall have given the Trustee
in form satisfactory to it irrevocable instructions to give, as soon as
practicable in the same manner as the notice of redemption is given pursuant to
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Section 5.5 hereof, a notice to the owners of such Bonds that the deposit
required by (ii) above has been made with the Trustee and that payment of said
Bonds has been provided for in accordance with this Section and stating such
maturity or redemption date upon which monies are to be available for the
payment of the principal of and premium, if any, and interest on said Bonds. At
such time as payment of any Bonds has been provided for as aforesaid, such Bonds
shall no longer be secured by or entitled to the benefits of this Indenture.
except for the purpose of any payment from such monies or securities deposited
with the Trustee. The Company will use its best efforts to obtain from the
Rating Agencies the assignment of a rating to the Bonds that have been defeased
pursuant to this Section 7.1.
The release of the obligations of the Issuer under this
Section shall be without prejudice to the right of the Trustee to be paid
reasonable compensation for all services rendered by it hereunder and all its
reasonable expenses, charges and other disbursements incurred on or about the
administration of the trust hereby created and the performance of its powers and
duties hereunder.
Section 7.2 LIABILITY OF ISSUER NOT DISCHARGED. Upon compliance with
the provisions of Section 7.1 hereof with respect to all Bonds then Outstanding,
this Indenture may be discharged in accordance with the provisions of this
Article VII, but the liability of the Issuer in respect of such Bonds shall
continue provided that the owners thereof shall thereafter be entitled to
payment only out of the monies or securities deposited with the Trustee as
provided in Section 7.1 hereof.
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ARTICLE VIII
DEFAULTS AND REMEDIES
Section 8.1 EVENTS OF DEFAULT. Each of the following is hereby defined
as and shall be deemed an "Event of Default":
(a) default in the payment of the principal of or premium, if
any, on any Bond when the same shall become due and payable, whether at the
stated maturity thereof, on a sinking fund payment date, or upon proceedings for
redemption;
(b) default in the payment of any installment of interest on
any Bond when the same shall become due and payable;
(c) default shall be made in the observance or performance of
any covenant, contract or other provision in the Bonds or this Indenture (other
than as referred to in (a) or (b) of this Section and circumstances resulting in
an Interest Rate Step-up, as defined herein) and such default shall continue for
a period of 30 days after written notice to the Issuer and the Trustee from the
owners of at least 25 percent in aggregate principal amount of the Bonds then
Outstanding or to the Issuer from the Trustee specifying such default and
requiring the same to be remedied; provided, with respect to any such failure
covered by this subsection (c), no Event of Default shall be deemed to have
occurred so long as a course of action adequate to remedy such failure shall
have been commenced within such 30-day period and shall thereafter be diligently
prosecuted to completion and the failure shall be remedied thereby; provided
further, however, that failure to correct such default within 90 days after
receipt of such notice shall constitute an Event of Default; and
(d) the occurrence of an "event of default" under Section 10.1
of the Loan Agreement.
Section 8.2 REMEDIES ON EVENTS OF DEFAULT. Upon the occurrence of an
Event of Default, the Trustee shall have the following rights and remedies:
(a) Upon the occurrence of an Event of Default (as defined
hereinabove or as hereinafter defined) other than an Event of Taxability, the
rate of interest on the Bonds shall be adjusted so that at all times on and
after the occurrence and continuation of the Event of Default, the Bonds shall
bear interest at a rate equal to fourteen percent (14%) per annum (the "Default
Rate") until such Event of Default has been cured.
(b) ACCELERATION. The Trustee may, and upon the written
request of the owners of not less than 25 percent aggregate principal amount of
the sum of the Bonds then Outstanding shall, by notice in writing given to the
Issuer and the Company, declare the principal amount of all Bonds then
Outstanding and the interest accrued thereon to be immediately due
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and payable and said principal and interest shall thereupon become immediately
due and payable. Upon any declaration of acceleration hereunder, the Issuer and
the Trustee shall immediately declare all Loan Payments under the Loan Agreement
to be immediately due and payable as provided in Section 10.2 of the Loan
Agreement.
(c) LEGAL PROCEEDINGS. The Trustee may, by mandamus or other
suit, action or proceeding at law or in equity, enforce the rights of the
Bondholders and require the Issuer, the Company or any or both of them to carry
out the Loan Agreement with or for the benefit of the Bondholders and to perform
its or their duties under the Act, the Loan Agreement and this Indenture. The
Trustee may also, by action or suit in equity, enjoin any acts or things which
may be unlawful or in violation of the rights of the Bondholders.
(d) RECEIVERSHIP. The Trustee shall be entitled as a matter of
right without notice or demand (such notice being expressly waived hereby), ex
parte, to the appointment of a receiver or receivers of the Trust Estate, and of
the rents, revenues, income, products and profits thereof, pending such
proceedings, but, notwithstanding the appointment of any receiver, trustee or
other custodian, the Trustee shall be entitled to the possession and control of
any cash, securities or other instruments at the time held by, or payable or
deliverable under the provisions of this Indenture to, the Trustee.
(e) SUIT FOR JUDGMENT ON THE BONDS. The Trustee shall be
entitled to ▇▇▇ for and recover judgment, either before or after or during the
pendency of any proceedings for the enforcement of the lien of this Indenture,
for the enforcement of any of its rights, or the rights of the Bondholders
hereunder, but any such judgment against the Issuer shall be enforceable only
against the Trust Estate. No recovery of any judgment by the Trustee shall in
any manner or to any extent affect the lien of this Indenture or any rights,
powers or remedies of the Trustee hereunder, or any lien, rights, powers or
remedies of the owners of the Bonds, but such lien, rights, powers and remedies
of the Trustee, the Bondholders shall continue unimpaired as before.
(f) REMEDIES UNDER AGREEMENT. The Trustee, as assignee of the
Issuer, may exercise the remedies provided under the Loan Agreement upon an
Event of Default.
In the event written notice is given by the Bondholders to the
Trustee under Section 8.1(c) hereof and upon due receipt of such notice by the
Trustee, the Trustee shall immediately give notice with respect to such default
to the Company.
No right or remedy is intended to be exclusive of any other
right or remedy, but each and every such right or remedy shall be cumulative
with respect to the Trustee and the Bondholders, and in addition to any other
right or remedy given hereunder or now or hereafter existing at law or in equity
or by statute.
If any Event of Default shall have occurred and if instructed
and directed in writing by the owners of not less than the sum of a majority in
aggregate principal amount of
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Bonds then Outstanding and indemnified as provided in Section 9.1 hereof, the
Trustee shall exercise such one or more of the rights and powers conferred by
this Section as the Trustee, being advised by counsel, shall deem most expedient
in the interests of the Bondholders or as may be set forth in such directions.
Section 8.3 MAJORITY OF BONDHOLDERS AND HOLDERS OF PARITY INDEBTEDNESS
MAY CONTROL PROCEEDINGS. Anything in this Indenture to the contrary
notwithstanding and subject to prior notice to the Issuer, the owners of the sum
of a majority in aggregate principal amount of the Bonds and Parity Indebtedness
then Outstanding shall have the right, at any time, to the extent permitted by
law, by an instrument or instruments in writing executed and delivered to the
Trustee, to direct the time, method and place of conducting all proceedings to
be taken in connection with the enforcement of the terms and conditions of this
Indenture, or for the appointment of a receiver, or any other proceedings
hereunder; provided that such direction shall not be otherwise than in
accordance with the provisions hereof. The Trustee shall not be required to act
on any direction given to it pursuant to this Section unless indemnified as
provided in Section 9.1 hereof.
Section 8.4 RIGHTS AND REMEDIES OF BONDHOLDERS. No owner of any Bond or
Parity Indebtedness shall have any right to institute any suit, action or
proceeding in equity or at law for the enforcement of this Indenture or for the
execution of any trust hereof or for the appointment of a receiver or any other
remedy hereunder, unless a default has occurred of which the Trustee has been
notified as provided in Section 9.1 hereof, or of which by said Section it is
deemed to have notice, nor unless such default shall have become an Event of
Default and the owners of the sum of not less than a majority in aggregate
principal amount of Bonds then Outstanding shall have made written request to
the Trustee and shall have offered ten (10) days either to proceed to exercise
the powers hereinbefore granted or to institute such action, suit or proceeding
in its own name, nor unless they have also offered to the Trustee indemnity as
provided in Section 9.1 hereof nor unless the Trustee shall thereafter fail or
refuse to exercise the powers hereinbefore granted, or to institute such action,
suit or proceeding in its own name; and such notification, request and offer of
indemnity are hereby declared in every case at the option of the Trustee to be
conditions precedent to the execution of the powers and trusts of this
Indenture, and to any action or cause of action for the enforcement of this
Indenture, or for the appointment of a receiver or for any other remedy
hereunder; it being understood and intended that no one or more owners of the
Bonds shall have the right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by his, her or their action or to enforce
any right hereunder except in the manner herein provided and that all
proceedings at law or in equity shall be instituted, had and maintained in the
manner herein provided and for the equal benefit of the owners of all Bonds then
Outstanding. Nothing in this Indenture contained shall, however, affect or
impair the right of any owner of Bonds to enforce the payment, by the
institution of any suit, action or proceeding in equity or at law, of the
principal of, premium, if any, or interest on any Bond at and after the maturity
thereof, or the obligation of the Issuer to pay the principal of, premium, if
any, and interest on each of the Bonds to the respective owners of the Bonds at
the time and place, from the source and in the manner herein and in the Bonds
expressed.
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Section 8.5 APPLICATION OF MONIES. All monies received by the Trustee
pursuant to any reasonable right given or action taken under the provisions of
this Article shall, after payment of the fees of the Trustee, costs and expenses
of the proceedings resulting in the collection of such monies and the expenses,
liabilities and advances incurred or made by the Trustee, first, to the extent
of any deficiency of required amounts in the Rebate Fund be deposited in the
Rebate Fund, and thereafter shall be held in trust and all monies so deposited
in the Bond Principal Fund and the Bond Interest Fund and all monies held or
deposited in the Bond Principal Fund and the Bond Interest Fund during the
continuance of an Event of Default shall be applied as follows:
(a) Unless the principal of all the Bonds and Parity
Indebtedness shall have become or shall have been declared due and payable, all
such monies shall be applied:
FIRST--for so long as the Initial Bondholder
beneficially owns 100% of the Bonds, to the payment of the beneficial holder of
the Bonds maturing December 1, 2012, in satisfaction of installments of interest
and then to the extent available, principal and premium, if any, due to the
beneficial holder of the Bonds maturing December 1, 2012; otherwise to the
persons entitled thereto of all installments of interest and Parity Indebtedness
in the order of the maturity of the installments of such interest and, if the
amount available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the amounts due on such
installment, to the persons entitled thereto, without any discrimination or
privilege; and
SECOND--for so long as the Initial Bondholder
beneficially owns 100% of the Bonds, to the payment of the beneficial holder of
the Bonds maturing December 1, 2024, in satisfaction of installments of interest
and then principal and premium, if any, due to the beneficial holder of the
Bonds maturing December 1, 2024; otherwise (in the event that the Initial
Bondholder is not the beneficial owner of 100% of the Bonds) to the payment to
the persons entitled thereto of the unpaid principal of and premium, if any, on
any of the Bonds and Parity Indebtedness which shall have become due (other than
Bonds called for redemption for the payment of which moneys are held pursuant to
the provisions of the Indenture), in the order of their due dates, with interest
on the unpaid principal of and premium, if any, on such Bonds from the
respective dates upon which they became due, at the Default Rate and, if the
amount available shall not be sufficient to pay in full such Bonds due on any
particular date, together with such interest, then to the payment ratably,
according to the amount of principal due on such date, to the persons entitled
thereto, without any discrimination or privilege.
(b) If the principal of all the Bonds and Parity Indebtedness
shall have become due or shall have been declared due and payable, all such
moneys shall be applied (i) for so long as the Initial Bondholder beneficially
owns 100% of the Bonds, to the payment of interest (at the Default Rate) and
then principal and premium, if any, then due to the beneficial holder of the
Bonds maturing December 1, 2024 and then (ii) to the extent that sums remain
thereafter available, to the payment of interest (at the default Rate) and then
principal and premium, if any,
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then due to the beneficial holder of the Bonds maturing December 1, 2024;
otherwise (in the event that the Initial Bondholder is not the beneficial owner
of 100% of the Bonds) to the payment of the principal and interest then due and
unpaid upon all of the Bonds, together with interest on overdue installments of
principal at a rate which shall be equal to the Default Rate), without
preference or priority of principal over interest or of interest over principal,
or of any installment of interest over any other installment of interest, or of
any such Bond over any other such Bond, ratably, according to the amounts due
respectively for principal and interest, to the persons entitled thereto without
any discrimination or privilege.
(c) If the principal of all the Bonds and Parity Indebtedness
shall have been declared due and payable, and if such declaration shall
thereafter have been rescinded and annulled under the provisions of this Article
then, subject to the provisions of paragraph (b) of this Section in the event
that the principal of all the Bonds and Parity Indebtedness shall later become
due or be declared due and payable, the monies shall be applied in accordance
with the provisions of paragraph (a) of this Section.
Whenever monies are to be applied pursuant to the provisions
of this Section, such monies shall be applied at such times, and from time to
time, as the Trustee shall determine, having due regard to the amount of such
monies available for application and the likelihood of additional monies
becoming available for such application in the future. Whenever the Trustee
shall apply such funds, it shall fix the date (which shall be an Interest
Payment Date unless it shall deem another date more suitable) upon which such
application is to be made, and upon such date interest on the amounts of
principal to be paid on such dates shall cease to accrue. The Trustee shall give
such notice as it may deem appropriate of the deposit of any such monies and of
the fixing of any such date, and shall not be required to make payment to the
owner of any Bond and Parity Indebtedness until such Bond and Parity
Indebtedness shall be presented to the Trustee for appropriate endorsement or
for cancellation if fully paid.
Whenever all of the Bonds and Parity Indebtedness and interest
thereon have been paid under the provisions of this Section and all expenses and
fees of the Trustee and all other amounts to be paid to the Issuer hereunder or
under the Loan Agreement have been paid, any balance remaining in the Funds
shall be paid as provided in Section 3.13 hereof.
Section 8.6 TRUSTEE MAY ENFORCE RIGHTS WITHOUT BONDS. All rights of
action and claims under this Indenture or any of the Bonds Outstanding hereunder
may be enforced by the Trustee without the possession of any of the Bonds or the
production thereof in any trial or proceedings relative thereto; and any suit or
proceeding instituted by the Trustee shall be brought in its name as Trustee,
without the necessity of joining as plaintiffs or defendants any owners of the
Bonds, and any recovery of judgment shall be for the ratable benefit of the
owners of the Bonds subject to the provisions of this Indenture.
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Section 8.7 TRUSTEE TO FILE PROOFS OF CLAIM IN RECEIVERSHIP, ETC In the
case of any receivership, insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceedings affecting the Trust Estate
or the Company, the Issuer or the Trustee shall, to the extent permitted by law,
be entitled to file such proofs of claims and other documents as may be
necessary or advisable in order to have claims of the Trustee and of the
Bondholders allowed in such proceedings for the entire amount due and payable by
the Issuer under this Indenture, or by the Company, as the case may be, at the
date of the institution of such proceedings and for any additional amounts which
may become due and payable by it after such date, without prejudice, however, to
the right of any Bondholder to file a claim in his own behalf.
Section 8.8 DELAY OR OMISSION NO WAIVER. No delay or omission of the
Trustee, any Bondholder or any holder to exercise any right or power accruing
upon any default shall exhaust or impair any such right or power or shall be
construed to be a waiver of any such default, or acquiescence therein; and every
power and remedy given by this Indenture may be exercised from time to time and
as often as may be deemed expedient.
Section 8.9 NO WAIVER OF ONE DEFAULT TO AFFECT ANOTHER. No waiver of
any default hereunder, whether by the Trustee, the Bondholders, shall extend to
or affect any subsequent or any other then existing default or shall impair any
rights or remedies consequent thereon.
Section 8.10 DISCONTINUANCE OF PROCEEDINGS ON DEFAULT; POSITION OF
PARTIES RESTORED. In case the Trustee shall have proceeded to enforce any rights
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored to their former positions and rights hereunder with respect to the
Trust Estate, and all rights, remedies and powers of the Trustee shall continue
as if no such proceedings had been taken.
Section 8.11 WAIVERS OF EVENTS OF DEFAULT. Subject to prior written
notice to and prior written consent of the Issuer, the Trustee may in its
discretion waive any Event of Default hereunder and its consequences and rescind
any declaration of maturity of principal of and interest on the Bonds, and shall
do so upon the written request of the owners of the sum of a majority in
aggregate principal amount of all the Bonds then Outstanding in respect of which
default exists; provided, however, that there shall not be waived (i) any Event
of Default in the payment of the principal of or premium on any Outstanding
Bonds at the date of maturity or redemption thereof, or any default in the
payment when due of the interest on any such Bonds, unless prior to such waiver
or rescission, all arrears of interest or all arrears of payments of principal
and premium, if any (with interest upon such principal and premium, if any, at a
rate which shall be 1 percent per annum above the highest rate of interest borne
by any Bond during the 365 days prior to the date on which such principal and
premium, if any, were due or the maximum rate permitted by law if less than such
rate aforesaid) and all expenses of the Trustee, and all amounts to be paid to
the Issuer hereunder and under the Loan Agreement, in connection with such
default shall have been paid or provided for or (ii) any default in the payment
of
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amounts set forth in Section 5.1(d) of the Loan Agreement. In case of any such
waiver or rescission, or in case any proceedings taken by the Trustee on account
of any such default shall have been discontinued or abandoned or determined
adversely to the Trustee, then and in every such case the Issuer, the Trustee,
the Bondholders shall be restored to their former positions and rights
hereunder, respectively, but no such waiver or rescission shall extend to or
affect any subsequent or other default, or impair any rights or remedies
consequent thereon.
Section 8.12 TRUSTEE TO NOTIFY PARTIES OF DEFAULT AND DISCLOSE
INFORMATION RELATING TO DEFAULT. The Trustee shall immediately notify in writing
the Issuer and the Company of any default hereunder of which it has actual
knowledge or the occurrence of any Event of Default. The Trustee shall notify as
within five (5) Business Days in writing all Bondholders and Notice Beneficial
Owners of the occurrence of any Event of Default and shall make available to
such Bondholders information reasonably requested of the Trustee concerning the
Event of Default, the Bonds, the Company, and such other information relevant to
the Event of Default, subject to the provisions of Section 9.01 hereof.
ARTICLE IX
CONCERNING THE TRUSTEE
Section 9.1 DUTIES OF THE TRUSTEE. The Trustee hereby accepts the
trusts imposed upon it by this Indenture and agrees to perform said trusts, but
only upon and subject to the following express terms and conditions, and no
implied covenants or obligations shall be read into this Indenture against the
Trustee:
(a) The Trustee, prior to the occurrence of an Event of
Default and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has not
been cured or waived), the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of the affairs of others.
(b) The Trustee may execute any of the trusts hereof or powers
hereunder and perform any of its duties by or through attorneys, agents,
receivers or employees but shall be answerable for the conduct of the same in
accordance with the standard specified above, only if the Trustee has not
exercised reasonable care in the selection thereof and shall be entitled to act
upon an opinion of independent counsel concerning all matters of the trust
hereof and its duties hereunder, and may in all cases pay such reasonable
compensation to all such attorneys, agents, receivers and employees as may
reasonably be employed in connection with the trusts hereof. The Trustee may act
upon an opinion of independent counsel and shall not be responsible for any loss
or damage resulting from any action or nonaction taken by or omitted to be taken
in good faith in reliance upon such opinion of independent counsel.
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(c) The Trustee shall not be responsible for any recital
herein or in the Bonds (except in respect to the certificate of authentication
of the Trustee endorsed on the Bonds), or for insuring the Property or
collecting any insurance monies or for the validity of the execution by the
Issuer of this Indenture or of any supplements hereto or instruments of further
assurance, or for the sufficiency of the security for the Bonds issued hereunder
or intended to be secured hereby, or for the value of or title to the assets of
the Company and the Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the part
of the Issuer, except as hereinafter set forth; but the Trustee may require of
the Issuer or the Company full information and advice as to the performance of
the covenants, conditions and agreements as to the condition of the assets of
the Company contained herein or in the Loan Agreement. The Trustee shall not be
accountable for the use or application by the Issuer or the Company of any of
the Bonds or the proceeds thereof or the use or application of any money paid
over by the Trustee in accordance with the provisions of this Indenture. The
Trustee shall have no obligation to perform any of the duties of the Issuer
under the Loan Agreement; and the Trustee shall not be responsible or liable for
any loss suffered in connection with any investment of funds made by it in
accordance with Section 6.1 hereof.
(d) The Trustee shall not be accountable for the use of any
Bonds authenticated or delivered hereunder. The Trustee may not hold Bonds for
its own account.
(e) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or other paper
or document believed to be genuine and correct and to have been signed or sent
by the proper person or persons. Any action taken by the Trustee pursuant to
this Indenture upon the request or authority or consent of any person who at the
time of making such request or giving such authority or consent is the owner of
any Bonds shall be conclusive and binding upon all future owners of the same
Bond and upon Bonds issued in place thereof.
(f) As to the existence or nonexistence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding, the Trustee
shall be entitled to rely upon a certificate signed on behalf of the Issuer by
an Issuer Representative or such other person as may be designated for such
purpose by the Issuer as sufficient evidence of the facts therein contained, and
prior to the occurrence of a default of which the Trustee has been notified as
provided in subsection (h) of this Section, or of which by said subsection it is
deemed to have notice, shall also be at liberty to accept a similar certificate
to the effect that any particular dealing, transaction or action is necessary or
expedient, but may at its discretion secure such further evidence deemed
necessary or advisable, but shall in no case be bound to secure the same.
(g) The permissive rights of the Trustee 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,
subject to Section 9.1(a) hereof.
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(h) The Trustee shall not be required to take notice or be
deemed to have notice of any default hereunder except failure by the Issuer to
cause to be made any of the payments to the Trustee required to be made by
Article III hereof unless the Trustee shall be specifically notified in writing
of such default by the Issuer or by the owners of at least 25 percent in
aggregate principal amount of Bonds then Outstanding, and all notices or other
instruments required by this Indenture to be delivered to the Trustee must, in
order to be effective, be delivered at the principal corporate trust office of
the Trustee; in the absence of such notice so delivered, the Trustee may
conclusively assume that there is no default except as aforesaid.
(i) All monies received by the Trustee shall, until used or
applied or invested as herein provided, be held in trust in the manner and for
the purposes for which they were received but need not be segregated from other
funds except to the extent required by this Indenture or law. The Trustee shall
not be under any liability for interest on any monies received hereunder except
such as may be agreed upon.
(j) At any and all reasonable times, the Trustee, and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives, shall have the right, but shall not be required, to inspect any
and all of the Trust Estate, including all books, papers and records of the
Issuer pertaining to the Project and the Bonds.
(k) The Trustee shall not be required to give any note or
surety in respect of the execution of the said trusts and powers or otherwise in
respect of the premises.
(l) Notwithstanding anything in this Indenture contained, the
Trustee shall have the right, but shall not be required, to demand, in respect
of the authentication of any Bonds, the withdrawal of any cash, the release of
any property, or any action whatsoever within the purview of this Indenture, any
showings, certificates, opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms hereof required, as
a condition of such action by the Trustee deemed desirable for the purpose of
establishing the right of the Issuer to the authentication of any Bonds, the
withdrawal of any cash, the release of any property or the taking of any other
action by the Trustee.
(m) Before taking any action under Section 8.2, 8.3 or 8.4
hereof, the Trustee may require that reasonable indemnity be furnished to it by
the owners of the Bonds and for the reimbursement of all expenses which it may
incur and to protect it against all liability, except liability which may result
from its negligence or willful default, by reason of any action so taken.
(n) The Trustee may deposit the property held in the Funds
with a court of general jurisdiction in the city in which the Trustee is
located, or the Issuer may file an action to interplead the Trust Estate and the
Company, the Issuer and any other appropriate parties to such action in the
event of the Trustee's resignation hereunder and the failure of a successor
trustee to succeed to the duties of the Trustee hereunder within 90 days of the
giving of notice of the
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Trustee's resignation. Upon the deposit of such property and the filing of a
complaint in interpleader, the Trustee shall be relieved of all liabilities and
duties under the Loan Agreement and this Indenture. The Issuer and the Company
shall thereupon submit themselves to the jurisdiction of the District Court.
(o) In the event there occurs a conflict of interest arising
as the result of the Trustee's acting as Trustee or in fiduciary capacity with
respect to other Indebtedness of the Company, the Trustee shall appoint a
Co-Trustee with respect to the Bonds.
Section 9.2 FEE AND EXPENSES OF TRUSTEE. The Trustee shall be entitled
to payment and reimbursement for its reasonable fees for its services rendered
hereunder as and when the same become due and all expenses reasonably and
necessarily made or incurred by the Trustee in connection with such services as
and when the same become due as provided in Section 5.1 of the Loan Agreement.
The Trustee shall not be entitled to payment of any expenses it incurs related
to such resignation upon its resignation as Trustee hereunder unless such
resignation is made in relation to the exercise by the Trustee of its rights of
interpleader hereunder.
Notwithstanding any provision in this Indenture or the Loan
Agreement to the contrary, any reference or covenant set forth in this Indenture
or the Loan Agreement for the payment or remuneration of (i) the reasonable
fees, compensation, charges or remuneration of the Trustee, or the like, shall
be deemed to reference and include Trustee's fees and extraordinary Trustee's
fees including reasonable default fees of Trustee upon the occurrence of an
Event of Default incurred as a result of the administration of the duties of the
Trustee hereunder, and (ii) reasonable expenses, costs, out-of-pocket costs, or
other reimbursable charges, or the like, shall be deemed to reference and
include reasonable attorney's fees, fees and expenses of independent contractors
or agents incurred in the course of the administration of the duties of the
Trustee hereunder, and other customary and reimbursable expenditures.
Section 9.3 RESIGNATION OR REPLACEMENT OF TRUSTEE. The Trustee may
resign by giving to the Issuer, the Beneficial Owners and the Bondholders 90
days' notice of such resignation, provided, however that no such resignation
shall become effective until a successor has been appointed and has accepted the
duties of Trustee. The present or any future Trustee may be removed at any time
by the Bondholders by an instrument in writing, executed by the Issuer and the
Company, so long as the Company is not in default or by the owners of a majority
in aggregate principal amount of the Bonds then Outstanding; provided, however,
that no such removal shall become effective until a successor has been appointed
and has accepted the duties of Trustee hereunder.
In case the Trustee shall at any time resign or be removed or
otherwise become incapable of acting, subject to the prior written approval of
the Issuer, a successor may be appointed by the owners of a majority in
aggregate principal amount of the Bonds Outstanding by an instrument or
concurrent instruments signed by such Bondholders, or their attorneys-in-fact
duly appointed; provided that the Issuer may appoint a successor until a new
successor shall
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be appointed by the Bondholders as herein authorized. The Issuer upon making
such appointment shall forthwith give notice thereof to the Bondholders and to
the Company, which notice may be given concurrently with the notice of
resignation given by any resigning Trustee. Any successor so appointed by the
Issuer shall immediately and without further act be superseded by a successor
appointed in the manner above provided by the owners of a majority in aggregate
principal amount of the Bonds Outstanding.
Every successor shall always be a bank or trust company (or a
subsidiary thereof) in good standing, qualified to act hereunder, and having a
combined capital, surplus and undivided profits of not less than $25,000,000. An
successor appointed hereunder shall execute, acknowledge and deliver to the
Issuer an instrument accepting such appointment hereunder, and thereupon such
successor shall, without any further act, deed or conveyance, become vested with
all the estates, properties, rights, powers and trusts of its predecessor in the
trust hereunder with like effect as if originally named as Trustee herein; but
the Trustee retiring shall, nevertheless, on the written demand of its
successor, execute and deliver an instrument conveying and transferring to such
successor, upon the trusts herein expressed, all the estates, properties,
rights, powers and trusts of the predecessor, who shall duly assign, transfer
and deliver to the successor all properties and monies held by it under this
Indenture. Should any instrument in writing from the Issuer be reasonably
required by any successor for such vesting and confirming, the Issuer shall
execute, acknowledge and deliver the said deeds, conveyances and instruments on
the request of such successor.
The notices herein provided for, to be given to the
Bondholders, shall be given by mailing a copy of such notices by first class
mail to the Bondholders at their addresses as the same shall last appear upon
the registration books. The notice herein provided for to be given to the
Issuer, the Company and the retiring Trustee, shall be given in accordance with
Section 11.07 hereof.
The instruments evidencing the resignation or removal of the
Trustee and the appointment of a successor hereunder, together with all other
instruments provided for in this Section, shall be filed and/or recorded by the
successor Trustee in each recording office where this Indenture shall have been
filed and/or recorded.
Section 9.4 CONVERSION, CONSOLIDATION OR MERGER OF TRUSTEE. Any bank or
trust company into which the Trustee or its successor may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer its trust business as a whole shall be the successor of the Trustee
under this Indenture with the same rights, powers, duties and obligations and
subject to the same restrictions, limitations and liabilities as its
predecessor, all without the execution or filing of any papers or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any of the Bonds to be issued hereunder shall have been
authenticated, but not delivered, any successor Trustee may adopt the
certificate of any predecessor Trustee, and deliver the same as authenticated;
and, in case any of such
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Bonds shall not have been authenticated, any successor Trustee may authenticate
such Bonds in the name of such successor Trustee.
Section 9.5 TRUSTEE TO RETAIN INFORMATION. So long as any of the Bonds
shall be Outstanding, the Trustee shall retain all certificates, financial
statements and other written information furnished to it by or on behalf of the
Company, the Issuer or any other Person under this Indenture, the Loan Agreement
and any other agreement or instrument pertaining to the Bonds and shall make
such documentation available for review after reasonable notice during regular
business hours at the principal corporate trust office of the Trustee to any
Bondholder and to any Beneficial Owner. The Trustee shall permit such reviewers
to take copies of all or any part of such documentation, subject to their
payment of such reasonable copying and handling charges as the Trustee may
impose.
In addition, the Trustee shall be required to report to
Bondholders and Beneficial Owners who have provided their addresses to the
Trustee any withdrawals from the Reserve Fund.
Section 9.6 GUARANTY AGREEMENT. The Issuer hereby authorizes and
directs the Trustee to draw on the Principal Guaranty pursuant to its terms, in
the amounts and at the times necessary to pay principal of and interest on the
Bonds pursuant to this Section 9.6. The Trustee shall draw upon the Principal
Guaranty in accordance with the terms thereof as herein provided.
(a) On or before 11:00 a.m., local time at the designated
office of the Trustee on the second Business Day prior to any Interest Payment
Date (or the maturity date or any date set for redemption on Bonds which is not
an Interest Payment Date), the Trustee shall determine the amount necessary to
make all required payments of principal and interest on the Bonds on the next
succeeding Interest Payment Date, maturity date, other redemption date, after
giving effect to any permitted transfers from the Reserve Fund, and shall
present a demand to the Guarantor in such amount, after giving credit to the
amounts on deposit therefore in the Bond Principal Fund or Bond Interest Fund,
subject to the terms of the Principal Guaranty, so as to permit the timely
transfer of funds from the Guarantor to the Trustee for payment of the principal
of and interest on the Bonds when due, whether at maturity or upon prior
redemption.
(b) The Trustee shall promptly notify the Company and each
Notice Beneficial Owner by oral or telephonic communication confirmed in writing
if the Guarantor has not transferred funds in accordance with the Principal
Guaranty upon the presentment of any such demand.
(c) In calculating the amount to be drawn on the Principal
Guaranty for the payment of principal of and interest on the Bonds, whether on
an Interest Payment Date, at maturity or upon redemption or acceleration, the
Trustee shall take into account the receipt of funds from the Company under the
Loan Agreement.
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(d) Upon satisfaction of the conditions for the release of the
Principal Guaranty in accordance with the terms thereof, the Trustee shall
execute such releases or similar documents as may be reasonably requested by the
Company or the Guarantor.
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ARTICLE X
SUPPLEMENTAL INDENTURES
AND AMENDMENTS OF THE LOAN AGREEMENT
Section 10.1 SUPPLEMENTAL INDENTURES. The owners of not less than a
majority in aggregate principal amount of the Bonds then Outstanding shall have
the right, from time to time, to consent to and approve the execution by the
Issuer and the Trustee of such indenture or indentures supplemental hereto as
shall be deemed necessary or desirable by the Issuer for the purpose of
modifying, altering, amending, adding to or rescinding, in any particular, any
of the terms or provisions contained in this Indenture; provided, however, that
without the consent of the owners of all the Bonds at the time Outstanding,
nothing herein contained shall permit, or be construed as permitting:
(a) an extension of the maturity of, or a reduction of the
principal amount of, or a reduction of the rate of, or extension of the time of
payment of interest on, or a reduction of a premium payable upon any redemption
of, any Bond;
(b) the deprivation of the owner of any Bond then Outstanding
of the lien created by this Indenture (other than as permitted hereby when such
Bond was initially issued);
(c) a privilege or priority of any Bond or Bonds over any
other Bond or Bonds except as specifically permitted by this Indenture; or
(d) a reduction in the aggregate principal amount of the Bonds
required for consent to such supplemental indenture.
If at any time the Issuer shall request the Trustee to enter
into such supplemental indenture for any of the purposes of this Section, the
Trustee shall, upon being reasonably indemnified by the Company with respect to
expenses, cause notice of the proposed execution of such supplemental indenture
to be given to the Issuer and the Company in accordance with Section 11.7 hereof
and to the Notice Beneficial Owners and the Bondholders by mailing a copy of
such notice by first class mail to their addresses as the same shall last appear
upon the registration books. Such notice shall briefly set forth the nature of
the proposed supplemental indenture and shall state that copies thereof are on
file at the designated corporate trust office of the Trustee for inspection by
all Bondholders and Beneficial Owners. If, within 60 days following the giving
of such notice, the owners of the requisite principal amount of the Bonds
Outstanding at the time of the execution of any such supplemental indenture
shall have consented to and approved the execution thereof as herein provided,
no owner of any Bond shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any manner to
question the propriety of the execution thereof, or to enjoin or
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restrain the Trustee or the Issuer from executing the same or from taking any
action pursuant to the provisions thereof.
Section 10.2 EXECUTION OF SUPPLEMENTAL INDENTURES. The Trustee is
authorized to join with the Issuer in the execution of any such supplemental
indenture and to make further agreements and stipulations which may be contained
therein, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects its rights, duties or immunities under this
Indenture. Any supplemental indenture executed in accordance with the provisions
of this Article shall thereafter form a part of this Indenture and all the terms
and conditions contained in any such supplemental indenture as to any provision
authorized to be contained therein shall be deemed to be part of this Indenture
for any and all purposes. In case of the execution and delivery of any
supplemental indenture, express reference may be made thereto in the text of the
Bonds issued thereafter.
Section 10.3 AMENDMENTS, ETC., OF THE LOAN AGREEMENT. Neither the
Issuer nor the Trustee shall consent to any other amendment, change or
modification of the Loan Agreement without the giving of notice and the written
approval or consent of the owners of not less than a majority in aggregate
principal amount of the Bonds at the time Outstanding. Such notice and consent
shall be given and procured as provided in Section 10.2 hereof.
If at any time the Issuer or the Company shall request the consent of
the Trustee to any such proposed amendment, change or modification of the Loan
Agreement, the Trustee shall, upon being reasonably indemnified by the Company
with respect to expenses, cause notice of such proposed amendment, change or
modification to be given in the same manner as provided in Section 10.2 hereof.
Such notice shall briefly set forth the nature of such proposed amendment,
change or modification and shall state that copies of the instrument embodying
the same are on file at the principal office of the Trustee for inspection by
all Bondholders.
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ARTICLE XI
MISCELLANEOUS
Section 11.1 EVIDENCE OF SIGNATURE OF BONDHOLDERS AND OWNERSHIP OF
BONDS. Any request, consent or other instrument which this Indenture may require
or permit to be signed and executed by the Bondholders may be in one or more
instruments and executed by such Bondholders in person or by their attorneys
appointed in writing. Proof of the execution of any such instrument, or of an
instrument appointing such attorney, or the ownership of Bonds shall be
sufficient (except as otherwise herein expressly provided) if made in the
following manner, but the Trustee may, nevertheless, in its discretion require
further or other proof in cases where it deems the same desirable:
(a) the fact and date of the execution by any Bondholder or
his attorney of such instrument may be proved by the certificate of any officer
authorized to take acknowledgments in the jurisdiction in which he purports to
act that the person signing such request or other instrument acknowledged to him
the execution thereof, or by an affidavit of a witness of such execution, duly
sworn to before a notary public; and
(b) the Ownership of any Bonds and the amount and numbers of
such Bonds and the date of holding the same shall be proved by the registration
books of the Issuer kept by the Trustee.
Any request or consent of the owner of any Bond shall
bind all future owners of such Bond in respect of anything done or suffered to
be done by the Issuer or the Trustee in accordance therewith.
Section 11.2 PARTIES INTERESTED HEREIN. With the exception of rights
herein expressly conferred on the Company, nothing in this Indenture expressed
or implied is intended or shall be construed to confer upon, or to give to, any
person other than the Issuer, the Trustee and the owners of the Bonds, any
right, remedy or claim under or by reason of this Indenture or any covenant,
condition or stipulation hereof, and all the covenants, stipulations, promises
and agreements in this Indenture contained by and on behalf of the Issuer shall
be for the sole and exclusive benefit of the Issuer, the Trustee, and the owners
of the Bonds.
Section 11.3 TITLES, HEADINGS, ETC The titles and headings of the
articles, sections and subsections of this Indenture have been inserted for the
convenience of reference only and shall in no way modify or restrict any of the
terms or provisions hereof.
Section 11.4 SEVERABILITY. In the event any provision of this Indenture
shall be held invalid or unenforceable by any court of competent jurisdiction,
such holding shall not invalidate or render unenforceable any other provision
hereof.
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Section 11.5 GOVERNING LAW. This Indenture shall be governed by and
construed in accordance with the laws of the State of Oklahoma.
Section 11.6 EXECUTION IN COUNTERPARTS. This Indenture may be executed
in several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
Section 11.7 NOTICES. All notices, certificates, directions or other
communications hereunder shall be sufficiently given and shall be deemed given
when mailed by certified mail, return receipt requested, postage prepaid, or by
first-class mail, if this Indenture so provides, addressed as follows:
Issuer: Cleveland County Industrial Authority
▇/▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Commissioners
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Secretary
With copy to: R. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Issuer's Counsel
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Trustee: ▇.▇. ▇▇▇▇▇▇ Trust Company, National Association
Corporate Trust Department
▇▇▇▇ ▇.▇. ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Company: ▇▇▇▇▇▇▇ Foods, Inc.
▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Financial Consultant
Underwriter: Gates Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
A duplicate copy of each notice, certificate or other communication given
hereunder by or to the Issuer or the Trustee shall also be given to the Company,
the Underwriter and each Notice Beneficial Owner. Alternatively, all notices,
certificates or other communications hereunder may be given by telegram or by
telecopy (if confirmed promptly telephonically and in writing by the sender of
such notice and if receipt of such notice by telecopy is confirmed in writing by
the
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intended recipient). The Issuer, the Company, the Underwriter and the Trustee
may, by notice given hereunder, designate any further or different addresses to
which subsequent notices, certificates or other communications shall be sent.
Section 11.8 PAYMENTS DUE ON NONBUSINESS DAYS. If the date for making
any payment or the last day for performance of any act or the exercise of any
right, as provided in this Indenture, shall not be a Business Day, such payment
may be made or act performed or right exercised on the next succeeding Business
Day with the same force and effect as if done on the nominal date provided in
this Indenture.
Section 11.9 SUBORDINATION TO SENIOR LOAN. In the event the Company
shall certify to the Trustee that any Senior Loan shall be refinanced pursuant
to the incurrence by the Company of Indebtedness on terms more favorable to the
Company than terms of the Senior Loan being refinanced, the Trustee shall, upon
reasonable indemnification by the Company as herein provided, execute such
consents, subordination provisions or similar documents with respect to the
Senior Loan to the effect that the Senior Loan shall be secured by a Lien on the
Pledged Property senior in priority to the Lien of the Loan Agreement.
Section 11.10 PROVISION OF GENERAL APPLICATION. Any consent or approval
of the Issuer or Trustee required pursuant to this Indenture shall be in writing
and shall not be unreasonably withheld. Any direction given to the Trustee shall
be in writing.
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this
Indenture to be executed in their respective corporate names and attested by
their duly authorized Officers and the Trustee has caused its corporate seal to
be hereto affixed, all as of the date first above written.
CLEVELAND COUNTY INDUSTRIAL
AUTHORITY
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------
Title: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Chairman
Attest:
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
Secretary
[SEAL]
▇.▇. ▇▇▇▇▇▇ TRUST COMPANY, NATIONAL
ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice-President
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STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
The foregoing instrument was acknowledged before me this 16th day of
December, 2004, by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman and ▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary,
Cleveland County Industrial Authority, a public trust, on behalf of the trust.
Witness my hand and official seal.
My commission expires:
---------------------
[SEAL]
----------------------------------------
Notary Public
STATE OF OKLAHOMA )
) ss.
COUNTY OF OKLAHOMA )
The foregoing instrument was acknowledged before me this 16th day of
December, 2004, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice-President, ▇.▇. ▇▇▇▇▇▇ Trust
Company, National Association.
Witness my hand and official seal.
My commission expires:
---------------------
[SEAL]
----------------------------------------
Notary Public
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