CONFIDENTIAL
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SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT AUTHORITY
and
▇▇▇▇ ▇▇▇▇▇ BANK,
as Trustee
-------------------------
TRUST INDENTURE
Dated as of September 1, 1994
-------------------------
Relating to
$7,700,000
Variable Rate Demand
Industrial Development Revenue Bonds
(Roller Bearing Company of America, Inc. Project)
Series 1994A
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; RULES OF CONSTRUCTION ...................... 4
Section 101. Definitions of Words and Terms .......................... 4
Section 102. Rules of Interpretation ................................. 15
ARTICLE II THE BONDS ............................................... 16
Section 201. Authorization, Issuance and Terms of Bonds .............. 16
Section 202. Nature of Obligations ................................... 17
Section 203. Interest Rates and Interest Payment Provisions .......... 17
Section 204. Changes in Interest Modes ............................... 19
Section 205. Execution, Authentication and Delivery of Bonds ......... 20
Section 206. Registration, Transfer and Exchange of Bonds ............ 21
Section 207. Temporary Bonds ......................................... 22
Section 208. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds . 22
Section 209. Cancellation and Destruction of Bonds Upon Payment ...... 23
Section 210. Limitation on Transfer and Exchange ..................... 23
ARTICLE III TENDER AND PURCHASE OF BONDS ............................ 25
Section 301. Optional Tender of Bonds During Weekly Mode or
Monthly Mode ............................................ 25
Section 302. Mandatory Tender of Bonds ............................... 26
Section 303. Irrevocability of Elections; Return of Improperly
Completed Documents ..................................... 27
Section 304. Notice of Principal Amount of Bonds Tendered ............ 28
Section 305. Remarketing of Tendered Bonds ........................... 28
Section 306. Notice of Principal Amount of Bonds Remarketed .......... 29
Section 307. Purchase of Tendered Bonds .............................. 29
Section 308. Remarketing of Pledged Bonds ............................ 30
Section 309. Purchase Fund ........................................... 31
Section 310. No Purchases or Sales After Certain Defaults ............ 31
Section 311. Remarketing Agent ....................................... 31
Section 312. Qualifications of Remarketing Agent ..................... 32
ARTICLE IV REDEMPTION OF BONDS ..................................... 33
Section 401. Optional Redemption ..................................... 33
Section 402. Mandatory and Extraordinary Redemption .................. 34
Section 403. Selection of Bonds to be Redeemed ....................... 35
Section 404. Notice of Redemption of Bonds in Weekly or Monthly Mode . 35
Section 405. Notice of Redemption of Bonds in Semiannual, Annual or
Multiyear Mode .......................................... 36
Section 406. Effect of Call for Redemption ........................... 37
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ARTICLE V REVENUES AND FUNDS ...................................... 38
Section 501. Creation of Funds and Accounts .......................... 38
Section 502. Initial Deposits ........................................ 38
Section 503. Project Fund ............................................ 38
Section 504. Costs of Issuance Fund .................................. 38
Section 505. Revenue Fund ............................................ 39
Section 506. Debt Service Fund ....................................... 40
Section 507. General Fund ............................................ 40
Section 508. Payments Under Credit Facility .......................... 41
Section 509. Deposits into and Application of Moneys in the
Rebate Fund ............................................. 42
Section 510. Final Balances .......................................... 43
Section 511. Non-Presentment of Bonds ................................ 43
ARTICLE VI DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS ........... 44
Section 601. Moneys to be Held in Trust .............................. 44
Section 602. Investment of Moneys .................................... 44
Section 603. Manner of Investment .................................... 44
Section 604. Record Keeping .......................................... 45
ARTICLE VII PARTICULAR COVENANTS AND PROVISIONS ..................... 46
Section 701. Issuer to Issue Bonds and Execute Indenture ............. 46
Section 702. Performance of Covenants ................................ 46
Section 703. Instruments of Further Assurance ........................ 46
Section 704. Credit Facility ......................................... 46
Section 705. Enforcement of Credit Facility .......................... 46
Section 706. Alternate Credit Facility ............................... 47
Section 707. General Limitation on Issuer Obligations ................ 48
Section 708. Recording and Filing .................................... 48
Section 709. Possession and Inspection of Books and Documents ........ 48
Section 710. Rights and Duties Under Agreement and Credit Facility ... 48
Section 711. Tax Covenants ........................................... 48
ARTICLE VIII DEFAULT AND REMEDIES .................................... 50
Section 801. Events of Default ....................................... 50
Section 802. Acceleration; Mandatory Purchase ........................ 51
Section 803. Surrender of Possession of Trust Estate; Rights
and Duties of Trustee in Possession ..................... 52
Section 804. Appointment of Receivers in Event of Default ............ 52
Section 805. Exercise of Remedies by the Trustee ..................... 53
Section 806. Limitation on Exercise of Remedies by Bondowners ........ 53
Section 807. Right of Bondowners to Direct Proceedings ............... 54
Section 808. Application of Moneys in Event of Default ............... 54
Section 809. Remedies Cumulative ..................................... 56
Section 810. Delay or Omission Not Waiver ............................ 56
Section 811. Effect of Discontinuance of Proceedings ................. 56
Section 812. Waivers of Events of Default ............................ 56
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Section 813. Pledged Bonds ........................................... 57
ARTICLE IX THE TRUSTEE ............................................. 58
Section 901. Acceptance of Trusts .................................... 58
Section 902. Fees, Charges and Expenses of the Trustee ............... 61
Section 903. Notice to the Bondowners if Default Occurs .............. 61
Section 904. Intervention by the Trustee ............................. 62
Section 905. Successor Trustee Upon Merger, Consolidation or Sale .... 62
Section 906. Trustee Required; Eligibility ........................... 62
Section 907. Resignation of Trustee .................................. 63
Section 908. Removal of Trustee ...................................... 63
Section 909. Appointment of Successor Trustee ........................ 63
Section 910. Vesting of Trusts in Successor Trustee .................. 63
Section 911. Trust Estate May be Vested in Co-Trustee ................ 64
Section 912. Accounting .............................................. 64
Section 913. Paying Agents; Bond Registrar; Appointment and
Acceptance of Duties; Removal ........................... 64
Section 914. The Tender Agent ........................................ 65
Section 915. Notice to Rating Agency ................................. 66
Section 916. Right of Trustee to Pay Taxes and Other Charges ......... 66
ARTICLE X SUPPLEMENTAL INDENTURES ................................. 67
Section 1001. Supplemental Indentures Not Requiring Consent
of Bondowners ........................................... 67
Section 1002. Supplemental Indentures Requiring Consent of Bondowners . 68
Section 1003. Borrower's Consent to Supplemental Indentures ........... 69
Section 1004. Opinion of Bond Counsel ................................. 69
ARTICLE XI AMENDMENT OF AGREEMENT AND CREDIT FACILITY .............. 70
Section 1101. Amendments, Changes or Modifications to the
Agreement and Credit Facility Not Requiring
Consent of Bondowners ................................... 70
Section 1102. Amendments, Changes or Modifications to the Agreement
and Credit Facility Requiring Consent of Bondowners ..... 70
Section 1103. Opinion of Bond Counsel ................................. 71
ARTICLE XII SATISFACTION AND DISCHARGE OF INDENTURE ................. 72
Section 1201. Defeasance .............................................. 72
Section 1202. Satisfaction and Discharge of the Indenture ............. 73
Section 1203. When Refunding is Not Permitted ......................... 74
ARTICLE XIII MISCELLANEOUS PROVISIONS ................................ 75
Section 1301. Consents and Other Instruments by Bondowners ............ 75
Section 1302. Notices ................................................. 75
Section 1303. Limitation of Rights Under the Indenture ................ 77
Section 1304. Suspension of Mail Service .............................. 79
Section 1305. Business Days ........................................... 79
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Section 1306. Immunity of Officers, Employees and Members of Issuer ... 79
Section 1307. Credit Enhancer's Remedial Rights ....................... 79
Section 1308. Severability ............................................ 79
Section 1309. Complete Agreement ...................................... 80
Section 1310. Execution in Counterparts ............................... 80
Section 1311. Governing Law ........................................... 80
Exhibit A - Bond Form
Exhibit B - Investment Securities Collateral Requirement
Exhibit C - [Reserved.]
Exhibit D - Notice of Election to Tender/Retain Bonds
Exhibit E - Rate Adjustment Notice
Exhibit F - Interest Mode Adjustment Notice
Exhibit G - Notice of Alternate Credit Facility
Exhibit H - Representation Letter
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TRUST INDENTURE
THIS TRUST INDENTURE (the "Indenture"), made and entered into as of
September 1, 1994, by and between the SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT
AUTHORITY, a body corporate and politic and an agency of the State of South
Carolina (the "Issuer"), and ▇▇▇▇ ▇▇▇▇▇ Bank, a Missouri banking corporation
duly organized and existing and authorized to accept and execute trusts of the
character herein set out under the laws of the State of Missouri, and having its
principal corporate trust office located in St. Louis, Missouri, as Trustee (the
"Trustee");
WITNESSETH:
WHEREAS, the Issuer acting by and through its Board of Directors, is
authorized and empowered under and pursuant to the provisions of Tide 41,
Chapter 43, Code of Laws of South Carolina 1976, as amended (the "Act"), to
acquire and cause to be acquired properties that are projects under the Act
through which the industrial, commercial, agricultural and recreational
development of the State of South Carolina (the "State") will be promoted and
trade developed by inducing business enterprises to locate in and remain in the
State and thus provide maximum opportunities for the creation and retention of
jobs and improvement of the standard of living of the citizens of the State; and
WHEREAS, the Issuer is further authorized by Section 41A3-100 of the Act
to issue revenue bonds payable by the Issuer solely from revenues and receipts
from any financing agreement between the Issuer and any business enterprise with
respect to such project and secured by a pledge of said revenues and receipts
and by an assignment of such financing agreement; and
WHEREAS, pursuant to the Act, the Authority is authorized to issue its
Variable Rate Demand Industrial Development Revenue Bonds (Roller Bearing
Company of America, Inc. Project) Series 1994A in the original aggregate
principal amount of $7,700,000 (the "Bonds"), for the purpose of providing funds
to construct or purchase certain buildings, fixtures, machinery and equipment
("the Project") to constitute an approximately 60,000 square foot expansion of
an existing facility for the manufacture of roller bearings in Darlington
County, South Carolina which is owned and operated by Roller Bearing Company of
America, Inc., a Delaware corporation (the "Borrower"); and
WHEREAS, the Borrower intends to construct and purchase the Project; and
WHEREAS, the Borrower has requested that the Issuer issue the Bonds in
order to finance the construction and purchase of the Project; and
WHEREAS, the Board of Directors of the Issuer passed and approved a
Resolution on August 24, 1994, authorizing the Issuer to issue the Bonds
pursuant to this Indenture for the above purposes; and
WHEREAS, pursuant to such Resolution, the Issuer is authorized (i) to
execute and deliver this Indenture for the purpose of issuing and securing the
Bonds as hereinafter provided, and (ii) to enter into a Loan Agreement of even
date herewith (the "Agreement"), between the Issuer and the Borrower, under
which the Issuer will loan the proceeds of the Bonds to the Borrower in
accordance with the provisions of the Agreement to finance a portion of the
costs of the Project, in consideration of payments to be made by the Borrower to
the Trustee which are to be sufficient
to pay the principal of, redemption premium, if any, and interest on the Bonds
as the same become due; and
WHEREAS, ▇▇▇▇▇▇ Financial, Inc., a Delaware corporation (the "Credit
Enhancer"), has agreed to execute and deliver an irrevocable direct-pay letter
of credit (the "Credit Facility") in order to secure the timely payment of the
principal of and interest on the Bonds; and
WHEREAS, all things necessary to make the Bonds, when authenticated by the
Trustee and issued as in this Indenture provided, the valid, legal and binding
obligations of the Issuer, and to constitute this Indenture a valid, legal and
binding pledge and assignment of the property, rights, interests and revenues
herein made for the security of the payment of the principal of, redemption
premium, if any, and interest on the Bonds issued hereunder, have been done and
performed, and the execution and delivery of this Indenture and the execution
and issuance of the Bonds, subject to the terms hereof, have in all respects
been duly authorized and approved by the Issuer; and
WHEREAS, THE BONDS AND THE PREMIUM, IF ANY, AND INTEREST THEREON
(INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH ANY PREPAYMENT OR PURCHASE OF
THE BONDS) ARE LIMITED OBLIGATIONS OF THE ISSUER; THE PRINCIPAL OF, PREMIUM, IF
ANY, AND INTEREST ON THE BONDS (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH
ANY PURCHASE OF THE BONDS) ARE PAYABLE SOLELY FROM THE REVENUES OR MONEYS TO BE
RECEIVED IN CONNECTION WITH THE FINANCING OF THE PROJECT OR FROM ANY OTHER
MONEYS MADE AVAILABLE TO THE ISSUER FOR SUCH PURPOSE; NEITHER THE BONDS NOR THE
INTEREST THEREON (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH ANY PURCHASE
OF THE BONDS) SHALL EVER CONSTITUTE AN INDEBTEDNESS OR A CHARGE AGAINST THE
GENERAL CREDIT OF THE STATE, THE ISSUER, OR ANY OTHER PUBLIC BODY, OR OF THE
TAXING POWERS OF THE STATE WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY
LIMITATION AND SHALL NEVER CONSTITUTE OR GIVE RISE TO ANY PECUNIARY LIABILITY OF
THE STATE, THE ISSUER, OR ANY OTHER PUBLIC BODY; THE BONDS DO NOT CONSTITUTE AN
INDEBTEDNESS TO WHICH THE FAITH OR CREDIT OF THE STATE, THE ISSUER, OR ANY OTHER
PUBLIC BODY, OR TAXING POWER OF THE STATE, IS PLEDGED;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
That the Issuer, in consideration of the premises, the acceptance by the
Trustee of the trusts hereby created, the purchase and acceptance of the Bonds
by the Owners thereof, and of other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and in order to secure the
payment of the principal of, redemption premium, if any, and interest on the
Bonds according to their tenor and effect, to secure all obligations owed by the
Borrower to the Credit Enhancer under the Letter of Credit Agreement, and to
secure the performance and observance by the Issuer of all the covenants,
agreements and conditions herein and in the Bonds contained, does hereby
transfer, pledge and assign, without recourse, to the Trustee and its successors
and assigns in trust forever, and does hereby grant a security interest unto the
Trustee and its successors in trust and its assigns, in and to all and singular
the property described in paragraphs (a) and (b) below (said property being
herein referred to as the "Trust Estate"), to wit:
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(a) All right, tide and interest of the Issuer (including, but not limited
to, the right to enforce any of the terms thereof) in, to and under all Revenues
(as hereinafter defined) derived by the Issuer under and pursuant to and subject
to the provisions of the Agreement (but excluding the Unassigned Issuer's Rights
as defined in the Agreement and any payments made by the Borrower to meet the
rebate requirements of Section 148(f) of the Code) and the Credit Facility; and
(b) All other moneys and securities from time to time held by the Trustee
under the terms of this Indenture (excluding rebatable arbitrage, whether or not
held in the Rebate Fund, and amounts held in the Purchase Fund (as hereinafter
defined)), and any and all other property (real, personal or mixed) of every
kind and nature from time to time hereafter, by delivery or by writing of any
kind, pledged, assigned or transferred as and for additional security hereunder
by the Issuer, or by anyone in its behalf or with its written consent, to the
Trustee, which is hereby authorized to receive any and all such property at any
and all times and to hold and apply the same subject to the terms hereof.
TO HAVE AND TO HOLD, all and singular, the Trust Estate with all rights
and privileges hereby transferred, pledged, assigned and/or granted or agreed or
intended so to be, to the Trustee and its successors and assigns in trust
forever;
IN TRUST NEVERTHELESS, upon the terms and conditions herein set forth for
the equal and proportionate benefit, security and protection of all present and
future Owners of the Bonds Outstanding, without preference, priority or
distinction as to participation in the lien, benefit and protection hereof of
one Bond over or from the others, except as herein otherwise expressly provided
and on a subordinate basis thereto, to secure the obligations of the Borrower to
the Credit Enhancer;
PROVIDED, NEVERTHELESS, and these presents are upon the express condition,
that if the Issuer or its successors or assigns shall well and truly pay or
cause to be paid the principal of and premium, if any, on such Bonds with
interest, according to the provisions set forth in the Bonds, or shall provide
for the payment or redemption of such Bonds by depositing or causing to be
deposited with the Trustee the entire amount of funds or securities requisite
for payment or redemption thereof when and as authorized by the provisions of
Article XII hereof (it being understood that any payment with respect to the
principal of or interest on Bonds by the Borrower or any purchase of Bonds
pursuant to Article III hereof shall not be deemed payment or provision for
payment of principal of or interest on Bonds, except Bonds purchased and
cancelled by the Trustee, all such uncancelled Bonds to remain Outstanding
hereunder and principal of and interest thereon payable to the Owners thereof,
whether such Owners be the Credit Enhancer or persons to whom Bonds are
remarketed), and shall also pay or cause to be paid all other sums payable
hereunder by the Issuer and if all amounts due and owing to the Credit Enhancer
under the Letter of Credit Agreement shall have been paid in full, then these
presents and the estate and rights hereby granted shall cease, terminate and
become void, and thereupon the Trustee, on payment of its lawful charges and
disbursements then unpaid, on demand of the Issuer and upon the payment by the
Issuer of the cost and expenses thereof, shall duly execute, acknowledge and
deliver to the Issuer such instruments of satisfaction or release as may be
necessary or proper to discharge this Indenture of record, and if necessary
shall grant, reassign and deliver to the Issuer, with a copy to the Credit
Enhancer and the Borrower, all and singular the property, rights, privileges and
interests by it hereby granted, conveyed and assigned, and all substitutes
therefor, or any part thereof, not
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previously disposed of or released as herein provided; otherwise this Indenture
shall be and remain in full force;
THIS INDENTURE FURTHER WITNESSETH, and it is hereby expressly declared,
covenanted and agreed by and between the parties hereto, that all Bonds issued
and secured hereunder are to be issued, authenticated and delivered and that all
the Trust Estate is to be held and applied under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes as
hereinafter expressed, and the Issuer does hereby agree and covenant with the
Trustee, for the benefit of the respective Owners from time to time of the Bonds
and the Credit Enhancer, as follows:
ARTICLE I
DEFINITIONS; RULES OF CONSTRUCTION
Section 101. Definitions of Words and Terms. In addition to words and
terms elsewhere defined herein and therein, the following words and terms as
used in this Indenture and in the Agreement shall have the following meanings,
unless some other meaning is plainly intended:
"Accounts" means the accounts created pursuant to Section 501 hereof.
"Act" means Tide 41, Chapter 43, Code of Laws of South Carolina 1976, as
amended.
"Act of Bankruptcy" means, as to the Borrower, any of the following: (a)
the commencement by the Borrower of a voluntary case under the federal
bankruptcy laws, as now in effect or hereafter amended, or any other applicable
federal or state bankruptcy, insolvency or similar laws; (b) the filing of a
petition with a court having jurisdiction over the Borrower to commence an
involuntary case against the Borrower under the federal bankruptcy laws, as now
in effect or hereafter amended, or any other applicable federal or state
bankruptcy, insolvency or similar laws, and such petition is not discharged
within 60 days of the filing thereof; (c) the Borrower shall admit in writing
its inability to pay its debts generally as they become due; (d) a receiver,
trustee or liquidator of the Borrower shall be appointed in any proceeding
brought against the Borrower; (e) assignment by the Borrower of all or
substantially all of its assets for the benefit of its creditors; or (f) the
entry by the Borrower into an agreement of composition with its creditors, and,
as to the Issuer, the commencement by the Issuer of a voluntary case under the
federal bankruptcy laws, as now in effect or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or similar laws.
"Affiliated Party" or "Affiliate" means any Related Person as to a
particular Person, and any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person. "Control", when used with respect to a particular Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of management and policies of such Person whether through the
ownership of voting stock, by contract or otherwise, and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Agreement" or "Loan Agreement" means the Loan Agreement, including the
Exhibits attached thereto, dated as of the date of this Indenture, between the
Issuer and the Borrower, with
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respect to the Bonds, as such Agreement may be from time to time amended,
restated or supplemented in accordance with the provisions of Section 10.6 of
the Agreement and Article XI hereof.
"Alternate Credit Facility" means any alternate credit facility designated
and qualified as such and provided pursuant to Section 706 hereof no later than
the twenty-fifth (25th) day prior to the then applicable Termination Date.
"Alternate Credit Facility Date" means a Business Day on or prior to the
Termination Date on which the Borrower has complied with all requirements of
this Indenture, including Section 706 regarding the substitution of an Alternate
Credit Facility for the Credit Facility then in effect.
"Annual Mode" means an Interest Mode during which the interest rate on the
Bonds is determined at twelve month intervals, as provided in Section 203(e)
hereof.
"Authorized Borrower Representative" means either the Chief Financial
Officer or the Vice President of the Borrower, or such other official of the
Borrower at the time designated to act on behalf of the Borrower as evidenced by
written certificate furnished to the Issuer, the Credit Enhancer and the Trustee
containing the specimen signature of such person and signed on behalf of the
Borrower by its Chief Executive Office or its Chief Financial Officer. Such
certificate may designate an alternate or alternates, each of whom shall be
entitled to perform all duties of and exercise all powers of an Authorized
Borrower Representative.
"Authorized Denominations" means (i) in the case of Bonds in a Weekly Mode
or Monthly Mode, $100,000 and any integral multiple of $5,000 in excess thereof;
(ii) in the case of Bonds in a Semiannual Mode, Annual Mode or Multiyear Mode,
$5,000 or any integral multiple thereof, provided that if the Credit Facility is
not exempt from registration under the Securities Act of 1933, as amended, and
has not been registered thereunder then the Authorized Denomination shall be
$100,000 and any integral multiple of $5,000 in excess thereof; or (iii) in the
case of a Bond which is a Pledged Bond, $100,000 or any integral multiple of
$5,000 in excess thereof.
"Authorized Issuer Representative" means the Chairman of the Board of
Directors or the Executive Director of the Issuer, or such other person at the
time designated to act on behalf of the Issuer as evidenced by written
certificate furnished to the Borrower, the Credit Enhancer and the Trustee
containing the specimen signature of such person and signed on behalf of the
Issuer by its Executive Director. Such certificate may designate an alternate or
alternates, each of whom shall be entitled to perform all duties of and exercise
all powers of an Authorized Issuer Representative.
"Available Moneys" means (i) proceeds from the initial sale of the Bonds
by the Issuer that have not been commingled with other funds that do not
constitute Available Moneys and proceeds from the investment thereof; (ii)
moneys that have been paid to the Trustee pursuant to payments on the Credit
Facility and that have been held in the Credit Facility Account and not
commingled with other funds that do not constitute Available Moneys, and
proceeds from the investment thereof; and (iii) moneys with respect to which the
Trustee has received an unqualified opinion of nationally recognized counsel
expert on bankruptcy matters to the effect that payment of such proceeds to the
Owners would not constitute a voidable preference under Section 547 of the
United States Bankruptcy Code which could be recovered under Section 550(a) of
the Bankruptcy Code
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in the event of the filing of a petition thereunder by or against the Issuer,
the Borrower or any Affiliated Party of the Borrower.
"Available Moneys Account" means the account by that name in the Revenue
Fund created pursuant to Section 501 hereof.
"Bond" or "Bonds" means any bond or bonds authenticated and delivered
under and pursuant to this Indenture.
"Bond Counsel" means any attorney or firm of attorneys designated by the
Issuer and reasonably acceptable to the Borrower, the Trustee and the Credit
Enhancer having a national reputation for skill in connection with the
authorization and issuance of municipal obligations in the State and under
Sections 103 and 141-150 of the Code.
"Bond Issuance Date" means the date of initial issuance and delivery of
the Bonds.
"Bond Pledge Agreement" means the Pledge and Security Agreement dated as
of September 1, 1994, by and among the Borrower, the Trustee and the Credit
Enhancer, as amended, restated and supplemented from time to time.
"Bond Register" means the registration books of the Issuer kept by the
Trustee to evidence the registration and transfer of Bonds.
"Bond Registrar" means the Trustee when acting as such.
"Bondowner" or "Owner" or "Registered Owner" means the person in whose
name a Bond is registered on the Bond Register.
"Borrower" means Roller Bearing Company of America, Inc., a Delaware
corporation, and any successor or assign thereto permitted under the Agreement.
"Borrower Bonds" means (i) Bonds owned or held by the Borrower or any
Affiliate of the Borrower, or by the Trustee or the Tender Agent, or the agent
of either of them, for the account of the Borrower or any Affiliate of the
Borrower, including, but not limited to, Pledged Bonds, or (ii) Bonds which the
Borrower has notified the Trustee, or which the Trustee knows, were purchased by
another Person for the account of the Borrower or any Affiliate of the Borrower,
including, but not limited to, Pledged Bonds.
"Business Day" means a day which is not (a) a Saturday, Sunday or any
other day on which banking institutions in New York, New York, or the city or
cities in which the principal corporate trust office of the Trustee, and the
principal office of the Tender Agent, the Remarketing Agent or the Credit
Enhancer is located, are required or authorized to close or (b) a day on which
the New York Stock Exchange is closed.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time. References to the Code and Sections of the Code include relevant
applicable regulations, temporary
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regulations and proposed regulations thereunder, and any successor provisions to
those Sections, regulations, temporary regulations or proposed regulations.
"Collateral Documents" means the Letter of Credit Agreement, the Bond
Pledge Agreement and any other document securing the obligations of the Borrower
to the Credit Enhancer in connection with the Letter of Credit Agreement, in
each case as the same may be amended, restated or supplemented from time to
time.
"Costs of Issuance Fund" means the fund by that name created in Section
501 hereof.
"Credit Enhancer" means initially ▇▇▇▇▇▇ Financial, Inc., a Delaware
corporation, and any provider or providers of an Alternate Credit Facility.
"Credit Documents" means the documents described by said term in the
Letter of Credit Agreement, in each case as the same may be amended, restated or
supplemented from time to time.
"Credit Facility" means the letter of credit initially issued by ▇▇▇▇▇▇
Financial, Inc. and any Alternate Credit Facility issued by the Credit Enhancer
in addition to or in substitution therefor, as the same may be amended,
restated, supplemented, extended or renewed from time to time in accordance with
the Agreement and this Indenture.
"Credit Facility Account" means the account by that name created in
Section 501(c) of this Indenture.
"Debt Service Fund" means the fund by that name created in Section 501
hereof.
"Default" means any event or condition which constitutes, or with the
giving of any requisite notice or upon the passage of any requisite time period
or upon the occurrence of both, would constitute, an Event of Default under the
Agreement or this Indenture.
"Determination of Taxability" means (i) a determination by the
Commissioner or any District Director of the Internal Revenue Service, (ii) a
private ruling or Technical Advice Memorandum issued by the National Office of
the Internal Revenue Service in which the Borrower was afforded the opportunity
to participate, (iii) a determination by any court of competent jurisdiction, or
(iv) receipt by the Trustee, at the request of the Borrower, the Credit Enhancer
or any Bondowner, of an Opinion of Bond Counsel that the interest on the Bonds
is includable in gross income for federal income tax purposes of the Owners
thereof or any former Owner thereof, other than an Owner who is a "substantial
user" (as such term is defined in Section 147(a) of the Code) of the Project or
a Related Person; provided, however, that no such Determination of Taxability
under clause (i) or (iii) shall be deemed to have occurred if the Borrower has
been afforded the opportunity to contest such determination, has elected to
contest such determination in good faith and is proceeding with all applicable
dispatch to prosecute such contest until the earliest of (a) a final
determination from which no appeal may be taken with respect to such
determination, (b) abandonment of such appeal by the Borrower, or (c) one year
from the date of initial determination.
"Event of Default" means any event or occurrence as defined in Section 801
hereof.
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"Financial Institution" means any qualified institutional buyer, as that
term is defined from time to time in 17 C.F.R. ss.230.144A(a)(i) ("Rule 144A").
"Funds" means the funds created pursuant to Article V hereof.
"General Fund" means the fund by that name created in Section 501 hereof.
"Government Securities" means direct obligations of, or obligations the
payment of the principal of and interest on which are unconditionally guaranteed
by, the United States of America.
"Immediate Notice" means notice by telephone, telegram, telex, telecopier
or other telecommunication device to such phone numbers or addresses as are
specified in Section 1302 hereof or such other phone number or address as the
addressee shall have directed in writing, promptly followed by written notice by
first-class mail postage prepaid to such addresses.
"Indenture" means this Trust Indenture as originally executed by the
Issuer and the Trustee, as from time to time amended and supplemented by
Supplemental Indentures in accordance with the provisions of Article X of this
Indenture.
"Interest Mode" means a period of time relating to the frequency with
which the interest rate on the Bonds is determined pursuant to Section 203
hereof, which Interest Mode may be a Weekly Mode, a Monthly Mode, a Semiannual
Mode, an Annual Mode or a Multiyear Mode. Pledged Bonds bear interest at the
Pledged Bond Rate and are not subject to such Interest Mode descriptions.
"Interest Mode Adjustment Date" means a date on which the Interest Mode of
the Bonds is changed from one Interest Mode to a different Interest Mode, and
such date shall be an Interest Payment Date.
"Interest Mode Adjustment Notice" means the notice of a new Interest Mode
with respect to any Bonds in accordance with Section 204 hereof in substantially
the form of Exhibit F attached hereto.
"Interest Payment Date" means the date on which an interest installment is
required to be paid on the Bonds to the Owners thereof, (i) with respect to all
Bonds other than Pledged Bonds, (1) as to the first Interest Period, October 3,
1994; (2) as to any Weekly Mode or Monthly Mode, the first Business Day of each
month; (3) as to any Semiannual Mode, Annual Mode or Multiyear Mode, each March
1 and September 1, commencing with the first such March 1 or September 1
following the Interest Mode Adjustment Date, or the next succeeding Business Day
thereafter if any such March 1 or September 1 is not a Business Day; and (4) an
Interest Mode Adjustment Date; and (ii) with respect to Pledged Bonds, the first
Business Day of each calendar month and the date of sale of Pledged Bonds.
"Interest Period" means, with respect to the Bonds in any Interest Mode,
the period from and including each Interest Payment Date for such Interest Mode
to and including the day immediately preceding the following Interest Payment
Date for such Interest Mode, except that the first Interest Period shall be the
period from and including the date of original delivery of the Bonds to and
including the day immediately preceding the first Interest Payment Date for the
Bonds.
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"Investment Securities" means any of the following securities purchased in
accordance with Section 602 hereof, if and to the extent the same are at the
time legal for investment of the funds being invested:
(a) Government Securities;
(b) deposits which are fully insured by the Federal Deposit Insurance
Corporation ("FDIC") in one or more of the following institutions: banks with a
rating of A-1 or higher (including without limitation, the Trustee or any bank
affiliated with the Trustee) organized under the laws of the United States of
America or any state thereof;
(c) federal funds, unsecured certificates of deposit, time deposits and
bankers acceptances (having maturities of not more than 365 days) of any bank,
the short-term obligations of which are in the highest short-term rating
category of the Rating Agency (if the Bonds are rated by Standard & Poor's, such
category is A-I +);
(d) any shares in money market mutual funds provided such money market
funds are rated AAAm or AAAmG by the Rating Agency; and
(e) repurchase agreements with (A) any institution described in clause (b)
above or (B) any other entity that is under the jurisdiction of the Bankruptcy
Code, provided that, with respect to a repurchase agreement with such other
entity, the terms of such repurchase agreement shall be less than one year,
shall be with respect to Government Securities which meet the Investment
Securities Collateral Requirement and shall mature at least 30 days before the
time or times that such investments shall be needed for the purposes for which
they were deposited.
"Investment Securities Collateral Requirement" means Government Securities
which meet the requirements set forth in Exhibit B attached hereto and
incorporated herein by this reference.
"Investor's Representation Letter" means the Investor's Representation
Letter in substantially the form attached to this Indenture as Exhibit H.
"Issuer" means the South Carolina Jobs-Economic Development Authority, a
body corporate and politic and an agency of the State, or any body, agency or
instrumentality of the State succeeding to or charged with the powers, duties
and functions of the Issuer.
"Letter of Credit Agreement" means the Letter of Credit Agreement dated as
of the date of this Indenture, between the Borrower and the initial Credit
Enhancer, and any similar agreement between the Borrower and the Credit Enhancer
with respect to the issuance of an Alternate Credit Facility.
"Loan Payment Date" means the day established for a Loan Payment under the
Agreement.
"Loan Term" means the period from the date of initial delivery and
authentication of the Bonds until such time as the Bonds are no longer
Outstanding and all other amounts payable by the Borrower under the Agreement
and the Letter of Credit Agreement shall have been paid.
- 9 -
"Mandatory Purchase Date" means each date designated by the Credit
Enhancer for purchase of the Bonds in accordance with the provisions of Section
302(d) of this Indenture.
"Maximum Rate" means the lesser of (i) 15% per annum or (ii) the rate
utilized in the Credit Facility for purposes of computing the interest component
thereof.
"Monthly Mode" means an Interest Mode during which the interest rate on
the Bonds is determined in monthly intervals as set forth in Section 203(d)
hereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, a corporation organized and
existing under the laws of the State of Delaware, and its successors and
assigns, and, if such corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency, "Moody's" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Issuer, with the prior written approval of the Credit Enhancer
and the Borrower, by notice to the Trustee.
"Multiyear Mode" means an Interest Mode during which the interest rate on
the Bonds is determined at intervals of integral (greater than one) multiples of
twelve months, as provided in Section 203(e) hereof.
"New York Time" means the time on any given day in the City of New York,
New York, whether such time be Eastern Standard Time or Eastern Daylight Savings
Time.
"1933 Act" means the Securities Act of 1933, as amended.
"Nonpurpose Investments" means any investment property (as defined in
Section 148(b) of the Code) which is acquired with the gross proceeds of the
Bonds and which is not acquired to carry out the governmental purpose of the
Bonds.
"Notice of Election to Tender/Retain Bonds" means the Notice of Election
to Tender/Retain Bonds in substantially the form attached hereto as Exhibit D
delivered by a Bondowner to the Tender Agent (i) pursuant to Section 301 hereof
which contains a demand for the purchase of Bonds on the Tender Date, or (ii)
following receipt of a notice of a mandatory tender of Bonds as specified in
Section 302 hereof which contains an election to retain Bonds. "Notice of
Election to Tender Bonds" shall refer to those provisions of the Notice of
Election to Tender/Retain Bonds which relate to the election to tender Bonds as
hereinafter provided. "Notice of Election to Retain Bonds" shall refer to those
provisions of the Notice of Election to Tender/Retain Bonds which relate to the
election to retain Bonds.
"Opinion of Bond Counsel" means a written opinion of Bond Counsel
addressed to the Trustee, for the benefit of the Owners of the Bonds, and the
Credit Enhancer.
"Opinion of Counsel" means a written opinion of an attorney or firm of
attorneys addressed to the Trustee, for the benefit of the Owners of the Bonds
and the Credit Enhancer, who may (except as otherwise expressly provided in this
Indenture) be counsel to the Issuer, the Borrower, the Owners of the Bonds, the
Credit Enhancer or the Trustee, and who is acceptable to the Trustee and the
Credit Enhancer.
- 10 -
"Outstanding when used with reference to Bonds, means, as of a particular
date, all Bonds theretofore authenticated and delivered under this Indenture
except:
(a) Bonds theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation pursuant to Section 209 hereof;
(b) Bonds which are deemed to have been paid in accordance with Article
XII hereof;
(c) Bonds in exchange for or in lieu of which other Bonds have been
authenticated and delivered pursuant to Article II of this Indenture;
(d) Undelivered Bonds; and
(e) For purposes of any consent or other action to be taken by the Owner
of a specified percentage of Bonds under this Indenture or the Agreement, Bonds
owned or held for the account of the Issuer or Borrower Bonds. Notwithstanding
the foregoing, Bonds so owned which have been pledged in good faith shall not be
disregarded as aforesaid if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Bonds and that the
pledgee is not the Issuer, the Borrower or any Affiliated Party.
"Paying Agent" means the Tender Agent as to all Tendered Bonds, the
Trustee as to all other Bonds, and any other bank or trust institution organized
under the laws of any state of the United States of America or any national
banking association designated by this Indenture or any Supplemental Indenture
as paying agent for the Bonds at which the principal of, and redemption premium,
if any, and interest on, such Bonds shall be payable.
"Person" means an individual, a corporation, a partnership, an
association, a joint stock company, a joint venture, a trust, an unincorporated
organization, a limited liability company, or a government or any agency or
political subdivision thereof.
"Placement Date" means any date on which a Pledged Bond is purchased from
the Borrower by a Person designated by the Remarketing Agent pursuant to the
Remarketing Agreement or is sold by the Borrower.
"Plant" means the facility, including machinery and equipment, for the
manufacture of roller bearings in Darlington County, South Carolina, operated by
the Borrower.
"Pledged Bonds" means any Bonds purchased by the Borrower with payments
made on the Credit Facility, which Bonds are registered in the name of the
Borrower and held by the Trustee on behalf of the Credit Enhancer pursuant to
the terms of the Bond Pledge Agreement, until such time as such Bonds are sold
by the Borrower or by the Remarketing Agent.
"Pledged Bond Rate" means the rate of interest per annum payable with
respect to each Pledged Bond, which shall be equal to the Interest Rate set
forth in Section 2.9 of the Letter of Credit Agreement.
"Preliminary Rate" means Preliminary Rate as defined in Section 203(e)
hereof.
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"Principal Office" means, with respect to the Trustee and the Tender
Agent, its principal corporate trust office, initially ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Division.
"Principal Payment Date" means the maturity date or redemption date
(including as a result of acceleration) of any Bond.
"Project" means the buildings, fixtures, machinery and equipment described
in Exhibit A to the Agreement, and all additions, modifications, improvements,
replacements and substitutions made to the Project pursuant to the Agreement, as
they may at any time exist.
"Project Fund" means the fund by that name created by Section 501 hereof.
"Project Purposes" means the costs of acquiring, constructing, installing
and equipping the Project.
"Purchase Fund" means the fund by that name created by Section 501 hereof.
"Rate Adjustment Date" means the date as of which the interest rate
determined for an Interest Mode shall be effective, which (i) during a Weekly
Mode shall be Thursday of each week (whether or not a Business Day); (ii) during
a Monthly Mode shall be the first calendar day of each month; (iii) during a
Semiannual Mode shall be the first calendar day of such Semiannual Mode which
shall be March 1 or September 1 and the first day following each six-month
period thereafter; and, (iv) during an Annual Mode or a Multiyear Mode shall be
the first calendar day of such Annual Mode or Multiyear Mode, which shall be
September 1, and thereafter the first calendar day following the completion of
the then current Annual Mode or Multiyear Mode. The initial Rate Adjustment Date
is September 15, 1994.
"Rate Adjustment Notice" means the Rate Adjustment Notice in substantially
the form of Exhibit E hereto to be mailed by the Trustee in accordance with
Section 203(e) hereof.
"Rate Determination Date" means no later than 4:00 P.M., New York Time, on
the Business Day immediately preceding a Rate Adjustment Date for a Weekly or a
Monthly Mode, and on the third (3rd) Business Day immediately preceding a Rate
Adjustment Date for a Semiannual Mode, Annual Mode or Multiyear Mode.
"Rate Period" means the period from a Rate Adjustment Date to, but not
including, the next Rate Adjustment Date.
"Rating Agency" means (collectively, as required) Moody's, if the Bonds
are then rated by Moody's, Standard & Poor's, if the Bonds are then rated by
Standard & Poor's, and any other national rating service which has outstanding
credit rating on the Bonds.
"Rebate Fund" means the fund by that name created in Section 501 hereof.
"Record Date" means, with respect to Bonds in a Semiannual Mode, an Annual
Mode or a Multiyear Mode, the fifteenth calendar day, whether or not a Business
Day, of the month preceding
- 12 -
such Interest Payment Date, and, with respect to Bonds in a Weekly Mode or
Monthly Mode, the fifth calendar day, whether or not a Business Day, immediately
preceding such Interest Payment Date.
"Related Documents" means the Collateral Documents and the Credit
Documents.
"Related Person" means a "related person" within the meaning of Section
147 (a) of the Code.
"Remarketing Agent" means the remarketing agent at the time serving as
such under the Remarketing Agreement and designated as the Remarketing Agent for
purposes of this Indenture. The initial Remarketing Agent is Stem Brothers &
Co., St. Louis, Missouri.
"Remarketing Agreement" means the Remarketing Agreement dated as of
September 1,1994, between the Borrower and the Remarketing Agent or, if such
Remarketing Agreement shall be terminated, such other agreement, approved by the
Credit Enhancer, which may from time to time be entered into with any
Remarketing Agent with respect to the remarketing or placement of the Bonds.
"Remarketing Proceeds" means proceeds from the resale by the Remarketing
Agent of Bonds delivered for purchase pursuant to Section 301 or 302 hereof that
have not been commingled with other funds which do not constitute Remarketing
Proceeds, and proceeds from the investment thereof; provided that Remarketing
Proceeds cannot include any moneys provided by the Borrower, the Issuer, any
guarantor of the Bonds (excluding the issuer of the Credit Facility, but only
with respect to moneys provided pursuant to the Credit Facility), any Affiliated
Party of the foregoing, or any Person which is an "insider" of the Borrower or
any such guarantor within the meaning of Title 11 of the United States Code, as
amended.
"Resolution" means the resolution of the Board of Directors of the Issuer
authorizing the execution and delivery of the Agreement, this Indenture and the
issuance of the Bonds.
"Revenue Fund" means the fund by that name created in Section 501 hereof.
"Revenues" means the amounts pledged hereunder to the payment of principal
of, and premium, if any, and interest on the Bonds, consisting of the following:
(i) all income, revenues, proceeds and other amounts, to which the Issuer is
entitled, derived from the Borrower (except the Unassigned Issuer's Rights as
defined in the Agreement), including all scheduled payments under the Agreement,
payments received on the Credit Facility and all receipts of the Trustee
credited under the provisions of this Indenture against said amounts payable,
and (ii) moneys held in the Funds and Accounts, together with investment
earnings thereon, other than moneys in the Rebate Fund and rebatable arbitrage
not deposited therein and funds held for the payment of specific Bonds pursuant
to Section 510 hereof or amounts held in the Purchase Fund.
"Series 1994B Bonds" means the Issuer's $3,000,000 original principal
amount Variable Rate Demand Industrial Development Revenue Bonds (Roller Bearing
Company of America, Inc. Project) Series 1994B, issued pursuant to the Series
1994B Indenture.
- 13 -
"Series 1994B Indenture" means the Indenture of Trust dated as of
September 1, 1994 between the Issuer and the Trustee, delivered with respect to
the Series 1994B Bonds.
"Semiannual Mode" means an Interest Mode during which the interest rate on
the Bonds is determined at six-month intervals as set forth in Section 203(e)
hereof.
"Standard & Poor's" means Standard & Poor's Ratings Group, A Division of
▇▇▇▇▇▇-▇▇▇▇, Inc., a corporation organized and existing under the laws of the
State of New York, and its successors and assigns, and, if such corporation
shall be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, Standard & Poor's shall be deemed to refer to any
other nationally recognized securities rating agency designated by the Issuer,
with the prior written approval of the Credit Enhancer, by notice to the Trustee
and the Borrower.
"State" means the State of South Carolina.
"Supplemental Indenture" means any indenture supplemental or amendatory to
this Indenture entered into by the Issuer and the Trustee pursuant to Article X
of this Indenture.
"Tax Agreement" means the Tax Agreement dated of even date herewith
between the Borrower and the Issuer, delivered with respect to the Bonds, as the
same may be amended, restated or supplemented from time to time.
"Tender Agent" means initially the Trustee, and any successor tender agent
appointed pursuant to Section 914 hereof. The Tender Agent shall act as Paying
Agent as to Tendered Bonds.
"Tender Date" means (a) each date designated by a Bondowner for purchase
of any Bonds in accordance with the provisions of Section 301 hereof, and (b)
each date on which Bonds are required to be tendered in accordance with the
provisions of Section 302 hereof, including any Mandatory Purchase Date, whether
or not such Bonds are actually tendered.
"Tender Price" means 100% of the principal amount of any Bond tendered
pursuant to the provisions of Section 301 or Section 302 of this Indenture plus
interest accrued and unpaid thereon to, but not including, the Tender Date.
"Tendered Bonds" means (a) any Bonds tendered by a Bondowner for purchase
pursuant to Section 301 hereof, and (b) any Bonds required to be tendered for
purchase pursuant to Section 302 hereof, unless a proper waiver has been made by
the Owner of such Bonds, in each case whether or not such Bonds are actually
tendered.
"Termination Date" means (i) if the Credit Facility is not a letter of
credit, the maturity or expiration date of the Credit Facility or, if such day
is not a Business Day, the next preceding Business Day or (ii) if the Credit
Facility is a letter of credit, the last Interest Payment Date which is at least
five (5) days preceding the date on which the Credit Facility is to expire
pursuant to its terms, in each case including any extension of such maturity or
expiration date.
"Trust Estate" means the Trust Estate described in the granting clauses of
this Indenture.
- 14 -
"Trustee" means ▇▇▇▇ ▇▇▇▇▇ Bank, a banking corporation duly organized and
existing under the laws of the State of Missouri, and its successor or
successors and any other association or corporation which at any time may be
substituted in its place pursuant to and at the time serving as trustee under
this Indenture.
"Unavailable Moneys Account" means the account by that name in the Revenue
Fund created pursuant to Section 501 of this Indenture.
"Undelivered Bonds" means Bonds which are deemed to have been tendered to
the Trustee or Tender Agent, as applicable, for purchase pursuant to Section 301
or 302 hereof but which have not been surrendered to the Trustee or Tender
Agent, as applicable.
"Weekly Mode" means an Interest Mode during which the interest rate on the
Bonds is determined in weekly intervals as set forth in Section 203(c) hereof.
"Written Request" with reference to the Issuer means a request in writing
signed by an Authorized Issuer Representative and with reference to the Borrower
means a request in writing signed by an Authorized Borrower Representative.
Section 102. Rules of Interpretation.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders.
(b) Words importing the singular number shall include the plural and vice
versa and words importing person shall include firm's, associations and
corporations, including public bodies, as well as natural persons.
(c) The table of contents hereto and the headings and captions herein are
not a part of this document.
(d) Terms used in an accounting context and not otherwise defined shall
have the meaning ascribed to them by generally accepted principles of
accounting.
(e) Notwithstanding anything herein, in the Series 1994B Indenture or in
the Borrower Documents to the contrary, each of the "Borrower", the Credit
Enhancer", the "Paying Agent(s)", the "Remarketing Agent", the "Tender Agent"
and the "Trustee" (including, for such purpose, each co-trustee) shall, as
between the documents relating to the Bonds and the Series 1994B Bonds, be one
and the same Person.
[End of Article I]
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ARTICLE II
THE BONDS
Section 201. Authorization. Issuance and Terms of Bonds.
(a) Authorized Amount of Bonds. No Bonds may be issued under the
provisions of this Indenture except in accordance with this Article. The total
aggregate principal amount of the Bonds that may be issued hereunder and at any
time Outstanding is hereby expressly limited to $7,700,000.
(b) Title of Bonds. The Bonds authorized to be issued under this Indenture
shall be designated "Variable Rate Demand Industrial development Revenue Bonds
(Roller Bearing Company of America, Inc. Project) Series 1994A".
(c) Form of Bonds. The Bonds shall be substantially in the form set forth
in Exhibit A attached hereto, with such appropriate variations, omissions and
insertions as are permitted or required by this Indenture, and may have endorsed
thereon such legends or text as may be necessary or appropriate to conform to
any applicable rules and regulations of any governmental authority or any usage
or requirement of law with respect thereto.
(d) Denominations. The Bonds shall be issuable as fully registered Bonds
without coupons in Authorized Denominations only.
(e) Numbering. Unless the Issuer shall otherwise direct, the Bonds shall
be numbered from R-1 upward.
(f) Dating. The Bonds shall be dated as of the Bond Issuance Date, be
issuable in Authorized Denominations, and bear interest from the most recent
Interest Payment Date to which interest has been paid or for which due provision
has been made or if no Interest Payment Date has occurred therefor, the dated
date thereof.
(g) Maturity. The Bonds shall mature on September 1, 2017, subject to
optional and mandatory redemption as provided in Article IV hereof.
(h) Tender and Purchase of Bonds. The Bonds are subject to optional and
mandatory tender for purchase as provided in Article III hereof.
(i) Method and Place of Payment. Except as provided herein, the principal
of, and redemption premium, if any, and interest on the Bonds shall be payable
in any coin or currency of the United States of America which, at the respective
dates of payment thereof, is legal tender for the payment of public and private
debts, and such principal and premium, if any, shall be payable at the Principal
Office of the Trustee or at the office of any alternate Paying Agent, and, with
respect to the Tender Price, at the Principal Office of the Tender Agent, upon
presentation and surrender of such Bonds. Payment of interest on any Bond shall
be made by check or draft of the Trustee mailed to the person in whose name such
Bond is registered on the Bond Register as of the close of business of the
Trustee on the Record Date for such Interest Payment Date, except that
- 16 -
interest not duly paid or provided for when due shall be payable to the person
in whose name such Bond is registered at the close of business on the Business
Day immediately preceding the date of payment of such defaulted interest. In the
case of an interest payment to any Owner of $1,000,000 or more in aggregate
principal amount of Bonds as of the commencement of business of the Trustee on
the Record Date for a particular Interest Payment Date or in the case of the
purchase from an Owner of $1,000,000 or more in aggregate principal amount of
Bonds on the Tender Date, payment of interest or the Tender Price, as
applicable, shall be made by wire transfer to such Owner upon written notice to
the Trustee from such Owner containing the wire transfer address (which shall be
in the continental United States) to which such Owner wishes to have such wire
directed and, with regard to interest payments, such written notice is given by
such Owner to the Trustee not less than fifteen (15) days prior to such Record
Date and regarding payment of the Tender Price, which written notice accompanies
such Owner's Notice of Election to Tender Bonds.
Section 202. Nature of Obligations.
(a) The Bonds and the interest thereon shall be limited obligations of the
Issuer payable solely from Bond proceeds, the Revenues and other moneys pledged
thereto and held by the Trustee as provided herein, and are secured by a
transfer, pledge and assignment of and a grant of a security interest in the
Trust Estate to the Trustee and in favor of the Owners of the Bonds, as provided
in this Indenture.
(b) The Bonds and the interest thereon do not constitute a debt or general
obligation of the Issuer, the State, or any political subdivision thereof, and
do not constitute an indebtedness or a charge against the general credit of the
State or the Issuer within the meaning of any constitutional or statutory
limitation or restriction. The Bonds are not payable in any manner by taxation.
(c) No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, any of the Bonds or for any claim based thereon
or upon any obligation, provision, covenant or agreement contained in this
Indenture contained, against any past, present or future director, trustee,
officer, official, employee or agent of the Issuer, or any director, trustee,
officer, official, employee or agent of any successor to the Issuer, as such,
either directly or through the Issuer or any successor to the Issuer, under any
rule of law or equity, statute or constitution or by the enforcement of any
assessment or penalty or otherwise, and all such liability of any such director,
trustee, officer, official, employee or agent as such is hereby expressly waived
and released as a condition of and in consideration for the execution of this
Indenture and the issuance of any of the Bonds. Neither the officers of the
Issuer nor any person executing the Bonds shall be personally liable on the
Bonds by reason of the issuance thereof.
Section 203. Interest Rates and Interest Payment Provisions.
(a) Calculation of Interest. Subject to the provisions of Section 802 (a)
hereof, the Bonds shall bear interest from and including the date thereof until
payment of the principal or redemption price thereof shall have been made or
provided for in accordance with the provisions hereof, whether at maturity, upon
redemption or otherwise. Anything herein to the contrary notwithstanding, in no
event shall the interest rate borne by the Bonds, other than Pledged Bonds, at
any time exceed the Maximum Rate. Subject to such limitation, the interest rates
on the Bonds
- 17 -
shall be determined as provided in this Section. Interest accrued on the Bonds
during each Interest Period shall be paid on the next succeeding Interest
Payment Date and, while the Bonds are in a Weekly Mode or a Monthly Mode, shall
be computed on the basis of a year of 365 or 366 days, as appropriate, for the
actual number of days elapsed and, while the Bonds are in a Semiannual Mode, an
Annual Mode or a Multiyear Mode, shall be computed on the basis of a year of 360
days and twelve 30-day months. The Trustee shall calculate the amount of
interest to be paid on each Interest Payment Date, and the Remarketing Agent
shall confirm such interest amount calculation, and the Trustee shall notify the
Borrower and the Credit Enhancer of such amount by 10:00 a.m., New York Time, on
the Business Day next preceding each Interest Payment Date.
(b) Standard for Determination of Interest Rate. The Remarketing Agent
shall determine the interest rate for the Rate Period commencing with each Rate
Adjustment Date to be the lowest rate which, in the best judgment of the
Remarketing Agent, on the Rate Determination Date, would result in the market
value of such Bonds on the Rate Adjustment Date being equal to 100% of their
principal amount. In determining such interest rate, the Remarketing Agent shall
have due regard for general financial conditions and such other conditions as,
in the judgment of the Remarketing Agent, have a bearing on the interest rate on
the Bonds, including then prevailing market conditions, the yields at which
comparable securities are then being sold and the tender provisions applicable
thereto during the forthcoming Rate Period. Each determination of the interest
rate for the Bonds, as provided herein, shall be conclusive and binding upon the
Bondowners, the Issuer, the Borrower, the Tender Agent, the Remarketing Agent,
the Credit Enhancer and the Trustee. Upon request, the Remarketing Agent shall
give the Issuer, the Trustee, the Credit Enhancer, the Borrower, the Tender
Agent or any Bondowner Immediate Notice of the interest rate on the Bonds at any
time.
(c) Weekly Mode. The interest rate for Bonds in a Weekly Mode shall be
determined in the following manner. On each Rate Determination Date, the
Remarketing Agent shall determine the interest rate which such Bonds shall bear
during the Rate Period following such Rate Determination Date. The interest rate
so determined shall be effective on the Rate Adjustment Date. Promptly after
each Rate Determination Date, the Remarketing Agent shall give written notice of
the interest rate so set to the Trustee, the Credit Enhancer and the Borrower.
On each Interest Payment Date the Trustee shall mail to each Bondowner a written
statement showing the interest rates for such Bonds during the preceding
Interest Period.
(d) Monthly Mode. The interest rate for any Bonds in a Monthly Mode shall
be determined in the following manner. On each Rate Determination Date, the
Remarketing Agent shall determine the interest rate which such Bonds shall bear
during the Rate Period following such Rate Determination Date. The interest rate
so determined shall be effective on the Rate Adjustment Date. Promptly after
each Rate Determination Date, the Remarketing Agent shall give written notice of
the interest rate so set to the Borrower, the Credit Enhancer and the Trustee.
On each Interest Payment Date the Trustee shall mail to each Bondowner a written
statement showing the interest rates for such Bonds during the preceding
Interest Period.
(e) Semiannual Mode. Annual Mode or Multiyear Mode. The interest rate for
Bonds in a Semiannual Mode, an Annual Mode or a Multiyear Mode shall be
determined in the following manner. Not less than 30 days nor more than 35 days
before each Rate Adjustment Date, the Remarketing Agent shall determine the
interest rate (the "Preliminary Rate") which the Bonds would
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bear if such day were a Rate Determination Date. The Remarketing Agent shall
give Immediate Notice of the Preliminary Rate to the Borrower, the Credit
Enhancer and the Trustee. The Trustee shall thereupon mail, not less than 25
days prior to the Rate Adjustment Date, to each Bondowner a Rate Adjustment
Notice in substantially the form attached hereto as Exhibit E. On the Rate
Determination Date the Remarketing Agent shall determine the interest rate which
each of such Bonds shall bear for each such Rate Period, which rate may be less
than, equal to or greater than the Preliminary Rate. By Immediate Notice on such
Rate Determination Date the Remarketing Agent shall give written notice of the
interest rate so set to the Borrower, the Credit Enhancer, the Tender Agent and
the Trustee, and the Trustee shall mail to all Bondowners written notice of the
interest rate so determined.
(f) Alternative Rate Calculation. If for any reason the interest rate for
the Bonds is not or cannot be established as provided in the preceding
paragraphs, or is held invalid or unenforceable by a court of law, all Bonds
shall immediately convert to a Weekly Mode, anything in this Indenture to the
contrary notwithstanding, and the interest rate shall be a rate equal to the
lesser of (i) 85% of the 90-day U.S. Treasury ▇▇▇▇ rate, determined on the basis
of the average per annum rate at which 90-day U.S. Treasury Bills have been sold
on a bond-equivalent basis at the most recent U.S. Treasury auction preceding
the Rate Determination Date, or (ii) the Maximum Rate.
Pledged Bonds. Notwithstanding the above provisions of this Section 203
the Pledged Bonds shall bear interest at the Pledged Bond Rate during the period
that such Bonds are Pledged Bonds. The Credit Enhancer shall use its best
efforts to notify the Trustee on the Business Day preceding each Interest
Payment Date in respect of such a period of the Pledged Bond Rate in effect from
time to time during such period. The Credit Facility shall not be drawn on to
pay any Pledged Bond.
Section 204. Changes in Interest Modes.
(a) The Bonds shall initially be in a Weekly Mode. The Interest Mode for
the Bonds may be changed from time to time at the option of the Borrower, with
the prior written consent of the Credit Enhancer exercised as provided in this
Section to another Interest Mode selected by the Borrower, on an Interest
Payment Date on which the Bonds are subject to redemption pursuant to Section
401 hereof at a redemption price equal to the principal amount thereof, plus
accrued interest, without premium. The Borrower may exercise such option at any
time by giving written notice not more than 60 nor less than 45 days prior to
the Interest Mode Adjustment Date, to the Issuer, the Trustee, the Tender Agent,
the Remarketing Agent and the Credit Enhancer stating its election to convert
the Interest Mode for the Bonds to another Interest Mode, which notice shall
specify the new Interest Mode and the Interest Mode Adjustment Date. Such
Interest Mode Adjustment Date shall be a Rate Adjustment Date for the Bonds in
such new Interest Mode. Upon the exercise of such option by the Borrower and
upon the Trustee's receipt of the prior written consent of the Credit Enhancer
to the exercise of such option, the Trustee shall mail, not less than thirty
(30) days prior to the Interest Mode Adjustment Date, an Interest Mode
Adjustment Notice to each Owner of Bonds, and, in the event of a conversion to a
Weekly Mode or a Monthly Mode from any other Interest Mode, a Notice of Election
to Tender/Retain Bonds in substantially the form attached hereto as Exhibit D.
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(b) No change in the Interest Mode shall occur unless (i) the Trustee
shall have received, prior to sending the Interest Mode Adjustment Notice, an
Opinion of Bond Counsel stating that the change in the Interest Mode is
authorized and permitted by this Indenture and the Act and will not adversely
affect the exclusion of interest on the Bonds from gross income for federal
income tax purposes and such Opinion of Bond Counsel is confirmed as of the
Interest Mode Adjustment Date, and (ii) the Credit Enhancer shall have given its
prior written consent to the change in the Interest Mode and shall have fully
and timely made any payment due under the Credit Facility made in connection
with the related Interest Mode Adjustment Date pursuant to Section 508 hereof.
Further, no change from a Weekly Mode to any other Interest Mode may occur
unless a corresponding change in Interest Mode with respect to the Series 1994B
Bonds is made on the same date.
Section 205. Execution, Authentication and Delivery of Bonds.
(a) The Bonds shall be executed on behalf of the Issuer by the manual or
facsimile signature of the chairman of the Board of Directors of the Issuer and
attested by the manual or facsimile signature of its Executive Director,
Secretary or Assistant Secretary, and shall have the corporate seal of the
Issuer affixed thereto or imprinted thereon. In case any officer whose signature
or facsimile thereof appears on any Bonds shall cease to be such officer before
the delivery of such Bonds, such signature or facsimile thereof shall
nevertheless be valid and sufficient for all purposes, the same as if such
person had remained in office until delivery. Any Bond may be signed by such
persons who at the actual time of the execution of such Bond shall be the proper
officers to sign such Bond although at the date of such Bond such persons may
not have been such officers.
(b) The Bonds shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in Exhibit A hereto, which shall be manually
executed by the Trustee. No Bond shall be entitled to any security or benefit
under this Indenture or shall be valid or obligatory for any purpose unless and
until such Certificate of Authentication shall have been duly executed by the
Trustee. Such executed Certificate of Authentication upon any Bond shall be
conclusive evidence that such Bond has been duly authenticated and delivered
under this Indenture. The Certificate of Authentication on any Bond shall be
deemed to have been duly executed if signed by any authorized officer or
employee of the Trustee, but it shall not be necessary that the same officer or
employee sign the Certificate of Authentication on all of the Bonds that may be
issued hereunder at any one time.
(c) Prior to or simultaneously with the authentication and delivery of the
Bonds by the Trustee there shall be filed with the Trustee the following:
(1) A copy of the Resolution, certified by the Executive Director of
the Issuer.
(2) An original executed counterpart of this Indenture, the
Agreement and the Credit Facility.
(3) An Opinion of Bond Counsel, dated the date of initial delivery
of the Bonds, to the effect that the Bonds are valid and binding special
limited obligations of the Issuer and that interest on the Bonds is
excludable from gross income pursuant to the Code and is exempt from
income taxation in the State of South Carolina.
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(4) A request and authorization to the Trustee on behalf of the
Issuer, executed by an Authorized Issuer Representative, to authenticate
the Bonds and deliver said Bonds to the purchasers therein identified upon
payment to the Trustee, for the account of the Issuer, of the purchase
price thereof. The Trustee shall be entitled to rely conclusively upon
such request and authorization as to the names of the purchasers and the
amount of such purchase price.
(5) Evidence satisfactory to the Issuer, the Credit Enhancer and the
Trustee that the Bonds have been purchased by "qualified institutional
buyers" as defined in Rule 144A of the 1933 Act.
(6) Such other certificates, statements, receipts, documents and
Opinions of Counsel as the Trustee shall reasonably require for the
delivery of the Bonds.
(d) When the documents mentioned in paragraph (c) of this Section shall
have been filed with the Trustee, and when the Bonds shall have been executed
and authenticated as required by this Indenture, the Trustee shall deliver the
Bonds to or upon the order of the purchasers thereof, but only upon payment to
the Trustee of the purchase price of the Bonds. The proceeds of the sale of the
Bonds, including premium thereon, if any, shall be immediately paid over to the
Trustee, and the Trustee shall deposit and apply such proceeds as set forth in
Section 502 hereof.
Section 206. Registration, Transfer and Exchange of Bonds.
(a) The Trustee is hereby appointed Bond Registrar and as such shall keep
the Bond Register at its principal corporate trust office. No later than the
second Business Day following each Record Date, the Trustee shall send a copy of
the Bond Register to the Tender Agent by first-class mail.
(b) Any Bond may be transferred only upon the Bond Register upon surrender
thereof to the Trustee duly endorsed for transfer or accompanied by an
assignment duly executed by the registered Owner or such Owner's attorney or
legal representative in such form as shall be satisfactory to the Trustee.
Subject to Section 210 hereof, upon any such transfer, the Issuer shall execute
and the Trustee shall authenticate and deliver in exchange for such Bond a new
Bond or Bonds, registered in the name of the transferee, of any Authorized
Denomination.
(c) Any Bonds, upon surrender thereof at the principal corporate trust
office of the Trustee, together with an assignment duly executed by the Owner or
such Owner's attorney or legal representative in such form as shall be
satisfactory to the Trustee, may, at the option of the Owner thereof, be
exchanged for an equal aggregate principal amount of the Bonds, of any
Authorized Denomination.
(d) In all cases in which Bonds shall be exchanged or transferred
hereunder, the Issuer shall execute and the Trustee shall authenticate and
deliver at the earliest practicable time Bonds in accordance with the provisions
of this Indenture. All Bonds surrendered in any such exchange or transfer shall
forthwith be cancelled by the Trustee.
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(e) The Issuer or the Trustee may make a charge against each Bondowner
requesting a transfer or exchange of Bonds for every such transfer or exchange
of Bonds sufficient to reimburse it for any tax or other governmental charge
required to be paid with respect to such transfer or exchange, the cost of
printing, if any, each new Bond issued upon any transfer or exchange and the
reasonable expenses of the Issuer and the Trustee in connection therewith, and
such charge shall be paid before any such new Bond shall be delivered.
(f) At reasonable times and under reasonable regulations established by
the Trustee, the Bond Register may be inspected and copied by the Borrower, the
Issuer, the Credit Enhancer or the Owners (or a designated representative
thereof) of 10% or more in aggregate principal amount of Bonds then Outstanding,
such ownership and the authority of any such designated representative to be
evidenced to the satisfaction of the Trustee.
(g) The person in whose name any Bond shall be registered on the Bond
Register shall be deemed and regarded as the absolute Owner of such Bond for all
purposes, and payment of or on account of the principal of and redemption
premium, if any, and interest on any such Bond shall be made only to or upon the
order of the registered Owner thereof or such Owner's attorney or legal
representative (except that any such payments on Pledged Bonds shall be made to
the Credit Enhancer). All such payments shall be valid and effectual to satisfy
and discharge the liability upon such Bond, including the interest thereon, to
the extent of the sum or sums so paid.
Section 207. Temporary Bonds.
(a) Until definitive Bonds are ready for delivery, the Issuer may execute
and, upon request of the Issuer, the Trustee shall authenticate and deliver in
lieu of definitive Bonds, but subject to the same limitations and conditions as
definitive Bonds, temporary printed, engraved, lithographed or typewritten
Bonds.
(b) If temporary Bonds shall be issued, the Issuer shall cause the
definitive Bonds to be prepared and to be executed and delivered to the Trustee,
and the Trustee, upon presentation to it at its principal corporate trust office
of any temporary Bond shall cancel the same and authenticate and deliver in
exchange therefor, without charge to the Owner thereof, a definitive Bond or
Bonds in the same aggregate amount as the temporary Bond surrendered in
Authorized Denominations. Until so exchanged the temporary Bonds shall in all
respects be entitled to the same benefit and security of this Indenture as the
definitive Bonds to be issued and authenticated hereunder.
Section 208. Mutilated, Lost, Stolen, Destroyed or Undelivered Bonds. In
the event any Bond shall become mutilated, or be lost, stolen or destroyed, the
Issuer shall execute and the Trustee shall authenticate and deliver a new Bond
of like date and tenor as the Bond mutilated, lost, stolen or destroyed;
provided that, in the case of any mutilated Bond, such mutilated Bond shall
first be surrendered to the Trustee, and in the case of any lost, stolen or
destroyed Bond, there shall be first furnished to the Issuer and the Trustee
evidence of such loss, theft or destruction satisfactory to the Issuer and the
Trustee, together with indemnity satisfactory to them, the Borrower and the
Credit Enhancer. In the event any such Bond shall have matured or been called
for redemption, instead of issuing a substitute Bond the Issuer may pay or
authorize the payment of the same without surrender thereof. Upon the issuance
of any substitute Bond, the Issuer and
- 22 -
the Trustee may require the payment of an amount by the Bondowner sufficient to
reimburse the Issuer and the Trustee for any tax or other governmental charge
that may be imposed in relation thereto and any other reasonable fees and
expenses incurred in connection therewith.
In the event that there are Undelivered Bonds, the Trustee shall
authenticate and deliver, with such delivery to occur at the Principal Office of
the Trustee to the new Owner or Owners thereof a new Bond or Bonds of like
amount in Authorized Denominations registered in the name of the new Owner or
Owners thereof. It shall be the duty of the Trustee to hold the moneys received
from the remarketing of a replacement Bond issued in place of an Undelivered
Bond, without liability for interest thereon, for the benefit of the former
Bondowner, who shall thereafter be restricted exclusively to such moneys for any
claim of whatever nature under this Indenture or with respect to the Undelivered
Bond and so long as the moneys held by the Trustee equal the full amount due on
such Bond on the tender date, whether from such remarketing or payment on the
Credit Facility, such Bond shall thereafter no longer be secured by this
Indenture or the Credit Facility (except for such moneys so held). Such moneys
shall be held by the Trustee in the Purchase Fund, along with any other monies
deposited in such Fund pursuant to said Section, and no moneys held in the
Purchase Fund shall be invested.
Section 209. Cancellation and Destruction of Bonds Upon Payment. All Bonds
which have been paid or redeemed or which the Trustee has purchased or which
have otherwise been surrendered to the Trustee under this Indenture, either at
or before maturity, shall be cancelled and destroyed by the Trustee immediately
upon the payment, redemption or purchase of such Bonds and the surrender thereof
to the Trustee. The Trustee shall execute a certificate in triplicate describing
the Bonds so cancelled and destroyed, and shall file executed counterparts of
such certificate with the Issuer, the Borrower and the Credit Enhancer. Bonds at
any time held by the Issuer shall be surrendered to the Trustee for cancellation
in accordance with the provisions of this Section.
Section 210. Limitation on Transfer and Exchange. The Bonds have not been
registered or qualified under the 1933 Act or the securities laws of any state.
Notwithstanding Section 206 hereof, so long as the Credit Facility secures the
Bonds, no transfer of any Bond shall be made unless such transfer is made in a
transaction which does not require registration or qualification under the 1933
Act or under any applicable state securities laws. The Trustee shall not
register any transfer or exchange of a Bond unless (i) such Bondholder's
prospective transferee delivers to the Trustee an investment letter
substantially in the form set forth as Exhibit H to this Indenture; or (ii) an
opinion of counsel in form and substance reasonably satisfactory to the Trustee
and the Credit Enhancer that such transfer or exchange is made in accordance
with an applicable exemption from the 1933 Act and applicable state securities
laws and such opinion is addressed to and delivered to the Trustee, the Borrower
and the Credit Enhancer; or (iii) such transferee is an Eligible Transferee (as
defined below) and the Remarketing Agent has delivered a certificate stating
that such transfer complies with the exemption from registration provided by
Rule 144A under the 1933 Act and any applicable state securities laws. As used
in this Section, an "Eligible Transferee" is an entity that appears on a list
provided by the Remarketing Agent and which has delivered an investment letter
to the Trustee substantially in the form set forth as Exhibit H to this
Indenture, provided, however, that such list and investment letter are dated as
of a date within the preceding twelve months. Any such holder desiring to effect
such transfer shall, and does hereby, agree to indemnify the Trustee, the
Borrower and the Credit Enhancer against any liability, cost or expense
(including attorneys' fees) that may result if the transfer is not so exempt, or
is not made in
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accordance with such federal and state laws. The provisions of this paragraph
shall not be applicable in the event that the Issuer, the Trustee, the Borrower
and the Credit Enhancer shall have received an opinion of counsel in form and
substance satisfactory to the Issuer, the Trustee and the Credit Enhancer that
the Bonds and the Credit Facility are exempt from registration under the 1933
Act and any applicable state securities laws.
[End of Article II]
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ARTICLE III
TENDER AND PURCHASE OF BONDS
Section 301. Optional Tender of Bonds During Weekly Mode or Monthly Mode.
(a) General. While the Bonds are in a Weekly Mode or Monthly Mode, the
Owner of any Bond shall have the right to have such Bond purchased in whole or
in part (which portion shall be in a principal amount equal to an Authorized
Denomination) on the dates specified in paragraph (b) below at the Tender Price.
An Owner's exercise of the option to have such Bond purchased is irrevocable and
binding on such Owner and cannot be withdrawn. If any Owner of Bonds shall fail
to deliver the Bonds described in such Owner's Notice of Election to Tender
Bonds in accordance with this Section 301 such Bonds shall constitute
Undelivered Bonds. Replacement Bonds shall be executed, authenticated and
delivered in the place of such Undelivered Bonds as provided in Section 208
hereof and such replacement Bonds may be offered and sold by the Remarketing
Agent in accordance with this Indenture and the Remarketing Agreement.
(b) Notice of Tender by Bondowners. Any Bond, or portion thereof, shall be
purchased on the Tender Date by the Tender Agent on the demand of the Owner
thereof, at the Tender Price, upon delivery to the Tender Agent on a Business
Day at its Principal Office of an irrevocable written notice in the form of the
Notice of Election to Tender Bonds which states (A) the principal amount and
number of such Bond (and the portion of such Bond to be purchased if less than
the full principal amount is to be purchased), the name and the address of such
Owner and the taxpayer identification number, if any, of such Owner and (B) that
such Bond, or portion thereof, is to be purchased on a day (which shall be the
Tender Date), which day will be a Business Day which is at least seven (7)
calendar days after the receipt by the Tender Agent of such Notice of Election
to Tender Bonds. Such Notice of Election to Tender Bonds shall be deemed
received on a Business Day if received by the Tender Agent no later than 3:00
p.m., New York Time, on such Business Day. Any Notice of Election to Tender
Bonds received by the Tender Agent after 3:00 p.m., New York Time, shall be
deemed received on the next succeeding Business Day.
Any Owner of Bonds who has demanded purchase of its Bond, or portion
thereof, as described in this Section 301 shall deliver such Bond (with an
appropriate transfer of registration form executed in blank, together with a
signature guaranty) (together with, in the case of any Bond with a specified
Tender Date prior to an Interest Payment Date and after the related Record Date,
a due-▇▇▇▇ check in form satisfactory to the Tender Agent for interest due on
such Bond on such Interest Payment Date) to the Tender Agent at its Principal
Office prior to 10:30 A.M., New York Time, on the Tender Date specified in the
aforesaid written notice.
(c) Failure to Give Notice. Failure by the Tender Agent to redeliver a
Notice of Election to Tender Bonds or a Tendered Bond as provided in Section 303
hereof shall not extend the period for making elections, in any way change the
rights of the Owners of Bonds to elect to have their Bonds purchased pursuant to
this Section or in any way change the conditions which must be satisfied in
order for such election to be effective or for payment of the purchase price to
be made after an effective election.
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Section 302. Mandatory Tender of Bonds.
(a) On Termination Date or Interest Mode Adjustment Date. All Bonds are
required to be tendered to the Tender Agent for purchase on the Termination Date
or an Interest Mode Adjustment Date; provided, however, that there shall not be
so tendered on the Termination Date or the Interest Mode Adjustment Date, as
applicable, any Bonds, or portion thereof, which will be in Authorized
Denominations with respect to which the Owners thereof have delivered to the
Tender Agent by hand or by mail at its Principal Office a properly completed
Notice of Election to Retain Bonds, together with a signature guaranty, on or
prior to the fifth Business Day next preceding the Termination Date or the
Interest Mode Adjustment Date, as applicable, subject to the provisions of
Section 204(b) hereof (with respect to the Interest Mode Adjustment Date) and
Section 302(f) hereof (with respect to the Termination Date). Any Bondowner
required to tender Bonds under this subsection (a) shall tender its Bonds to the
Tender Agent for purchase at its Principal Office prior to 10:30 A.M., New York
Time, on the Termination Date or the Interest Mode Adjustment Date, as
applicable. The failure to tender Bonds on any such date is the equivalent of a
tender, and such Bonds shall be converted to Undelivered Bonds and replacement
Bonds shall be executed, authenticated and delivered in the place of such
Undelivered Bonds as provided in Section 208 hereof and such replacement Bonds
may be offered and sold by the Remarketing Agent in accordance with this
Indenture and the Remarketing Agreement, subject to the provisions of Section
204(b) and Section 302(f) hereof, as applicable.
(b) On Alternate Credit Facility Date. While the Bonds are in an Interest
Mode other than a Multiyear Mode, all Bonds are required to be tendered to the
Tender Agent for purchase on an Alternate Credit Facility Date; provided,
however, that there shall not be so tendered on the Alternate Credit Facility
Date any Bonds or portion thereof which will be in Authorized Denominations with
respect to which the Owners thereof have delivered to the Tender Agent by hand
or by mail at its Principal Office a properly completed Notice of Election to
Retain Bonds, together with a signature guaranty, on or prior to the fifth
Business Day next preceding the Alternate Credit Facility Date. Any Bondowner
required to tender Bonds under this subsection (b) shall tender its Bonds to the
Tender Agent for purchase at its Principal Office prior to 10:30 A.M., New York
Time, on the Alternate Credit Facility Date. The failure to tender Bonds on any
such date is the equivalent of a tender and such Bonds shall be converted to
Undelivered Bonds and replacement Bonds shall be executed, authenticated and
delivered in the place of such Undelivered Bonds as provided in Section 208
hereof and such Replacement Bonds may be offered and sold by the Remarketing
Agent in accordance with this Indenture and the Remarketing Agreement.
(c) On Rate Adjustment Date During Semiannual Mode. Annual Mode and
Multiyear Mode. While the Bonds are in a Semiannual Mode, Annual Mode or
Multiyear Mode, all Bonds are required to be tendered to the Tender Agent for
purchase on each Rate Adjustment Date; provided, however, that there shall not
be so tendered on any Rate Adjustment Date any Bonds or portion thereof which
will be in Authorized Denominations with respect to which the Owners thereof
have delivered to the Tender Agent by hand or by mail at its Principal Office a
properly completed Notice of Election to Retain Bonds, together with a signature
guaranty, on or prior to the fifth Business Day next preceding such Rate
Adjustment Date. Any Bondowner required to tender Bonds under this subsection
(c) shall tender Bonds to the Tender Agent for purchase at its Principal Office
prior to 10:30 A.M., New York Time, on the Rate Adjustment Date. The failure to
tender its Bonds on any such date is the equivalent of a tender and such Bonds
shall be converted to Undelivered Bonds
- 26 -
and Replacement Bonds shall be executed, authenticated and delivered in the
place of such Undelivered Bonds as provided in Section 208 hereof and such
Replacement Bonds may be offered and sold by the Remarketing Agent in accordance
with this Indenture and the Remarketing Agreement.
(d) Mandatory Tender in Lieu of Acceleration on Default. Additionally, all
Bonds shall be subject to mandatory tender for purchase on the Mandatory
Purchase Date from the Bondowners by the Trustee for the account of the Credit
Enhancer, as set forth in Section 802(b) hereof in lieu of acceleration of the
Bonds as set forth in Section 802(a) hereof, and mandatory redemption of Bonds
as set forth in Section 402(c) and upon the occurrence of an Event of Default
under Section 801(e) hereof. Upon receipt of notice from the Credit Enhancer
directing the Trustee to purchase the Bonds and the establishment by the Trustee
of the Mandatory Purchase Date, which shall be a Business Day which is at least
three (3) and no more than ten (10) calendar days after the receipt by the
Trustee of such notice, the Trustee shall immediately request a payment under
the Credit Facility pursuant to Section 508 hereof in the amount required by
Section 802(b) to be received no later than 3:00 o'clock P.M., New York Time, on
the Mandatory Purchase Date, and shall also send notice to the Bondowners of the
mandatory purchase. On the Mandatory Purchase Date, the Tender Agent shall pay
to the Bondowners the purchase price for the Bonds, which shall be an amount
equal to 100% of the principal amount of any Bond tendered or deemed tendered
plus accrued and unpaid interest thereon to the Mandatory Purchase Date. Any
Bondowner required to tender Bonds under this subsection (d) shall tender its
Bonds to the Tender Agent for purchase at its Principal Office prior to 10:30
o'clock A.M., New York Time, on the Mandatory Purchase Date. The failure to
tender Bonds on any such date is the equivalent of a tender and such Bonds shall
be converted to Undelivered Bonds and replacement Bonds shall be executed,
authenticated and delivered in the place of such Undelivered Bonds as provided
in Section 208 hereof.
(e) Notice of Mandatory Tender. The Trustee shall give notice to
Bondowners of the mandatory tender for purchase of Bonds (i) on an Interest Mode
Adjustment Date in accordance with Section 204 hereof, (ii) on an Alternate
Credit Facility Date in accordance with Section 706 hereof, (iii) if the Bonds
are in a Multiyear Mode, Annual Mode or Semiannual Mode, on a Rate Adjustment
Date in accordance with Section 203(e) hereof, (iv) on the Termination Date not
less than 25 or more than 60 calendar days prior to such Termination Date and
(v) on the Mandatory Purchase Date in accordance with Section 302(d) hereof.
(f) Failure to Give Notice. Failure by the Trustee to give any notice as
provided in paragraph (e) of this Section, any defect therein or any failure by
any Bondowner to receive any such notice shall not in any way change such
Owner's obligation to tender the Bonds for purchase on any mandatory Tender
Date.
(g) No Remarketing. No Bond purchased on the Termination Date pursuant to
Section 302(a) shall be remarketed on any date on or prior to the delivery of an
Alternate Credit Facility. All Bonds transferred hereunder shall be in
compliance with the provisions of Section 210 hereof.
Section 303. Irrevocability of Elections: Return of Improperly Completed
Documents. The Tender Agent, to whom a Notice of Election to Tender Bonds or a
Notice of Election to Retain Bonds has been delivered, shall determine whether
such Notice has been properly completed and such determination shall be binding
on the Owner of such Bond. Any election by a Bondowner to
- 27 -
exercise the option to have its Bond or Bonds purchased, or any election by a
Bondowner to retain its Bond or Bonds upon any mandatory Tender Date, shall be
irrevocable upon delivery to the Tender Agent of the Notice of Election to
Tender Bonds (together with, if required at the time of delivery of such notice,
the Tendered Bonds) or of the Notice of Election to Retain Bonds, as the case
may be. The Tender Agent shall promptly return any incomplete or improperly
completed Notice of Election to Tender Bonds (together with, if required, the
Tendered Bonds) or Notice of Election to Retain Bonds to the Person or Persons
submitting such documents.
Section 304. Notice of Principal Amount of Bonds Tendered. Promptly upon
its receipt of any Notice of Election to Tender Bonds pursuant to Section 301
hereof, the Tender Agent shall (i) verify the information contained in such
Notice against the Bondholder list provided to the Tender Agent by the Trustee,
which list shall be delivered by the Trustee to the Tender Agent no later than
the second Business Day prior to each Tender Date, (ii) verify that both the
Tendered Bonds and the Bonds retained by the Owner are in Authorized
Denominations, and (iii) give Immediate Notice to the Trustee, the Remarketing
Agent, the Credit Enhancer and the Borrower of its receipt of such Notice and
specifying the total principal amount of Bonds to be tendered for purchase on
the applicable Tender Date. Promptly after the requisite time by which Notices
of Election to Retain Bonds are required to be delivered pursuant to Section 302
hereof, the Tender Agent shall give Immediate Notice to the Trustee, the
Remarketing Agent, the Credit Enhancer and the Borrower of its receipt of such
Notices and specifying the total principal amount of Bonds required to be
tendered for purchase on the applicable Tender Date and the aggregate Tender
Price therefor. The written portion of such Immediate Notice given by the Tender
Agent shall include copies of such Notices of Election to Tender Bonds or
Notices of Election to Retain Bonds.
Section 305. Remarketing of Tendered Bonds. Pursuant to the terms hereof
and of the Remarketing Agreement, and upon receipt of notice from the Tender
Agent, specifying the principal amount of Tendered Bonds, as provided in Section
304 hereof, the Remarketing Agent shall exercise its best efforts to sell all of
such Tendered Bonds as provided in the Remarketing Agreement subject to the
provision of Section 210 hereof; provided, however, that the Remarketing Agent
shall not remarket any Bonds at a price below par plus accrued interest thereon.
The Remarketing Agent shall transfer, by wire transfer in immediately available
funds, an amount equal to the proceeds derived from such sale of Tendered Bonds
to the Tender Agent at or before 10:00 A.M., New York Time, on the Tender Date.
The Tender Agent shall immediately notify the Trustee in writing of any amount
received by the Tender Agent from the Remarketing Agent The Trustee shall
transfer from the Purchase Fund from the proceeds received from the Credit
Facility, by wire transfer in immediately available funds to the Tender Agent at
or before 4:00 P.M., New York Time, on the Tender Date, any additional-amount
needed by the Tender Agent to pay the full Tender Price on the Tender Date. The
Trustee shall, on the Tender Date, remit to the Credit Enhancer the remainder of
the funds in the Purchase Fund (other than any funds being held for the benefit
of former Owners of Undelivered Bonds) which were not transferred to the Tender
Agent on such Tender Date including all investment earnings thereon as soon
thereafter as available. The Tender Agent shall, on the Tender Date, remit to
the Credit Enhancer the amount (if any) by which the sum of the amounts
transferred to the Tender Agent by the Remarketing Agent and the amounts
transferred to the Tender Agent by the Trustee exceed the Tender Price of the
Tendered Bonds to the extent such funds are owed to the Credit Enhancer; and if
no funds are owed to the Credit Enhancer, such amount shall be remitted to the
Borrower.
- 28 -
Section 306. Notice of Principal Amount of Bonds Remarketed.
(a) Prior to 10:00 A.M., New York Time, on the second Business Day
immediately preceding the Tender Date, or such later time as shall be agreed to
by the Tender Agent and the Credit Enhancer, the Remarketing Agent shall give
Immediate Notice to the Trustee, the Tender Agent, the Credit Enhancer and the
Borrower specifying the new interest rate, if any, to become effective as of
such Tender Date (if such Tender Date is a Rate Adjustment Date) and the
aggregate principal amount of Tendered Bonds which (i) have been remarketed
other than to the Issuer, the Borrower or any Affiliated Party of the Borrower
and the Tender Price therefor, (ii) have not been remarketed and the Tender
Price therefor, (iii) have been remarketed to the Issuer, the Borrower or any
Affiliated Party of the Borrower, and (iv) the amount of money, if any, to be
paid over to the Tender Agent by the Remarketing Agent on the Tender Date, which
amount shall be equal to the proceeds of the sale of the Tendered Bonds so
remarketed (other than the remarketing of Tendered Bonds to the Issuer, the
Borrower or any Affiliated Party of the Borrower). Proceeds of the sale of
Tendered Bonds to the Issuer, the Borrower or any Affiliated Party of the
Borrower shall be deposited and applied in accordance with Section 505(d)
hereof. Concurrently with the notice described in the second preceding sentence,
the Remarketing Agent shall also give the Trustee (with a copy to the Tender
Agent) instructions as to the registration and delivery, with such delivery to
occur at the Principal Office of the Tender Agent, to the Remarketing Agent of
any Tendered Bonds for whose purchase the Remarketing Agent will make a deposit
of funds with the Tender Agent on the Tender Date.
(b) Prior to 10:00 a.m., New York Time on the Business Day immediately
preceding the Tender Date, the Tender Agent shall give Immediate Notice to the
Trustee, the Borrower and the Credit Enhancer specifying the amount of proceeds
from the remarketing of tendered Bonds on deposit with the Tender Agent. The
Trustee shall make a demand for payment on the Credit Facility in accordance
with Section 508(b) hereof in an amount equal to the Tender Price of all
Tendered Bonds less the proceeds of the remarketing of Tendered Bonds then on
deposit with the Tender Agent. The Trustee shall cause the proceeds of the
payment under the Credit Facility to be delivered to the Tender Agent for
purchase of Tendered Bonds as described in Section 307 hereof.
Section 307. Purchase of Tendered Bonds.
(a) Tendered Bonds shall be purchased from the Owners thereof on the
Tender Date at the Tender Price which shall be payable solely from the following
sources in the order of priority listed:
(1) Remarketing Proceeds;
(2) proceeds of a payment under the Credit Facility to purchase such
Tendered Bonds;
(3) Available Moneys from any other source; and
(4) moneys from any other source.
- 29 -
(b) On each Tender Date, all Bonds purchased out of Remarketing Proceeds
shall be delivered and registered as directed by the Remarketing Agent pursuant
to Section 306(a) hereof.
(c) The Tender Agent shall pay the Tender Price for each Tendered Bond
prior to the Tender Agent's close of business on the Tender Date only after
receipt of such Bond, properly endorsed in blank, together with a signature
guaranty (together with, in the case of any Bond with a specified Tender Date
prior to an Interest Payment Date and after the related Record Date, a due-▇▇▇▇
check in form satisfactory to the Tender Agent for interest due on such Bond on
such Interest Payment Date). Payment of the Tender Price of any Bond tendered
for purchase shall be made: (1) by check or draft mailed to the Owner thereof at
the Owner's address as it appears on the Bond Register or at such other address
as is furnished to the Tender Agent in writing by such Owner; or (2) in the case
of the purchase from an Owner of $1,000,000 or more in aggregate principal
amount of Bonds, by wire transfer to such Owner upon written notice from such
Owner containing the wire transfer address (which shall be in the continental
United States) to which such Owner wishes to have such wire directed which
written notice accompanies such Owner's Notice of Election to Tender Bonds.
(d) The Trustee shall take the following actions with respect to Tendered
Bonds: (1) with respect to Bonds which have been remarketed and for which the
Tender Agent has received payment, on the written advice of the Remarketing
Agent, authenticate said Bonds in the names of the purchasers thereof and in the
appropriate denominations, and deliver said Bonds to the Remarketing Agent upon
the Tender Agents receipt of payment therefor; (2) with respect to Tendered
Bonds which have not been remarketed and which are to be purchased by the
Borrower and pledged to the Credit Enhancer pursuant to the Bond Pledge
Agreement, register said Bonds as owned by the Borrower and pledged to the
Credit Enhancer and hold such Bonds as agent and bailee for the Credit Enhancer
in accordance with the terms of the Bond Pledge Agreement; and (3) with respect
to all Bonds which have been physically tendered, cancel such certificates.
Tendered Bonds which have been purchased by the Trustee on behalf of the
Borrower shall be registered in the name of the Borrower subject to the security
interest of the Credit Enhancer, and held on behalf of the Credit Enhancer.
(e) Notwithstanding anything in this Indenture to the contrary, the Tender
Agent shall pay the Tender Price with respect to an Undelivered Bond only upon
the actual receipt of such Bond, and such Tender Price shall be equal to the par
amount of such Bond plus accrued interest to the Tender Date. An Undelivered
Bond shall not be considered Outstanding pursuant to this Indenture and shall
not be secured by the Credit Facility.
Section 308. Remarketing of Pledged Bonds. When a purchaser for Pledged
Bonds is found, the Remarketing Agent will (a) give Immediate Notice prior to
10:00 A.M., New York Time, on the second Business Day next preceding the
Placement Date, or such earlier or later time as shall be agreed to by the
Credit Enhancer, the Trustee and the Borrower, to the Credit Enhancer, the
Borrower and the Trustee specifying the principal amount of Pledged Bonds to be
purchased, the purchase price thereof and the Placement Date on which such
purchase is to occur and (b) instruct the purchasers thereof to deliver an
amount (in immediately available funds) equal to the purchase price of such
Pledged Bonds to the Trustee by 10:30 A.M., New York Time, on the Placement Date
for the same day transfer to the Credit Enhancer. No Pledged Bonds shall be
released to new Owners unless the Trustee and the Tender Agent have received
written notice from the Credit
- 30 -
Enhancer that the Credit Facility has been reinstated by an amount equal to the
principal of and interest portion of such Pledged Bonds and that the Credit
Enhancer has been reimbursed for the amount of the draw to purchase such Pledged
Bonds. The Pledged Bonds shall be purchased, subject to the provisions of
Section 210 hereof, from the Borrower on the Placement Date at a purchase price
equal to the principal amount thereof. In addition, until the purchase price
therefor is received by the Credit Enhancer, Bonds shall not be delivered to the
purchaser of Pledged Bonds and such Pledged Bonds to be so purchased shall
remain Pledged Bonds.
Section 309. Purchase Fund.
(a) The Purchase Fund has not been pledged or assigned under this
Indenture and is not subject to the lien created by this Indenture. Upon receipt
by the Tender Agent of the proceeds of a remarketing of Tendered Bonds (other
than Bonds remarketed to the Issuer, the Borrower or an Affiliated Party of the
Borrower, which will be placed in a separate trust account in the Purchase
Fund), the Tender Agent shall deposit such funds in a segregated escrow account
maintained by the Tender Agent and designated "Undelivered Bond Account" which
funds shall not be invested, and the Tender Agent shall not be liable to the
Issuer or the Borrower for any interest thereon, and any moneys shall be held
and applied as provided herein. The Trustee shall deposit moneys received from
the Credit Enhancer pursuant to a payment on the Credit Facility in accordance
with Section 508(b)(4) or (5) hereof in the Purchase Fund for application to the
Tender Price of the Tendered Bonds. Upon receipt by the Trustee of the proceeds
of the placement of Pledged Bonds on a Placement Date, the Trustee shall deposit
such moneys in the Purchase Fund for payment to the Credit Enhancer to the
extent such Pledged Bonds were purchased out of funds provided by the Credit
Facility and not reimbursed to the Credit Enhancer by the Borrower and,
thereafter, to the Borrower. Moneys from the remarketing of Tendered Bonds to
the Issuer, the Borrower or an Affiliated Party of the Borrower, shall be
applied solely to the purchase price of Pledged Bonds.
(b) On any Tender Date or Placement Date, the Trustee shall transfer on
the Bond Register ownership of all of the Tendered Bonds to the names of the
respective purchasers thereof. From and after such date, the principal of,
redemption premium, if any, and interest on such Bonds shall be payable solely
to such purchasers, their transferees or the successors thereto. The Owners of
Tendered Bonds immediately prior to a Tender Date with respect to which a Notice
of Election to Tender Bonds has been given pursuant to Section 301 hereof or a
Notice of Election to Retain Bonds has not been given pursuant to Section 302
hereof shall be entitled solely to payment of the Tender Price for such Bonds
upon delivery thereof to the Tender Agent as herein provided and shall not be
entitled to the payment of any principal, redemption premium, if any, or
interest thereon thereafter.
Section 310. No Sales After Certain Defaults. Notwithstanding any
provision of this Indenture to the contrary, there shall be no sales of Bonds
pursuant to this Article III if there shall have occurred and be continuing an
Event of Default described in Section 801 (a), (b), (c), (e) or (g) (except,
with respect to paragraph (g), a default under Section 801(d) or (f) of the
Series 1994B Indenture) hereof The Trustee shall give Immediate Notice to the
Paying Agent, the Remarketing Agent, the Tender Agent, the Credit Enhancer, the
Borrower and the Bondowners of (i) the occurrence and continuation of any of the
events set forth in the preceding sentence and that such event results in no
purchase or sales of Bonds being permitted pursuant to this Article III
- 31 -
and (ii) the curing of any of such events and that in consequence purchases and
sales are again permitted pursuant to this Article III.
Section 311. Remarketing Agent. The Issuer, upon instructions from the
Borrower, with the written consent of the Credit Enhancer, or upon instructions
from the Credit Enhancer if an event of default under the Letter of Credit
Agreement exists, shall appoint the Remarketing Agent for the Bonds, subject to
the conditions set forth in Section 312 hereof. The Issuer hereby appoints ▇▇▇▇▇
Brothers & Co. as the initial Remarketing Agent. The Remarketing Agent shall
designate to the Trustee its principal office and signify its acceptance of the
duties and obligations imposed upon it hereunder by a written instrument of
acceptance or a remarketing agent agreement delivered to the Issuer, the
Borrower and the Credit Enhancer under which the Remarketing Agent will also
agree to keep such books and records as shall be consistent with prudent
industry practice and to make such books and records available for inspection by
the Issuer, the Trustee, the Tender Agent, the Borrower and the Credit Enhancer
at all reasonable times. The Borrower and the Remarketing Agent shall enter into
a Remarketing Agreement the terms of which shall be subject to the written
approval of the Credit Enhancer.
Section 312. Qualifications of Remarketing Agent. The Remarketing Agent
shall be a member of the National Association of Securities Dealers, Inc. and
shall meet such capitalization and/or credit requirements as are acceptable to
the Rating Agency, and authorized by law to perform all the duties imposed upon
it by this Indenture. The Remarketing Agent may at any time resign and be
discharged of the duties and obligations created by this Indenture by giving at
least 30 days' written notice to the Issuer, the Borrower, the Tender Agent, the
Trustee and the Credit Enhancer. The Remarketing Agent may be removed at any
time, without cause, upon at least 30 days' written notice to the Remarketing
Agent, at the direction of the Credit Enhancer or the Borrower by an instrument
signed by an Authorized Borrower Representative, with the written consent of the
Credit Enhancer, filed with the Trustee, the Credit Enhancer, the Tender Agent,
the Issuer and the Remarketing Agent. In no event shall the resignation or
removal of the Remarketing Agent be effective until a qualified successor has
accepted appointment as such.
In the event of the resignation or removal of the Remarketing Agent, the
Remarketing Agent shall pay over, assign and deliver any moneys and Bonds held
by it in such capacity to its successor. In the event that the Issuer shall fail
to appoint a replacement Remarketing Agent hereunder, the Credit Enhancer with
the written consent of the Borrower, or the Borrower with the written consent of
the Credit Enhancer, may do so.
[End of Article III]
- 32 -
ARTICLE IV
REDEMPTION OF BONDS
Section 401. Optional Redemption.
(a) Optional Redemption of Bonds Not in Multiyear Mode. Bonds (other than
Bonds in a Multiyear Mode) shall be subject to redemption and payment prior to
maturity, at the option of the Issuer upon instructions from the Borrower with
the prior written consent of the Credit Enhancer, on any Interest Payment Date,
in whole or in part in Authorized Denominations, at the principal amount thereof
plus accrued interest to the redemption date, first, from proceeds of a payment
under the Credit Facility and, second, from other Available Moneys.
(b) Optional Redemption of Bonds in Multiyear Mode. The Bonds in a
Multiyear Mode shall be subject to redemption and payment prior to maturity, at
the option of the Issuer upon instructions from the Borrower with the prior
written consent of the Credit Enhancer, on any Interest Payment Date, in whole
or in part in Authorized Denominations, at the redemption prices (expressed as
percentages of the principal amount) set forth below, plus accrued interest to
the redemption date, first, from proceeds of a payment under the Credit Facility
and, second, from other Available Moneys as follows:
OPTIONAL REDEMPTION IN MULTIYEAR MODE
Length of Redemption Prices
Multiyear Mode as a Percentage of Call Protection
(In Years)* Principal Amounts Period*
-------------- ------------------ ---------------
Greater than 10 102% after 7 years 7 years
declining 1/2% per 12
months to 100%
Less than or equal 102% after 4 years 4 years
to 10 and greater declining 1/2% per 12
than 7 months to 100%
Less than or equal 102% after 3 years 3 years
to 7 and greater declining 1% per 12
than 5 months to 100%
Less than or equal 101% after 2 years 2 years
to 5 and greater declining 1/2% per 6
than 2 months to 100%
Less than or equal 100 1/2% after 1 year 1 year
to 2 and greater declining 1/2% per 6
than 1 months to 100%
----------
*Measured from and including the
first day of such Rate Period.
- 33 -
(c) Any provision herein to the contrary notwithstanding, no notice of the
redemption of Bonds pursuant to this Section 401 shall be given unless
sufficient Available Moneys are available and have been irrevocably deposited
into the Available Moneys Account or the Credit Facility Account of the Revenue
Fund with the Trustee, or if the Credit Enhancer commits to make a payment under
the Credit Facility to the Trustee pursuant to Section 508(b)(3) hereof.
Section 402. Mandatory and Extraordinary Redemption.
(a) Redemption Upon Determination of Taxability. The Bonds shall be
subject to mandatory redemption by the Issuer in whole on the earliest
practicable date for which notice can be given, if a Determination of Taxability
occurs, first, from proceeds of a payment under the Credit Facility, and,
second, from other Available Moneys at the principal amount thereof, without
premium, plus accrued interest to the redemption date.
(b) [Reserved.]
(c) Redemption Upon Letter of Credit Agreement Default. The Bonds shall be
subject to immediate mandatory redemption by the Issuer in whole in the event
the Trustee shall receive from the Credit Enhancer written notice of the
occurrence of an event of default under the Letter of Credit Agreement and
direction to accelerate the Bonds and irrevocable instructions to obtain a
payment under the Credit Facility in accordance with the terms of the Credit
Facility, first, from proceeds of a payment under the Credit Facility and,
second, from other Available Moneys at the principal amount thereof, without
premium, plus accrued interest to the date of redemption, and the Bonds shall
cease to bear interest on such date as is established by the Trustee, which
shall be a Business Day that is at least three and no more than ten calendar
days after receipt by the Trustee of said notice; provided that pursuant to
Section 802(b) hereof the Credit Enhancer may direct the purchase of Bonds in
such event in lieu of mandatory redemption. The receipt of such notice shall be
conclusive and binding upon the Trustee, the Issuer and the Bondholders as to
the occurrence of a default under the Letter of Credit Agreement.
(d) Redemption in Event of Condemnation. Deficiency of Title, Fire or
Other Casualty. The Bonds shall be subject to redemption by the Issuer, at the
option of and upon instructions from the Borrower with the prior written consent
of the Credit Enhancer, in whole or in part at any time on the earliest
practicable date for which notice can be given, upon the occurrence of a
condemnation, loss of title or casualty loss to the Project, first, from
proceeds of a payment under the Credit Facility, and second, from other
Available Moneys at the principal amount thereof, without premium, plus accrued
interest to the redemption date.
(e) [Reserved.]
(f) Redemption from Excess Moneys in Project Fund. The Bonds are subject
to mandatory redemption in part on the earliest practicable date after the
Completion Date for the Project as certified by the Borrower in accordance with
the Agreement, to the extent of excess moneys remaining in the Project Fund, at
the principal amount thereof, without premium, plus accrued interest to the
redemption date. If the amount of moneys remaining in the Project Fund is not
sufficient to redeem an Authorized Denomination of Bonds, the Borrower shall
arrange for the deposit with the Trustee of sufficient Available Moneys to
effect the redemption of a minimum Authorized Denomination of Bonds.
- 34 -
Section 403. Selection of Bonds to be Redeemed.
(a) Bonds shall be redeemed pursuant to Sections 401 and 402 only in
Authorized Denominations. When less than all of the Outstanding Bonds are to be
redeemed and paid prior to maturity pursuant to Section 401 or 402 hereof, such
Bonds or portions of Bonds to be redeemed shall be selected by the Trustee by
lot in Authorized Denominations in such equitable manner as it may determine;
provided that Bonds shall be redeemed in the following order of priority: (1)
Pledged Bonds; (2) Tendered Bonds that cannot be remarketed; and (3) any other
Bonds.
(b) In the case of a partial redemption of Bonds when Bonds of
denominations greater than the applicable Authorized Denominations are then
Outstanding, then for all purposes in connection with such redemption each unit
of face value of the applicable Authorized Denomination shall be treated as
though it was a separate Bond of the applicable Authorized Denomination. If one
or more, but not all, of the units of principal amount of the applicable
Authorized Denomination represented by any Bond are selected for redemption,
then upon notice of intention to redeem such unit or units, the Owner of such
Bond or such Owner's attorney or legal representative shall forthwith present
and surrender such Bond to the Trustee (i) for payment of the redemption price
(including the redemption premium, if any, and interest to the date fixed for
redemption) of the unit or units of principal amount called for redemption, and
(ii) for exchange, without charge to the Owner thereof, for a new Bond or Bonds
of the aggregate principal amount of the unredeemed portion of the principal
amount of such Bond. If the Owner of any such Bond of a denomination greater
than the applicable Authorized Denominations shall fail to present such Bond to
the Trustee for payment and exchange as aforesaid, said Bond shall,
nevertheless, become due and payable on the redemption date to the extent of the
unit or units of principal amount called for redemption and shall cease to
accrue interest on such amount.
(c) No Bond may be redeemed in part if the principal amount thereof to
remain outstanding following such partial redemption is not itself an Authorized
Denomination.
Section 404. Notice of Redemption of Bonds in Weekly or Monthly Mode.
Notice of the call of Bonds in the Weekly Mode or the Monthly Mode for any
redemption identifying the Bonds or portions thereof to be redeemed shall be
given by the Trustee, in the name of the Issuer, to the Remarketing Agent, the
Credit Enhancer, the Borrower and the Owner of each Bond to be redeemed at the
address shown on the Bond Register by mailing a copy of the redemption notice by
first-class mail, postage prepaid, at least 15 days and not more than 30 days
prior to the redemption date; provided, however, that failure to give such
notice by mailing as aforesaid to any Bondowner or any defect therein as to any
particular Bond shall not affect the validity of any proceedings for the
redemption of any other Bonds; and provided further that no such prior notice of
redemption is required for a redemption pursuant to Section 402(c) hereof. As
provided in Section 405 hereof, any notice of redemption shall state the date
and place of redemption, the numbers of the Bonds or portions of Bonds to be
redeemed (and in the case of the redemption of a portion of any Bond the
principal amount thereof being redeemed), the redemption prices and that
interest will cease to accrue from and after the redemption date. Following each
redemption of Bonds, the Trustee shall mail by first-class mail to the Borrower
and the Credit Enhancer a notice of the principal amount of Bonds redeemed.
- 35 -
Section 405. Notice of redemption of Bonds in Semiannual, Annual or
Multiyear Mode.
(a) Unless waived by any Owner of Bonds to be redeemed, official notice of
any redemption of Bonds in a Semiannual, Annual or Multiyear Mode shall be given
by the Trustee on behalf of the Issuer by mailing a copy of an official
redemption notice by first class mail, postage prepaid, at least 15 days and not
more than 30 days prior to the redemption date to the Remarketing Agent, the
Credit Enhancer and the Owner of the Bond or Bonds to be redeemed at the address
shown on the Bond Register or at such other address as is furnished in writing
by such Owner to the Trustee; provided, however, that failure to give such
notice by mailing as aforesaid to any Bondowner or any defect therein as to any
particular Bond shall not affect the validity of any proceedings for the
redemption of any other Bonds; and provided further that no such prior notice of
redemption is required for a redemption pursuant to Section 402(c) hereof. The
Trustee shall not give the notice described above with respect to redemption of
the Bonds pursuant to Section 401 (a) or (b) or Section 402(d) hereof without
the prior written consent of the Credit Enhancer.
(b) All official notices of redemption pursuant to this Section and
Section 404 hereof shall be dated and shall state:
(1) the redemption date,
(2) the redemption price,
(3) if less than all outstanding Bonds are to be redeemed, the
identification (and, in the case of partial redemption, the respective
principal amounts) of the Bonds to be redeemed,
(4) that on the redemption date the redemption price will become due
and payable upon each such Bond or portion thereof called for redemption,
and that interest thereon shall cease to accrue from and after said date,
and
(5) the place where such Bonds are to be surrendered for payment of
the redemption price, which place of payment shall be the Principal Office
of the Trustee.
(c) In addition to the foregoing notice, further notice pursuant to this
Section and Section 404 hereof shall be given by the Trustee on behalf of the
Issuer as set out below, but no defect in said further notice nor any failure to
give all or any portion of such further notice shall in any manner defeat the
effectiveness of a call for redemption if notice thereof is given as above
prescribed.
(1) Each further notice of redemption given hereunder shall contain
the information required above for an official notice of redemption plus
(i) the CUSIP numbers of all Bonds being redeemed; (ii) the date of issue
of the Bonds as originally issued; (ill) the rate of interest borne by
each Bond being redeemed; (iv) the maturity date of each Bond being
redeemed; and (v) any other descriptive information needed to identify
accurately the Bonds being redeemed.
- 36 -
(2) Each further notice of redemption shall be sent at least 35 days
before the redemption date by registered or certified mail or overnight
delivery service to Depository Trust Company, Midwest Securities Trust
Company, Pacific Securities Depository Trust Company and Philadelphia
Depository Trust Company and to one or more national information services
that disseminate notices of redemption of obligations such as the Bonds.
(d) With respect to all Bonds redeemed pursuant to this Indenture, upon
the payment of the redemption price of Bonds being redeemed, each check or other
transfer of funds issued for such purpose shall bear the CUSIP number
identifying, by issue and maturity, the Bonds being redeemed with the proceeds
of such check or other transfer.
(e) With respect to all Bonds redeemed pursuant to this Indenture,
following each redemption of Bonds, the Trustee shall mail by first-class mail
to the Credit Enhancer and the Borrower a notice of the principal amount of
Bonds redeemed.
Section 406. Effect of Call for Redemption. On or prior to the date fixed
for redemption, Available Moneys available solely for such redemption in
accordance with the requirements of Sections 401 and 402 hereof shall be
deposited with the Trustee to pay the principal of the Bonds called for
redemption and accrued interest thereon to the redemption date and the
redemption premium, if any, thereon. Upon the happening of the above conditions,
and notice having been given as provided in Section 404 or 405 hereof, as
applicable, the Bonds or the portions of the principal amount of Bonds thus
called for redemption shall cease to bear interest on the specified redemption
date, provided moneys (which must be Available Moneys when required by Section
401 or 402 hereof) sufficient for the payment of the redemption price of the
Bonds called for redemption are on deposit at the place of payment at the time
fixed for such redemption, and shall no longer be entitled to the protection,
benefit or security of this Indenture and shall not be deemed to be Outstanding
under the provisions of this Indenture.
[End of Article IV]
- 37 -
ARTICLE V
REVENUES AND FUNDS
Section 501. Creation of Funds and Accounts. The following Funds and
Accounts of the Issuer are hereby created and established with the Trustee:
(a) the Project Fund;
(b) the Costs of Issuance Fund;
(c) the Revenue Fund, consisting of the Unavailable Moneys Account, the
Available Moneys Account and the Credit Facility Account;
(d) the Debt Service Fund, consisting 9f the Interest Account, the
Principal Account and the Redemption Account;
(e) the General Fund;
(f) the Purchase Fund and the Undelivered Bond Account therein; and
(g) the Rebate Fund.
Each Fund and Account shall be maintained by the Trustee as a separate and
distinct trust fund or account to be held, managed, invested, disbursed and
administered as provided in this Indenture. All moneys deposited in the Funds
and Accounts shall be used solely for the purposes set forth in this Indenture.
The Trustee shall keep and maintain adequate records pertaining to each Fund and
Account and all disbursements therefrom.
Section 502. Initial Deposits. On the Bond Issuance Date, as shall be more
fully specified in a written request from the Issuer, the Trustee shall deposit
$7,546,000 from the proceeds received from the sale of the Bonds into the
Project Fund and $154,000 to the Costs of Issuance Fund.
Section 503. Project Fund.
(i) Moneys in the Project Fund shall be disbursed in accordance with
the provisions of the Agreement for Project Purposes as provided in the
Agreement.
(ii) The Trustee shall cause to be kept and maintained adequate
records pertaining to the Project Fund and all disbursements from such
Fund. If requested by the Issuer, the Credit Enhancer or the Borrower, the
Trustee shall file copies of the records pertaining to the Project Fund
and all disbursements from such fund with the Issuer, the Credit Enhancer
and the Borrow.
Section 504. Costs of Issuance Fund. The Trustee shall deposit into the
Costs of Issuance Fund the amount required by Section 502. Moneys in the Costs
of Issuance Fund shall be disbursed
- 38 -
from time to time for the payment of the costs of issuing the Bonds upon the
direction of the Borrower as evidenced by a requisition in the form of Exhibit B
to the Agreement executed by an Authorized Borrower Representative and approved
by the Credit Enhancer. Moneys in the Costs of Issuance Fund shall be expended
no later than 180 days after the Bond Issuance Date. Any moneys remaining
therein on such date shall be transferred to the General Fund and the Costs of
Issuance Fund shall be closed.
Section 505. Revenue Fund.
(a) The Trustee shall deposit into the Revenue Fund all Revenues (except
as otherwise provided in Section 509 hereof) and any other amounts received by
the Trustee which are subject to the lien and pledge of this Indenture, to the
extent not required to be deposited in other Funds and Accounts in accordance
with the terms of this Indenture. The Trustee shall first apply those moneys on
deposit in the Credit Facility Account which represent payments received with
respect to the Credit Facility and any earnings thereon and then, if needed,
investment earnings on Funds and Accounts (to the extent such moneys constitute
Available Moneys) on each Interest Payment Date and Principal Payment Date on
the Bonds, in the order of priority and for the purposes as follows:
(1) First, to the Interest Account of the Debt Service Fund, an
amount sufficient to pay the interest becoming due and payable on the
Bonds on such date;
(2) Second, to the Principal Account of the Debt Service Fund, an
amount sufficient to pay the principal of the Bonds maturing on such date,
if any; and
(3) Third, to the Redemption Account of the Debt Service Fund, the
balance of such moneys.
(b) Moneys in the Credit Facility Account remaining after the transfers
made pursuant to paragraph (a) above shall be returned to the Credit Enhancer as
a reimbursement of the amounts paid under the Credit Facility.
(c) The Trustee shall deposit into the Unavailable Moneys Account
principal, interest and premium payments made by the Borrower pursuant to
Section 3.6(a)(i), (ii), (iii) and (iv) of the Loan Agreement. Upon the Credit
Enhancer's payment to the Trustee under the Credit Facility pursuant to a
request under Section 508(b)(1), (2) or (3) hereof, the Trustee shall transfer
to the Credit Enhancer the amount on deposit in the Unavailable Moneys Account.
In the event of an Event of Default described in paragraphs (a), (b), (c), (e)
or (g) (except with respect to paragraph (g), a default under Section 801(d) or
(f) of the Series 1994B Indenture) of Section 801 hereof, any moneys on deposit
in the Unavailable Moneys Account which constitute Available Moneys shall be
transferred to the Available Moneys Account and applied in accordance with this
Indenture.
(d) The Trustee shall also deposit into the Unavailable Moneys Account
moneys to be applied to the purchase of Bonds pursuant to Section 307 hereof or
the redemption of Bonds, as provided in this Section, pursuant to Sections 401
and 402. When moneys deposited pursuant to the preceding sentence shall become
Available Moneys, such Available Moneys shall be transferred to the Available
Moneys Account. Moneys on deposit in the Available Moneys Account to be
- 39 -
applied to the payment of the Bonds at maturity shall be transferred to the
Principal Account on the maturity date to pay the principal of the Bonds and to
the Interest Account to pay accrued interest. Moneys on deposit in the Available
Moneys Account to be applied to the redemption of Bonds pursuant to Sections 401
and 402 shall be transferred to the Redemption Account on the date fixed for
such redemption to the extent necessary to pay the premium, if any, on and
principal of the Bonds as the same shall become due and payable by such
redemption and to the Interest Account to pay accrued interest. Available Moneys
on deposit in the Available Moneys Account, to be applied to the purchase of
Bonds pursuant to Section 307, shall be transferred to the Purchase Fund on the
Tender Date to the extent necessary to pay the Tender Price of the Bonds as the
same shall become due and payable on such Tender Date. Any moneys remaining in
the Available Moneys Account following the redemption or purchase of Bonds with
respect to which such deposit was made shall first be applied to pay the Credit
Enhancer any amounts due and payable under the Letter of Credit Agreement and
thereafter shall be transferred to the General Fund.
Section 506. Debt Service Fund.
(a) The Trustee shall deposit into the Interest Account the amounts
required by Section 505 of this Indenture. Moneys on deposit in the Interest
Account shall be applied solely to pay the interest on the Bonds as the same
becomes due and payable. On each date fixed for redemption of the Bonds and on
each scheduled Interest Payment Date on the Bonds, the Trustee shall remit to
the respective Bondowners of such Bonds an amount from the Interest Account
sufficient to pay the interest on the Bonds becoming due and payable on such
date.
(b) The Trustee shall deposit into the Principal Account the amounts
required by Section 505 of this Indenture. Moneys on deposit in the Principal
Account shall be applied solely to pay the principal of the Bonds as the same
becomes due and payable at maturity. On each Principal Payment Date of the
Bonds, the Trustee shall set aside and hold in trust an amount from the
Principal Account sufficient to pay the principal of the Bonds becoming due and
payable on such date.
(c) The Trustee shall deposit into the Redemption Account the amounts
required by Section 505 of this Indenture. Moneys on deposit in the Redemption
Account shall be applied solely to pay the principal and premium, if any, on the
Bonds as the same become due and payable by redemption. On each date fixed for
such redemption, the Trustee shall set aside and hold in trust an amount from
the Redemption Account sufficient to pay the principal of and premium, if any,
on the Bonds becoming due and payable on such date.
Section 507. General Fund. The Trustee shall deposit into the General Fund
the amounts required by Sections 504 and 505, and all moneys deposited by the
Borrower with the Trustee as payment of the fees and expenses of the Trustee,
any Paying Agent, the Issuer and the Remarketing Agent. The Trustee shall apply
moneys on deposit in the General Fund solely for the following purposes, in the
following order of priority and in accordance with the following conditions:
(a) first, to the Trustee for the reasonable cost of ordinary expenses
incurred and ordinary services rendered, and to the Issuer for its actual
expenses incurred in connection with the administration of the Bond financing
for the Project, upon the Trustee's receipt of a statement that
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the amount indicated thereon is justly due and owing and has not been the
subject of another written request which has been paid;
(b) to the Trustee for the reasonable cost of extraordinary expenses
incurred and extraordinary services rendered if said extraordinary expenses and
extraordinary services are necessary and reasonable and are not occasioned by
the negligence or willful misconduct of the Trustee;
(c) to the Remarketing Agent, an amount equal to any amounts due and
payable under the Remarketing Agreement; and
(d) to the Credit Enhancer, an amount equal to any amounts due and payable
under the Letter of Credit Agreement.
Section 508. Payments Under Credit Facility.
(a) The Credit Facility shall be held by the Trustee. Payments on the
Credit Facility shall be made or requested in accordance with its terms
consistent with the provisions of this Indenture and the Agreement. Payments on
the Credit Facility (other than pursuant to subparagraphs (b)(4) and (5) of this
Section, which amount will be deposited into the Purchase Fund) shall be
deposited in the Credit Facility Account and applied by the Trustee in
accordance with Section 505.
(b) The Trustee shall request payments under the Credit Facility, in
accordance with and to the extent, if any, required by the terms thereof, in the
amounts and at such time as may be necessary to make timely payments of the
principal of and interest, but not premium, on the Bonds required to be made
from the Debt Service Fund. In accordance with the preceding sentence, the
Trustee shall request payments under the Credit Facility by presenting a
conforming request to the Credit Enhancer (to the extent, if any, required by
the terms of the Credit Facility) two (2) Business Days prior to the applicable
Interest Payment Date, Principal Payment Date or redemption date referenced in
subsections (1), (2) and (3) herein, and prior to 11:00 A.M., New York Time, on
the applicable Tender Date referenced in subsections (4) and (5) herein, in
order for moneys to be received in the amounts and at the times as follows:
(1) No later than 3:30 P.M., New York Time, one (1) Business Day
prior to each Interest Payment Date, an amount equal to interest due on
the Bonds on such Interest Payment Date;
(2) No later than 3:30 P.M., New York Time, one (1) Business Day
prior to each Principal Payment Date, an amount equal to the full
principal amount of the Bonds coming due on such Principal Payment Date
because of the maturity of the Bonds;
(3) No later than 3:30 P.M., New York Time, one (1) Business Day
prior to each date fixed for (A) the mandatory redemption of the Bonds
pursuant to Section 402 hereof, other than as provided in Section
508(b)(2) hereof, or (B) the optional redemption of the Bonds pursuant to
Section 401 hereof, in each case an amount which, when added to any
Available Moneys (other than payments under the Credit Facility) in excess
of the amount of the applicable redemption premium and then available for
such purpose, will be equal
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to the full principal amount plus accrued interest on the Bonds to be
redeemed (other than the amount owing as a redemption premium, if any);
(4) No later than 3:00 P.M., New York Time, on the Tender Date for
any Bonds in accordance with Section 301 hereof, an amount which, when
added to any other Remarketing Proceeds available for such purpose in the
Purchase Fund, is equal to the Tender Price of Bonds for which Notices of
Election to Tender Bonds have been timely received; and
(5) No later than 3:00 P.M., New York Time, on the Tender Date for
any Bonds in accordance with Section 302 hereof, an amount which, when
added to any other Remarketing Proceeds then available for such purpose in
the Purchase Fund, is equal to the Tender Price of all of the Bonds
required to be tendered on such date pursuant to Section 302 and for which
no Notices of Election to Retain Bonds have been received.
(6) Notwithstanding the provisions of this Section 508, pursuant to
Section 802 hereof, the Trustee shall immediately demand payment under the
Credit Facility upon any acceleration of the maturity of the Bonds, or
upon any direction by the Credit Enhancer to the Trustee to purchase the
Bonds for the Credit Enhancer's own account.
(c) No payments shall be made under the Credit Facility for the payment of
the principal of and interest on the Borrower Bonds.
(d) The Borrower shall be permitted to provide the Trustee with an
Alternate Credit Facility in accordance with the requirements of Section 706
hereof and Section 3.10 of the Agreement.
Section 509. Deposits into and Application of Moneys in the Rebate Fund.
(a) There shall be deposited in the Rebate Fund such amounts as are
required to be deposited therein pursuant to the Tax Agreement. Subject to the
payment provisions provided in subsection (b) below, all amounts on deposit at
any time in the Rebate Fund shall be held by the Trustee in trust, to the extent
required to pay rebatable arbitrage to the United States of America, and neither
the Borrower, the Issuer, the Credit Enhancer nor the Owner of any Bonds shall
have any rights in or claim to such money. All amounts held in the Rebate Fund
shall be governed by this Section and by the Tax Agreement (which is
incorporated herein by reference). The Issuer, the Credit Enhancer and the
Trustee shall be entitled to rely on the rebate calculations made by the
Borrower pursuant to the Tax Agreement and neither the Issuer, the Credit
Enhancer nor the Trustee shall be responsible for any loss or damage resulting
from any good faith action taken or omitted to be taken by the Issuer or the
Trustee in reliance upon such calculations.
(b) Pursuant to the Tax Agreement, the Trustee shall remit all rebate
installments and a final rebate payment to the United States. The Trustee shall
have no obligation to pay any amounts required to be rebated pursuant to this
Section and the Tax Agreement, other than from moneys held in the Funds and
Accounts created under this Indenture or from other moneys provided to it by the
Borrower or, at the discretion of the Credit Enhancer, by the Credit Enhancer.
Any moneys remaining in the Rebate Fund after redemption and payment of all of
the Bonds and
- 42 -
payment and satisfaction of any rebatable arbitrage shall be withdrawn and paid
first, to the Credit Enhancer to the extent of any amounts remaining unpaid
under any of the Collateral Documents and, second, to the Borrower.
(c) Notwithstanding any other provision of this Indenture, including in
particular Article XII hereof, the obligation to pay rebatable arbitrage to the
United States and to comply with all other requirements of this Section and the
Tax Agreement shall survive the defeasance or payment in full of the Bonds.
(d) The Trustee shall provide an annual certification to the Credit
Enhancer as to the Borrower's compliance with the provisions of this Section.
Section 510. Final Balances. Upon the deposit with the Trustee of moneys
sufficient to pay all principal of, premium, if any, and interest on the Bonds,
and upon satisfaction of all claims against the Issuer hereunder, including all
fees, charges and expenses of the Trustee, the Issuer, the Remarketing Agent and
any Paying Agent which are properly due and payable hereunder, or upon the
making of adequate provisions for the payment of such amounts as permitted
hereby, all moneys remaining in all Funds and Accounts, except moneys necessary
to pay principal of, premium, if any, and interest on the Bonds, which moneys
shall be held by the Trustee and (after 5 years) paid to the Credit Enhancer or
the Borrower, as appropriate, pursuant to Section 511 hereof, and except moneys,
if any, set aside pursuant to Section 509 hereof, shall be remitted first, to
the Credit Enhancer to the extent of any amounts remaining unpaid under any of
the Collateral Documents and, second, to the Borrower.
Section 511. Non-Presentment of Bonds. In the event any Bond shall not be
presented for payment when the principal thereof becomes due, either (i) at
maturity or at the date fixed for redemption thereof, or (ii) on the Tender Date
therefor, if moneys sufficient to pay such Bond shall have been deposited in the
Debt Service Fund or, with respect to Bonds becoming due pursuant to clause
(ii), the Purchase Fund or the Undelivered Bond Account held by the Tender Agent
in accordance with Section 309 hereof, all liability of the Issuer to the holder
thereof for the payment of such Bond shall forthwith cease, terminate and be
completely discharged, and thereupon it shall be the duty of the Trustee or the
Tender Agent as applicable to hold such moneys, without liability for interest
thereon, for the benefit of the holder of such Bond who shall thereafter be
restricted exclusively to such moneys, for any claim of whatever nature of such
holder under this Indenture or on, or with respect to, said Bond.
Any moneys so deposited with and held by the Trustee not so applied to the
payment of Bonds within five (5) years after the date on which the same shall
have become due shall be paid by the Trustee or the Tender Agent first, to the
Credit Enhancer to the extent of any amounts remaining unpaid under any of the
Collateral Documents and second, to the Borrower, free from the trusts created
by this Indenture. Thereafter, Bondowners shall be entitled to look only to the
Borrower for payment, and then only to the extent of the amount so repaid to the
Credit Enhancer or to the Borrower by the Trustee or the Tender Agent. The
Credit Enhancer and the Borrower shall not be liable for any interest on the
sums paid to it pursuant to this Section and shall not be regarded as a trustee
of such money.
[End of Article V]
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ARTICLE VI
DEPOSITARIES OF MONEYS, SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS
Section 601. Moneys to be Held in Trust. All moneys deposited with or paid
to the Trustee for the account of any Fund or Account under any provision of
this Indenture, and all moneys deposited with or paid to any Paying Agent under
any provision of this Indenture shall be held by the Trustee or Paying Agent in
trust and shall be applied only in accordance with the provisions of this
Indenture and, until used or applied as herein provided, shall constitute part
of the Trust Estate (except for the Purchase Fund, the Rebate Fund and the
rebatable arbitrage not deposited therein) and be subject to the lien, terms and
provisions hereof and shall not be commingled with any other funds of the
Issuer, the Credit Enhancer or the Borrower except as provided under Section 602
for investment purposes. Neither the Trustee nor any Paying Agent shall be under
any liability for interest on any moneys received hereunder except such as may
be agreed upon.
Section 602. Investment of Moneys.
(a) Moneys in all Funds and Accounts (except the Purchase Fund) shall be
continuously invested and reinvested by the Trustee at the written direction of
the Borrower (with the written consent of the Credit Enhancer) as provided in
this Section 602. Moneys in the Purchase Fund shall not be invested. Moneys on
deposit in all Funds and Accounts may be invested only in Investment Securities;
provided that (1) amounts received under the Credit Facility shall be invested
and reinvested by the Trustee only in Government Securities maturing on the
earlier of 30 days after the date on which such obligations are acquired or such
time or times as said money shall be needed for the purposes for which they were
deposited and (2) Available Moneys (other than payments under the Credit
Facility) to be applied in accordance with Section 505(d) shall be invested and
reinvested by the Trustee only in Government Securities maturing on the earlier
of 30 days after the date on which such obligations are acquired or such time or
times as said money shall be needed for the purposes for which they were
deposited; and provided, further, that the Borrower's direction to so invest
shall be received by 12:00 noon, New York Time, on the day prior to any such
investment. All such investments shall mature not later, nor, to the extent
reasonably practicable subject to the restrictions above, earlier, than the date
such moneys or investment proceeds are required for the purposes of the
respective Funds and Accounts.
(b) All investments shall constitute a part of the Fund or Account from
which the moneys used to acquire such investments have come. The Trustee shall
sell and reduce to cash a sufficient amount of investments in a Fund or Account
whenever the cash balance therein is insufficient to pay the amounts then
required to be paid therefrom. The Trustee may transfer investments from any
Fund or Account to any other Fund or Account in lieu of cash when required or
permitted by the provisions of this Indenture.
Section 603. Manner of Investment. All investments in Nonpurpose
Investments made pursuant to this Article shall be made at the fair market value
of such Nonpurpose Investments in accordance with Treasury Regulation Section
1.148-5(d)(6), and all sales of Nonpurpose Investments shall be at the fair
market value of such Nonpurpose Investments.
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Section 604. Record Keeping The Trustee shall maintain records designed to
show compliance with the provisions of this Article and with the provisions of
Article V for at least six (6) years after the payment of the Bonds.
[End of Article VI]
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ARTICLE VII
PARTICULAR COVENANTS AND PROVISIONS
Section 701. Issuer to Issue Bonds and Execute Indenture. The Issuer
covenants that it is duly authorized under the Act to execute and deliver this
Indenture, to issue the Bonds and to pledge and assign the Trust Estate in the
manner and to the extent herein set forth; that all action on its part for the
execution and delivery of this Indenture and the issuance of the Bonds has been
duly and effectively taken; 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 import thereof.
Section 702. Performance of Covenants. The Issuer covenants that it will
faithfully perform, or cause to be performed, at all times any and all
covenants, undertakings, stipulations and provisions contained in this
Indenture, in the Bonds and in all proceedings pertaining thereto.
Section 703. 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 Supplemental Indentures and such further acts,
instruments, financing statements and other documents as the Trustee may
reasonably require for the better assuring, transferring, pledging and assigning
to the Trustee, and granting a security interest unto the Trustee in and to the
Trust Estate and the other property and revenues herein described. The Agreement
and all other documents, instruments or policies of insurance required by the
Trustee shall be delivered to and held by the Trustee.
Section 704. Credit Facility. The Trustee shall hold and maintain the
Credit Facility for the benefit of the Bondowners until the Credit Facility
terminates or expires in accordance with its terms. The Trustee shall diligently
enforce all terms, covenants and conditions of the Credit Facility. If at any
time during the term of the Credit Facility any successor Trustee shall be
appointed and qualified under this Indenture, the resigning or removed Trustee
shall request that the Credit Enhancer transfer the Credit Facility to the
successor Trustee, to the extent such action is necessary, and shall comply with
the applicable provisions of the Credit Facility. If the resigning or removed
Trustee fails to make this request, the successor Trustee shall do so before
accepting appointment. On the Termination Date the Trustee shall immediately
surrender the Credit Facility then in effect to the Credit Enhancer unless an
event of default thereunder shall have occurred and is continuing.
Section 705. Enforcement of Credit Facility. The Trustee, for the benefit
of the Owners of Bonds, subject to the provisions of Section 901(1) hereof,
shall diligently enforce and take all reasonable steps, actions and proceedings
necessary for the enforcement of all terms, covenants and provisions of the
Credit Facility as contemplated herein and therein. The Trustee shall not
consent to or permit any amendment or modification of the Credit Facility which
would materially adversely affect the rights or interests of the Owners of
Bonds.
Any provisions herein requiring notice to or from the Credit Enhancer or
the consent of the Credit Enhancer prior to any action by the Trustee or the
Issuer shall have no force or effect (1) following the later of (i) the
Termination Date and (ii) the repayment of all amounts owed to the Credit
Enhancer pursuant to the Collateral Documents or (2) during any period an event
of default
- 46 -
under the Credit Facility shall have occurred and is continuing, except with
respect to all rights accruing to the Credit Enhancer with respect to
unreimbursed draws on the Credit Facility.
Section 706. Alternate Credit Facility. An Alternate Credit Facility, in
substitution for the Credit Facility then in effect, may be provided prior to
any Termination Date if the Borrower shall give written notice not more than 60
nor less than 30 calendar days prior to the Alternate Credit Facility Date to
the Issuer, the Trustee, the Tender Agent, the Remarketing Agent, the Rating
Agency and the Credit Enhancer stating its election to provide an Alternate
Credit Facility. Any such Alternate Credit Facility must be either (a) an
irrevocable direct pay letter of credit, or (b) bond insurance contract, in both
cases constituting an unconditional and irrevocable commitment to pay principal
of and interest on the Bonds. If the Bonds are in any Interest Mode other than a
Multiyear Mode, the Alternate Credit Facility Date must be a Rate Adjustment
Date.
(a) Upon the exercise of such option by the Borrower, in the event the
Bonds are in any Interest Mode other than a Multiyear Mode, the Trustee shall
send to the Bondowners a Notice of Alternate Credit Facility in substantially
the form of Exhibit G not later than 20 calendar days prior to the Alternate
Credit Facility Date. The Trustee shall not accept such Alternate Credit
Facility unless the Trustee shall have received, (1) prior to sending the Notice
of Alternate Credit Facility (i) an Opinion of Bond Counsel stating that the
delivery of such Alternate Credit Facility to the Trustee is authorized under
this Indenture and the Act, complies with the terms hereof and will not
adversely affect the exclusion of interest on the Bonds from gross income for
federal income tax purposes, and (ii) a certificate from an Authorized Borrower
Representative and a written acknowledgment by the Credit Enhancer stating that
all amounts owing to the Credit Enhancer under the Collateral Documents have
been paid and that there are no Pledged Bonds outstanding, and (2) on or before
the Alternate Credit Facility Date a supplemental opinion of Bond Counsel
stating that the delivery of the Alternate Credit Facility is authorized under
this Indenture and the Act, complies with the terms hereof and will not
adversely affect the exclusion of interest on the Bonds from gross income for
federal income tax purposes.
(b) Upon the exercise of such option by the Borrower, in the event the
Bonds are in a Multiyear Mode, the Trustee shall send to the Bondowners a Notice
of Alternate Credit Facility in substantially the form of Exhibit G not later
than 20 calendar days prior to the Alternate Credit Facility Date. The Trustee
shall not accept such Alternate Credit Facility unless the Trustee shall have
received, (1) prior to sending the Notice of Alternate Credit Facility (i) an
Opinion of Bond Counsel stating that the delivery of such Alternate Credit
Facility to the Trustee is authorized under this Indenture and the Act, complies
with the terms hereof and will not adversely affect the exclusion of interest on
the Bonds from gross income for federal income tax purposes, (ii) written
evidence from the Rating Agency that the Bonds will be rated no lower than the
then existing ratings on the Bonds by the Rating Agency, and (iii) a certificate
from an Authorized Borrower Representative and a written acknowledgment by the
Credit Enhancer stating that all amounts owing to the Credit Enhancer under the
Collateral Documents have been paid and that there are no Pledged Bonds
outstanding, and (2) on or before the Alternate Credit Facility Date a
supplemental opinion of Bond Counsel stating that the delivery of the Alternate
Credit Facility is authorized under this Indenture and the Act, complies with
the terms hereof and will not adversely affect the exclusion of interest on the
Bonds from gross income for federal income tax purposes.
- 47 -
Section 707. General Limitation on Issuer Obligations. ANY OTHER TERM OR
PROVISION OF THIS INDENTURE OR ANY OTHER DOCUMENT EXECUTED IN CONNECTION WITH
THE TRANSACTION WHICH IS THE SUBJECT HEREOF TO THE CONTRARY NOTWITHSTANDING, THE
ISSUER SHALL NOT BE REQUIRED TO TAKE OR OMIT TO TAKE, OR REQUIRE ANY OTHER
PERSON OR ENTITY TO TAKE OR OMIT TO TAKE, ANY ACTION WHICH WOULD CAUSE IT OR ANY
PERSON OR ENTITY TO BE, OR RESULT IN IT OR ANY PERSON OR ENTITY BEING, IN
VIOLATION OF ANY LAW OF THE STATE.
Section 708. Recording and Filing. Subject to Section 901(c) hereof, the
Trustee shall use its best efforts to keep and file or cause to be kept and
filed all financing statements related to this Indenture and all supplements
hereto, the Agreement and all supplements thereto, the Credit Facility and all
supplements thereto and such other documents as may be necessary to be kept and
filed in such manner and in such places as may be required by law in order to
preserve and protect fully the security of the Owners and the rights of the
Trustee hereunder. In carrying out its duties under this Section, the Trustee
shall be entitled to rely on an opinion of its counsel specifying what actions
are required to comply with this Section.
Section 709. Possession and Inspection of Books and Documents. The Issuer
and the Trustee covenant and agree that all books and documents in their
possession relating to the Agreement and the Credit Facility and to the
distribution of proceeds thereof shall at all times be open to inspection by
such accountants or other agencies or persons as the Credit Enhancer or the
Borrower may from time to time designate.
Section 710. Rights and Duties Under Agreement and Credit Facility. The
Trustee hereby acknowledges and agrees to the terms, conditions, appointments
and agencies of the Agreement and the Credit Facility as they relate to it and
its participation in the transactions contemplated hereby and thereby. Subject
to the provisions of Section 901(1) hereof, the Trustee shall perform all
obligations and duties of the Issuer under the Agreement (and the Issuer hereby
appoints the Trustee as the Issuer's agent and attorney-in-fact for all such
purposes). The Trustee, as assignee hereunder, in its name or to the extent
permitted by law, in the name of the Issuer, may enforce all rights of the
Issuer (but only with the prior written consent of the Credit Enhancer unless
the Credit Enhancer is in default under the Credit Facility) and all obligations
of the Credit Enhancer and the Borrower under the Agreement and the Credit
Facility (and waive the same with the consent of the Credit Enhancer, except for
rights expressly granted to the Borrower) on behalf of the Bondowners whether or
not the Issuer is in default hereunder.
Section 711. Tax Covenants.
(a) The Issuer shall not use or knowingly permit the use of any proceeds
of the Bonds or any other funds of the Issuer, and the Trustee shall not use or
permit the use of any proceeds of the Bonds or any other funds of the Issuer
held by the Trustee, directly or indirectly, to acquire any securities or
obligations, and shall not use or permit the use of any amounts received by the
Issuer or Trustee with respect to the Agreement in any manner, and shall not
take or permit to be taken any other action or actions, which would cause any
Bond to be an "arbitrage bond" within the meaning of Section 148(a), or
"federally guaranteed" within the meaning of Section 149(b), of the Code. If at
any time the Issuer is of the opinion that for purposes of this subsection (a)
it is necessary to restrict or limit the yield on or change in any way the
investment of any moneys held
- 48 -
by the Trustee under this Indenture, the Trustee shall take such action as may
be necessary in accordance with such instructions. The Issuer and the Trustee
shall be deemed in compliance with this Section to the extent they follow the
Tax Agreement or an Opinion of Bond Counsel with respect to the investment of
funds hereunder.
(B) The Trustee and the Issuer will not take any action or omit to take
any action or permit any action which is within its control to be taken or
omitted which would to its knowledge impair the exclusion of interest on the
Bonds from gross income for federal income tax purposes or the applicable
exemptions from taxation in the State.
(c) The Issuer and the Trustee shall at all times do and perform all acts
and things permitted by law and this Indenture which are necessary or desirable
in order to assure that interest paid on the Bonds will be excludable from gross
income for federal income tax purposes and to preserve the applicable exemptions
from taxation in the State and shall take no action that would result in such
interest not being excludable from gross income for federal income tax purposes.
[End of Article VII]
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ARTICLE VIII
DEFAULT AND REMEDIES
Section 801. Events of Default. If any one or more of the following events
occur, it is hereby defined as and declared to be and to constitute an "Event of
Default":
(a) default in the due and punctual payment of any interest on any Bond;
(b) default in the due and punctual payment of the principal of or
redemption premium, if any, on any Bond, whether at the stated maturity or
accelerated maturity thereof, or upon proceedings for redemption thereof or
otherwise;
(c) default in the payment of the Tender Price of any Tendered Bond (the
substance of which must be communicated by Immediate Notice by the Trustee to
the Credit Enhancer, the Borrower and the Issuer);
(d) the occurrence of an event of default under Article VIII of the
Agreement;
(e) the occurrence of either or both of the following:
(i) the Trustee has received written notice from the Credit
Enhancer, within the period provided for in the Credit
Facility, that the Credit Enhancer will not reinstate the
interest portion of the Credit Facility; or
(ii) the Trustee's receipt of written notice from the Credit
Enhancer that an "Event of Default" has occurred under the
Letter of Credit Agreement together with a direction from the
Credit Enhancer to the Trustee requiring either (A) the
acceleration of the Bonds pursuant to Section 802(a) or (B)
the mandatory purchase of the Bonds pursuant to Section 802(b)
hereof;
(f) default in the performance or observance of any other of the
covenants, agreements or conditions on the part of the Issuer in this Indenture
or in the Bonds contained, and the continuance thereof for a period of thirty
(30) days after written notice thereof shall have been given to the Issuer, the
Credit Enhancer and the Borrower by the Trustee, or to the Trustee, the Issuer,
the Credit Enhancer and the Borrower by the Owners of not less than twenty-five
percent (25%) in aggregate principal amount of Bonds then Outstanding; provided,
however, if any default shall be such that it cannot be corrected within such
30-day period, it shall not constitute an Event of Default if corrective action
is instituted by the Issuer or the Borrower within such period and diligently
pursued until the default is corrected; or
(g) the occurrence of an event of default pursuant to Article VIII of the
Series 1994B Trust Indenture.
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(h) The Trustee shall give Immediate Notice of any Event of Default to the
Issuer, the Borrower and the Credit Enhancer as promptly as practicable after
the occurrence of an Event of Default becomes known to the Trustee.
Section 802. Acceleration: Mandatory Purchase.
(a) If an Event of Default described in paragraph (a), (b), (c), (e)(i) or
(g) (except, with respect to paragraph (g), a default under Section 801(d),
(e)(ii) or (f) of the Series 1994B Indenture) of Section 801 hereof shall have
occurred and be continuing, the Trustee shall, by notice in writing delivered to
the Issuer, the Borrower and the Credit Enhancer, declare the principal of all
Bonds then Outstanding and the interest accrued thereon immediately due and
payable, and the Bonds shall cease to bear interest on such date; subject,
however, to subparagraph (b) hereof. The principal and interest shall thereupon
become due and payable on a date established by the Trustee, which date shall
not be more than ten (10) calendar days after such acceleration.
If an Event of Default described in paragraph (e)(ii) or (g) (but, with
respect to paragraph (g), only with respect to a default under Section
801(e)(ii) of the Series ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) of Section 801 hereof shall have
occurred and be continuing, the Trustee shall, by notice in writing delivered to
the Issuer, the Borrower and the Credit Enhancer, declare the principal of all
Bonds then Outstanding and the interest accrued thereon due and payable on such
date as the Trustee shall establish pursuant to Section 402(c) hereof, and the
Bonds shall cease to bear interest on such date; subject, however, to
subparagraph (b) hereof.
If an Event of Default described in paragraph (d), (f) or (g) (but, with
respect to paragraph (g), only with respect to a default under Section 801(d) or
(f) of the Series 1994B Indenture) of Section 801 hereof, shall have occurred
and be continuing, the Trustee, and may upon the written request of the Owners
of not less than 25% in aggregate principal amount of the Bonds then Outstanding
shall, but only with the prior written consent of the Credit Enhancer (unless
the Credit Enhancer is in default under the Credit Facility in which case no
such consent shall be required), by notice in writing delivered to the Issuer,
the Borrower and the Credit Enhancer declare the principal of all Bonds then
Outstanding and the interest accrued thereon immediately due and payable, and
such principal and interest shall thereupon become and be immediately due and
payable.
Upon any acceleration of the maturity of the Bonds hereunder, the Trustee
shall immediately demand payment under the Credit Facility to the extent
permitted by the terms thereof and pursue the remedies of the Trustee
thereunder.
If, at any time after such declaration, but before the Bonds shall have
matured by their terms, all overdue installments of principal of and interest on
the Bonds, together with the reasonable and proper expenses of the Trustee, and
all other sums then payable by the Issuer under this Indenture shall either be
paid or provision satisfactory to the Trustee shall be made for such payment,
then and in every such case the Trustee shall, but only with the approval of the
Credit Enhancer and the Owners of not less than a majority in aggregate
principal amount of the Bonds Outstanding, and upon the reinstatement of the
Credit Facility, rescind such declaration and annul such default in its
entirety. In such event, the Trustee shall rescind any declaration of
acceleration of the Loan Payments as provided in Section 8.2 of the Agreement.
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In case of any rescission, then and in every such case the Issuer, the
Trustee and the Bondowners shall be restored to their former positions, rights
and obligations hereunder, respectively, but no such rescission shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon.
(b) Mandatory Purchase. Upon the occurrence and continuance of an Event of
Default under paragraph (e)(ii) or (g) (but, with respect to paragraph (g), only
with respect to a default under Section 801(e)(ii) of the Series ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇) of Section 801 hereof, as provided in Section 302(d) hereof the
Credit Enhancer in its notice to the Trustee may direct the Trustee to purchase
the Bonds for the Credit Enhancer's own account, rather than to accelerate the
Bonds as provided in Section 802(a) hereof. In such case, the Trustee shall draw
upon the Credit Facility in accordance with the provisions of Section 302(d)
hereof to pay the purchase price for the Bonds, which shall be an amount equal
to the principal of all Outstanding Bonds and accrued interest thereon to the
Mandatory Purchase Date, and upon receipt of the proceeds of such draw, shall
immediately purchase the Bonds in accordance with Section 302 hereof.
Section 803. Surrender of Possession of Trust Estate: Rights and Duties of
Trustee in Possession. If an Event of Default shall have occurred and be
continuing, the Issuer, upon demand of the Trustee, shall forthwith surrender
the possession of, and it shall be lawful for the Trustee, by such officer or
agent as it may appoint, to take possession of all or any part of the Trust
Estate, together with the books, papers and accounts of the Issuer pertaining
thereto, and including the rights and the position of the Issuer under the
Agreement and to hold and manage the same and to collect, receive and sequester
the payments, revenues and receipts derived under the Agreement, and out of the
same and any moneys received from any receiver of any part thereof pay and set
up proper reserves for the payment of all proper costs and expenses of so
taking, holding and managing the same, including (i) reasonable compensation to
the Trustee, its agents and counsel, (ii) any reasonable charges of the Trustee
hereunder, and (iii) any taxes and assessments, and other charges, prior to the
lien of this Indenture which the Trustee may deem it wise to pay, and the
Trustee shall apply the remainder of the moneys so received in accordance with
Section 808. Whenever all that is due upon the Bonds shall have been paid and
all defaults made good and all payments pursuant to Section 509 hereof have been
made, the Trustee shall surrender possession of the Trust Estate to the Issuer,
its successors or assigns, the same right of entry, however, to exist upon any
subsequent Event of Default, subject to the provisions of Article V hereof.
While the Credit Facility is in force and effect, if no Bonds are outstanding,
the Trustee and the Issuer have been fully recompensed for all their costs and
expenses, the Credit Enhancer is not in default under the Credit Facility, and
any amounts remain unreimbursed with respect thereto, the Issuer shall
thereafter transfer possession of the Trust Estate to the Credit Enhancer.
While in possession of the Trust Estate, the Trustee shall render annually
(or more often if requested in writing) to the Issuer, the Borrower and the
Credit Enhancer a summarized statement of receipts and expenditures in
connection therewith.
Section 804. Appointment of Receivers in Event of Default. If an Event of
Default shall have occurred and be continuing, and upon the filing of a suit or
other commencement of judicial proceedings to enforce the rights of the Trustee
and of the Bondowners under this Indenture, the Trustee shall be entitled, with
the approval of the Credit Enhancer if the Credit Enhancer is not in
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default under the Credit Facility, as a matter of right, to the appointment of a
receiver or receivers of the Trust Estate and of the earnings, income, products
and profits thereof, pending such proceedings, with such powers as the court
making such appointment shall confer.
Section 805. Exercise of Remedies by the Trustee. If an Event of Default
shall have occurred and be continuing, the Trustee may, with the approval of the
Credit Enhancer if the Credit Enhancer is not in default under the Credit
Facility, pursue any available remedy at law or equity by suit, action, mandamus
or other proceeding to enforce the payment of the principal of and redemption
premium, if any, and interest on the Bonds then Outstanding, and to enforce and
compel the performance of the duties and obligations of the Issuer as herein set
forth.
If an Event of Default shall have occurred and be continuing, and if
requested so to do by the Credit Enhancer or by the Owners of not less than 25%
in aggregate principal amount of the Bonds then Outstanding and indemnified as
provided in paragraph (1) of Section 901, with the approval of the Credit
Enhancer if the Credit Enhancer is not in default under the Credit Facility, the
Trustee shall be obligated to exercise such one or more of the rights and powers
conferred by this Article as the Trustee, being advised by counsel, shall deem
most expedient in the interests of the Bondowners.
All rights of action under this Indenture or under any of the Bonds may be
enforced by the Trustee without the possession of any of the Bonds or the
production thereof in any trial or other proceedings relating thereto, and any
such suit or proceeding instituted by the Trustee shall be brought in its name
as Trustee without the necessity of joining as plaintiffs or defendants any
Bondowner, and any recovery or judgment shall, subject to Section 808, be for
the equal benefit of all the Owners of the Outstanding Bonds.
Section 806. Limitation on Exercise of Remedies by Bondowners. No
Bondowner 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 hereunder or for the appointment of a receiver or any other remedy
hereunder, unless:
(1) a default has occurred of which the Trustee has notice or is
deemed to have notice as provided in subparagraph (h} of Section 901, and
(2) such default shall have become an Event of Default, and
(3) the Owners of not less than 25% in aggregate principal amount of
the Bonds then Outstanding or the Credit Enhancer (with respect to an
Event of Default described in paragraph (e) or (g} (but, with respect to
paragraph (g), only with respect to a default under Section 801(e) of the
Series ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) of Section 801 hereof shall have made written
request to the Trustee, shall have offered it reasonable opportunity
either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceeding in its own name, and shall have
provided to the Trustee indemnity as provided in subparagraph (1) of
Section 901, and
(4) the Trustee shall thereafter fail or refuse to exercise the
powers herein granted or to institute such action, suit or proceeding in
its own name, and
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(5) the Credit Enhancer shall have consented thereto if the Credit
Enhancer is not in default under the Credit Facility;
and such notification, request and indemnity are hereby declared in every case,
at the option of the Trustee (with the exception of any duty to make demand on,
and proceed under, the Credit Facility, cause an acceleration of the Bonds or
make payments when due), 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
Bondowners shall have any right in any manner whatsoever to affect, disturb or
prejudice this Indenture by such Bondowners 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, however, shall affect or impair the right of any
Bondowner to payment of the principal of, and redemption premium, if any, and
interest on any Bond at and after its maturity or the obligation of the Issuer
to pay the principal of, and redemption premium, if any, and interest on each of
the Bonds to the respective Owners thereof at the time and place, from the
source and in the manner herein and in such Bond expressed.
Section 807. Right of Bondowners to Direct Proceedings. Any other
provision herein to the contrary notwithstanding, the Owners of a majority in
aggregate principal amount of the Bonds then Outstanding shall have the right,
at any time, with the approval of the Credit Enhancer if the Credit Enhancer is
not in default under the Credit Facility, 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 this Indenture, or for the appointment of a receiver or any other
proceedings hereunder; provided that the Trustee shall have been provided
indemnity satisfactory to it in accordance with Section 901(1) hereof and
provided that such direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture, and provided, further, that the Trustee
shall have the right to decline to follow any such direction if the Trustee in
good faith shall determine that the proceeding so directed would involve it in
personal liability.
Section 808. Application of Moneys in Event of Default. Upon an Event of
Default all moneys held or received by the Trustee pursuant to this Indenture,
the Agreement or the Credit Facility or pursuant to any right given or action
taken under this Article shall, after payment of the reasonable costs and
expenses of the proceedings resulting in the collection of such moneys, be
deposited in the Debt Service Fund (provided, however, Available Moneys shall be
used only for payment of principal or interest on the Bonds) and all moneys so
deposited in the Debt Service Fund shall be applied as follows:
(a) If the principal of all the Bonds shall not have become or shall not
have been declared due and payable, all such moneys shall be applied:
First -- To the payment to the persons entitled thereto of all
installments of interest then due and payable on the Bonds, other than the
Borrower Bonds, in the order in which such installments of interest became
due and payable, with interest thereon at the rate or rates specified in
the respective Bonds to the extent permitted by law, and, if the amount
- 54 -
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;
Second -- To the payment to the persons entitled thereto of the
unpaid principal of and redemption premium, if any, on any of the Bonds,
other than Borrower Bonds, that shall have become due and payable (other
than Bonds called for redemption for the payment of which moneys or
securities are held pursuant to this Indenture), in the order of their due
date, with interest on such principal and redemption premium, if any, at
the rate or rates specified in the respective Bonds from the respective
dates upon which they became due and payable, and, if the amount available
shall not be sufficient to pay in full such principal and redemption
premium, if any, due on any particular date, together with such interest,
then to the payment ratably, according to the amounts of principal and
redemption premium, if any, due on such date, to the persons entitled
thereto without any discrimination or privilege;
Third -- To the payment to the Credit Enhancer, the unpaid principal
and interest due on the Pledged Bonds;
Fourth -- To the payment of the reasonable expenses, liabilities and
advances incurred or made by the Trustee;
Fifth -- To the Credit Enhancer any amounts due and owing under the
Collateral Documents;
Sixth -- To pay principal and interest on the Borrower Bonds; and
Seventh -- To the Borrower.
(b) If the principal of all the Bonds shall have become due or shall have
been declared due and payable, all such moneys shall be applied to the payment
of the principal, redemption premium, if any, and interest then due and unpaid
on all of the Bonds, with interest on such principal and redemption premium, if
any, and, to the extent permitted by law, on such interest, at the rate or rates
specified in the respective Bonds, without preference or priority of principal,
redemption premium or interest over principal, redemption premium or interest or
of any installment of interest over any other installment of interest or of any
Bond over any other Bond, ratably, according to the amounts due respectively for
principal, redemption premium, if any, and interest, to the persons entitled
thereto, without any discrimination or privilege; provided however principal of
and interest on Borrower Bonds shall only be paid after the amounts due the
Credit Enhancer under the Related Documents shall have been paid in full.
(c) If the principal of all the Bonds shall have been declared due and
payable, and if such declaration shall thereafter have been rescinded and
annulled under this Article then, subject to paragraph (b) of this Section, in
the event that the principal of all the Bonds shall later become due or be
declared due and payable, the moneys shall be applied in accordance with
paragraph (a) of this Section.
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Whenever moneys are to be applied pursuant to this Section, such moneys
shall be applied at such times and from time to time as the Trustee shall
determine, having due regard to the amount of such moneys available and which
may become available for such application in the future.
Whenever all of the Bonds and interest thereon have been paid under this
Section, and all expenses and charges of the Trustee have been paid, any balance
remaining in the Funds shall be paid first to the Credit Enhancer and second to
the Borrower as provided in Section 510.
Section 809. Remedies Cumulative. No remedy conferred by this Indenture
upon or reserved to the Trustee, to the Credit Enhancer or to the Bondowners is
intended to be exclusive of any other remedy, but each and every such remedy
shall be cumulative and shall be in addition to any other remedy given to the
Trustee, to the Credit Enhancer or to the Bondowners hereunder or now or
hereafter existing at law or in equity or by statute.
Section 810. Delay or Omission Not Waiver. No delay or omission to
exercise any right, power or remedy accruing upon any Event of Default shall
impair any such right, power or remedy or shall be construed to be a waiver of
any such Event of Default or acquiescence therein, and every such right, power
or remedy may be exercised from time to time and as often as may be deemed
expedient.
Section 811. Effect of Discontinuance of Proceeding. In case the Trustee
shall have proceeded to enforce any right under this Indenture by the
appointment of a receiver, by entry, or otherwise, and such proceedings shall
have been discontinued or abandoned for any reason, or shall have been
determined adversely, then and in every such case the Issuer, the Borrower, the
Trustee, the Credit Enhancer and the Bondowners shall, with the written consent
of the Credit Enhancer, be restored to their former positions and rights
hereunder, and all rights, remedies and powers of the Trustee shall continue as
if no such proceedings had been taken.
Section 812. Waivers of Events of Default. The Trustee shall waive any
Event of Default and its consequences and rescind any declaration of maturity of
principal upon the written request of the Owners of a majority in aggregate
principal amount of the Bonds then Outstanding; provided that there shall not be
waived without the written consent of the Owners of all the Bonds Outstanding
(a) any Event of Default in the payment of the principal of any Outstanding
Bonds at their maturity, upon the redemption (including as a result of
acceleration) or tender thereof, (b) any Event of Default under Section 801(e)
or (g) hereof (but, with respect to paragraph (g), only with respect to a
default under Section 801(e) of the Series 1994B Indenture) unless the Credit
Enhancer shall have given written notice to the Trustee that the Credit Facility
has been reinstated in full, or (c) any Event of Default in the payment when due
of the interest on any such Bonds unless, prior to such waiver or rescission,
all arrears of interest, with interest (to the extent permitted by law) at the
rate borne by the Bonds on overdue installments of interest in respect of which
such default shall have occurred, or all arrears of payments of principal when
due, as the case may be, and all expenses of the Trustee in connection with such
Event of Default shall have been paid or provided for; provided further that
there shall not be waived without the written consent of the Credit Enhancer any
Event of Default under Section 801(e)(ii) or (g) hereof (but, with respect to
paragraph (g), only with respect to a default under Section 801(e)(ii) of the
Series ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇); and provided further that no Event of Default shall be
waived without the
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written consent of the Credit Enhancer if it has honored all its obligations
under the Credit Facility. In case of any such waiver or rescission, or in case
any proceeding taken by the Trustee on account of any such Event of Default
shall have been discontinued or abandoned or determined adversely, then and in
every such case the Issuer, the Borrower, the Trustee, the Bondowners and the
Credit Enhancer shall be restored to their former positions, rights and
obligations hereunder, respectively, but no such waiver or rescission shall
extend to any subsequent or other default, or impair any right consequent
thereon.
Section 813. Pledged Bonds. For the purposes of this Article VIII. Pledged
Bonds shall not be deemed Outstanding under this Indenture until the payment in
full of the principal of and interest on all other Bonds or the provision for
the payment thereof shall have been duly made. In the event any vote or consent
of the Bondowners is required hereunder, all Pledged Bonds shall be deemed
Outstanding for such purpose hereunder and the Credit Enhancer shall be deemed
the Owner thereof for purposes of voting or consenting thereto.
[End of Article VIII]
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ARTICLE IX
THE TRUSTEE
Section 901. Acceptance of Trusts. The Trustee hereby accepts the trusts
imposed upon it by this Indenture, and agrees to perform said trusts, but only
upon and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence of an Event of Default and after
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 and no implied covenants or obligations shall be read into this
Indenture against the Trustee. Subject to the limitations on liability of the
Trustee contained in Section 901(1), in case an Event of Default shall have
occurred of which the Trustee is deemed hereunder to have knowledge (and which
has not been cured or waived), the Trustee shall exercise such of the rights and
powers vested in it by this Indenture, and shall use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's affairs.
(b) The Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or through agents, attorneys or
receivers. The Trustee shall be entitled to act upon the opinion or advice of
counsel in the exercise of reasonable care, who may be counsel to the Issuer,
the Credit Enhancer or the Borrower, concerning all matters of trusts hereof and
the duties hereunder, and may in all cases pay such reasonable compensation to
all such agents, attorneys and receivers as may reasonably be employed in
connection with the trusts hereof. The Trustee shall not be responsible for any
loss or damage resulting from any action or nonaction by it taken or omitted to
be taken in good faith in reliance upon such opinion or advice of counsel.
(c) The Trustee shall not be responsible for any recital herein or in the
Bonds (except with respect to the Certificate of Authentication of the Trustee
endorsed on the Bonds), or for the recording or rerecording, filing or refiling
of this Indenture or any security agreements or financing statements in
connection therewith (except with respect to the filing of continuation
statements), or for insuring the Project or collecting any insurance moneys or
taxes, or for the validity of the execution by the Issuer of this Indenture or
of any Supplemental Indentures or instruments of further assurance, or for the
sufficiency of the security for the Bonds. 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 Article VI hereof.
(d) The Trustee shall not be accountable for the use of any Bonds
authenticated and delivered hereunder. The Trustee, in its individual or any
other capacity, may become the Owner or pledgee of Bonds with the same rights
which it would have if it were not Trustee.
(e) The Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, affidavit, letter, telegram
or other paper or document provided for under this Indenture believed by it to
be genuine and correct and to have been signed, presented or sent by the proper
person or persons. Any action taken by the Trustee pursuant to and in accordance
with this Indenture upon the request or authority or consent of any person who,
at the time of making such
- 58 -
request or giving such authority or consent is the Owner of any Bond, shall be
conclusive and binding upon all future Owners of the same Bond and upon Bonds
issued in exchange therefor or upon transfer or 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, or whenever in
the administration of this Indenture the Trustee shall deem it desirable that a
matter be provided or established prior to taking, suffering or omitting any
action hereunder, the Trustee shall be entitled to rely upon a certificate
signed by an Authorized Issuer Representative as sufficient evidence of the
facts therein contained.
(g) The permissive right 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 misconduct.
(h) The Trustee shall not be required to take notice or be deemed to have
notice of any Default hereunder except an Event of Default under Section 801(a),
(b), (c), (e) or (g) hereof (but, with respect to paragraph (g), only with
respect to a default under Section 801(a), (b), (c) or (e) of the Series 1994B
Indenture), or failure by the Issuer to cause to be made any of the payments to
the Trustee required to be made in Article V hereof, unless the Trustee shall be
specifically notified in writing of such Default by the Issuer, the Credit
Enhancer or the Owners of at least 25% in aggregate principal amount of all
Bonds then Outstanding. All notices or other instruments required by this
Indenture to be delivered to the Trustee shall be delivered at the Principal
Office of the Trustee, and, in the absence of such notice so delivered, the
Trustee may conclusively assume there is no Default except as aforesaid. The
Trustee shall notify the Credit Enhancer and the Borrower of any Default known
to the Trustee that has not yet become a matured Event of Default.
(i) At any and all reasonable times the Trustee and its duly authorized
agents, attorneys, experts, engineers, accountants and representatives shall
have the right, but shall not be required, to inspect the Project, including all
books, papers and records of the Issuer pertaining to the Project, the loan made
pursuant to the Agreement and the Bonds, and to take such memoranda from and in
regard thereto as may be desired.
(j) The Trustee shall not be required to give any bond or surety in
respect of the execution of its trusts and powers hereunder or otherwise in
respect of the Project.
(k) 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 or partnership action or evidence thereof, in addition
to that by the terms hereof required, as a condition of such action by the
Trustee as are 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.
(l) Before taking any action under this Indenture, the Trustee may require
that satisfactory indemnity be furnished to it for the reimbursement of all
costs and expenses to which it may be put and to protect it against all
liability, except liability which is adjudicated to have
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resulted from its negligence or willful misconduct by reason of any action so
taken. Notwithstanding the foregoing, the Trustee shall be required, without
indemnity, to make drawings on the Credit Facility, to pay the principal and
purchase price of, and premium, if any and interest on the Bonds from moneys
available in the Funds and Accounts hereunder, to accelerate the maturity of the
Bonds pursuant to Section 802(a) or to call the Bonds for mandatory purchase
pursuant to Section 802(b) and, upon the acceleration of the maturity of the
Bonds or the mandatory purchase of the Bonds, to immediately demand payment
under the Credit Facility to the extent permitted by the terms thereof and
pursue the remedies of the Trustee thereunder.
(in) All moneys received by the Trustee shall, until used, applied or
invested as herein provided, be held in trust for the purposes for which they
were received but need not be segregated from other funds, except to the extent
required by law or this Indenture. The Trustee shall be under no liability for
interest on any moneys received hereunder, except such as may be agreed upon.
(n) Notwithstanding the effective date of this Indenture or anything to
the contrary in this Indenture, the Trustee shall have no liability or
responsibility for any act or event relating to this Indenture which occurs
prior to the date the Trustee formally executes this Indenture and commences
acting as Trustee hereunder.
(o) No provision of this Indenture shall be deemed to require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of its rights
or powers, if the Trustee shall have reasonable grounds for believing that
repayment of such funds or, in the alternative, adequate indemnity against such
risk or liability is not reasonably assured to it.
(p) The Trustee has no obligation or liability to the Bondowners for the
payment of interest or premium, if any, on or principal of the Bonds, but rather
the Trustee's sole obligations are to administer, for the benefit of the Issuer,
the Credit Enhancer, the Borrower and the Bondowners, the Funds established
hereunder.
(q) In the event the Trustee shall receive inconsistent or conflicting
requests and indemnity from two or more groups of Bondowners, each representing
less than a majority of the aggregate principal amount of the Bonds then
outstanding, the Trustee, in its sole discretion, may determine what action, if
any, shall be taken; provided, that, the Trustee shall follow the direction of
the Credit Enhancer if the Credit Enhancer is not in default under the Credit
Facility.
(r) Except for information provided by the Trustee concerning the Trustee,
the Trustee shall have no responsibility with respect to any information in any
offering memorandum or other disclosure material distributed with respect to the
Bonds. The Trustee shall have no responsibility for compliance with securities
laws in connection with issuance of the Bonds.
(s) The Trustee's immunities and protections from liability, and its right
to payment of compensation and indemnification in connection with performance of
its duties and obligations under the Indenture and the Agreement, shall survive
the Trustee's resignation or removal, or the final payment of the Bonds.
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(t) In acting or omitting to act pursuant to the provisions of the
Agreement, the Trustee shall be entitled to all of the rights, protections and
immunities accorded to the Trustee under the terms of this Indenture, including
but not limited to those set out in this Article IX.
(u) Notwithstanding anything otherwise provided in this Indenture, and
without regard to whether or not an Event of Default may have occurred and be
continuing, the Trustee may notify the Credit Enhancer and the Bondowners of
environmental hazards that the Trustee in its reasonable judgment has reason to
believe exist with respect to the Project, and the Trustee has the right to take
no further action and in such event no fiduciary duty exists which imposes any
obligation for further action with respect to the Project; provided, that if the
Trustee is directed by the Owners of a majority in aggregate principal amount of
Bonds then Outstanding (with the written consent of the Credit Enhancer) or the
Credit Enhancer to take further action, the Trustee may (i) take such further
action upon being furnished with indemnity and security satisfactory to it for
all reasonable costs, expenses, reimbursable fees, liabilities and losses,
including, without limitation, losses and liabilities in connection with
hazardous substances and environmental contamination, and the clean up thereof,
and reasonable attorney's fees and expenses, or (ii) elect not to proceed in
accordance with the directions of the Bondowners or the Credit Enhancer without
incurring any liability to the Bondowners or the Credit Enhancer if in the sole
opinion of the Trustee such direction may result in environmental or other
liability to the Trustee, the Credit Enhancer or the Bondowners, and the Trustee
may rely upon an opinion of its counsel in determining whether any such action
directed by Bondowners may result in such liability.
Section 902. Fees. Charges and Expenses of the Trustee. The Trustee shall
be entitled to payment of and/or reimbursement for reasonable fees for its
ordinary services rendered hereunder and all advances, agent and counsel fees
and other ordinary expenses reasonably and necessarily made or incurred by the
Trustee in connection with such ordinary services and, in the event that it
should become necessary that the Trustee perform extraordinary services, it
shall be entitled to reasonable extra compensation therefor and to reimbursement
for reasonable and necessary extraordinary expenses in connection therewith;
provided that if such extraordinary services or extraordinary expenses are
occasioned by the neglect or willful misconduct of the Trustee it shall not be
entitled to compensation or reimbursement therefor. The Trustee shall be
entitled to payment and reimbursement for the reasonable fees and charges of the
Trustee as Paying Agent for the Bonds and as Bond Registrar. Pursuant to the
provisions of Section 3.7 of the Agreement, the Borrower has agreed to pay to
the Trustee all reasonable fees, charges and expenses of the Trustee under this
Indenture. The Trustee agrees that the Issuer shall have no liability for any
fees, charges, advances, costs. and expenses of the Trustee, and the Trustee
agrees to look only to the Borrower for the payment of all fees, charges and
expenses of the Trustee as provided in the Agreement. Upon the occurrence of an
Event of Default and during its continuance, the Trustee shall have a lien with
right of payment prior to payment on account of principal of, redemption
premium, if any, or interest on any Bond, upon all moneys in its possession
under any provisions hereof for the foregoing advances, fees, costs and expenses
incurred, other than moneys received under the Credit Facility, or deposit in
the Purchase Fund or Rebate Fund, and which constitute Available Moneys for the
payment of redemption premium.
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Section 903. Notice to the Bondowners if Default Occurs. If a Default
occurs of which the Trustee is by Section 901(h) hereof required to take notice
or if notice of Default be given as in said Section provided, then the Trustee
shall give written notice thereof by mail, within 30 days of the receipt of
notice by the Trustee of such Default, to the Borrower, the Credit Enhancer and
to the Owners of all Bonds then Outstanding as shown by the Bond Register in the
same manner as required by Section 1302 hereof; provided that the Trustee shall
further give prompt notice of such Default to the Issuer and the Credit Enhancer
by such means as is practicable under the circumstances.
Section 904. Intervention by the Trustee. In any judicial proceeding to
which the Issuer is party and which, in the opinion of the Trustee and its
counsel, has a substantial bearing on the interests of Owners of the Bonds or
the Credit Enhancer, the Trustee may intervene on behalf of Bondowners and the
Credit Enhancer and shall do so if requested in writing by the Credit Enhancer
or the Owners of at least 25% in the aggregate principal amount of Bonds then
Outstanding (with the written consent of the Credit Enhancer), and if provided
with indemnity satisfactory to it.
Section 905. Successor Trustee Upon Merger, Consolidation or Sale. Any
corporation or association with or into which the Trustee may be merged or
converted or with or into which it may be consolidated, or to which the Trustee
may sell or transfer its corporate trust business and assets as a whole or
substantially as a whole, or any corporation or association resulting from any
merger, conversion, sale, consolidation or transfer to which it is a party,
shall be and become successor Trustee hereunder and shall be vested with all the
trusts, powers, rights, obligations, duties, remedies, immunities and privileges
hereunder as was its predecessor, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto.
Section 906. Trustee Required; Eligibility. (a) There shall at all times
be a Trustee hereunder which shall be a trust institution or bank duly organized
under the laws of the United States of America or any state or territory
thereof, in good standing and qualified to accept such trust having a combined
capital stock, surplus and undivided profits of not less than $50,000,000. If
such institution publishes reports of condition at least annually pursuant to
law or regulation, then for the purposes of this Section the capital, surplus
and undivided profits of such institution shall be deemed to be its capital,
surplus and undivided profits as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner provided in Section 907. No resignation or removal of the Trustee and
no appointment of a successor Trustee shall become effective until the successor
Trustee has accepted its appointment under Section 909.
(b) Notwithstanding anything herein, in the Series 1994B Indenture or in
the Borrower Documents to the contrary, each of the "Borrower", the "Credit
Enhancer", the "Paying Agent(s)", the "Remarketing Agent", the "Tender Agent"
and the "Trustee" (including for such purpose each co-trustee) shall, as between
the documents relating to the Bonds and the Series 1994B Bonds be one and the
same Person. In this regard:
(i) the Trustee, including any successor Trustee, shall at all
times hereunder also serve as Trustee pursuant to the Series
1994B Indenture;
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(ii) the Trustee agrees to resign hereunder contemporaneously with
any resignation under the Series ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; and
(iii) any removal of the Trustee pursuant to the Series 1994B
Indenture shall result in the contemporaneous removal of the
Trustee hereunder.
Section 907. Resignation of Trustee. The Trustee and any successor Trustee
may at any time resign from the trusts hereby created by giving 30 days' written
notice to the Credit Enhancer, the Remarketing Agent, the Issuer, the Borrower
and the Bondowners, and such resignation shall take effect at the end of such 30
days, or upon the earlier appointment of a successor Trustee by the Issuer or by
the Owners of a majority in aggregate principal amount of the Bonds then
outstanding in accordance with Section 908 hereof; provided, however, that in no
event shall the resignation of a Trustee or successor Trustee become effective
until such time as a successor Trustee has been appointed and has accepted
appointment.
Section 908. Removal of Trustee. The Trustee may be removed for cause at
any time or without cause upon thirty days written notice by an instrument or
concurrent instruments in writing delivered to the Trustee and the Issuer and
signed by the Borrower (with the consent of the Credit Enhancer), the Credit
Enhancer or the Owners of a majority in aggregate principal amount of Bonds then
Outstanding (with the consent of the Credit Enhancer); provided, however, that
any such removal shall not be effective until such time as a successor Trustee
has been appointed and has accepted such appointment. The Issuer, the Borrower,
the Credit Enhancer or any Bondowner may at any time petition any court of
competent jurisdiction for the removal for cause of the Trustee.
Section 909. Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or shall otherwise become incapable of
acting hereunder, or in case it shall be taken under the control of any public
officer or officers or of a receiver appointed by a court, a successor Trustee,
approved in writing by the Credit Enhancer and the Borrower, may be appointed by
the Owners of a majority in aggregate principal amount of Bonds then
Outstanding, by an instrument or concurrent instruments in writing; provided,
nevertheless, that in case of such vacancy the Issuer, by an instrument executed
and signed by the Chairman of the Board of Directors of the Issuer and attested
by its Executive Director under its seal, may appoint a temporary Trustee,
approved by the Credit Enhancer, to fill such vacancy; or if such vacancy has
continued for 60 days, the Credit Enhancer and the Borrower may appoint such
temporary Trustee, until a successor Trustee shall be appointed by the
Bondowners in the manner above provided; and any such temporary Trustee so
appointed by the Issuer or the Credit Enhancer shall immediately and without
further acts be superseded by the successor Trustee so appointed by such
Bondowners. Any successor Trustee or temporary Trustees must have the
qualifications provided for in Section 906.
Section 910. Vesting of Trusts in Successor Trustee. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to its
predecessor and also to the Issuer, the Credit Enhancer and the Borrower an
instrument in writing accepting such appointment hereunder, and thereupon such
successor shall become fully vested with all the trusts, powers, rights,
obligations, duties, remedies, immunities and privileges of its predecessor; but
such predecessor shall, nevertheless, on the written request of the Issuer, the
Credit Enhancer or its successor, execute and deliver an instrument transferring
to such successor Trustee all the trusts, powers, rights, obligations, duties,
remedies, immunities and privileges of such predecessor hereunder; and every
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predecessor Trustee shall deliver all securities and moneys and documents held
by it as Trustee hereunder to its successor. Should any instrument in writing
from the Issuer be required by any successor Trustee for more fully and
certainly vesting in such successor the trusts, powers, rights, obligations,
duties, remedies, immunities and privileges hereby vested in the predecessor,
any and all such instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer.
Section 911. Trust Estate May be Vested in Co-Trustee. It is the purpose
of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the State) denying or restricting the right
of banking corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under this Indenture
or the Agreement, and in particular in case of the enforcement with respect to
any default, or in case the Trustee deems that by reason of any present or
future law of any jurisdiction it may not exercise any of the powers, rights or
remedies herein granted to the Trustee, or take any other action which may be
desirable or necessary in connection therewith, it may be necessary or desirable
that the Trustee appoint an individual or institution as a co-trustee or
separate trustee, and the Trustee is hereby authorized to appoint such
co-trustee or separate trustee, with the written consent of the Issuer and the
Credit Enhancer.
In the event that the Trustee appoints an additional individual or
institution as co-trustee or separate trustee, each and every remedy, power,
right, claim, demand, cause of action, immunity, title, interest and lien
expressed or intended by this Indenture to be exercised by the Trustee with
respect thereto shall be exercisable by such co-trustee or separate trustee but
only to the extent necessary to enable such co-trustee or separate trustee to
exercise such powers, rights and remedies, and every covenant and obligation
necessary to the exercise thereof by such co-trustee or separate trustee shall
run to and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from the Issuer be
required by the co-trustee or separate trustee so appointed by the Trustee for
more fully and certainly vesting in and confirming to him or it such properties,
rights, powers, trusts, duties and obligations, any and all such deeds,
conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer.
In case any co-trustee or separate trustee shall die, become incapable of
acting, resign or be removed, all the properties, rights, powers, trusts, duties
and obligations of such co-trustee or separate trustee, so far as permitted by
law, shall vest in and be exercised by the Trustee until the appointment of a
successor to such co-trustee or separate trustee.
Section 912. Accounting. The Trustee shall render a monthly accounting,
for each calendar month, to the Borrower, to the Credit Enhancer and to any
Bondowner requesting the same at the cost of such Bondowner, and an annual (or
more often if requested) accounting, for each calendar year ended December 31,
to the Issuer showing in reasonable detail all financial transactions relating
to the Trust Estate during the accounting period and the balance in any funds or
accounts created by this Indenture as of the beginning and close of such
accounting period.
Section 913. Paying Agents; Bond Registrar; Appointment and Acceptance of
Duties; Removal. The Trustee is hereby designated and agrees to act as Paying
Agent and as Bond
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Registrar for and in respect of the Bonds. The Tender Agent shall be the Paying
Agent with respect to Tendered Bonds.
Section 914. The Tender Agent.
(a) The Trustee is hereby appointed as the initial Tender Agent for the
Bonds and with respect to Tendered Bonds, the Paying Agent, and hereby agrees to
carry out its responsibilities described herein. If the Tender Agent is other
than the Trustee, the Tender Agent shall signify its acceptance of the duties
and obligations imposed upon it hereunder by a written instrument of acceptance
delivered to the Issuer, the Credit Enhancer, the Borrower, the Trustee and the
Remarketing Agent, under which the Tender Agent will agree to particularly:
(1) hold all Bonds delivered to it for purchase hereunder as agent
and bailee of, and in escrow for the benefit of, the respective Owners
which have so delivered such Bonds; until moneys representing the Purchase
Price of such Bonds shall have been delivered to or for the account of or
to the order of such Owners; and
(2) keep such books and records as shall be consistent with prudent
industry practice, and make such books and records available for
inspection by the other parties.
The parties hereto shall each cooperate to cause the necessary
arrangements to be made and to be thereafter continued whereby funds from the
sources specified herein will be made available for the purchase of Bonds
presented at the Principal Office of the Tender Agent, and to otherwise enable
the Tender Agent to carry out its duties hereunder.
The Tender Agent, the Trustee and the Remarketing Agent shall cooperate to
the extent necessary to permit the preparation, execution, issuance,
authentication and delivery by the Tender Agent of replacement Bonds in
connection with the tender and remarketing of Bonds hereunder.
The Issuer, the Trustee and the Borrower acknowledge that, in carrying out
its responsibilities hereunder, the Tender Agent shall be acting solely for the
benefit of and as agent for the Owners from time to time of the Bonds. No
delivery of the Bonds to the Tender Agent or any agent of the Tender Agent or
purchase of Bonds by the Tender Agent shall constitute a redemption of the Bonds
or any extinguishment of the debt evidenced thereby.
(b) The Tender Agent shall be a commercial bank or trust company, duly
organized under the laws of the United States of America or any state or
territory thereof having a combined capital stock, surplus and undivided profits
of at least $20,000,000 and authorized by law to perform all of the duties
imposed upon it by this Indenture. The Tender Agent may resign and be discharged
of the duties and obligation created by this Indenture by giving at least thirty
(30) days' notice by mail to the Trustee, the Borrower, the Remarketing Agent,
and the Credit Enhancer; provided, however, that such resignation shall not take
effect unless and until a successor Tender Agent shall be appointed by the
Trustee with the consent of the Credit Enhancer. The Trustee shall use its best
efforts to appoint a successor Tender Agent during such thirty (30) day period
and in the event a successor Tender Agent has not taken office prior to the
expiration of such thirty (30) day period, the Tender Agent may petition a court
of applicable jurisdiction to appoint a successor Tender Agent. The Tender Agent
may be removed at any time by an instrument signed by the
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Borrower, with the written consent of the Credit Enhancer, or the Credit
Enhancer, and filed with the Borrower, the Credit Enhancer, the Issuer, the
Tender Agent, the Remarketing Agent and the Trustee; provided, however, that
such removal shall not take effect unless and until a successor Tender Agent
shall be appointed by the Trustee with the approval of the Borrower and the
Credit Enhancer, or by the Borrower and the Credit Enhancer if the Trustee has
not made such appointment within thirty (30) days from such filing. In the event
of the resignation or removal of the Tender Agent, the Tender Agent shall
deliver any moneys and Bonds held by it to its successor, and if there be no
successor, to the Trustee.
(c) Tender Agent shall be appointed by the Trustee with the approval of
the Borrower and the Credit Enhancer, or by the Borrower and the Credit Enhancer
if the Trustee has not made such appointment within thirty (30) days from such
filing. In the event of the resignation or removal of the Tender Agent, the
Tender Agent shall deliver any moneys and Bonds held by it to its successor, and
if there be no successor, to the Trustee.
(d) In accordance with Section 906(b) hereof:
(i) the Tender Agent, including any successor Tender Agent, shall
at all times hereunder also serve as Tender Agent pursuant to
the Series 1994B Indenture;
(ii) the Tender Agent agrees to resign hereunder contemporaneously
with any resignation under the Series ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; and
(iii) any removal of the Tender Agent pursuant to the Series 1994B
Indenture shall result in the contemporaneous removal of the
Tender Agent hereunder.
Section 915. Notice to Rating Agency. The Trustee shall notify the Rating
Agency (until such time as the Rating Agency no longer maintains a rating on the
Bonds) as soon as practicable (i) after the Trustee becomes aware of (1) any
expiration, termination or renewal of the Credit Facility, (2) any redemption or
purchase of all of the Bonds, (3) any change in the Credit Facility, the
Agreement or this Indenture, or (4) the interest portion of the Credit Facility
will not be reinstated, or (ii) if (1) the Trustee resigns or is removed or a
new Trustee is appointed, (2) the Remarketing Agent resigns or is removed or a
new Remarketing Agent is appointed, (iii) an Alternate Credit Facility is
provided, (iv) there is a mandatory tender of all Bonds, (v) there is a call for
the redemption of all Bonds, or (vi) there is a change in the Interest Mode
pursuant to Section 204 hereof.
Section 916. Right of Trustee to Pay Taxes and Other Charges. In case any
tax, assessment or governmental or other charge upon, or insurance premium with
respect to, any part of the Project is not paid as required herein or in the
Agreement, or in case any amount required to be rebated to the United States
pursuant to the provisions of Section 148(f) of the Code is not paid when due,
the Trustee may pay such tax, assessment or governmental charge, insurance
premium, or rebate amount, without prejudice, however, to any rights of the
Trustee or the Bondowners hereunder arising in consequence of such failure; and
any amount at any time so paid under this Section, with interest thereon from
the date of payment at a rate per annum equal to the Trustee's base rate for
variable rate commercial loans in effect at the time plus two percent (2%),
shall
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become an additional obligation secured by this Indenture, and the same shall be
given a preference in payment over any payment of principal of, premium, if any,
or interest on the Bonds, and shall be paid out of the proceeds of rents,
revenues and receipts collected from the Project, not including payments on the
Credit Facility, if not otherwise caused to be paid; but the Trustee shall be
under no obligation to make any such payment unless it shall have been requested
to do so by the Credit Enhancer or the Owners of at least twenty-five percent
(25%) of the aggregate principal amount of Bonds then Outstanding and shall have
been provided adequate funds for the purpose of such payment.
[End of Article IX]
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ARTICLE X
SUPPLEMENTAL INDENTURES
Section 1001. Supplemental Indentures Not Requiring Consent of Bondowners.
The Issuer and the Trustee may from time to time, with the prior written consent
of the Credit Enhancer and the Borrower, if required pursuant to Section 1003
hereof, but without the consent of or notice to any of the Bondowners or the
owners of the Series 1994B Bonds, enter into such Supplemental Indenture or
Supplemental Indentures as shall not be inconsistent with the terms and
provisions hereof, so long as such Supplemental Indenture or Supplemental
Indentures does not cause the then-current rating on the Bonds to be lowered,
for any one or more of the following purposes:
(a) To cure any ambiguity, formal defect or omission in this Indenture or
to make any other change not materially prejudicial to the Bondowners or the
owners of the Series 1994B Bonds;
(b) To grant to or confer upon the Trustee for the benefit of the
Bondowners any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the Bondowners or the Trustee or either
of them;
(c) To subject to this Indenture additional revenues, properties or
collateral;
(d) To modify, amend or supplement this Indenture or any indenture
supplemental thereto in such manner as to permit the qualification of the
Indenture under the Trust Indenture Act of 1939, as then amended, or any
similar federal statute hereafter in effect or to permit the qualification of
the Bonds for sale under the securities laws of any state of the United States;
(e) To evidence the appointment of a separate trustee or the succession of
a new trustee hereunder;
(f) To make any other change which will become effective on a date on
which the Bonds are subject to mandatory tender pursuant to Section 302 hereof,
provided the substance of such change is described in the Trustee's notice to
Bondowners in connection with an election to retain Bonds;
(g) To make any other change which, in the sole judgment of the Trustee,
does not materially adversely affect the interests of the Bondowners or the
owners of the Series 1994B Bonds; it being understood that in exercising such
judgment the Trustee may rely on the opinion of such counsel as it may select;
(h) To more precisely identify the Project or to substitute or add
additional property thereto; and
(i) To conform this Indenture to the Code or other or future applicable
federal law concerning tax-exempt obligations;
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provided that, in the event a Supplemental Indenture is entered into with
respect to any of the matters referred to in (a) through (b) above, a
corresponding supplemental indenture, if appropriate under the circumstances,
shall be entered into with respect to the Series 1994B Indenture.
Section 1002. Supplemental Indentures Requiring Consent of Bondowners.
Exclusive of Supplemental Indentures covered by Section 1001 hereof and subject
to the terms and provisions contained in this Section, and not otherwise, the
Owners (within the meaning of this Indenture and the Series 1994B Indenture) of
not less than 51% in aggregate principal amount of the Bonds and the Series
1994B Bonds then outstanding shall have the right from time to time, with the
prior written consent of the Credit Enhancer and, if required pursuant to
Section 1003 hereof, the Borrower, anything contained in this Indenture to the
contrary notwithstanding, to consent to and approve the execution by the Issuer
and the Trustee of such other Supplemental Indenture or Supplemental Indentures
as shall be deemed necessary and desirable by the Issuer for the purpose of
modifying, amending, adding to or rescinding, in any particular, any of the
terms or provisions contained in this Indenture or in any Supplemental Indenture
(including any consents that may be given in connection with an exchange or
tender offer); provided, however, that nothing in this Section contained shall
permit or be construed as permitting without the consent of the Owners (within
the meaning of this Indenture and the Series ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) of 100% of the
Bonds and the Series 1994B Bonds then outstanding, the Issuer, the Trustee and
the Credit Enhancer, (a) an extension of the maturity of the principal of or the
scheduled date of payment of interest on any Bond issued hereunder, or (b) a
reduction in the principal amount, redemption premium or any interest payable on
any Bond, or (c) a privilege or priority of any Bond or Bonds over any other
Bond or Bonds, or (d) a reduction in the aggregate principal amount of Bonds the
Owners of which are required for consent to any such Supplemental Indenture, or
(e) any modification of the redemption or tender features of the Bonds, or (f)
any change which results in the lowering of the then-current rating on the
Bonds; and provided, further, that in the event a Supplemental Indenture is
entered into in accordance with this Section, a corresponding supplemental
indenture, if appropriate under the circumstances, shall be entered into with
respect to the Series 1994B Indenture.
If at any time the Issuer shall request the Trustee to enter into any such
Supplemental Indenture for any of the purposes of this Section, the Trustee
shall cause notice of the proposed execution of such Supplemental Indenture to
be mailed to each Bondowner, each owner of Series 1994B Bonds and the Credit
Enhancer (and a copy of such proposed Supplemental Indenture shall be mailed
with such notice to the Credit Enhancer. Such notice shall briefly set forth the
nature of the proposed Supplemental Indenture and shall state that copies
thereof are on file at the Principal Office of the Trustee for inspection by all
Bondowners and owners of the Series 1994B Bonds and a copy of such proposed
supplemental Indenture shall be mailed with such notice to the Credit Enhancer.
If within 60 days or such longer period as shall be prescribed by the Issuer
following the mailing of such notice, the Credit Enhancer and the Owners (within
the meaning of this Indenture and the Series 1994B Indenture) of not less than
fifty-one percent (51%) in aggregate principal amount of the Bonds and the
Series 1994B Bonds then 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 restrain the Trustee or the Issuer
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from executing the same or from taking any action pursuant to the provisions
thereof. Upon the execution of any such Supplemental Indenture as in this
Section permitted and provided, this Indenture shall be and be deemed to be
modified and amended in accordance therewith.
Section 1003. Borrower's Consent to Supplemental Indentures. Anything
herein to the contrary notwithstanding, a Supplemental Indenture under this
Article which affects any rights or obligations of the Borrower shall not become
effective unless and until the Borrower shall have consented in writing to the
execution and delivery of such Supplemental Indenture. In this regard, the
Trustee shall cause notice of the proposed execution and delivery of any such
Supplemental Indenture together with a copy of the proposed Supplemental
Indenture to be mailed to the Borrower at least 15 days prior to the proposed
date of execution and delivery of any such Supplemental Indenture. Under no
circumstances shall a failure by the Borrower to respond to such notice be
construed as a consent for these purposes.
Section 1004. Opinion of Bond Counsel. Notwithstanding anything to the
contrary in Sections 1001 or 1002, before the Issuer or the Trustee enter into
any supplemental indenture pursuant to Section 1001 or 1002. there shall have
been delivered to the Issuer, the Trustee, the Borrower and the Credit Enhancer
an Opinion of Bond Counsel stating that such supplemental indenture is
authorized or permitted by this Indenture and the Act, complies with their
respective terms, will, upon the execution and delivery thereof, be valid and
binding upon the Issuer in accordance with its terms and will not adversely
affect the exclusion of interest on the Bonds from gross income for federal
income tax purposes.
[End of Article X]
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ARTICLE XI
AMENDMENT OF AGREEMENT AND CREDIT FACILITY
Section 1101. Amendments, Changes or Modifications to the Agreement and
Credit Facility Not Requiring Consent of Bondowners. So long as such does not
cause the then-current rating on the Bonds to be lowered, the Trustee, with the
prior written consent of the Credit Enhancer, may, without the consent of or
notice to the Bondowners or the owners of the Series 1994B Bonds, consent to any
amendment, change or modification of the Agreement and the Credit Facility, as
may be required (i) by the provisions of such documents and this Indenture, (ii)
for the purpose of curing any ambiguity or formal defect or omission in such
documents, or in connection with any other change therein which, in the judgment
of the Trustee, is not to the material prejudice of the Trustee or the
Bondowners or the owners of the Series 1994B Bonds, (iii) so as to more
precisely identify the Project or substitute or add additional property thereto,
(iv) to conform the Agreement or the Credit Facility to the Code or other or
future applicable Federal law concerning tax-exempt obligations or (v) in
connection with any other change therein which, in the sole judgment of the
Trustee, does not materially adversely affect the interests of the Bondowners or
the owners of the Series 1994B Bonds; provided that, in the event a Supplemental
Indenture is entered into with respect to any of the matters referred to in (i)
through (iii) and (v) above, a corresponding Supplemental Indenture, if
appropriate under the circumstances, shall be entered into with respect to the
Series 1994B Indenture. In exercising such judgment, the Trustee may rely on the
opinions of such counsel as it may select.
Section 1102. Amendments, Changes or Modifications to the Agreement and
Credit Facility Requiring Consent of Bondowners. except as provided for in
Section 1101 hereof, the Trustee shall not consent to any amendment, change or
modification of the Agreement or the Credit Facility without the mailing of
notice and the obtaining of the written approval or consent of the Credit
Enhancer and the Owners (within the meaning of this Indenture and the Series
1994B Indenture) of not less than fifty-one percent (51%) in aggregate principal
amount of the Bonds and the Series 1994B Bonds at the time outstanding given and
obtained as provided in Section 1002 hereof (including any consents that may be
given in connection with an exchange or tender offer); provided, however, that
no such amendment, change or modification to such documents shall be entered
into which permits, without the consent of the Owners (within the meaning of
this Indenture and the Series ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇) of 100% of the Bonds and the
Series 1994B Bonds then outstanding, the Issuer, the Trustee and the Credit
Enhancer, (a) a reduction of the maturity or expiration date of the Credit
Facility, or (b) a change in the timing of payments under or the amounts
required to be paid under the Credit Facility, or (c) a lowering of the then-
current credit rating on the Bonds; and provided, further, that in the event a
Supplemental Indenture is entered into in accordance with this Section, a
corresponding supplemental indenture, if appropriate under the circumstances,
shall be entered into with respect to the Series 1994B Indenture. If at any time
the Issuer, the Credit Enhancer and the Borrower shall request the consent of
the Trustee to any such proposed amendment, change or modification to such
documents, the Trustee shall cause notice of such proposed amendment, change or
modification to such documents to be given in the same manner as provided by
Section 1002 hereof with respect to Supplemental Indentures and the
corresponding supplemental indentures with respect to the Series 1994B Bonds.
Such notice shall briefly set forth the nature of such proposed amendment,
change or modification to such documents and shall state that copies of the same
are on file at the Principal Office of the Trustee for
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inspection by all Bondowners and a copy of such proposed amendment, change or
modification to such document shall be mailed with such notice to the Credit
Enhancer.
Section 1103. Opinion of Bond Counsel. Anything to the contrary in
Sections 1101 or 1102 notwithstanding, before the Trustee shall consent to any
amendment of the Agreement or the Credit Facility there shall have been
delivered to the Trustee, the Borrower and the Credit Enhancer an Opinion of
Bond Counsel stating that such amendment is authorized or permitted by this
Indenture and the Act, complies with their respective terms, will, upon the
execution and delivery thereof, be valid and binding upon the Issuer (if the
Issuer is a party thereto) in accordance with its terms and will not adversely
affect the exclusion of interest on the Bonds from gross income for federal
income tax purposes.
[End of Article XI]
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ARTICLE XII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 1201. Defeasance. If the Bonds are in an Interest Mode other than
a Weekly Mode or Monthly Mode and if the Issuer shall pay or provide for the
payment (other than by the Credit Enhancer) of any Bond or Bonds Outstanding in
any one or more of the following ways:
(a) by paying or causing to be paid, from Available Moneys, the principal
of (including redemption premium, if any) and interest on such Bonds, as and
when the same become due and payable;
(b) by depositing with the Trustee, in trust and irrevocably setting aside
exclusively for such payment, at or before maturity, Available Moneys in an
amount sufficient to pay or redeem (when redeemable) Bonds (including the
payment of redemption premium, if any, and interest payable on such Bonds to the
maturity or redemption date thereof), provided that such moneys, if invested,
shall be invested in Government Securities which are not subject to redemption
and payment prior to maturity except at the option of the holder thereof
("Non-Callable Government Securities") in an amount and with maturities, without
consideration of any income or increment to accrue thereon, sufficient to pay or
redeem (when redeemable) and discharge the indebtedness on such Bonds at or
before their respective maturity dates, to pay the interest thereon as it comes
due;
(c) by delivering to the Trustee, for cancellation by it, such Bonds; or
(d) by depositing with the Trustee, in trust, Non-Callable Government
Securities acquired with Available Moneys in such amounts as are certified to
the Trustee to be fully sufficient, together with other Available Moneys
deposited therein and together with the income or increment to accrue thereon,
without consideration of any reinvestment thereof, to pay or redeem (when
redeemable) and discharge the indebtedness on such Bonds at or before their
respective maturity dates, to pay the interest thereon as it comes due;
then such Bond or Bonds shall be deemed to be paid within the meaning of this
Article and shall cease to be entitled to any lien, benefit or security under
this Indenture, except for the purposes of any such payment from such moneys or
Government Securities and except for the purposes of registration, transfer and
exchange of such Bonds. If all the Bonds are not to be redeemed within 30 days,
the Trustee shall mail, as soon as practicable, in the manner prescribed by
Article IV hereof, a notice to the owners of such Bonds that the deposit
required by (b) or (d) above has been made with the Trustee and that said Bonds
are deemed to have been paid in accordance with this Article and stating the
maturity or redemption date upon which moneys are to be available for the
payment of the principal of or redemption price, if applicable, on said Bonds as
specified in (1)) or (d) above.
Notwithstanding the foregoing, in the case of the Bonds which by their
terms may be redeemed prior to the stated maturities thereof, no deposit under
clauses (b) or (d) of the immediately preceding paragraph shall be deemed a
payment of such Bonds as aforesaid until, as to all such Bonds which are to be
redeemed prior to their respective stated maturities and as to
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Bonds subject to interest rate adjustment prior to maturity which shall be
redeemed prior to the next Interest Adjustment Date, proper notice of such
redemption shall have been given in accordance with Article IV of this Indenture
or irrevocable instructions shall have been given to the Trustee to give such
notice at the time when such notice may be given pursuant to the provisions of
this Indenture.
Notwithstanding any provisions of any other Section of this Indenture
which may be contrary to the provisions of this Section, all Available Moneys or
Non-Callable Government Securities or other investments acceptable to the Credit
Enhancer set aside and held in trust pursuant to the provisions of this Section
for the payment of Bonds (including redemption premium thereon, if any, and
interest) shall be applied to and used solely for the payment of the particular
Bonds (including redemption premium thereon, if any, and interest) with respect
to which such Available Moneys and Non-Callable Government Securities or other
investments acceptable to the Credit Enhancer have been so set aside in trust.
The Issuer may at any time surrender to the Trustee for cancellation by it
any Bond previously authenticated and delivered which the Issuer may have
acquired in any manner whatsoever, and such Bonds, upon such surrender and
cancellation, shall be deemed to be paid and retired.
Section 1202. Satisfaction and Discharge of the Indenture. If the Issuer
shall pay the principal of, redemption premium, if any, and interest on all of
the Bonds Outstanding in accordance with their terms, or shall provide for such
payment as provided in Section 1201 hereof, and if the Issuer shall also pay or
cause to be paid all other sums payable hereunder by the Issuer, then and in
that case this Indenture and the estate and rights granted hereunder shall
cease, terminate and become null and void, and thereupon the Trustee shall, upon
Written Request of the Issuer, and an Opinion of Counsel, each stating that in
the opinion of the signers all conditions precedent to the satisfaction and
discharge of this Indenture have been complied with, forthwith execute proper
instruments acknowledging satisfaction of and discharging this Indenture and the
lien hereof; provided that, with respect to Bonds for which payment has been
provided at the time but which has not in fact been paid, 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 moneys or Government
Securities deposited with the Trustee as provided in this Article. The
satisfaction and discharge of this Indenture shall be without prejudice to the
rights of the Trustee to charge and be reimbursed by the Issuer and the Borrower
for any expenditures which it may thereafter incur in connection herewith.
Notwithstanding the release and discharge of the lien of this Indenture as
provided above, those provisions of this Indenture relating to the maturity of
the Bonds, interest payments and dates thereof, tender and purchase provisions,
exchange and transfer of Bonds, replacement of mutilated, destroyed, lost,
stolen or Undelivered Bonds, the safekeeping and cancellation of Bonds,
nonpresentment of Bonds, the holding of moneys in trust, redemption of Bonds and
the duties of the Trustee, the Bond Registrar, the Paying Agent and the
Remarketing Agent in connection with all of the foregoing, remain in effect and
shall be binding upon the Trustee and the Bondowners.
The Issuer is hereby authorized to accept a certificate by the Trustee
that the whole amount of the principal, redemption premium, if any, and interest
so due and payable upon all of the Bonds
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then Outstanding has been paid or such payment provided for in accordance with
Section 1201 hereof as evidence of satisfaction of this Indenture, and upon
receipt thereof shall cancel and erase the inscription of this Indenture from
its records.
All moneys, funds, securities or other property remaining on deposit in
all Funds or Accounts established under this Indenture (other than said moneys
or Government Securities or other investments deposited in trust as above
provided) shall, upon the full satisfaction of this Indenture, forthwith be
transferred, paid over and distributed to the Credit Enhancer and the Borrower
in the manner provided in Section 510 hereof.
If there is a release and discharge of the lien of this Indenture as
provided above, the Trustee shall so notify the Rating Agency.
Section 1203. When Refunding is Not Permitted. None of the Bonds
Outstanding hereunder may be refunded nor may this Indenture be discharged if
under any circumstances the interest on the Bonds is thereby made subject to
federal income taxation. In determining the foregoing, the Trustee may rely upon
an Opinion of Bond Counsel (which opinion may be based upon a ruling or rulings
of the Internal Revenue Service) to the effect that the interest on the Bonds
proposed to be refunded will not be subject to federal income taxation,
notwithstanding the satisfaction and discharge of this Indenture.
[End of Article XII]
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 1301. Consents and Other Instruments by Bondowners. Any consent,
request, direction, approval, objection or other instrument required by this
Indenture to be signed and executed by the Bondowners may be in any number of
concurrent writings of similar tenor and may be signed or executed by such
Bondowners in person or by agent appointed in writing. Proof of the execution of
any such instrument or of the writing appointing any such agent and of the
ownership of Bonds, if made in the following manner, shall be sufficient for any
of the purposes of this Indenture except for the assignment of the ownership of
any Bond which proof shall be made by signature guaranty, and shall be
conclusive in favor of the Trustee with regard to any action taken, suffered or
omitted under any such instrument, namely:
(a) The fact and date of the execution by any person of any such
instrument may be proved by the certificate of any officer in any jurisdiction
who by law has power to take acknowledgments within such jurisdiction that the
person signing such instrument acknowledged before him the execution thereof, or
by affidavit of any witness to such execution.
(b) The fact of ownership of Bonds and the amount or amounts, numbers and
other identification of such Bonds, and the date of holding the same shall be
proved by the Bond Register.
In determining whether the Owners of the requisite principal amount of
Bonds Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver under this Indenture, Bonds owned by, or held by or
for the account of, the Issuer, the Borrower or any Affiliated Party of the
Borrower shall be disregarded and deemed not to be Outstanding under this
Indenture, except that, in determining whether the Trustee shall be protected in
relying upon any such request, demand, authorization, direction, notice, consent
or waiver, only Bonds which the Trustee knows to be so owned shall be so
disregarded. Notwithstanding the foregoing, Bonds (including Pledged Bonds) so
owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Bonds and that the pledgee is not the Issuer, the
Borrower or any Affiliated Party of the Borrower.
Section 1302. Notices. Except as otherwise provided herein, it shall be
sufficient service of any notice, request, complaint, demand or other paper
required by this Indenture to be given to or filed with the Issuer, the Trustee,
the Credit Enhancer, the Remarketing Agent, the Borrower or the Bondowners if
the same shall be duly mailed by first-class mail, postage pre-paid, certified
or registered mail, or sent by telegram, telecopy or telex or other similar
communication, or when given by telephone, confirmed in writing by first-class
mail, postage pre-paid, certified or registered mail, or sent by telegram,
telecopy or telex or other similar communication, on the same day, addressed:
(a) To the Issuer at:
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South Carolina Jobs-Economic Development Authority
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(b) To the Trustee and Tender Agent at:
▇▇▇▇ ▇▇▇▇▇ Bank
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Division
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(c) To the Credit Enhancer at:
▇▇▇▇▇▇ Financial, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Portfolio Manager, Portfolio Organization,
Corporate Finance Group
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to Legal Department, Portfolio Organization,
Corporate Finance Group
(d) To the Remarketing Agent at:
▇▇▇▇▇ Brothers & Co.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(e) To the Borrower at:
Roller Bearing Company of America, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
- 77 -
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(f) To the Bondowners:
Addressed to each of the Owners of all Bonds at the time
Outstanding, as shown by the Bond Register.
(g) Initially, to the Rating Agency at:
Standard & Poor's Ratings Group
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: LOC Rating Surveillance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
All notices given by first-class mail, certified or registered mail,
postage prepaid, as aforesaid shall be deemed duly given as of the third day
after the same are so mailed; provided that notices shall be deemed given as of
the date they are sent by telecopy or otherwise received. A duplicate copy of
each notice, certificate or other communication given hereunder by either the
Issuer or the Trustee to the other shall also be given to the Borrower, the
Remarketing Agent and the Credit Enhancer. In the event of notice to any party
other than the Issuer or the Trustee, a copy of the notice shall be provided to
the Borrower, the Remarketing Agent and the Credit Enhancer. In addition, the
Trustee shall send to the Credit Enhancer, the Borrower, the Tender Agent and
the Remarketing Agent a copy of each notice sent to the Bondowners. The Issuer,
the Trustee, the Tender Agent, the Borrower, the Credit Enhancer and the
Remarketing Agent may from time to time designate, by notice given hereunder to
the others of such parties, such other address to which subsequent notices,
certificates or other communications shall be sent.
Section 1303. Limitation of Rights Under the Indenture. With the exception
of rights herein expressly conferred and as otherwise provided in this Section,
nothing expressed or mentioned in or to be implied from this Indenture or the
Bonds is intended or shall be construed to give any person other than the
parties hereto, the Borrower, the Credit Enhancer and the Owners of the Bonds,
any right, remedy or claim under or in respect to this Indenture. This Indenture
and all of the covenants, conditions and provisions hereof are, except as
otherwise provided in this Section, intended to be and are for the sole and
exclusive benefit of the parties hereto, the Borrower, the Credit Enhancer and
the Owners of the Bonds as herein provided.
- 78 -
The Trustee and the Issuer acknowledge and agree that each of the
Borrower, the Credit Enhancer, the Remarketing Agent and the Tender Agent is a
third-party beneficiary of those provisions herein which relate to the making of
payments or giving of notice to or consents by or following the directions of or
the performance of other acts to benefit it, and all such provisions shall be
enforceable by such parties, and in addition acknowledge and agree that the
Credit Enhancer shall for all purposes hereunder be treated as the Owner of
Pledged Bonds.
Section 1304. Suspension of Mail Service. If, because of the temporary or
permanent suspension of mail service or for any other reason, it is impossible
or impractical to mail any notice in the manner herein provided, then such
delivery of notice in lieu thereof as shall be made with the approval of the
Trustee shall constitute a sufficient notice.
Section 1305. Business Days. If any date for the payment of principal of,
redemption premium, if any, or interest on the Bonds or the taking of any other
action hereunder is not a Business Day, then such payment shall be due, or such
action shall be taken, on the first Business Day thereafter with the same force
and effect as if made on the date fixed for payment or performance.
Section 1306. Immunity of Officers,. Employees and Members of Issuer. No
recourse shall be had for the payment of the principal of or redemption premium,
if any, or interest on any of the Bonds or for any claim based thereon or upon
any obligation, covenant or agreement in this Indenture contained against any
past, present or future officer, member, employee or agent of the Issuer, or of
any successor body, as such, either directly or through the Issuer or any
successor body, under any rule of law or equity, statute or constitution, or by
the enforcement of any assessment or penalty or otherwise, and all such
liability of any such officers, members, employees or agents as such is hereby
expressly waived and released as a condition of and consideration for the
execution of this Indenture and the issuance of such Bonds.
Section 1307. Credit Enhancer's Remedial Rights. The Issuer and the
Trustee on behalf of the Bondowners hereby acknowledge and agree that should the
Credit Enhancer exercise certain of its remedial rights under the Credit
Documents, the Credit Enhancer (or an Affiliate or designee thereof) may become
successor in interest to the Borrower under the Agreement. No such exercise of
the Credit Enhancer's rights under the Credit Documents, or succession of the
Credit Enhancer (or an affiliate or designee thereof) to the interest of the
Borrower under the Agreement, shall require, as a condition precedent, either
(i) the further consent of the Issuer, the Trustee or the Bondowners, or (ii)
the acceleration of the Bonds (unless the Credit Enhancer elects such in its
sole discretion).
Section 1308. Severability. If any provision of this Indenture shall be
held or deemed to be invalid, inoperative or unenforceable as applied in any
particular case in any jurisdiction or jurisdictions or in all jurisdictions, or
in all cases because it conflicts with any other provision or provisions hereof
or any constitution or statute or rule of public policy, or for any other
reason, such circumstances shall not have the effect of rendering the provision
in question inoperative or unenforceable in any other case or circumstances, or
of rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable to any extent whatever. The invalidity of any one
or more phrases, sentences, clauses or Sections in this Indenture contained
shall not affect the remaining portions of this Indenture, or any part thereof.
- 79 -
Section 1309. Complete Agreement. The Issuer and the Trustee understand
that oral agreements or commitments to loan money, extend credit or to forbear
from enforcing repayment of a debt including promises to extend or renew such
debt are not enforceable. To protect the Issuer and the Trustee from
misunderstanding or disappointment, any agreements the Issuer and the Trustee
reach covering such matters are contained in this Indenture, which is the
complete and exclusive statement of the agreement between the Issuer and the
Trustee, except as the Issuer and the Trustee may later agree in writing
(subject to the provisions of Article X of this Indenture) to modify this
Indenture.
Section 1310. Execution in Counterparts. This Indenture may be
simultaneously executed in several counterparts, each of which shall be an
original and all of which shall constitute but one and the same instrument.
Section 1311. Governing Law. This Indenture shall be governed exclusively
by and construed in accordance with the applicable laws of the State of South
Carolina.
[End of Article XIII]
- 80 -
IN WITNESS WHEREOF, the South Carolina Jobs-Economic Development Authority
has caused these presents to be signed in its name and behalf and its corporate
seal to be hereunto affixed and attested by its duly authorized officers, and to
evidence its acceptance of the trusts hereby created, the Trustee, has caused
these presents to be signed in its name and behalf and its corporate seal to be
hereunto affixed and attested by its duly authorized officers, all as of the day
and year first above written.
SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT
AUTHORITY
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Chairman, Board of Directors
(SEAL]
ATTEST:
/s/ [ILLEGIBLE]
---------------------------------
Executive Director
▇▇▇▇ ▇▇▇▇▇ BANK as Trustee By
[SEAL] By /s/ [ILLEGIBLE]
--------------------------------------
Vice President
ATTEST:
/s/ [ILLEGIBLE]
---------------------------------
Assistant Secretary
- 81 -
EXHIBIT A
BOND FORM
(Form of Face of Bond)
REGISTERED REGISTERED
NO. R- $__________
UNITED STATES OF AMERICA
State of South Carolina
SOUTH CAROLINA JOBS-ECONOMIC DEVELOPMENT AUTHORITY
VARIABLE RATE DEMAND
INDUSTRIAL DEVELOPMENT REVENUE BOND
(Roller Bearing Company of America, Inc. Project)
Series 1994A
Interest Rate: Maturity Date: Dated Date: CUSIP:
-------------- -------------- ----------- ------
September 1, 2017
Registered Owner:
Principal Amount: Dollars
THIS BOND AND THE RELATED CREDIT FACILITY INITIALLY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR THE
SECURITIES LAWS OF ANY STATE. ACCORDINGLY, BONDS THAT ARE SUBJECT TO THE
BENEFITS OF THE CREDIT FACILITY MAY BE SOLD, REMARKETED, OR OTHERWISE
TRANSFERRED ONLY IN TRANSACTIONS IN WHICH THE BONDS AND THE RELATED CREDIT
FACILITY ARE REGISTERED UNDER THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES STATUTES OR IN TRANSACTIONS IN WHICH THE BONDS AND THE RELATED CREDIT
FACILITY ARE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
ANY APPLICABLE STATE SECURITIES LAWS. THE ISSUER AND THE CREDIT ENHANCER HAVE NO
OBLIGATION TO CAUSE THE BONDS OR THE CREDIT FACILITY TO BE REGISTERED UNDER THE
SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS OR TO COMPLY WITH ANY
EXEMPTION THAT MAY BE AVAILABLE UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS, INCLUDING, WITHOUT LIMITATION, RULE 144A UNDER THE SECURITIES
ACT. THE TRANSFER RESTRICTIONS DESCRIBED HEREIN DO NOT PRECLUDE THE REGISTERED
OWNER OF THIS BOND FROM TENDERING THIS BOND TO THE TENDER AGENT AS DESCRIBED
HEREIN. THE HOLDER HEREOF AGREES THAT ANY TRANSFER OF THIS BOND WILL BE IN
ACCORDANCE WITH THE INDENTURE (AS DESCRIBED HEREIN).
THIS BOND IS SUBJECT TO MANDATORY TENDER FOR PURCHASE AT THE TIME AND IN
THE MANNER HEREINAFTER DESCRIBED, AND MUST BE SO TENDERED OR WILL BE
A-1
DEEMED TO HAVE BEEN SO TENDERED UNDER CERTAIN CIRCUMSTANCES DESCRIBED HEREIN.
The South Carolina Jobs-Economic Development Authority (the "Issuer"), a
body politic and corporate and an agency of the State of South Carolina, for
value received hereby acknowledges itself obligated to, and promises to pay, the
Registered Owner identified above, or registered assigns, but only out of the
sources pledged for that purpose as hereinafter provided, and not otherwise, on
the Maturity Date set forth above or on prior redemption of the Principal Amount
above and interest thereon from the most recent Interest Payment Date (as
hereinafter defined) to which interest has been paid or for which due provision
has been made or, if no interest has been paid, from the Dated Date set forth
above, at the rate of interest per annum determined as set forth herein, until
the Issuer's obligation with respect to payment of said Principal Amount is
discharged.
Principal of, redemption premium, if any, and interest on this Bond are
payable in any coin or currency of the United States of America which, at the
respective dates of payment thereof, is legal tender for the payment of public
and private debts, and such principal and premium, if any, on this Bond shall be
payable at the Principal Office of ▇▇▇▇ ▇▇▇▇▇ Bank, St. Louis, Missouri, as
trustee (the "Trustee"), and, with respect to Tender Price, at the Principal
Office of ▇▇▇▇ ▇▇▇▇▇ Bank, St. Louis, Missouri, as tender agent (the "Tender
Agent") upon presentation and surrender of this Bond. Payment of interest on
this Bond will be made by check or draft of the Trustee mailed to the person in
whose name this Bond is registered on the Bond Register as of the close of
business of the Trustee on the Record Date for such Interest Payment Date,
except that interest not duly paid or provided for when due will be payable to
the person in whose name this Bond is registered at the dose of business on the
Business Day immediately preceding the date of payment of such defaulted
interest as provided for in the hereinafter referred to Indenture. In the case
of an interest payment to any Owner of $1,000,000 or more in aggregate principal
amount of Bonds as of the commencement of business of the Trustee on the Record
Date for a particular Interest Payment Date or in the case of the purchase from
an Owner of $1,000,000 or more in aggregate principal amount of Bonds on the
Tender Date, payment of interest or the Tender Price, as applicable, will be
made by wire transfer to such Owner upon written notice to the Trustee from such
Owner containing the wire transfer address (which shall be in the continental
United States) to which such Owner wishes to have such wire directed and, with
regard to interest payments, such written notice is given by such Owner to the
Trustee not less than fifteen (15) days prior to such Record Date and regarding
payment of the Tender Price, which written notice accompanies such Owner's
Notice of Election to Tender Bonds.
The Bonds and the interest thereon are limited obligations of the Issuer
payable solely out of the Revenues and other moneys pledged thereto and held by
the Trustee as provided in the Indenture and are secured by a transfer, pledge
and assignment of and a grant of a security interest in the Trust Estate to the
Trustee and in favor of the Owners of the Bonds, as provided in the Indenture.
THE BONDS AND THE PREMIUM, IF ANY, AND INTEREST THEREON (INCLUDING ANY AMOUNTS
PAYABLE IN CONNECTION WITH ANY PREPAYMENT OR PURCHASE OF THE BONDS) ARE LIMITED
OBLIGATIONS OF THE ISSUER; THE PRINCIPAL OF, PREMIUM, IF ANY, AND INTEREST ON
THE BONDS (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH ANY PURCHASE OF THE
BONDS) ARE PAYABLE SOLELY FROM THE REVENUES OR MONEYS TO BE RECEIVED IN
CONNECTION WITH THE FINANCING OF THE PROJECT OR FROM ANY OTHER MONEYS MADE
AVAILABLE TO THE ISSUER FOR SUCH PURPOSE; NEITHER THE BONDS NOR
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THE INTEREST THEREON (INCLUDING ANY AMOUNTS PAYABLE IN CONNECTION WITH ANY
PURCHASE OF THE BONDS) SHALL EVER CONSTITUTE AN INDEBTEDNESS OR A CHARGE AGAINST
THE GENERAL CREDIT OF THE STATE, THE ISSUER, OR ANY POLITICAL SUBDIVISION OF THE
STATE, OR OF THE TAXING POWERS OF THE STATE WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY LIMITATION AND SHALL NEVER CONSTITUTE OR GIVE RISE
TO ANY PECUNIARY LIABILITY OF THE STATE, THE ISSUER, OR ANY POLITICAL
SUBDIVISION OF THE STATE, THE BONDS DO NOT CONSTITUTE AN INDEBTEDNESS TO WHICH
THE FAITH OR CREDIT OF THE STATE, THE ISSUER, OR ANY POLITICAL SUBDIVISION OF
THE STATE, OR TAXING POWER OF THE STATE, IS PLEDGED.
No recourse shall be had for the payment of the principal of, premium, if
any or interest on, any of the Bonds or for any claim based thereon or upon any
obligation, covenant or agreement in the Indenture contained, against any past,
present or future director, trustee, officer, official, employee or agent of the
Issuer, or any director, trustee, officer, official, employee or agent of any
successor to the Issuer, as such, either directly or through the Issuer or any
successor to the Issuer, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise,
and all such liability of any director, trustee, officer, official, employee or
agent, as such, is hereby expressly waived and released as a condition of and
consideration for the execution of the Indenture and the issuance of any of the
Bonds.
Capitalized terms used herein shall have the meanings set forth in the
Trust Indenture, dated as of September 1, 1994 (the "Indenture"), by and between
the Issuer and the Trustee with respect to the Bonds unless otherwise defined
herein.
ADDITIONAL PROVISIONS OF THIS BOND ARE SET FORTH ON THE REVERSE HEREOF.
This Bond shall not be valid or become obligatory for any purpose or be
entitled to any security or benefit under the Indenture until the Certificate of
Authentication hereon shall have been manually signed by an authorized officer
of the Trustee.
IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions and things
required to exist, to happen and to be performed precedent to and in the
issuance of this Bond have existed, have happened and have been performed in due
form, time and manner as required by law.
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IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed and
attested by the printed facsimile signatures of its duly authorized officers,
and its corporate seal to be printed hereon, all as of the Dated Date shown
above.
(SEAL] SOUTH CAROLINA JOBS-ECONOMIC
DEVELOPMENT AUTHORITY
By (Facsimile Signature)
--------------------------------------
Chairman, Board of Directors
ATTEST:
By (Facsimile Signature)
-----------------------------
Executive Director
AUTHENTICATION CERTIFICATE
The undersigned hereby certifies that this is one of the Bonds described
in the within-mentioned Indenture.
Date of Authentication:____________
▇▇▇▇ ▇▇▇▇▇ BANK, as Trustee
By
---------------------------------------
Authorized Signatory
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(Form of Reverse of Bond)
CERTAIN DEFINITIONS
Unless otherwise defined herein, capitalized words and terms used in this
Bond shall have the meanings ascribed to such terms in the Indenture. In
addition, the following words and terms as used in this Bond shall have the
following meanings:
"Agreement" means the Loan Agreement, including the Exhibits attached
thereto, dated as of the date of the Indenture, between the Issuer and the
Borrower, with respect to the Bonds, as such Agreement may be from time to time
amended, restated or supplemented in accordance with the provisions of the
Agreement and the Indenture.
"Alternate Credit Facility" means any alternate credit facility designated
and qualified as such and provided in accordance with the Indenture.
"Alternate Credit Facility Date" means a Business Day on or prior to the
Termination Date on which the Borrower has complied with all requirements of the
Indenture regarding the substitution of an Alternate Credit Facility for the
Credit Facility then in effect.
"Annual Mode" means an Interest Mode during which the interest rate on the
Bonds is determined at twelve month intervals, as provided in the Indenture.
"Authorized Denominations" means (i) in the case of Bonds in a Weekly Mode
or Monthly Mode, $100,000 and any integral multiple of $5,000 in excess thereof;
(ii) in the case of Bonds in a Semiannual Mode, Annual Mode or Multiyear Mode,
$5,000 or any integral multiple thereof, provided that if the Credit Facility is
not exempt from registration under the Securities Act of 1933 and has not been
registered thereunder, as amended, then the Authorized Denomination shall be
$100,000 and any integral multiple of $5,000 in excess thereof; or (iii) in the
case of a Bond which is a Pledged Bond, $100,000 or any integral multiple of
$5,000 in excess thereof.
"Bond Registrar" means the Trustee, when acting as such.
"Business Day" means any day which is not (i) a Saturday, a Sunday or any
other day on which banking institutions in the City of New York, New York or the
city in which the principal corporate trust office of the Trustee, and the
principal office of the Remarketing Agent, the Tender Agent or the Credit
Enhancer is located, are required or authorized to close or (ii) a day on which
the New York Stock Exchange is closed.
"Credit Facility" means the letter of credit initially issued by ▇▇▇▇▇▇
Financial, Inc. or any Alternate Credit Facility issued by the Credit Enhancer
in substitution therefor in accordance with the Indenture, as the same may be
amended, supplemented, extended or renewed from time to time in accordance with
the Loan Agreement and the Indenture.
"Financial Institution" means any qualified institutional buyer, as that
term is defined from time to time in 17 C.F.R. ss.230.144A(a)(i) ("Rule 144A").
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"Immediate Notice" means notice by telephone, telegram, telex, telecopier
or other telecommunication device to such phone numbers or addresses as are
specified in the Indenture or such other phone number or address as the
addressee shall have directed in writing, promptly followed by written notice by
first-class mail postage prepaid to such addresses.
"Interest Mode" means a period of time relating to the frequency with
which the interest rate on the Bonds is determined pursuant to the Indenture,
which Interest Mode may be a Weekly Mode, a Monthly Mode, a Semiannual Mode, an
Annual Mode or a Multiyear Mode.
"Interest Mode Adjustment Date" means a date on which the Interest Mode of
the Bonds is changed from one Interest Mode to a different Interest Mode, and
such date shall be an Interest Payment Date.
"Interest Mode Adjustment Notice" means the notice of a new Interest Mode
with respect to any Bonds in accordance with the Indenture.
"Interest Payment Date" means the date on which an interest installment is
required to be paid on the Bonds to the Owners thereof, (i) with respect to all
Bonds other than Pledged Bonds, (1) as to the first Interest Period, October 3,
1994; (2) as to any Weekly Mode or Monthly Mode, the first Business Day of each
month; (3) as to any Semiannual Mode, Annual Mode or Multiyear Mode, each
September 1, and March 1, commencing with the first such September 1, or March 1
following the Interest Mode Adjustment Date, or the next succeeding Business Day
thereafter if any such September 1, or March 1, is not a Business Day; and (4)
an Interest Mode Adjustment Date; and (ii) with respect to Pledged Bonds, the
first Business Day of each calendar month and the date of sale of Pledged Bonds.
"Interest Period" means, with respect to the Bonds in any Interest Mode,
the period from and including each Interest Payment Date for such Interest Mode
to and including the day immediately preceding the following Interest Payment
Date for such Interest Mode, except that the first Interest Period shall be the
period from and including the date of original delivery of the Bonds to and
including the day immediately preceding the first Interest Payment Date for the
Bonds.
"Mandatory Purchase Date" means each date designated by the Credit
Enhancer for purchase of the Bonds in accordance with the Indenture.
"Maximum Rate" means the lesser of (i) 15% per annum or (ii) the rate
utilized in the Credit Facility for purposes of computing the interest component
thereof.
"Monthly Mode" means an Interest Mode during which the interest rate on
the Bonds is determined in monthly intervals as set forth in the Indenture.
"Multiyear Mode" means an Interest Mode during which the interest rate on
the Bonds is determined at intervals of integral (greater than one) multiples of
twelve months, as provided in the Indenture.
"Notice of Election to Tender/Retain Bonds" means the Notice of Election
to Tender/Retain Bonds in substantially the form attached to the Indenture
delivered by a Bondowner to the Tender
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Agent (i) which contain a demand for the purchase of Bonds on the Tender Date,
or (ii) following receipt of a notice of a mandatory tender of Bonds which
contain an election to retain Bonds. "Notice of Election to Tender Bonds" shall
refer to those provisions of the Notice of Election to Tender/Retain Bonds which
relate to the election to tender Bonds as provided in the Indenture. "Notice of
Election to Retain Bonds" shall refer to those provisions of the Notice of
Election to Tender/Retain Bonds which relate to the election to retain Bonds.
"Rate Adjustment Date" means the date as of which the interest rate
determined for an Interest Mode shall be effective, which (i) during a Weekly
Mode shall be Thursday of each week (whether or not a Business Day); (ii) during
a Monthly Mode shall be the first calendar day of each month; (iii) during a
Semiannual Mode shall be the first calendar day of such Semiannual Mode which
shall be September 1 or March 1 and the first day following each six-month
period thereafter; and, (iv) during an Annual Mode or a Multiyear Mode shall be
the first calendar day of such Annual Mode or Multiyear Mode, which shall be
September 1, and thereafter the first calendar day following the completion of
the then current Annual Mode or Multiyear Mode. The initial Rate Adjustment Date
is September 15, 1994.
"Rate Adjustment Notice" means the Rate Adjustment Notice to be mailed by
the Trustee in the form and in accordance with the Indenture.
"Rate Determination Date" means no later than 4:00 p.m., New York Time, on
the Business Day immediately preceding a Rate Adjustment Date for a Weekly or a
Monthly Mode, and on the third (3rd) Business Day immediately preceding a Rate
Adjustment Date for a Semiannual Mode, Annual Mode or Multiyear Mode.
"Rate Period" means the period from a Rate Adjustment Date to, but not
including, the next Rate Adjustment Date.
"Record Date" means, with respect to Bonds in a Semiannual Mode, an Annual
Mode or a Multiyear Mode, the fifteenth calendar day, whether or not a Business
Day of the month, preceding such Interest Payment Date, and, with respect to
Bonds in a Weekly Mode or Monthly Mode, the fifth calendar day immediately
preceding such Interest Payment Date.
"Semiannual Mode" means an Interest Mode during which the interest rate on
the Bonds is determined at six-month intervals as set forth in the Indenture.
"Tender Agent" means initially the Trustee and any successor tender agent
appointed pursuant to the Indenture. The Tender Agent shall act as Paying Agent
as to Tendered Bonds.
"Tender Date" means (a) each date designated by a Bondowner for purchase
of any Bonds in accordance with the provisions of the Indenture, and (b) each
date on which Bonds are required to be tendered in accordance with the
provisions of the Indenture, including any Mandatory Purchase Date, whether or
not such Bonds are actually tendered.
"Tender Price" means 100% of the principal amount of any Bond tendered
pursuant to the provisions of the Indenture plus interest accrued and unpaid
thereon to, but not including, the Tender Date.
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"Tendered Bonds" means (a) any Bonds tendered by a Bondowner for purchase
pursuant to the optional redemption provisions of the Indenture, and (b) any
Bonds required to be tendered for purchase pursuant to the mandatory tender
provisions of the Indenture, in each case whether or not such Bonds are actually
tendered.
"Termination Date" means (i) if the Credit Facility is not a letter of
credit, the maturity or expiration date of the Credit Facility or (ii) if the
Credit Facility is a letter of credit, the Interest Payment Date which is at
least five (5) days preceding the date on which the Credit Facility is to expire
pursuant to its terms, in each case including any extension of such maturity or
expiration date.
"Weekly Mode" means an Interest Mode during which the interest rate on the
Bonds is determined in weekly intervals as set forth in the Indenture.
GENERAL PROVISIONS
This Bond is one of a series of Bonds of the Issuer limited in aggregate
original principal amount to $7,700,000 and designated as Variable Rate Demand
Industrial Development Revenue Bonds (Roller Bearing Company of America, Inc.
Project) Series ▇▇▇▇▇ (▇▇▇ "▇▇▇▇▇"). All of the Bonds are issued under a Trust
Indenture dated as of September 1, 1994 (the "Indenture"), between the Issuer
and the Trustee, to provide funds to make a loan (the "Loan") to Roller Bearing
Company of America, Inc., a Delaware corporation (the "Borrower"), under a Loan
Agreement dated as of September 1, 1994 (the "Agreement"), between the Issuer
and the Borrower. The Loan shall provide funds to finance the Project (as
defined in the Agreement) and to pay certain costs of issuance, all by the
authority of and in full compliance with the provisions, restrictions and
limitations of the Constitution and statutes of the State of South Carolina,
including particularly Title 41, Chapter 43, Code of Laws of South Carolina
1976, as amended, and pursuant to proceedings duly had by the Issuer.
Concurrently with the original issuance herewith, the Issuer has delivered
its $3,000,000 aggregate original principal amount Variable Rate Demand
Industrial Development Revenue Bonds (Roller Bearing Company of America, Inc.
Project) Series 1994B (the "Series 1994B Bonds").
TO INITIALLY SECURE THE PAYMENT OF THE PRINCIPAL OF AND INTEREST ON THE
BONDS, THE BORROWER HAS CAUSED ▇▇▇▇▇▇ FINANCIAL, INC. A DELAWARE CORPORATION
(THE "CREDIT ENHANCER"), TO DELIVER AN IRREVOCABLE TRANSFERABLE DIRECT-PAY
LETTER OF CREDIT (THE "CREDIT FACILITY") TO THE TRUSTEE. SUBJECT TO CERTAIN
CONDITIONS, THE CREDIT FACILITY MAY BE REPLACED BY AN ALTERNATE CREDIT FACILITY.
UNDER THE CREDIT FACILITY, THE CREDIT ENHANCER IS OBLIGATED TO PAY AMOUNTS
SUFFICIENT FOR THE PAYMENT OF (A) THE PRINCIPAL OF THE BONDS OR THE PORTION OF
THE TENDER PRICE CORRESPONDING TO THE PRINCIPAL OF THE BONDS, AND (B) ACCRUED
INTEREST ON THE BONDS OR THE PORTION OF THE TENDER PRICE OF THE BONDS
CORRESPONDING TO ACCRUED INTEREST THEREON. THE CREDIT FACILITY IS SCHEDULED TO
TERMINATE ON SEPTEMBER 15, 1999, UNLESS EXTENDED OR TERMINATED EARLIER PURSUANT
TO ITS TERMS.
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Counterparts or copies of the Indenture and the other documents referred
to herein are on file at the Principal Office of the Trustee in St. Louis,
Missouri, and reference is hereby made thereto and to the documents referred to
therein for the provisions thereof, including the provisions with respect to the
rights, obligations, duties and immunities of the Issuer, the Trustee, the
Credit Enhancer, the Borrower and the Registered Owners of the Bonds under such
documents, to all of which the Registered Owner hereof, by acceptance of this
Bond, assents. The Registered Owner of this Bond shall have no right to enforce
the provisions of the Indenture or to institute, appear in or defend any suit or
other proceedings with respect thereto, except as provided in the Indenture. The
Indenture and other documents referred to therein may be modified or amended to
the extent permitted by and as provided therein. Upon the occurrence of certain
Events of Default (as defined in the Indenture), all Bonds may be declared
immediately due and payable as provided in the Indenture. Interest on the Bonds
shall cease to accrue on the date of such declaration. Subject to the
limitations provided for in the Indenture, this Bond may be exchanged for a like
aggregate principal amount of Bonds in Authorized Denominations. Bonds are
transferable by the Registered Owner thereof in person or by such Owner's
attorney duly authorized in writing at the Principal Office of the Bond
Registrar, but only in the manner and subject to the limitations provided for in
the Indenture and upon surrender and cancellation of this Bond. Such limitations
include a requirement that Bonds that are subject to the benefits of the Credit
Facility may be sold, remarketed or otherwise transferred only in transactions
in which the Bonds and the related Credit Facility are registered under the
Securities Act and any applicable state securities statutes or in transactions
in which the Bonds and the related Credit Facility are exempt from the
registration requirements of the Securities Act and any applicable state
securities laws, and any Bondowner desiring to effect such transfer is required
to indemnify the Issuer, the Trustee and the Credit Enhancer against any
liability, cost or expense (including attorneys' fees) that may result if the
transfer is not so exempt, or is not made in accordance with such federal and
state laws. Upon such transfer a new Bond or Bonds in Authorized Denominations
for the same aggregate principal amount will be issued to the transferee in
exchange. The Bond Registrar may require a Registered Owner, among other things,
to furnish appropriate endorsements and transfer documents and to pay any taxes
and fees required by law or permitted by the Indenture in connection with the
exchange or transfer. The Issuer, the Tender Agent and the Trustee may treat the
Registered Owner of this Bond as the absolute Owner for the purpose of receiving
payment as herein provided and for all other purposes and none of them shall be
affected by any notice to the contrary.
INTEREST RATE PROVISIONS
(a) Generally. The interest rate on the Bonds shall be separately
determined by ▇▇▇▇▇ Brothers & Co., St. Louis, Missouri, or any successor or
assign (the "Remarketing Agent"), as provided in the Indenture and as summarized
below. In no event shall the interest rate borne by the Bonds at any time exceed
the Maximum Rate. Interest accrued on the Bonds during each Interest Period
shall be paid on the next succeeding Interest Payment Date and, while the Bonds
are in a Weekly Mode or a Monthly Mode, shall be computed on the basis of a year
of 365 or 366 days, as appropriate, for the actual number of days elapsed and,
while the Bonds are in a Semiannual Mode, an Annual Mode or a Multiyear Mode,
shall be computed on the basis of a year of 360 days and twelve 30-day months.
Each determination of the interest rate for the Bonds, as provided in the
Indenture, shall be conclusive and binding upon the Bondowners, the Issuer, the
Borrower, the Tender Agent, the Remarketing Agent, the Credit Enhancer and the
Trustee. Upon request, the Remarketing Agent shall give the Issuer, the Trustee,
the Tender Agent, the Credit
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Enhancer, the Borrower or any Bondowner Immediate Notice of the interest rate on
the Bonds at any time.
(b) Weekly Mode. The interest rate for Bonds in a Weekly Mode shall be
determined in the following manner. On each Rate Determination Date, the
Remarketing Agent shall determine the interest rate which such Bonds shall bear
during the Rate Period following such Rate Determination Date. The interest rate
so determined shall be effective on the Rate Adjustment Date. Promptly after
each Rate Adjustment Date, the Remarketing Agent shall give written notice of
the interest rate so set to the Trustee, the Credit Enhancer and the Borrower.
On each Interest Payment Date the Trustee shall mail to each Bondowner a written
statement showing the interest rates for such Bonds during the preceding
Interest Period.
(c) Monthly Mode. The interest rate for any Bonds in a Monthly Mode shall
be determined in the following manner. On each Rate Determination Date, the
Remarketing Agent shall determine the interest rate which such Bonds shall bear
during the Rate Period following such Rate Determination Date. The interest rate
so determined shall be effective on the Rate Adjustment Date. Promptly after
each Rate Determination Date, the Remarketing Agent shall give written notice of
the interest rate so set to the Borrower, the Credit Enhancer and the Trustee.
On each Interest Payment Date the Trustee shall mail to each Bondowner a written
statement showing the interest rates during the preceding Interest Period.
(d) Semiannual Mode, Annual Mode or Multiyear Mode. The interest rate for
Bonds in a Semiannual Mode, an Annual Mode or a Multiyear Mode shall be
determined in the following manner. Not less than 30 days nor more than 35 days
before each Rate Adjustment Date, the Remarketing Agent shall determine the
interest rate (the "Preliminary Rate") which the Bonds would bear if such day
were a Rate Determination Date. The Remarketing Agent shall give Immediate
Notice of the Preliminary Rate to the Borrower, the Credit Enhancer and the
Trustee. The Trustee shall thereupon mail, not less than 25 days prior to the
Rate Adjustment Date, to each Bondowner a Rate Adjustment Notice. On the Rate
Determination Date the Remarketing Agent shall determine the interest rate which
each of such Bonds shall bear for each such Rate Period, which rate may be less
than, equal to, or greater than the Preliminary Rate. By Immediate Notice on
such Rate Determination Date, the Remarketing Agent shall give written notice of
the interest rate so set to the Borrower, the Credit Enhancer, the Tender Agent
and the Trustee, and the Trustee shall mail to all Bondowners written notice of
the interest rate so determined.
(e) Interest Modes. The Bonds shall initially be in a Weekly Mode. The
Interest Mode for the Bonds may be changed from time to time at the option of
the Borrower, with the prior written consent of the Credit Enhancer exercised as
provided in the Indenture, to another Interest Mode on an Interest Payment Date
on which the Bonds are subject to optional redemption pursuant to the Indenture
at a redemption price equal to the principal amount thereof, plus accrued
interest, without premium, as selected by the Borrower. The Borrower may
exercise such option at any time by giving written notice not more than 60 nor
less than 45 days prior to the Interest Mode Adjustment Date to the Issuer, the
Trustee, the Remarketing Agent, the Tender Agent and the Credit Enhancer stating
its election to convert the Interest Mode for the Bonds to another Interest
Mode, which notice shall specify the new Interest Mode and the Interest Mode
Adjustment Date. Such Interest Mode Adjustment Date shall be a Rate Adjustment
Date for the Bonds in such new Interest Mode. Upon the exercise of such option
by the Borrower and upon the Trustee's receipt of the
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prior written consent of the Credit Enhancer to the exercise of such option, not
less than 30 days prior to the Interest Mode Adjustment Date, the Trustee shall
mail an Interest Mode Adjustment Notice to each Owner of Bonds, and, in the
event of a conversion to a Weekly Mode or a Monthly Mode from any other Interest
Mode, a Notice of Election to Tender Bonds in substantially the form as provided
in the Indenture.
REDEMPTION PROVISIONS
The Bonds are subject to redemption prior to maturity as provided in the
Indenture which redemption provisions are summarized as follows:
Optional Redemption. Bonds (other than any Bonds in a Multiyear Mode) are
subject to redemption prior to maturity at the option of the Issuer upon
instructions from the Borrower with the prior written consent of the Credit
Enhancer, in whole or in part in Authorized Denominations, on any Interest
Payment Date at 100% of the principal amount thereof plus accrued interest to
the redemption date, first, from proceeds of a payment under the Credit Facility
and, second, from other Available Moneys. Bonds in a Multiyear Mode are subject
to redemption prior to maturity at the option of the Issuer upon instructions
from the Borrower with the prior written consent of the Credit Enhancer, in
whole or in part in Authorized Denominations, on any Interest Payment Date at
the redemption prices set forth below plus accrued interest to the redemption
date, first, from proceeds of a payment under the Credit Facility and, second,
from other Available Moneys:
OPTIONAL REDEMPTION IN MULTIYEAR MODE
Length of Redemption Prices
Multiyear Mode as a Percentage of Call Protection
(In Years)* Principal Amounts Period*
-------------- ------------------ ---------------
Greater than 10 102% after 7 years 7 years
declining 1/2% per 12
months to 100%
Less than or equal 102% after 4 years 4 years
to 10 and greater declining 1/2% per 12
than 7 months to 100%
Less than or equal 102% after 3 years 3 years
to 7 and greater declining 1% per 12
than 5 months to 100%
Less than or equal 101% after 2 years 2 years
to 5 and greater declining 1/2% per 6
than 2 months to 100%
Less than or equal 100 1/2% after 1 year 1 year
to 2 and greater declining 1/2% per 6
than 1 months to 100%
----------
* Measured from and including the first day of such Rate Period.
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Mandatory Redemption. The Bonds are also subject to mandatory redemption by the
Issuer in each case, first, from proceeds of a payment under the Credit Facility
and, second, from other Available Moneys at 100% of the principal amount
thereof, without premium, plus accrued interest to the date of redemption (i) in
whole on the earliest practicable date for which notice can be given, if a
Determination of Taxability occurs with respect to the Bonds, (ii) immediately
in whole, in the event the Trustee shall receive notice from the Credit Enhancer
of the occurrence of a default under the Letter of Credit Agreement and
irrevocable instructions to draw on the Credit Facility, such notice being
conclusive and binding as to the occurrence of a default under the Letter of
Credit Agreement, and (iii) in part on the earliest practicable date for which
notice can be given, from proceeds of the Bonds remaining in the Project Fund on
the Completion Date. In addition, the Bonds shall be subject to redemption by
the Issuer, at the option and upon instructions from the Borrower with the prior
written consent of the Credit Enhancer, in whole or in part at any time on the
earliest practicable date for which notice can be given, upon the occurrence of
a condemnation, loss of tide or casualty loss to the Project at 100% of the
principal amount thereof, without premium, plus accrued interest to the date of
redemption.
The Trustee shall select Bonds for redemption as provided in the
Indenture. The Trustee shall cause notice of any such redemption to be given as
provided in the Indenture to the Registered Owner of the Bonds designated for
redemption in whole or in part, at its address as shown on the Bond Register by
mailing a copy of the redemption notice by first-class mail, postage prepaid, at
least 15 and not more than 30 days prior to the redemption date. The failure of
the Trustee to give notice to any Bondowner or any defect of such notice shall
not affect the validity of the redemption of any other Bonds and provided
further that no such prior notice of redemption is required for a mandatory
redemption because of a default under the Letter of Credit Agreement. On the
date fixed for redemption by notice given as provided in the Indenture, the
Bonds so called for redemption shall become and be due and payable at the
redemption price provided for redemption of such Bonds on such date.
TENDER PROVISIONS
Optional Tender. While the Bonds are in a Weekly Mode or Monthly Mode, any
Bond or portion thereof shall be purchased on the Tender Date by the Tender
Agent on the demand of the Owner thereof, at the Tender Price, upon delivery to
the Tender Agent on a Business Day at its Principal Office of an irrevocable
written notice in the form of the Notice of Election to Tender Bonds which
states (A) the principal amount and number of such Bond (and the portion of such
Bond to be purchased if less than the full principal amount is to be purchased),
the name and the address of such Owner and the taxpayer identification number,
if any, of such Owner and (B) that such Bond, or portion thereof, is to be
purchased on a day (which shall be the Tender Date), which day will be a
Business Day which is at least seven (7) calendar days after the receipt by the
Tender Agent of such Notice of Election to Tender Bonds. Such Notice of Election
to Tender Bonds shall be deemed received on a Business Day if received by the
Tender Agent no later than 3:00 p.m., New York Time, on such Business Day. Any
Notice of Election to Tender Bonds received by the Tender Agent after 3:00 p.m.,
New York Time, shall be deemed received on the next succeeding Business Day.
Any Owner of Bonds who has demanded purchase of its Bond or portion
thereof as described above shall deliver such Bond (with an appropriate transfer
of registration form executed
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in blank, together with a signature guaranty) (together with, in the case of any
Bond with a specified Tender Date prior to an Interest Payment Date and after
the related Record Date, a due-▇▇▇▇ check in form satisfactory to the Tender
Agent for interest due on such Bond on such Interest Payment Date) to the Tender
Agent at its Principal Office prior to 10:30 a.m., New York Time, on the Tender
Date specified in the aforesaid written notice.
Mandatory Tender.
(1) On Termination Date or Interest Mode Adjustment Date. All Bonds
are required to be tendered to the Tender Agent for purchase on the
Termination Date or an Interest Mode Adjustment Date; provided, however,
that if the credit enhancement requirements of the Indenture are met,
there shall not be so tendered on the Termination Date or the Interest
Mode Adjustment Date, as applicable, any Bonds or portion thereof which
will be in Authorized Denominations with respect to which the Owners
thereof have delivered to the Tender Agent by hand or by mail at its
Principal Office a properly completed Notice of Election to Retain Bonds,
together with a signature guaranty, on or prior to the fifth Business Day
next preceding the Termination Date or the Interest Mode Adjustment Date,
as applicable. Any Bondowner required to tender Bonds under this
subsection (1) shall tender its Bonds to the Tender Agent for purchase at
its Principal Office prior to 10:30 a.m., New York Time, on the
Termination Date or the Interest Mode Adjustment Date, as applicable. The
failure to tender Bonds on any such date is the equivalent of a tender and
such Bonds shall be converted to Undelivered Bonds and replacement Bonds
shall be executed, authenticated and delivered in the place of such
Undelivered Bonds and such replacement Bonds may be offered and sold by
the Remarketing Agent in accordance with the Indenture and Remarketing
Agreement if the credit enhancement requirements of the Indenture are met.
(2) On Alternate Credit Facility Date. While the Bonds are in an
Interest Mode other than a Multiyear Mode, all Bonds are required to be
tendered to the Tender Agent for purchase on an Alternate Credit Facility
Date; provided, however, that there shall not be so tendered on the
Alternate Credit Facility Date any Bonds or portion thereof which will be
in Authorized Denominations with respect to which the Owners thereof have
delivered to the Tender Agent by hand or by mail at its Principal Office a
properly completed Notice of Election to Retain Bonds, together with a
signature guaranty, on or prior to the fifth Business Day next preceding
the Alternate Credit Facility Date. Any Bondowner required to tender Bonds
under this subsection (2) shall tender its Bonds to the Tender Agent for
purchase at its Principal Office prior to 10:30 a.m., New York Time, on
the Alternate Credit Facility Date. The failure to tender its Bonds on any
such date is the equivalent of a tender and such Bonds shall be converted
to Undelivered Bonds and replacement Bonds shall be executed,
authenticated and delivered in the place of such Undelivered Bonds and
such replacement Bonds may be offered and sold by the Remarketing Agent in
accordance with the Indenture and Remarketing Agreement if the credit
enhancement requirements of the Indenture are met.
(3) On Rate Adjustment Date During Semiannual Mode. Annual Mode and
Multiyear Mode. While the Bonds are in a Semiannual Mode, Annual Mode or
Multiyear Mode, all Bonds are required to be tendered to the Tender Agent
for purchase on a Rate
A-13
Adjustment Date; provided, however, that there shall not be so tendered on
the Rate Adjustment Date any Bonds or portions thereof which will be in
Authorized Denominations with respect to which the Owners thereof have
delivered to the Tender Agent by hand or by mail at its Principal Office a
properly completed Notice of Election to Retain Bonds, together with a
signature guaranty, on or prior to the fifth Business Day next preceding a
Rate Adjustment Date. Any Bondowner required to tender Bonds under this
subsection (3) shall tender its Bonds to the Tender Agent for purchase at
its Principal Office prior to 10:30 a.m., New York Time, on the Rate
Adjustment Date. The failure to tender its Bonds on any such date is the
equivalent of a tender and such Bonds shall be converted to Undelivered
Bonds and replacement Bonds shall be executed, authenticated and delivered
in the place of such Undelivered Bonds as provided in the Indenture and
such replacement Bonds may be offered and sold by the Remarketing Agent in
accordance with the Indenture and Remarketing Agreement if the credit
enhancement requirements of the Indenture are met.
(4) Mandatory Tender in Lieu of Acceleration on Default.
Additionally, all Bonds are subject to mandatory tender for purchase on
the Mandatory Purchase Date from the Bondowners by the Trustee for the
account of the Credit Enhancer in lieu of acceleration of the Bonds and
mandatory redemption, upon the occurrence of an event of default under the
Letter of Credit Agreement and notice from the Credit Enhancer requiring
the mandatory purchase of the Bonds. Upon receipt of notice from the
Credit Enhancer directing the Trustee to purchase the Bonds and setting
the Mandatory Purchase Date, which shall be a Business Day which is at
least three (3) and no more than ten (10) calendar days after the receipt
by the Trustee of such notice, the Trustee shall immediately request a
payment under the Credit Facility to be received no later than 3:00 P.M.,
New York Time, on the Mandatory Purchase Date, and shall also send notice
to the Bondowners of the mandatory purchase. On the Mandatory Purchase
Date, the Tender Agent shall pay to the Bondowners the purchase price for
the Bonds, which shall be an amount equal to 100% of the principal amount
of any Bond tendered or deemed tendered plus accrued and unpaid interest
thereon to the Mandatory Purchase Date. Any Bondowner required to tender
Bonds under this subsection (4) shall tender its Bonds to the Tender Agent
for purchase at its Principal Office prior to 10:30 A.M., New York Time,
on the Mandatory Purchase Date. The failure to tender its Bonds on any
such date is the equivalent of a tender and such Bonds shall be converted
to Undelivered Bonds and replacement Bonds shall be executed,
authenticated and delivered in the place of such Undelivered Bonds if the
credit enhancement requirements of the Indenture are met.
Notice of Mandatory Tender. The Trustee shall give notice to Bondowners of the
mandatory tender for Bonds on an Interest Mode Adjustment Date, on an Alternate
Credit Facility Date, if the Bonds are in a Multiyear Mode, Annual Mode or
Semiannual Mode on a Rate Adjustment Date, on the Termination Date and on the
Mandatory Purchase Date in accordance with the provisions of the Indenture.
Failure to Give Notice. Failure by the Trustee to give any notice regarding a
mandatory tender as provided in the Indenture, any defect therein or any failure
by any Bondowner to receive any such notice shall not in any way change such
Owner's obligation to tender the Bonds for purchase on any mandatory Tender
Date.
A-14
Irrevocability of Election. Any election by a Bondowner to exercise the option
to have its Bond or Bonds purchased, or any election by a Bondowner to retain
its Bond or Bonds upon any mandatory Tender Date, shall be irrevocable upon
delivery to the Tender Agent of the Notice of Election to Tender Bonds (together
with, if required at the time of delivery of such notice, the Tendered Bonds) or
of the Notice of Election to Retain Bonds, as the case may be. If any Owner of
Bonds falls to deliver the Bonds described in such Owner's Notice of Election to
Tender Bonds, such Bonds shall be converted to Undelivered Bonds. Replacement
Bonds shall be executed, authenticated and delivered in place of such
Undelivered Bonds as provided in the Indenture and such replacement Bonds may be
offered and sold by the Remarketing Agent in accordance with the Indenture and
Remarketing Agreement if the credit enhancement requirements of the Indenture
are met.
Purchase of Tendered Bonds. Tendered Bonds shall be purchased from the Owners
thereof on the Tender Date at the Tender Price which shall be payable solely
from the following sources in the order of priority listed: (1) proceeds of the
remarketing of such Tendered Bonds pursuant to the Remarketing Agreement and the
Indenture which constitute Available Moneys; and (2) proceeds of a payment under
the Credit Facility to purchase such Tendered Bonds.
Notwithstanding any provision of the Indenture to the contrary, there
shall be no purchases (other than a mandatory tender on the Termination Date or
a mandatory purchase on the Mandatory Purchase Date) or sales of Bonds pursuant
to the provisions of the Indenture relating to the tender of Bonds if there
shall have occurred and be continuing certain Events of Default under the
Indenture.
A-15
=====================================================================
(FORM OF ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _______
________________________________________________________________________________
(Please Print or Typewrite Name, Address and Social Security Number or Taxpayer
Identification Number of Transferee) the within Bond and all rights therein, 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 Guaranteed By:
_________________________________________
NOTICE: Signature(s) must be guaranteed
by an eligible guarantor institution as
defined by SEC Rule l7Ad-15 (17 CFR
240.l7Ad-15).
By_______________________________________
Title____________________________________
=====================================================================
A-16
The following abbreviations, when used in the inscription on the face of
the within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM as tenants in common
TEN ENT as tenants by the entireties
JT TEN as joint tenants with right of survivorship and not as tenants
in common
UNIF TRANS MIN ACT_____________________
(Cust)
Custodian__________________
(Minor)
under Uniform Transfers to Minors Act
_______________________
(State)
Additional abbreviations may also be used though not in the above list.
=====================================================================
A-17
LEGAL OPINION
I, the undersigned, Executive Director of the South Carolina Jobs-Economic
Development Authority, hereby certify that the following is a true and correct
copy of the approving legal opinion of ▇▇▇▇▇▇▇ & ▇▇▇▇, P.A., on the within Bond
and the series of which said Bond is a part, except that it omits the date of
such opinion; that said legal opinion was manually executed and was dated and
issued as of the date of delivery of and payment for such Bonds, and is on file
with _______________________________, the Trustee.
facsimile
-----------------------------------------
Executive Director
South Carolina Jobs-Economic Development
Authority
=====================================================================
(Legal Opinion)
A-18
EXHIBIT B
INVESTMENT SECURITIES COLLATERAL REQUIREMENT
Collateral securing Investment Securities must comply with the following
requirements:
(i) The Trustee or a third party acting solely as agent for the
Trustee has possession of the collateral;
(ii) The Trustee or a third party acting as agent for the Trustee
shall have a first perfected security interest in the collateral free and
clear of the claims of any third parties;
(iii) The collateral will consist of Government Securities and will
have a minimum market value (expressed as a percentage of the obligation)
on a valuation date as follows:
Remaining Maturity
Frequency of
Valuation 0*-1 yrs 1*-5 yrs 5*-10 yrs 10*-15 yrs 15*-30 yrs
Daily 103% 106% 107% 109% 116%
Weekly 104 112 114 120 125
Monthly 107 123 130 133 143
Quarterly 108 125 135 140 150
----------
* Not inclusive
(iv) In the event the collateral does not meet the requisite
collateral percentage set forth in (iii) above on a valuation date, the
party supplying the collateral shall have the following number of days to
provide additional collateral in order to meet the requisite percentage:
(a) one business day for daily valuations,
(b) two business days for weekly valuations, and
(c) one month for monthly and quarterly valuations; and
(v) The Trustee will liquidate the collateral and reinvest the
proceeds in Investment Securities if the requisite collateral percentage
is not maintained after the period set forth in (iv) above.
▇-▇
▇▇▇▇▇▇▇ ▇
[▇▇▇▇▇▇▇▇.]
▇-▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Jobs-Economic Development Authority
Variable Rate Demand
Industrial Development Revenue Bonds
(Roller Bearing Company of America, Inc. Project)
Series 1994A
EXHIBIT D
NOTICE OF ELECTION TO TENDER/RETAIN BONDS
The undersigned hereby irrevocably notifies _________________________, as
Tender Agent, of its election to (check one)
___ (i) present the Bonds described below and have such Bonds
purchased by the Tender Agent on ______, ___ (the "Tender
Date") at the Tender Price equal to 100% of the principal
amount plus interest accrued and unpaid thereon, to, but not
including, the Tender Date.
___ (ii) retain the Bonds described below. The undersigned hereby
acknowledges that any rating on the Bonds may be reduced or
withdrawn after the date hereof. [If the Interest Mode is
being adjusted from a Weekly Mode or Monthly Mode to any other
Interest Mode add the following: "and that the tender option
terminates on such Interest Mode Adjustment Date"]
This Notice shall not be accepted by the Tender Agent unless it is
properly completed and received at its offices (specified below). Such Notice
must be delivered to the Tender Agent on a Business Day by hand or by mail, at
______________________, Attention: Corporate Trust Department.
Provisions Relating to Election to Retain Bonds. This Notice must be
delivered to the Tender Agent on a Business Day by hand or by mail, at
_____________________, Attention: Corporate Trust Department, on or prior to the
fifth Business Day next preceding (i) a Rate Adjustment Date, (ii) an Interest
Mode Adjustment Date, or (iii) an Alternate Credit Facility Date, as such terms
are defined in the Indenture.
AN OWNER'S EXERCISE OF THE OPTION TO RETAIN SUCH BOND IS IRREVOCABLE AND
BINDING ON SUCH OWNER AND CANNOT BE WITHDRAWN.
Provisions Relating to Election To Tender Bonds: The undersigned hereby
agrees to sell, assign and transfer the Bonds to the Tender Agent, and hereby
irrevocably constitutes and appoints the Tender Agent, as duly authorized
attorney, to authorize the Trustee to transfer the Bonds on the books kept for
registration thereof and to register such Bonds, with full power of
substitution. The undersigned agrees to deliver to the Tender Agent, at
___________________________, Attention: Corporate Trust Department, the Bonds at
or before 10:30 a.m., New York Time, on the Tender Date.
AN OWNER'S EXERCISE OF THE OPTION TO HAVE SUCH BOND PURCHASED IS
IRREVOCABLE AND BINDING ON SUCH OWNER AND CANNOT BE WITHDRAWN. IF ANY OWNER OF
BONDS SHALL FAIL TO DELIVER THE BONDS DESCRIBED IN SUCH OWNER'S NOTICE, SUCH
BONDS SHALL CONSTITUTE UNDELIVERED BONDS. REPLACEMENT BONDS
D-1
SHALL BE EXECUTED, AUTHENTICATED AND DELIVERED IN THE PLACE OF SUCH UNDELIVERED
BONDS AS PROVIDED IN THE INDENTURE AND SUCH REPLACEMENT BONDS MAY BE OFFERED AND
SOLD BY THE REMARKETING AGENT IN ACCORDANCE WITH THE REMARKETING AGREEMENT.
The undersigned hereby directs the Tender Agent to make payment to the
undersigned of the Tender Price of the Bonds, together with accrued interest
thereon, and elects to receive payment of the Tender Price of the Bonds, in one
of the following manners (check the desired method):
MANNER A __ by check or draft mailed to the Owner on the applicable Tender Date,
upon surrender of the Bonds (if not submitted herewith) to the
Tender Agent at the address specified above for hand delivery.
MANNER B __ by wire transfer of immediately available funds to account number
__________ ________ at ________________________ (must be in
continental United States) on the applicable Tender Date; provided
however, that the undersigned may not utilize this Manner B to
receive the Tender Price unless the undersigned is the Owner of and
is tendering at least $1,000,000 aggregate principal amount of the
Bonds and the wire transfer instructions are provided to the Tender
Agent with this Notice.
General Provisions. The Tender Agent's determination of whether this
Notice is properly completed and the compliance with the delivery requirements
set forth herein shall be binding on the undersigned.
D-2
Bond or Bonds (or Portions Thereof)
Presented For Purchase/To Be Retained
Amount thereof being
Tendered(1)/Amount
Bond Number(s) thereof being Retained(2)
____________ _____________
____________ _____________
____________ _____________
____________ _____________
Total
Amount:__________
(1) Unless Bondowner is having all of his Bonds purchased, principal
amount must be $100,000 or integral multiples of $5,000 in excess thereof if in
the Weekly Mode or the Monthly Mode and $5,000 or integral multiples thereof if
in the Semiannual Mode, Annual Mode and Multiyear Mode, with remaining principal
of retained Bonds in Authorized Denominations.
(2) must be a principal amount which is $100,000 or integral multiples of
$5,000 in excess thereof if in the Weekly Mode or the Monthly Mode and $5,000 or
integral multiples thereof if in the Semiannual Mode, Annual Mode and Multiyear
Mode.
Signature(s) *_________________________________
Signature
guaranteed by__________________________________
_______________________________________________
Print or Type Name
_______________________________________________
Street Address
_______________________________________________
City, State and Zip Code
_______________________________________________
Area Code and Telephone Number
_______________________________________________
Social Security Number or Taxpayer ID Number:
* The signature(s) to this Notice must correspond with the name(s) of the
Owner of any Bond(s) submitted herewith, as it appears on the books of the
Tender Agent, in every particular without alteration, enlargement or any change
whatsoever and such signature must be guaranteed by an eligible guarantor
institution as defined by SEC Rule l7Ad-15 (17 CFR 240.l7Ad-15).
D-3
EXHIBIT E
RATE ADJUSTMENT NOTICE
This notice is being sent pursuant to the provisions of the Trust
Indenture dated as of September 1, 1994 (the "Indenture") between the South
Carolina Jobs-Economic Development Authority (the "Issuer") and
________________________, as Trustee (the "Trustee"). Capitalized terms used in
this notice shall have the same meanings as in your Bond, unless otherwise
defined. You are hereby notified as follows:
1. The interest rate on the Issuer's Variable Rate Demand Industrial
Development Revenue Bonds (Roller Bearing Company of America, Inc. Project)
Series ▇▇▇▇▇ (▇▇▇ "▇▇▇▇▇"), will be adjusted on ________ (the "Rate Adjustment
Date"). Your Bond will be purchased on the Rate Adjustment Date at a price of
100% of the principal amount thereof plus interest accrued and unpaid thereon
to, but not including, the Tender Date, unless you elect to retain your Bond.
2. The Remarketing Agent has notified the Trustee that the Preliminary
Rate determined in accordance with the Indenture is __% (the "Preliminary
Rate"). The actual interest rate for the Bonds shall be determined on the Rate
Adjustment Date, which rate may be less than, equal to or greater than the
Preliminary Rate. In order to retain all or any portion of your Bond (which
portion shall be [$100,000] [$5,000] or an integral multiple thereof), you must
deliver to ____________________________, at its principal corporate trust office
at______________________, Attention: Corporate Trust Department, on or prior to
the fifth (5th) Business Day preceding such date the attached Notice of Election
to Retain Bonds.
3. In addition, you are further notified that on the Rate Adjustment Date,
the interest on your Bond will be established at a new interest rate and
interest on your Bond will be payable at such newly established interest rate
for the Interest Period commencing on the Rate Adjustment Date.
____________________________
___________________________________
Title:_____________________________
EXHIBIT F
INTEREST MODE ADJUSTMENT NOTICE
This notice is being sent pursuant to the provisions of the Trust
Indenture dated as of September 1, 1994 (the "Indenture"), between the South
Carolina Jobs-Economic Development Authority (the "Issuer"), and
____________________, as Trustee. Capitalized terms used in this notice shall
have the same meanings as in the Indenture.
You are hereby notified as follows:
1. An option has been exercised to convert the Interest Rate Mode
applicable to the Issuer's Variable Rate Demand Industrial Development Revenue
Bonds (Roller Bearing Company of America, Inc. Project) Series ▇▇▇▇▇ (▇▇▇
"▇▇▇▇▇"), from a(n) Weekly/Monthly/Semiannual/Annual/ Multiyear (____)-Year Mode
to a(n) Weekly/Monthly/Semiannual/Annual/ Multiyear (__)-Year) Mode on ______
(the "Interest Mode Adjustment Date"). Unless you deliver a Notice of Election
to Retain Bonds to _____________________________ (the "Tender Agent"), at its
principal corporate trust office, at ________________________, Attention:
Corporate Trustee Department, in the form which is attached, your Bond will be
purchased on such date at a price of 100% of the principal amount thereof plus
interest accrued and unpaid thereon to, but not including, the Tender Date.
2. If your Bond or any portion thereof is so purchased, payment therefor
will be made on or after the tender date thereof upon presentation and surrender
at the principal corporate trust office of the Tender Agent at
__________________________, Attention: Corporate Trust Department, of such Bond,
duly endorsed in blank for transfer (with all signatures guaranteed by an
eligible guarantor institution as defined by SEC Rule l7Ad-15 (17 CFR
240.l7Ad-15)).
3. In addition, you are further notified that:
(A) Interest will no longer accrue to you on your Bond on and after
the tender date thereof unless the Tender Agent has received directions
from you not to so purchase your Bond as herein provided, and, other than
the right to receive payment of the purchase price for your Bond, you
shall then cease to have further rights under the Indenture;
(B) You have the right to direct the Tender Agent not to purchase
all or any portion of your Bond, which portion shall be $________ (the
minimum authorized denomination for the new Interest Mode) or any integral
multiple thereof, if you deliver the attached Notice of Election to Retain
Bonds to the Tender Agent at its address above on or before the date
occurring 5 days prior to the Interest Mode Adjustment Date; and
(C) In the event you properly file a Notice of Election to Retain
Bonds, the following will occur:
(i) After the Interest Mode Adjustment Date, the interest rate
on the portion of your Bond not purchased will be determined in
accordance with the Weekly/Monthly/Semiannual/Annual/Multiyear
(__-year) Mode, with interest being paid on the [first Business Day
of each month] [September 1 and March 1 of each year]; (and)
F-1
(ii) The Trustee will inform you of the Interest Rate on the
portion of your Bond not purchased, on or soon after the Interest
Mode Adjustment Date[; and] [.]
[THE FOLLOWING SHALL BE INSERTED ONLY IF THE BONDS WILL BE IN
A WEEKLY MODE OR MONTHLY MODE]
[(iii) After the Interest Mode Adjustment Date, you may
require the portion of your Bond not previously purchased to be
purchased pursuant to Section 301 of the Indenture on a Tender Date
specified by you as further described in the Indenture.]
Date: __________
____________________________,
as Trustee
By:__________________________________________
Title:____________________________________
F-2
EXHIBIT G
NOTICE OF ALTERNATE CREDIT FACILItY
THIS NOTICE WILL NOT BE GIVEN IF THE BONDS
ARE IN A MULTIYEAR MODE
NOTICE TO BONDOWNERS
This notice is being sent pursuant to the provisions of the Trust
Indenture dated as of September 1, 1994 (the "Indenture"), between the South
Carolina Jobs-Economic Development Authority (the "Issuer") and
__________________________, as Trustee. Capitalized terms used in this notice
shall have the same meanings as in the Indenture.
You are hereby notified as follows:
1. An Alternate Credit Facility issued by ______________________ and
relating to the Issuer's Variable Rate Demand Industrial Development Revenue
Bonds (Roller Bearing Company of America, Inc. Project) Series ▇▇▇▇▇ (▇▇▇
"▇▇▇▇▇"), will become effective on ___________ (the "Alternate Credit Facility
Date"). Unless you deliver a Notice of Election to Retain Bonds as described
below, your Bond will be purchased on such date at a price of 100% of the
principal amount thereof. A copy of the proposed form of Alternate Credit
Facility and certain financial information relating to the issuer thereof are on
file at the office of the Trustee and are available for inspection at your
request.
2. If your Bond or any portion thereof is so purchased, payment therefor
will be made on the Alternate Credit Facility Date upon presentation and
surrender at the Principal Office of the Tender Agent
(_________________________, Attention: Corporate Trust Department) prior to
10:30 A.M., New York Time on the Alternate Credit Facility Date, of such Bond,
duly endorsed in blank for transfer (with all signatures guaranteed by an
eligible guarantor institution as defined by SEC rule l7Ad-15 (17 CFR
240.l7Ad-15)).
3. In addition, you are further notified that:
(A) Interest will no longer accrue to you on your Bond on and after
the Alternate Credit Facility Date unless the Trustee has received
directions from you not to so purchase your Bond as herein provided, and,
other than the right to receive payment of the purchase price for your
Bond, you shall then cease to have further rights under the Indenture;
and
G-1
(B) You have the right to direct that all or any portion of your
Bond not be purchased, which portion shall be $_____ (the minimum
authorized denomination for the Interest Rate Mode to be in effect on the
Alternate Credit Facility Date) or any integral multiple thereof, if you
deliver the Notice of Election to Retain Bonds to the Tender Agent at its
address above on or before the fifth Business Day next preceding the
Alternate Credit Facility Date.
Dated: ___________
____________________________
as Trustee
By:__________________________________________
Title:____________________________________
G-2
EXHIBIT H
REPRESENTATION LETTER
[Trustee]
[Trustee Address]
[Remarketing Agent]
[Remarketing Agent Address]
[Credit Enhancer]
[Credit Enhancer Address]
Re: $7,700,000 Variable Rate Demand Industrial Development Revenue
Bonds (Roller Bearing Company of America, Inc. Project) Series
1994A of the South Carolina Jobs-Economic Development Authority
Ladies and Gentlemen:
The undersigned (the "Investor") hereby represents and warrants to you as
follows:
[THE FOLLOWING PARAGRAPH 1 IS FOR USE PURSUANT TO SECTION 210(i) OF THE
INDENTURE.]
1. The Investor proposes to purchase $__________ aggregate principal
amount of the above-referenced bonds (the "Bonds") issued pursuant to that
certain Trust Indenture dated as of September 1, 1994 (the "Indenture"), between
the South Carolina Jobs-Economic Development Authority and
______________________, as trustee. The Investor understands that the Bonds and
the credit enhancement with respect thereto have not been registered under the
Securities Act of 1933, as amended (the "1933 Act") or the securities laws of
any state and will be sold to the Investor in reliance upon certain exemptions
from registration and in reliance upon the representations and warranties of the
Investor set forth herein.
[THE FOLLOWING PARAGRAPH 1 IS FOR USE PURSUANT TO SECTION 210(iii) OF THE
INDENTURE.]
1. The Investor understands that [Remarketing Agent] may offer to the
Investor for purchase in a secondary market transaction the above-referenced
bonds (the "Bonds") issued pursuant to that certain Trust Indenture dated as of
September 1, 1994 (the "Indenture"), between the South Carolina Jobs-Economic
Development Authority and _____________________, as trustee. The Investor
understands that the Bonds and the credit enhancement with respect thereto have
not been registered under the Securities Act of 1933, as amended (the "1933
Act") or the securities laws of any state and may be sold to the Investor in
reliance upon certain exemptions from registration and in reliance upon the
representations and warranties of the Investor set forth herein.
H-1
2. The Investor has sufficient knowledge and experience in business and
financial matters in general, and investments such as the Bonds in particular,
to enable the Investor to evaluate the risks involved in an investment in the
Bonds.
3. The Investor confirms that its investment in the Bonds constitutes an
investment that is suitable for and consistent with its investment program and
that the Investor is able to bear the economic risk of an investment in the
Bonds, including a complete loss of such investment.
4. The Investor is purchasing the Bonds solely for its own account for
investment purposes only, and not with a view to, or in connection with, any
distribution, resale, pledging, fractionalization, subdivision or other
disposition thereof (subject to the understanding that disposition of Investor's
property will remain at all times within its control).
5. The Investor agrees that it will only offer, sell, pledge, transfer or
exchange any of the Bonds it purchases (i) in accordance with an available
exemption from the registration requirements of ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇, (▇▇)
in accordance with any applicable state securities laws and (iii) in accordance
with the provisions of the Indenture.
6. The Investor is familiar with Rule 144A promulgated under the 1933 Act
and is a "qualified institutional buyer" as defined in Rule 144A; it is aware
that [the] [any] sale of Bonds to it [is] [may be] made in reliance on Rule 144A
and understands that such Bonds may be offered, resold, pledged or transferred
only (i) to a person who the Investor reasonably believes is a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.
7. If the Investor sells any of the Bonds other than pursuant to a
mandatory or optional tender and purchase provided for in and complying with the
Indenture, the Investor or its agent will obtain from any subsequent purchaser
the same representations contained in this Representation Letter.
8. The Investor acknowledges and understands that you, any trustee under
the Indenture and each of the "issuers" (as such term is used in the 1933 Act)
of the Bonds and any security related thereto are relying and will continue to
rely on the statements made herein. The Investor agrees to notify you
immediately of any changes in the information and conclusions herein.
Very truly yours,
[Name of Investor]
Dated:_________________________
By:______________________________________
Name:____________________________________
Title:___________________________________
[Must be President, Chief Financial
Officer or other Executive Officer]
H-2