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EXHIBIT 10.22
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TRUST AGREEMENT
Between
COUNTY OF DELAWARE, OHIO
And
BANK ONE TRUST COMPANY, NA, AS TRUSTEE
Dated as of December 1, 1984
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Relating to
$4,900,000
County of Delaware, Ohio
Variable Rate Demand Industrial Development Revenue Bonds
(Radiation Sterilizers, Incorporated Project)
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INDEX
(This Index is not a part of the Indenture
but is for convenience of reference only)
Page
----
Preambles ..................................................................... 1
Authorizing Resolution ........................................................ 2
Form of Project Bond .......................................................... 37
Granting Clauses .............................................................. 55
ARTICLE I
Definitions .......................................................... 57
ARTICLE II
Section 2.01 Form of Bonds ............................................... 58
Section 2.02 Terms of Bonds .............................................. 58
Section 2.03 Execution of Bonds--Authentication........................... 58
Section 2.04 Transfer and Exchange of Bonds .............................. 58
Section 2.05 Mutilated, Lost, Wrongfully Taken or
Destroyed Bonds .................................... 60
Section 2.06 Cancellation of Bonds ....................................... 61
Section 2.07 Delivery of the Project ..................................... 62
Section 2.08 Delivery of Additional Bonds ................................ 63
ARTICLE III
Section 3.01 Privilege of Redemption and Redemption
Price .......................................... 64
Section 3.02 Issuer's Election to Redeem ................................. 64
Section 3.03 Notice of Redemption ........................................ 65
Section 3.04 Payment of Redeemed Bonds ................................... 65
ARTICLE IV
Section 4.01 Provision for Payment ....................................... 66
Section 4.02 Nonpresentment of Bonds ..................................... 66
Section 4.03 Trustee's and Paying Agents Fees,
Charges and Expenses............................ 66
Section 4.04 Moneys to Be Held in Trust .................................. 67
Section 4.05 Repayment to the Company from the Bond
Fund and Other Funds or Accounts................ 67
Section 4.06 Notice of Failure to Make Payments Under
Loan Agreement ................................. 68
Section 4.07 Provision for Payment of Project Bonds....................... 68
Section 4.08 Letter of Credit ............................................ 68
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ARTICLE V
Section 5.01 Records of Construction Fund.................................. 70
Section 5.02 Completion of the Facilities.................................. 70
ARTICLE VI
Section 6.01 Investments .................................................. 70
ARTICLE VII
Section 7.01 Release of Indenture ......................................... 71
Section 7.02 Payment of Bonds ............................................. 71
ARTICLE VIII
Section 8.01 Default; Events of Default.................................... 73
Section 8.02 Acceleration ................................................. 74
Section 8.03 Other Remedies ............................................... 75
Section 8.04 Right of Bondholders to Direct Proceeding..................... 76
Section 8.05 Application of Moneys ........................................ 76
Section 8.06 Remedies Vested in Trustee.................................... 78
Section 8.07 Rights and Remedies of Bondholders............................ 78
Section 8.08 Termination of Proceedings.................................... 79
Section 8.09 Waivers of Events of Default.................................. 79
ARTICLE IX
Section 9.01 Trustee's Acceptance and Responsibilities..................... 81
Section 9.02 Fees, Charges and Expenses of Trustee and
Paying Agents ........................................... 84
Section 9.03 Notice to Bondholders if Event of Default
Occurs .................................................. 84
Section 9.04 Intervention by Trustee ...................................... 85
Section 9.05 Successor Trustee ............................................ 85
Section 9.06 Resignation by the Trustee ................................... 85
Section 9.07 Removal of the Trustee ....................................... 85
Section 9.08 Appointment of Successor Trustee by the
Bondholders ............................................. 85
Section 9.09 Concerning Any Successor Trustee.............................. 86
Section 9.10 Trustee Protected in Relying Upon Resolu-
tions, etc .............................................. 86
Section 9.11 Successor Trustee as Custodian, Bond
Registrar and Paying Agent............................... 86
Section 9.12 Adoption of Authentication ................................... 87
Section 9.13 Succession of Paying Agents .................................. 87
Section 9.14 Right of Trustee to Pay Taxes and Other
Charges ................................................. 87
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ARTICLE X
Section 10.01 Supplemental Indentures Not Requiring
Consent of Bondholders ............................. 88
Section 10.02 Supplemental Indentures Requiring Consent
of Bondholders ..................................... 88
Section 10.03 Modification by Unanimous Consent............................ 90
Section 10.04 Supplemental Indentures Requiring Consent
of the Bank ........................................ 90
Section 10.05 Rights of Company ........................................... 91
Section 10.06 Execution by Trustee ........................................ 91
ARTICLE XI
Section 11.01 Amendments, etc., to Loan Agreement Not Requiring
Consent of Bondholders ............................. 92
Section 11.02 Amendments, etc., to Loan Agreement
Requiring Consent of Bondholders.................... 92
Section 11.03 Consent by Trustee .......................................... 92
ARTICLE XII
Section 12.01 Consents, etc., of Bondholders .............................. 93
Section 12.02 Limitation of Rights ........................................ 93
Section 12.03 Extent of Covenants; No Personal
Liability .......................................... 94
Section 12.04 Severability ................................................ 94
Section 12.05 Notices ..................................................... 94
Section 12.06 Trustee as Paying Agent and Bond Registrar................... 95
Section 12.07 Payments Due on Days Other Than Business
Days ............................................... 95
Section 12.08 Priority Over Other Liens ................................... 95
Section 12.09 Binding Effect .............................................. 95
Section 12.10 Counterparts ................................................ 95
Section 12.11 Captions .................................................... 95
Section 12.12 Governing Law ............................................... 95
Section 12.13 Notice to S & P ............................................. 96
Signatures .................................................................... 96
Acknowledgments ............................................................... 96
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TRUST AGREEMENT
THIS TRUST AGREEMENT (hereinafter sometimes called the "Trust
Agreement" or "Indenture") dated as of the lst day of December, 1984, by and
between the COUNTY OF DELAWARE, OHIO (hereinafter sometimes called the
"Issuer"), a county and political subdivision in and of the State of Ohio, and
Bank One Trust Company, NA, a national banking association organized and
existing under and by virtue of the laws of the United States of America, with
its principal place of business located in Columbus, Ohio (hereinafter sometimes
called the "Trustee"), as Trustee;
WHEREAS, by virtue of the authority of the Constitution and laws of the
State of Ohio, and particularly Article VIII, Section 13 of the Constitution and
Chapter 165 of the Ohio Revised Code, and pursuant to the Bond Legislation
referred to below, the Issuer is authorized to enter into this Indenture and to
do or cause to be done all the acts and things herein provided or required to be
done; to make loans for the acquisition, construction and equipping of the
Facilities, hereinafter defined, comprising an industrial facility for the
sterilization of packaged products using ionizing radiation, to be owned by
Radiation Sterilizers, Incorporated (the "Company") and located in the Green
▇▇▇▇▇▇▇ industrial park in Delaware County, Ohio, which Facilities, when
acquired, constructed and equipped, will preserve jobs and create and cause the
creation of additional jobs and employment opportunities and improve the
economic welfare of the people of the Issuer and of the State of Ohio; and to
issue the Bonds, as hereinafter defined, as provided in said Bond Legislation;
and
WHEREAS, the Issuer has, for the purpose of meeting in part the costs
and requirements in connection with the acquisition, construction and equipping
of the Facilities and incidental thereto and the financing thereof, determined
now to sell Project Bonds, as hereinafter defined, in the principal amount of
$4,900,000 to the Original Purchaser, as hereinafter defined, and to enter into
this Indenture to secure the Bonds, as hereinafter defined, issuable hereunder
by the pledge and assignment of revenues from the loan of the Bond proceeds, all
as set forth and declared in the Bond Legislation; and
WHEREAS, said Bond Legislation is incorporated herein, constitutes an
integral part of this Indenture, and provides, in its entirety, as follows:
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A RESOLUTION AUTHORIZING THE ISSUANCE OF $4,900,000 VARIABLE RATE
DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS OF THE COUNTY OF DELAWARE,
OHIO (RADIATION STERILIZERS, INCORPORATED PROJECT) FOR THE PURPOSE OF
PROVIDING FUNDS TO MAKE A LOAN TO RADIATION STERILIZERS, INCORPORATED
TO ASSIST IN THE FINANCING OF THE COSTS OF THE ACQUISITION,
CONSTRUCTION AND EQUIPPING OF A PROJECT AS DEFINED IN SECTION 165.01 OF
THE OHIO REVISED CODE; AUTHORIZING THE ISSUANCE OF ADDITIONAL
INDUSTRIAL DEVELOPMENT REVENUE BONDS; PROVIDING FOR THE PLEDGE OF
REVENUES FOR THE PAYMENT OF SAID BONDS; APPOINTING A REMARKETING AGENT;
AUTHORIZING A LOAN AGREEMENT WITH RESPECT TO THE PROCEEDS DERIVED FROM
THE SALE OF SAID BONDS; AUTHORIZING A TRUST AGREEMENT APPROPRIATE FOR
THE PROTECTION AND DISPOSITION OF SUCH REVENUES AND TO FURTHER SECURE
THE PAYMENT OF PRINCIPAL OF AND ANY PREMIUM AND INTEREST ON SUCH BONDS;
AND AUTHORIZING A CONTRACT OF PURCHASE APPROPRIATE FOR THE SALE OF SUCH
BONDS.
WHEREAS the County of Delaware, Ohio (hereinafter sometimes called the
"Issuer") is a county and political subdivision in and of the State of Ohio, and
by virtue of the laws of the State of Ohio, including Article VIII, Section 13
of the Constitution of Ohio and Chapter 165 of the Ohio Revised Code, is
authorized and empowered, among other things, (a) to make loans to persons to
assist in the financing of the costs of acquisition, construction and equipping
of industrial facilities within the boundaries of the Issuer, upon certain
determinations by the Legislative Authority of the Issuer heretofore made and
herein confirmed, (b) to issue revenue bonds of the Issuer for the purpose of
providing funds to make such loans, (c) to secure such revenue bonds by a trust
agreement between the Issuer and a corporate trustee, including therein the
pledge and assignment of revenues from such loans to the payment of such revenue
bonds for the benefit of the bondholders, and (d) to enact this Bond Legislation
and enter into the Indenture, the Loan Agreement and the Contract of Purchase
hereinafter identified, upon the terms and conditions provided therein; and
WHEREAS Radiation Sterilizers, Incorporated (hereinafter sometimes
called the "Company") is a corporation duly organized under the laws of the
State of California and qualified to do business in the State of Ohio; and
WHEREAS, the Legislative Authority of the Issuer has heretofore found
and determined, and does hereby confirm that (a) the property to be acquired,
constructed and equipped with the proceeds of the Bonds herein authorized is a
"project" within the meaning of that term as defined in Section 165.01 of the
Ohio Revised Code, and (b) the utilization of the Facilities (as
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hereinafter defined) is economically sound and will benefit the people of the
Issuer by creating or preserving jobs and increasing opportunities for
employment and strengthening the economic welfare of the people of the Issuer
and the State of Ohio; and the Issuer shall assist in the financing of such
property for the purpose of promoting the industrial and economic development of
the Issuer, and thereby of the State of Ohio; and
WHEREAS, it has been estimated and is determined by the Legislative
Authority that the amount necessary to finance the cost of the Facilities,
including necessary expenses incidental thereto, will require the issuance, sale
and delivery of Project Bonds in the principal amount of $4,900,000 as
hereinafter provided, and hereafter may require the Issuer's best efforts to
issue, sell and deliver Additional Bonds on a parity therewith, as hereinafter
described, at such time or from time to time as may be required under the
provisions of Sections 1 and 14 of this Bond Legislation, all of which Project
Bonds and Additional Bonds are equally and ratably payable from and secured by a
pledge and assignment of the revenues to be derived from the Loan Agreement
hereinafter identified and further secured by a trust agreement hereinafter
provided for between the Issuer and a Trustee;
NOW, THEREFORE, BE IT RESOLVED, by the Board of County Commissioners of
the County of Delaware, Ohio:
Section 1. Authorization of $4,900,000 Industrial Development Revenue
Bonds. It is hereby determined to be necessary to, and the Issuer shall, issue,
sell and deliver, as provided herein, $4,900,000 principal amount of Project
Bonds, pursuant to the authority of Article VIII, Section 13 of the Constitution
of Ohio and Chapter 165 of the Ohio Revised Code, for the purpose of providing
funds to lend to the Company so that the Company may acquire, construct and
equip property comprising an industrial facility for the sterilization of
packaged products using ionizing radiation, located in Delaware County, Ohio, in
order to promote the industrial and economic development of the State of Ohio
and benefit the people of the Issuer by preserving and creating jobs and
increasing opportunities for employment and strengthening the economic welfare
of the people of the Issuer and the State of Ohio. Said Project Bonds shall be
designated "County of Delaware, Ohio Variable Rate Demand Industrial Development
Revenue Bonds (Radiation Sterilizers, Incorporated Project)". The Issuer may
also issue, sell and deliver Additional Bonds on a parity with the Project Bonds
for the purposes and in the manner provided in Section 14 of this Bond
Legislation.
Section 2. Definitions. In addition to the words and terms elsewhere
defined in this Bond Legislation, the following words and terms as used in this
Bond Legislation and in the
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Indenture shall have the following meanings unless the context or use indicates
another or different meaning or intent and such definitions shall be equally
applicable to both the singular and plural forms of any of the words and terms
herein defined:
"Additional Bonds" means the industrial development revenue bonds of
the Issuer which may be issued under Section 14 of this Bond Legislation.
"Adjustment Date" means, after the Conversion Date, the Interest
Payment Date next preceding the Expiration Date of the Alternate Credit Facility
or the Expiration Date of the Letter of Credit, as the case may be.
"Alternate Credit Facility" means a credit facility other than the
Letter of Credit, including without limitation, an irrevocable letter of credit
or bond insurance policy, which provides for payment of the principal of and
interest on the Project Bonds, when due.
"Alternate Interest Index" means for any Interest Period ending prior
to the Conversion Date 65% of the interest rate applicable to 13-week United
States Treasury bills determined by the Remarketing Agent on the basis of the
average per annum bond equivalent yield at which such 13-week Treasury bills
shall have been sold at the most recent Treasury auction during the next
preceding Interest Period. If no such auction shall have been conducted during
the next preceding Interest Period, or if the Remarketing Agent shall fail to
determine the Alternate Interest Index, the Alternate Interest Index during such
Interest Period will be the same as for the preceding Interest Period.
"Alternate Letter of Credit" means an irrevocable letter of credit
issued in accordance with Section 4.6 of the Loan Agreement.
"Available Moneys" means moneys on deposit in trust with the Trustee
for a period of at least one hundred twenty three (123) days during which no
petition in bankruptcy or similar insolvency proceeding has been filed by or
against the Company.
"Bank" means the issuer of the Letter of Credit, initially ▇▇▇▇▇ Fargo
Bank, N.A., San Jose, California.
"Bond Fund" or "County of Delaware, Ohio-Radiation Sterilizers,
Incorporated Revenue Bond Fund" means the fund created in Section 13 hereof.
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"Bond Legislation" means this resolution, and when used in connection
with Additional Bonds or in relation to Bonds when Additional Bonds are
outstanding shall mean or include, as the case may be, the resolution or other
legislation providing for the issuance of such Additional Bonds but only to the
extent consistent with this resolution, all as the same may be amended, modified
or supplemented by any amendments or modifications thereof and supplements
thereto entered into in accordance with the provisions of the Indenture.
"Bond Registrar" means the Trustee acting in such capacity pursuant to
Section 2.04 of the Indenture.
"Bondholder" or "holder" means the person in whose name any Bond is
registered.
"Bonds" means the Project Bonds and any Additional Bonds.
"Business Day" means any day, other than a Saturday or Sunday, on which
banks located in the cities in which the principal corporate trust office of the
Trustee and the principal office of the Bank are located, and in New York, New
York, are not required or authorized by law to remain closed and on which The
New York Stock Exchange is not closed.
"Code" means the Internal Revenue Code of 1954, as amended, and
references to the Code and Sections of the Code shall include relevant
regulations and proposed regulations thereunder and any successor provisions to
such Sections, regulations or proposed regulations.
"Company" means Radiation Sterilizers, Incorporated, a corporation
organized under the laws of the State of California and qualified to do business
in the State, and its lawful successors and assigns, including any surviving,
resulting or transferee entity as provided in Section 5.1 of the Loan Agreement.
"Construction Fund" or "County of Delaware, Ohio-Radiation Sterilizers,
Incorporated Construction Fund" means the fund created by Section 12 hereof.
"Contract of Purchase" means as to the Project Bonds, the purchase
contract among the Original Purchaser, the Company and the Issuer, providing for
the sale of Project Bonds to the Original Purchaser.
"Conversion Date" means the date upon which the Project Bonds begin to
bear interest at the Fixed Interest Rate, which date shall be established in
accordance with Section 8 of this Bond Legislation.
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"Date of Taxability" means the date as of which all or any part of the
interest on the Bonds is first required to be included in the gross income of
any holder or former holder thereof for federal income tax purposes by reason of
the occurrence of any circumstance on the basis of which a Determination of
Taxability is made.
"Determination of Taxability" means the receipt by the Trustee or a
Bondholder of a ruling or technical advice by the Internal Revenue Service in
which the Company has participated or a written opinion by an attorney or firm
of attorneys of recognized standing on the subject of municipal bonds selected
by the Trustee or a Bondholder and approved by the Company, which approval shall
not be unreasonably withheld, to the effect that interest on the Bonds is
includible in the gross income for federal income tax purposes of a holder
(other than a holder who is a "substantial user" of the Facilities or a "related
person" as such terms are used in Section 103(b) of the Code).
"Eligible Investments" means (i) obligations issued or guaranteed by
the United States of America or by any person controlled or supervised by and
acting as an instrumentality of the United States of America pursuant to
authority granted by Congress, (ii) certificates of deposit issued by or other
time deposits at banks, savings banks, savings and loan associations or trust
companies, including the Trustee or its affiliates, organized under the laws of
the United States of America or any state thereof, which have an aggregate of
capital, paid in surplus and retained earnings of at least $25,000,000, or
issued by or drawn on any branch of such a bank, savings bank, savings and loan
association or trust company whether within or without the United States of
America, (iii) commercial paper or finance company paper, including that of the
Trustee or its affiliates but excluding that of the Company or its affiliates,
rated "P-1" or "A-1" or their equivalents by either Moody's or S&P or any
successor or either, (iv) obligations of any state of the United States of
America or any political subdivision or other instrumentality of any such state
which are rated 'A' or its equivalent or better by either Moody's or S&P or any
successor of either, (v) repurchase agreements or variable amount master demand
notes, including those of the Trustee or its affiliates secured by obligations
described in (i) through (iv) of this paragraph, and (vi) shares of any
Investment Company whose assets are invested exclusively in obligations
described in (i) through (iv) of this paragraph; provided, however, that
"Eligible Investments" with respect to any proceeds resulting from a draw under
the Letter of credit shall mean only Government Obligations maturing at such
time or times as will permit the Trustee or the Remarketing Agent to make
payment of the principal of and interest on, or the purchase price of, the
Project Bonds.
"Event of Default" shall have the meaning assigned in Section 8.01 of
the Indenture.
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"Expiration Date of the Alternate Credit Facility" means the date
established in the Alternate Credit Facility for the expiration thereof, and in
the event such date is extended, such date as extended.
"Expiration Date of the Letter of Credit" means the date established in
the Letter of Credit for the expiration thereof in accordance with its terms,
initially January 15, 1988, and in the event such date is extended, such date as
extended.
"Facilities" means the real, personal and mixed property identified in
Exhibit A to the Loan Agreement, together with any additions and improvements
thereto, modifications thereof and substitutions therefor.
"First Optional Redemption Date" means the December 1 occurring in the
year which is a number of years after the Conversion Date equal to the number of
years between the December 1 immediately following the Conversion Date (unless
the Conversion Date is a December 1, in which case from such December 1) and
December 1, 2004, multiplied by 1/2 and rounded up to the nearest whole number.
"Fixed Interest Rate" means a fixed interest rate on the Project Bonds
established in accordance with Section 8 of this Bond Legislation.
"Government Obligations" means direct-obligations of the United States
of America.
"Indenture" means the Trust Agreement between the Issuer and the
Trustee, dated as of the 1st day of December, 1984, including as part thereof
this Bond Legislation, as the same may be amended, modified or supplemented by
any amendments or modifications thereof and supplements thereto entered into in
accordance with the provisions thereof.
"Interest Reserve Requirement" means $262,000.
"Interest Index" means for any Interest Period ending prior to the
Conversion Date 55% of the rate of interest per annum publicly announced by
▇▇▇▇▇▇ Guaranty Trust Company of New York in New York, New York as its prime
rate.
"Interest Payment Date" means with respect to the Project Bonds prior
to and including the Conversion Date the first (1st) Business Day of each month
commencing February 1, 1985, and after the Conversion Date the first (1st) day
of each June and December. "Interest Payment Date" with respect to Additional
Bonds shall mean the dates identified as such in the Bond Legislation for the
Additional Bonds.
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"Interest Period" means with respect to the Project Bonds prior to the
Conversion Date a period from and including the Interest Payment Date in each
calendar month to and including the day next preceding the Interest Payment Date
in the following calendar month, except that the first Interest Period shall be
the period from and including the Original Issuance Date to and including
January 31, 1985.
"Investment Company" means any open-end diversified management
investment company registered under the Investment company Act of 1940, as
amended.
"Issuer" means the county of Delaware, Ohio, a county and political
subdivision in and of the State, and its lawful successors and assigns.
"Legislative Authority" means the Board of County Commissioners of the
Issuer and any officer, board, commission or other body which hereafter
succeeds, by operation of law, to the powers and duties of such board.
"Letter of Credit" means the irrevocable letter of credit issued by the
Bank contemporaneously with the original issuance of the Project Bonds, except
that upon the issuance and delivery of an Alternate Letter of Credit, "Letter of
Credit" shall mean such Alternate Letter of Credit, and upon the delivery of an
Alternate Credit Facility, "Letter of Credit" shall, unless the context
otherwise requires, include reference to the Alternate Credit Facility.
"Letter of Credit Agreement" means the Letter of Credit Agreement,
dated as of December 1, 1984, between the Company and the Bank pursuant to which
the Letter of Credit is issued by the Bank and delivered to the Trustee, and any
and all modifications, alterations, amendments and supplements thereto, and
includes any agreement between the Company and the Bank pursuant to which any
Alternate Letter of Credit is issued.
"Loan" means the loan by the Issuer to the Company of the proceeds from
the sale of the Bonds to the Original Purchasers.
"Loan Agreement" means the Loan Agreement, dated as of December 1,
1984, between the Issuer and the Company, as from time to time supplemented or
amended in accordance with the provisions thereof.
"Loan Term" means the period commencing on the date of the Loan
Agreement and ending on the date on which the Bonds have been
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fully paid (or provision for their payment has been made) in accordance with the
provisions of the Indenture.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, its successors
and their 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, at the request of the Company, by notice to the
Trustee and the Bank.
"Original Issuance Date" means as to the Project Bonds the date on
which the Project Bonds are first authenticated and delivered to the Original
Purchasers against payment therefor.
"Original Purchaser" means, as to the Project Bonds, Prudential-Bache
Securities Inc., New York, New York, and, as to Additional Bonds, the person or
persons identified or referred to in the Bond Legislation for such Additional
Bonds.
"Outstanding Bonds" or "Bonds outstanding" means, as of any date, all
Bonds which have been authenticated and delivered by the Trustee under the
Indenture except:
(a) Bonds surrendered for and replaced upon exchange or transfer, or
Bonds theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Bonds for the payment or redemption of which sufficient cash funds
shall have been theretofore deposited with the Trustee (whether upon or prior to
the maturity or redemption date of any such Bonds), or which are deemed to have
been paid and discharged, pursuant to the provisions of the Indenture; provided
that if such Bonds are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given or arrangements satisfactory to the
Trustee shall have been made therefor, or waiver of such notice satisfactory in
form to the Trustee, shall have been filed with the Trustee; and
(c) Bonds in lieu of which others have been authenticated under
Sections 2.05 and 2.06 of the Indenture;
"Paying Agent" means, as to the Project Bonds, the Trustee, and as to
Additional Bonds, any bank or trust company designated as such in the Bond
Legislation or, in the absence of such designation, the Trustee, and their
successors, and any other Paying Agent or Paying Agents as may be appointed by
the Issuer from time to time with the consent of the Company.
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"Person" means a natural person, a firm, an association, a corporation
or a public body.
"Project Bonds" means the industrial development revenue bonds of the
Issuer designated "County of Delaware, Ohio Industrial Development Revenue Bonds
(Radiation Sterilizers Incorporated Project)" identified in Section 1 of this
Bond Legislation.
"Project Purposes" means the purposes of commercial facilities as
described in Chapter 165 of the Ohio Revised Code.
"Record Date" means with respect to any Interest Payment Date on or
before the Conversion Date the fifth (5th) day next preceding such Interest
Payment Date; provided that if such day is not a Business Day, then the next
preceding Business Day, and with respect to any Interest Payment Date after the
Conversion Date the fifteenth (15th) day of the month next preceding such
Interest Payment Date.
"Remarketing Agent" means the remarketing agent appointed in accordance
with Section 19 of this Bond Legislation. "Principal Office" of the Remarketing
Agent shall mean the office thereof designated in writing to the Trustee, the
Company, the Issuer and the Bank.
"Revenues" means (a) the payments and other amounts which under the
Loan Agreement are payable by the Company directly to the Trustee to meet
amounts due with respect to the principal of and premium, if any, and interest
on the Bonds, (b) all other moneys received by the Issuer, or the Trustee on
behalf of the Issuer, in respect of the repayment of the Loan including, but not
limited to, moneys drawn under the Letter of Credit and (c) income and profit
from the investment of the payments and moneys described in (a) and (b) above,
all subject, however, to certain provisions in the Indenture with respect to the
Trustee's holding moneys for the benefit of the holders of particular Bonds.
"S&P" means Standard & Poor's Corporation, a corporation organized and
existing under the laws of the State of New York, its successors and their
assigns, and, if such corporation shall be dissolved or liquidated or shall no
longer perform the functions of a securities rating agency, "S&P" shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Issuer, at the request of the Company, by notice to the
Trustee and the Bank.
"State" means the State of Ohio.
"Trustee" means Bank One Trust Company, NA, Columbus, Ohio, and its
successors and any corporation or association resulting from
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or surviving any consolidation or merger to which it or its successors may be a
party, and any successor trustee at the time serving as successor trustee under
the Indenture.
Any reference herein to the Issuer, or to any officers thereof, shall
include those succeeding to their functions, duties or responsibilities pursuant
to or by operation of law or who are lawfully performing their functions. Any
reference to a section or provision of the Ohio Constitution or to a section,
provision or chapter of the Ohio Revised Code shall include such section or
provision or chapter as from time to time amended, modified, revised,
supplemented or superseded; provided that no such change in the Constitution or
laws (a) shall alter the obligation to pay the principal of and premium, if any,
and interest on the Bonds in the amounts and manner, at the times, and from the
sources provided in the Bond Legislation and the Indenture, except as otherwise
herein permitted or (b) shall be deemed applicable by reason of this provision
if such change would in any way constitute an impairment of the rights of the
Issuer, the Company, the Trustee, the Bank or the Bondholders under the Loan
Agreement or the Indenture.
Section 3. Form of Project Bonds; Maturity; Place of Payment;
Execution. The Project Bonds shall be issued in fully registered form only in
the denomination of $100,000 or any integral multiple thereof requested by the
Bondholder; provided, however, that any Project Bonds issued upon exchange or
transfer after the Conversion Date shall be in the denomination of $5,000 or any
integral multiple thereof requested by the Bondholder. The Project Bonds shall
be numbered from R-1 upwards and shall mature, subject to prior redemption upon
the terms and conditions hereinafter set forth, on December 1, 2004.
Principal of and premium, if any, and interest on the Project Bonds
shall be payable in lawful money of the United States of America from funds
available therefor under the Indenture, without deduction for services of any
Paying Agent. Principal of and premium, if any, on each Project Bond shall be
paid to the holder thereof upon presentation and surrender of such Project Bond
as it becomes due at the principal corporate trust office of the Trustee.
Interest on each Project Bond shall be payable by check drawn upon the Paying
Agent and mailed on each Interest Payment Date to the holder of such Project
Bond as of the close of business on the Record Date next preceding the Interest
Payment Date at the registered address of such holder as it shall appear as of
the close of business on such Record Date on the registration books maintained
pursuant to the Indenture notwithstanding the cancellation of any of such
Project Bonds upon any exchange or transfer thereof subsequent to the Record
Date and prior to such Interest Payment Date, except that, if and to the extent
that there shall be a default in the payment of the interest due on such
Interest Payment Date, such defaulted interest shall be paid to the holder in
whose name any
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such Project Bond is registered at the close of business on the fifth (5th)
Business Day next preceding the date of payment of such defaulted interest.
Notwithstanding the provisions of the immediately preceding paragraph,
a holder of Project Bonds in an aggregate principal amount of $500,000 or more
may, by notice to the Paying Agent, direct the Paying Agent to make payments of
interest on such holder's Project Bonds by means of wire transfers, in
immediately available funds, to a banking institution located in the United
States of America designated in such notice for the account of such holder.
The Project Bonds shall be executed by at least two (2) members of the
Legislative Authority, provided that such signatures may be facsimilies.
Each Project Bond shall bear interest from and including the Original
Issuance Date, or if authenticated after the Original Issuance Date from and
including the last date to which interest shall have been paid on the Project
Bonds until payment of the principal or redemption price thereof shall have been
made or provided for in accordance with the provisions of the Indenture, whether
at maturity, upon redemption or otherwise. Interest on Project Bonds shall be
paid on each Interest Payment Date and, prior to the Conversion Date, shall be
computed on the basis of a year of 365 or 366 days, as appropriate, for the
actual number of days elapsed. After the Conversion Date, interest on the
Project Bonds shall be computed on the basis of a 360-day year and twelve 30-day
months.
Section 4. Interest Rate Prior to Conversion Date. For the first
Interest Period, the Project Bonds shall bear interest at a rate equal to six
and one-half percentum (6.5%) per annum. Thereafter, for each Interest Period
ending before the Conversion Date, the interest rate on the Project Bonds shall
be a rate determined by the Remarketing Agent, in its discretion, to be that
rate which, if borne by the Project Bonds, would, in the judgment of the
Remarketing Agent, having due regard to prevailing financial market conditions,
be the interest rate necessary to enable the Remarketing Agent to remarket all
Outstanding Project Bonds on the Interest Payment Date occurring in such
Interest Period at a price equal to 100% of the principal amount thereof,
provided, however, that the interest rate so determined shall not be more than
120% of the greater of, nor less than the lesser of, the Interest Index and the
Alternate Interest Index for such Interest Period unless such indices shall have
eliminated pursuant to a supplemental indenture as permitted by Section 10.01(h)
of the Indenture,
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Notwithstanding anything to the contrary contained herein, the interest
rate on the Project Bonds shall never exceed twenty percentum. (20%) per annum.
For the second Interest Period and each Interest Period thereafter
ending prior to the Conversion Date, the interest rate to be borne by the
Project Bonds shall be determined as provided in this Section 4 as of, and shall
be made available to the Company, the Trustee and the Bank on, the fourth
Business Day next preceding the first day of such Interest Period.
Section 5. Optional Redemption.
(a) Prior to the Conversion Date, the Project Bonds are subject to
redemption by the Issuer, at the option of the Company, in whole at any
time or in part in integral multiples of $100,000 on any Interest
Payment Date on a date selected by the Company at a price equal to 100%
of the principal amount redeemed plus accrued interest to the
redemption date. Prior to the Expiration Date of the Letter of Credit
any such redemption shall be made solely from Available Moneys.
(b) After the Conversion Date, the Project Bonds are subject to
redemption by the Issuer, at the option of the Company, in whole at any
time or, to the extent permitted by Section 4.3(c) of the Loan
Agreement, in part in integral multiples of $5,000 on any Interest
Payment Date, at a redemption price of 100% of the principal amount
thereof plus accrued interest to the redemption date, in the event of
(1) condemnation of the Facilities or any part thereof to the extent
provided in Section 4.3(c) of the Loan Agreement or (2) exercise by the
Company of its prepayment option as provided in Section 4.3(d) of the
Loan Agreement. Prior to the Expiration Date of the Letter of Credit,
any such redemption shall be made solely from Available Moneys.
(c) After the Conversion Date, the Project Bonds are subject to
redemption by the Issuer, at the option of the Company, on or after the
First Optional Redemption Date, in whole at any time or in part on any
Interest Payment Date in integral multiples of $5,000, on a date
selected by the Company at the redemption prices (expressed as
percentages of the principal amount redeemed) set forth in the
following table plus accrued interest to the redemption date:
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Redemption
Redemption Dates Prices
--------
First optional Redemption Date through 103%
the following November 30
First Anniversary of the First Optional
Redemption Date through the following
November 30 102%
Second Anniversary of the First optional
Redemption Date through the following
November 30 101%
Third Anniversary of the First Optional
Redemption Date and thereafter 100%
Prior to the Expiration Date of the Letter of Credit, any such
redemption shall be made from Available Moneys.
(d) If less than all of the Project Bonds are called for
redemption (regardless of whether such redemption is at the option of
the Company or pursuant to any mandatory redemption provisions of the
Indenture), the selection of Project Bonds or portions thereof to be
called shall be made by lot in such manner as the Trustee shall
determine; provided, however, that Project Bonds held by the Bank as a
result of any draw under the Letter of Credit shall be selected for
redemption prior to any other Project Bonds.
(e) The Issuer, or the Company on behalf of the Issuer, shall give
the Trustee written notice of an election to redeem Project Bonds
pursuant to this Section 5 at least ten (10) Business Days prior to the
latest day on which the Trustee may give the Bondholders notice of
redemption pursuant to subsection (a) of Section 9 of this Bond
Legislation, provided, however, that prior to the Expiration Date of
the Letter of Credit, no such notice shall be deemed effective unless
at the time such notice is received by the Trustee the Trustee is
holding sufficient Available Moneys to pay the principal of and
premium, if any, and interest on the Project Bonds to be redeemed.
Section 6. Mandatory Redemption. Upon the occurrence of a Determination
of Taxability, the Project Bonds are subject to mandatory redemption by the
Issuer at a redemption price of 100% of the principal amount redeemed plus
accrued interest to the
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redemption date on the fifteenth (15th) Business Day following the date of such
Determination of Taxability if the date of such Determination of Taxability
precedes the Conversion Date, or on the seventy-fifth (75th) day following the
date of such Determination of Taxability if the date of Determination of
Taxability is on or after the Conversion Date. The Project Bonds shall be
redeemed in whole unless, in the opinion of Independent Tax Counsel (as defined
in the Loan Agreement), the redemption of a portion of the outstanding principal
amount of the Project Bonds would have the result that the interest payable on
the Project Bonds remaining outstanding after such redemption would not be
included in the gross income for federal income tax purposes of any holder of
the Project Bonds (other than a holder who is a "substantial user" of the
Facilities or a "related person" within the meaning of Section 103(b) of the
Code), in which event only such portion of the outstanding Project Bonds shall
be redeemed, Prior to the Expiration Date of the Letter of Credit the redemption
price shall be paid solely with proceeds drawn under the Letter of Credit.
Section 7. Purchase of the Project Bonds.
(a) On or before the Conversion Date, any Project Bond or portion
thereof in an integral multiple of $100,000 shall be purchased by the
Remarketing Agent, on the demand of the holder thereof, on any Interest
Payment Date at a purchase price equal to the principal amount thereof,
upon: (i) delivery to the Remarketing Agent at its Principal office at
or prior to 4:00 p.m., New York City time, on the third Business Day
prior to such Interest Payment Date of a telephone notice (unless the
Trustee shall be serving as Remarketing Agent, in which case written
notice shall be required) which (A) states the principal amount of such
Project Bond to be purchased and (B) states that such Project Bond or
portion thereof shall be purchased on such Interest Payment Date
pursuant to this Section 7(a); and (ii) delivery of such Project Bond
to the Principal office of the Remarketing Agent at or prior to 10:00
a.m., New York City time, on such Interest Payment Date; provided,
however, that such Project Bond or portion thereof shall be so
purchased pursuant to this Section 7(a) only if the Project Bond so
delivered to the Remarketing Agent shall conform in all respects to the
description thereof in the aforesaid notice.
(b) On or before the Conversion Date, any Project Bond or portion
thereof in an integral multiple of $100,000 shall be purchased by the
Trustee on the demand of the holder thereof, if such holder shall be an
Investment Company, on any Business Day at a purchase price equal to
the principal amount thereof plus accrued interest, if any, to the date
of purchase, upon: (i) delivery to the Trustee at its Principal Office
of a written notice which (A) states that such holder
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is an Investment Company, (B) states the principal amount of such
Project Bond to be purchased and (C) states the date on which such
Project Bond or portion thereof shall be purchased pursuant to this
Section 7(b), which date shall be a Business Day not prior to the
seventh (7th) day next succeeding the date of the delivery of such
notice to the Trustee; and (ii) delivery of such Project Bond, and, in
the case of a Project Bond or portion thereof to be purchased prior to
an Interest Payment Date and after the Record Date in respect thereof,
a due-▇▇▇▇ check, in form satisfactory to the Trustee, for interest due
on such Interest Payment Date, at the Trustee's principal corporate
trust office at or prior to 10:00 a.m., on the date specified in the
aforesaid notice; provided, however, that such Project Bond or portion
thereof shall be so purchased pursuant to this Section 7(a) only if the
Project Bond so delivered to the Trustee shall conform in all respects
to the description thereof in the aforesaid notice.
(c) On or before the Conversion Date, any Project Bond or portion
thereof in an integral multiple of $100,000 shall be purchased by the
Remarketing Agent, on the demand of the holder thereof, on any Business
Day at a purchase price equal to the principal amount thereof plus
accrued interest, if any, to the date of purchase, upon: (i) delivery
to the Remarketing Agent at its Principal Office of a written notice
which (A) states the principal amount of such Project Bond to be
purchased and (B) states the date on which such Project Bond or portion
thereof shall be purchased pursuant to this Section 7(c), which date
shall be a Business Day not prior to the seventh (7th) day next
succeeding the date of the delivery of such notice to the Remarketing
Agent; and (ii) delivery of such Project Bond and, in the case of a
Project Bond or portion thereof to be purchased prior to the Interest
Payment Date for any Interest Period and after the Record Date in
respect thereof, a due-▇▇▇▇ check, in form satisfactory to the
Remarketing Agent, for interest due on such Interest Payment Date, to
the Principal Office of the Remarketing Agent at or prior to 10:00
a.m., New York City time, on the date specified in the aforesaid
notice; provided, however, that such Project Bond or portion thereof
shall be so purchased pursuant to this Section 7(c) only if the Project
Bond so delivered to the Remarketing Agent shall conform in all
respects to the description thereof in the aforesaid notice.
(d) All Project Bonds shall be purchased by the Trustee on the
Interest Payment Date next preceding the Expiration Date of the Letter
of Credit and on the Interest Payment Date next preceding the
Expiration Date of the Alternate Credit Facility, at a purchase price
equal to the principal amount thereof, except (i) Project Bonds, or
portions thereof in an integral multiple of $100,000 if prior to the
Conversion Date
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or $5,000 if on or after the Conversion Date, with respect to which the
Trustee shall have received written directions not to so purchase such
Project Bonds or portions thereof from the holders of the same, (ii)
Project Bonds delivered to the Trustee or the Remarketing Agent as
described in subsection (a), (b) or (c) of this Section 7 for purchase
on such Interest Payment Date or on any Business Day in the Interest
Period next preceding such Interest Payment Date and (iii) Project
Bonds issued upon the registration of transfer of Project Bonds
referred to in clauses (i) or (ii) above. Any Project Bonds not
delivered to the Trustee for purchase as described above (other than
Project Bonds described in clauses (i), (ii) or (iii) above) shall
nonetheless be deemed to be tendered for sale by the holders thereof
and purchased by the Trustee.
(e) All Project Bonds shall be purchased by the Trustee on the
Conversion Date at a purchase price equal to the principal amount
thereof except (i) Project Bonds, or portions thereof in an integral
multiple of $5,000, with respect to which the Trustee shall have
received written directions not to so purchase such Project Bonds or
portions thereof from the holders of the same, (ii) Project Bonds
delivered to the Trustee or the Remarketing Agent as described in
subsection (a), (b) or (c) of this Section 7 for purchase on the
Conversion Date or on any Business Day in the Interest Period next
preceding the Conversion Date and (iii) Project Bonds issued upon the
registration of transfer of Project Bonds referred to in clauses (i) or
(ii) above. Any Project Bonds not delivered to the Trustee for purchase
(other than Project Bonds described in clauses (i), (ii) or (iii)
above) shall nonetheless be deemed to be tendered for sale by the
holders thereof and purchased by the Trustee. The provisions of this
subsection shall not apply if there has occurred and is continuing on
the prospective purchase date an Event of Default.
(f) In the event that all Project Bonds are to be purchased by the
Trustee pursuant to subsections (d) or (e) of this Section 7, a holder
of Project Bonds may direct the Trustee not to purchase any Project
Bonds or portions thereof owned by him by delivering to the Trustee, on
or before the third (3rd) Business Day preceding the date fixed for
such purchase, an instrument or instruments in writing executed by such
holder (i) specifying the numbers of the Project Bonds held by him,
(ii) specifically acknowledging each of the matters set forth in
clauses (i) through (vii) of Section 9(b) of this Bond Legislation, and
(iii) directing the Trustee not to purchase such Project Bonds or
portions thereof. Any instrument delivered to the Trustee in accordance
with this subsection (d) shall be irrevocable with
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respect to the Project Bonds for which such instrument is delivered and
shall be binding upon subsequent holders of such Project Bonds. Any
Project Bond purchased by the Remarketing Agent or the Trustee pursuant
to the terms of the Indenture after the Trustee has given notice of the
Expiration Date of the Letter of Credit, the Expiration Date of the
Alternate Credit Facility or the Conversion Date, pursuant to
subsection (b) of Section 9 of this Bond Legislation, shall not be
remarketed except to a buyer who either (i) specifically acknowledges,
in writing, on the date of purchase each of the matters set forth in
clauses (i) through (vii) of subsection (b) of Section 9 of this Bond
Legislation, or (ii) agrees to require purchase of such Project Bonds
by the Remarketing Agent or the Trustee on or before the Expiration
Date of the Letter of Credit or the Expiration Date of the Alternate
Credit Facility, as the case may be.
(g) Upon the delivery to the Remarketing Agent of Project Bonds in
accordance with subsection (a) of this Section 7, the Remarketing Agent
shall offer such Project Bonds for sale and shall use its best efforts
to sell such Project Bonds, any such sale to be at a price equal to
100% of the principal amount thereof on the Interest Payment Date on
which such Project Bonds are to be delivered to the Remarketing Agent;
provided, however, that, to the extent any moneys described in clauses
(i) or (ii) of subsection (i) of this Section 7 shall be on deposit
with the Trustee, any Project Bonds delivered to the Remarketing Agent
shall be purchased with such moneys, and shall not be sold by the
Remarketing Agent.
(h) Upon delivery to the Remarketing Agent of Project Bonds in
accordance with subsection (c) of this Section 7, the Remarketing Agent
shall offer such Project Bonds for sale and shall use its best efforts
to sell such Project Bonds, any such sale to be at a price equal to
100% of the principal amount thereof on the date stated in the notice
provided by the holder of such Project Bonds; provided that to the
extent any moneys described in clauses (i) or (ii) of subsection (i) of
this Section 7 shall be on deposit with the Trustee, any Project Bonds
delivered to the Remarketing Agent shall be purchased with such moneys
and shall not be sold by the Remarketing Agent.
(i) On the Interest Payment Date on which Project Bonds are
delivered to the Remarketing Agent for purchase by the Remarketing
Agent in accordance with subsection (a) of this Section 7, or on the
date Project Bonds are to be purchased by the Remarketing Agent in
accordance with subsection (c) of this Section 7, the Remarketing Agent
shall purchase such
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Project Bonds with immediately available funds at the purchase price
specified therein. Funds for the payment of such purchase price shall
be derived solely from the following sources in the order of priority
indicated, and neither the Issuer nor the Remarketing Agent shall be
obligated to provide funds from any other source:
(i) Available Moneys furnished by the Trustee to the
Remarketing Agent representing proceeds of Additional Bonds issued to
refund the Project Bonds;
(ii) Available Moneys furnished by the Trustee to the
Remarketing Agent representing proceeds described in Section 5.11 of
the Loan Agreement;
(iii) proceeds of the sale of such Project Bonds by the
Remarketing Agent, excluding proceeds of any such sale of Project Bonds
to the Company, ▇▇▇▇▇▇▇ ▇▇▇▇ & Associates, a California limited
partnership or ▇▇▇▇▇▇▇ ▇▇▇▇, its general partner;
(iv) moneys furnished by the Trustee to the Remarketing Agent
representing proceeds of a drawing by the Trustee pursuant to the
Letter of Credit; and
(v) moneys furnished by the Trustee to the Remarketing Agent
representing moneys furnished by the Company pursuant to Section 4.11
of the Loan Agreement.
The Remarketing Agent shall direct the Trustee, by telephone or telegraph and
confirmed promptly in writing, to provide such moneys to the Remarketing Agent
(and to draw moneys under the Letter of Credit, if necessary) to the extent
necessary to make timely payments required to be made in accordance with this
subsection (i).
(j) On any date on which Project Bonds are to be purchased by the Trustee in
accordance with subsections (b), (d) or (e) of this Section 7, the Trustee shall
purchase such Project Bonds with immediately available funds at the purchase
price specified therein. Funds for the payment of such purchase price shall be
derived solely from the following sources in the order of priority indicated,
and neither the Issuer nor the Trustee shall be obligated to provide funds from
any other source:
(i) Available Moneys representing proceeds of
Additional Bonds issued to refund the Project Bonds;
(ii) Available Moneys representing proceeds described
in Section 5.11 of the Loan Agreement;
(iii) moneys representing proceeds of a drawing by
the Trustee pursuant to the Letter of Credit; and
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(iv) moneys furnished by the Company to the Trustee
pursuant to Section 4.11 of the Loan Agreement.
(k) The Remarketing Agent and the Trustee shall hold in a separate
account moneys representing the purchase price of Project Bonds
purchased in accordance with this Section 7 until such Project Bonds
have been delivered to the Remarketing Agent or the Trustee, as the
case may be, by the holders thereof. The Remarketing Agent and the
Trustee shall invest such moneys only in Government Obligations
maturing not more than thirty days after purchase, as directed by the
Company by telephone and confirmed in writing.
(l) Project Bonds sold by the Remarketing Agent pursuant to
subsections (g) or (h) of this Section 7 shall be delivered to the
purchasers thereof. Project Bonds purchased by the Remarketing Agent
with moneys described in clause (i) or (ii) of subsection (i) of this
Section 7 shall be delivered to the Trustee for cancellation. Project
Bonds purchased by the Remarketing Agent with moneys described in
clause (iv) of subsection (i) of this Section 7 shall be registered in
the name of, and delivered to, the Bank or its nominee. Project Bonds
purchased by the Remarketing Agent with moneys described in clause (v)
of subsection (i) of this Section 7 shall, at the direction of the
Company, be (A) held by the Remarketing Agent for the account of the
Company, (B) delivered to the Trustee for cancellation, or (C)
delivered to the Company; provided, however, that any Project Bonds so
purchased after the selection thereof by the Trustee for redemption
shall be cancelled; and, provided, further that any Project Bonds so
purchased shall be registered in the name of, and delivered to, the
Bank or its nominee if the Trustee shall have received notice from the
Bank of the occurrence of an Event of Default under the Letter of
Credit Agreement. The Remarketing Agent shall deliver to the Person to
whom any Project Bond is delivered the due-▇▇▇▇ check relating to such
Project Bond, if any, delivered to the Remarketing Agent in accordance
with subsection (c) of this Section 7.
(m) Project Bonds purchased by the Trustee with moneys described
in clauses (i) or (ii) of subsection (j) of this Section 7 shall be
cancelled. Project Bonds purchased by the Trustee with moneys described
in clause (iii) of subsection (j) of this Section 7 shall be registered
in the name of, and delivered to, the Bank or its nominee. Project
Bonds purchased by the Trustee with moneys described in clause (iv) of
subsection (j) of this Section 7 shall, at the direction of the
Company, be (A) cancelled or (B) delivered to the Company; provided,
however, that any Project Bonds so purchased after the selection
thereof by the Trustee for redemption shall be cancelled; and,
provided, further that
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any Project Bonds so purchased shall be registered in the name of, and
delivered to, the Bank or its nominee if the Trustee shall have
received notice from the Bank of the occurrence of an Event of Default
under the Letter of Credit Agreement.
(n) The Trustee shall deliver to the Bank the due-▇▇▇▇ checks, if
any, delivered to the Trustee in accordance with subsection (b) of this
Section 7.
(o) Project Bonds delivered as provided in subsections (1) or (m)
of this Section 7 shall be registered in the manner directed by the
recipient thereof.
(p) Whenever Project Bonds are delivered to the Bank pursuant to
subsections (1) or (m) of this Section 7, the Trustee, as Bond
Registrar, shall notify the Company of the principal amount of such
Project Bonds and the date of delivery thereof to the Bank (which date
of delivery shall be deemed to be the date upon which the draw on the
Letter of Credit resulting in such delivery was made). The Trustee
shall create and maintain records sufficient to permit the Trustee to
determine the interest payable on any Project Bond during any period in
which such Project Bond is held by the Bank as a result of a draw on
the Letter of Credit, the Trustee shall advise the Company not later
than the Business Day immediately preceding each Interest Payment Date
as to the amount of such interest.
(q) The Trustee shall upon receipt of any direction by the
Remarketing Agent pursuant to subsection (i) of this Section 7, draw
moneys under the Letter of Credit in accordance with the terms thereof
in the amounts specified in such direction and furnish such moneys to
the Remarketing Agent.
(r) Any Project Bonds delivered to the Remarketing Agent or the
Trustee pursuant to the terms of the Indenture during the period
commencing on the date that the Trustee has given the first notice
described in Section 9 (c) of this Bond Legislation and ending on the
date of delivery to the Trustee of an Alternate Letter of Credit or
Alternate Credit Facility shall not be remarketed except to a buyer who
expressly acknowledges at the time of such purchase each of the matters
set forth in the notice required by Section 9(c) of this Bond
legislation and agrees to purchase such Project Bonds notwithstanding
the proposed delivery of an Alternate Letter of Credit or Alternate
Credit Facility.
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Section 8. Conversion to Fixed Interest Rate.
(a) At any time, the Company may, by notice in writing to the
Issuer, the Trustee, the Remarketing Agent and the Bank, direct that a
Fixed Interest Rate be established for the Project Bonds. The Company's
notice shall set forth: (i) the Conversion Date desired by the Company,
which shall be an Interest Payment Date not less than thirty (30) days
after the date of such notice; and (ii) the date the Fixed Interest
Rate shall be established, which shall be not less than twelve (12)
Business Days prior to the Conversion Date. The notice shall be
accompanied by an opinion of Independent Tax Counsel stating that the
conversion to a Fixed Interest Rate is authorized and permitted by the
Indenture and Chapter 165, Ohio Revised Code, and that such conversion
will not adversely affect the exemption of interest on the Project
Bonds from federal income taxation. The Remarketing Agent shall
determine the Fixed Interest Rate on the date specified in such notice,
which rate shall be the lowest rate at which the Remarketing Agent
shall have received bids, not later than the twelfth (12th) Business
Day prior to the Conversion Date, to purchase all of the Outstanding
Project Bonds at a purchase price of 100% of the outstanding principal
amount thereof on the Conversion Date. Conversion to the Fixed Interest
Rate shall require the prior written consent of the Company and the
Bank.
(b) Any Project Bonds purchased by the Remarketing Agent or the
Trustee pursuant to the terms of the Indenture after the Trustee has
given notice of the establishment of a Conversion Date, pursuant to
subsection (b) of Section 9 of this Bond Legislation, shall not be
remarketed except to a buyer who agrees at the time of such purchase
either (i) to accept the Fixed Interest Rate on the Conversion Date or
(ii) to require purchase of such Project Bonds by the Remarketing Agent
or the Trustee on or before the Conversion Date pursuant to subsection
(a), (b) or (c) of Section 7 of this Bond Legislation.
(c) The Letter of Credit shall be cancelled on the fifteenth
(15th) day following the Conversion Date, and the Trustee shall deliver
the Letter of Credit to the Bank on such day, unless prior to such day
the Trustee has received written notification from both the Company and
the Bank stating that the Letter of Credit is not to be cancelled on
such day.
(d) In the event that the Letter of Credit or an Alternate Credit
Facility is in effect with respect to the Project Bonds following the
Conversion Date, the Fixed Interest Rate shall be adjusted on the
Adjustment Date so as to equal the rate of interest, recommended by the
Remarketing Agent and approved by the Company, for which the
Remarketing Agent has received bids on or prior to the twelfth (12th)
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(12th) Business Day next preceding the Adjustment Date to purchase all
Outstanding Project Bonds on the Adjustment Date at a price of 100% of
the principal amount thereof. Following such adjustment, the Project
Bonds shall bear interest at the Fixed Interest Rate determined
pursuant to this Section 8(d) until maturity.
Section 9. Notices of Redemption, Conversion Date, Expiration Date of
the Letter of Credit, Expiration Date of the Alternate Credit Facility or
Delivery of an Alternate Letter of Credit or Alternate Credit Facility.
(a) In the event any Project Bonds are called for redemption, the
Trustee, on behalf of the Issuer, shall give notice of such redemption,
which notice shall (i) identify the Project Bonds or portions thereof
to be redeemed, the redemption date, the redemption price and the place
or places where the amounts due upon such redemption shall be payable
(which shall be the principal corporate trust office of the Trustee)
and (ii) state that on the redemption date the Project Bonds to be
redeemed shall cease to bear interest. Such notice may set forth any
additional information relating to such redemption. Such notice shall
be given at least ten (10) Business Days prior to the redemption date
if the redemption date is on or prior to the Conversion Date and at
least thirty (30) days prior to the redemption date if the redemption
is after the Conversion Date.
(b) The Trustee, on behalf of the Issuer, shall give notice of the
establishment of the Conversion Date, the Expiration Date of the Letter
of Credit or the Expiration Date of the Alternate Credit Facility,
which notice shall include a statement (i) of the date on which the
Project Bonds are to be purchased by the Trustee as a result of the
establishment of the Conversion Date or the expiration of the Letter of
Credit or the Alternate Credit Facility, (ii) if applicable, that the
Letter of Credit or the Alternate Credit Facility shall terminate
fifteen (15) days after such purchase date, (iii) that any ratings of
the Project Bonds by Moody's or S&P may be withdrawn or reduced from
the ratings on the Project Bonds then prevailing, (iv) that the
Indenture provides that Project Bonds are required to be delivered to
the Trustee for purchase on the date specified in such notice, and that
Project Bonds not delivered to the Trustee on such date shall
nonetheless be deemed to have been purchased by the Trustee (unless the
holders thereof have directed the Trustee not to purchase such Project
Bonds or portions thereof) and, accordingly, no interest subsequent to
the date specified in such notice shall be payable to such holders, (v)
of the rights of the holders to direct the Trustee not to purchase
Project Bonds held by them, and the method of exercising such rights,
(vi) that on the purchase date designated in such notice the Trustee
shall hold moneys
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equal to the purchase price for all Project Bonds not delivered on such
date, in trust, for the holders of such Project Bonds, which moneys
shall be paid upon surrender of Project Bonds to the Trustee, and (vii)
that, if the purchase of the Project Bonds will result from the
establishment of the Conversion Date, after the Conversion Date the
Project Bonds will bear interest at the Fixed Interest Rate and the
holders of the Project Bonds will not have the right to require the
Trustee to purchase Project Bonds. Such notice shall be given at least
ten (10) Business Days prior to the date on which the Project Bonds are
to be purchased as a result of the establishment of a Conversion Date
or the expiration of the Letter of Credit or the Alternate Credit
Facility.
(c) If the Company, in accordance with Section 4.6 of the Loan
Agreement, shall direct the Trustee to notify the Bank and the holders
of Outstanding Project Bonds that an Alternate Letter of Credit or an
Alternate Credit Facility will be delivered to the Trustee, the Trustee
shall give such notice, which notice shall state (i) the proposed date
of delivery to the Trustee of the Alternate Letter of Credit or
Alternate Credit Facility, (ii) the date of the Alternate Letter of
Credit or Alternate Credit Facility, (iii) the expiration date of the
Letter of Credit for which the Alternate Letter of Credit or Alternate
Credit Facility is to be substituted, (iv) the expiration date of the
Alternate Letter of Credit or Alternate Credit Facility, (v) the issuer
of the Alternate Letter of Credit or Alternate Credit Facility, and a
brief description of such issuer, and (vi) if the Project Bonds are
then rated by Moody's or S&P, either (A) that any ratings of the
Project Bonds by Moody's or S&P may be withdrawn or reduced from such
ratings then prevailing, or (B) such ratings of the Project Bonds by
Moody's or S&P as shall have been based upon such Alternate Letter of
Credit or Alternate Credit Facility. Such notice shall be given at
least thirty (30) Business Days prior to the delivery of the Alternate
Letter of Credit or Alternate Credit Facility to the Trustee. The
Company shall cause a description of the issuer of the Alternate Letter
of Credit or Alternate Credit Facility to be furnished to the Trustee
in time sufficient to permit the Trustee to give the notice provided
for in this subsection (c).
(d) Any notice required to be given pursuant to subsections (a),
(b) or (c) of this Section 9 shall be given by mailing a copy thereof
by registered or certified mail to the holder of each Project Bond
(provided however, that a
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notice of redemption need be given only to holders of Project Bonds to
be redeemed in whole or in part) at the address for such holder shown
on the registration books maintained by the Trustee pursuant to the
Indenture. Failure to give such notice by mailing, or any defect in
such notice, to the holder of any Project Bonds shall not affect the
validity of the proceedings with respect to any other Project Bonds.
(e) If, because of the temporary or permanent suspension of
regular mail service, or for any other reason, it is impossible or
impractical to mail such notice of redemption or purchase in the manner
herein provided, then such other manner of giving notice in lieu
thereof as shall be made with the approval of the Trustee shall
constitute a sufficient notice. Failure to give or receive such notice
with respect to any Project Bond shall not affect the validity of any
proceedings for the redemption or purchase of any other Project Bonds.
(f) Any notice required to be given pursuant to subsection (a) or
(b) of this Section 9 shall also be given to the Bank. Any such notice
and any notice required to be given to the Bank pursuant to subsection
(c) of this Section 9 shall be given to the Bank by telephone or
telegraph, promptly confirmed in writing. Immediately after the
redemption or cancellation of any Project Bonds, the Trustee shall
promptly notify the Bank, in accordance with the provisions of the
Letter of Credit, of the aggregate principal amount of Project Bonds
redeemed or cancelled and the aggregate principal amount of Project
Bonds Outstanding after such cancellation or redemption.
Section 10. Terms of All Bonds. All Bonds shall bear such designations
as May be necessary to distinguish them from any other series of Bonds. All
Bonds shall be payable as to principal, premium, if any, and interest in lawful
money of the United States of America, shall be in such form as may be provided
in the Bond Legislation authorizing them or in the Indenture, shall be
negotiable instruments, subject to provisions for registration and shall express
on their face the purpose for which they are issued and such other statements or
legends as may be required by law.
All Bonds shall be executed in the manner provided in the Bond
Legislation authorizing their issuance or in the manner provided by the
applicable law in effect at the time of their issuance. In case any officer
whose signature or a facsimile of whose signature shall appear on any Bonds
shall cease to be such officer before the issuance, authentication or delivery
of such Bonds, such signature or such facsimile shall nevertheless be valid and
sufficient for all purposes, as if such officer had remained in office until
that time.
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Unless otherwise provided in the Bond Legislation authorizing the
issuance of Additional Bonds, notice of redemption of all Bonds shall be given
in the manner provided in Section 9 hereof. If Bonds or portions of Bonds are
duly called for redemption and if on the redemption date moneys for the
redemption of all the Bonds to be redeemed, together with premium, if any, and
interest to the redemption date, shall be held by the Trustee or Paying Agents
so as to be available therefor, then from and after such redemption date such
Bonds or portions of Bonds shall cease to bear interest.
As provided herein, the Bonds shall be equally and ratably payable
solely from the Bond Fund and secured by a pledge and assignment of the Bond
Fund, the Construction Fund and the Revenues as herein provided, and further
secured by the Indenture (provided, however, that proceeds of the Letter of
Credit shall be applied only to the payment of the purchase price of, or the
principal of and interest on, the Project Bonds); and anything in the Bond
Legislation, the Bonds or the Indenture to the contrary notwithstanding, neither
the Bond Legislation, the Bonds, nor the Indenture shall constitute a debt or a
pledge of the faith and credit of the Issuer, the State or any political
subdivision thereof and the Bondholders shall have no right to have taxes levied
by the General Assembly of the State or the taxing authority of any political
subdivision of the State for the payment of the principal of and premium, if
any, and interest on the Bonds, but such Bonds shall be payable solely from the
Revenues and the funds herein pledged, and the Bonds shall contain an the face
thereof a statement to that effect; provided, however, that nothing herein shall
be deemed to prohibit the Issuer, of its own volition, from using, to the extent
it is lawfully authorized to do so, any other resources or revenues for the
fulfillment of any of the terms, conditions or obligations of the Indenture, the
Bond Legislation or any of the Bonds.
Section 11. Sale of the Project Bonds. Any member of the Legislative
Authority is hereby authorized and directed to execute and deliver the Contract
of Purchase in substantially the form submitted to the Legislative Authority,
which form of Contract of Purchase is hereby approved in all respects with such
changes as shall not be inconsistent with the terms and provisions of this Bond
Legislation and not substantially adverse to the Issuer as may be permitted by
law and approved by the officer executing the same. The approval of such changes
by such officer, and the determination that such changes are not substantially
adverse to the Issuer, shall be conclusively evidenced by the execution of the
Contract of Purchase. Any member of the Legislative Authority is hereby
authorized and directed to make the necessary arrangements on behalf of the
Issuer to establish the date, location, procedure and conditions for the
delivery of the Project Bonds to the Original Purchasers and to take all steps
necessary to effect due authentication, delivery and security of the Project
Bonds under
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the terms of this Bond Legislation and the Indenture, and it is hereby
determined that the price and the interest rate for the Project Bonds and the
manner of sale, as provided in this Bond Legislation and in the Contract of
Purchase, are in the best interest of the Issuer and consistent with all legal
requirements.
The preparation, use and circulation by the Original Purchasers of an
official statement relating to the Project Bonds in accordance with the Contract
of Purchase is hereby authorized. The Issuer has not confirmed, and assumes no
responsibility for the accuracy or completeness of, any of the information in
the official statement or any supplements thereto, except as otherwise expressly
provided therein.
Section 12. Creation of Construction Fund; Deposit of Proceeds of
Project Bonds. There is hereby created by the Issuer and ordered maintained as a
separate bank account in the custody of the Trustee a trust fund to be
designated "County of Delaware, Ohio - Radiation Sterilizers, Incorporated
Construction Fund". Except for an amount equal to the Interest Reserve
Requirement, the aggregate amount received from the sale of the Project Bonds
and of any Additional Bonds (unless otherwise provided in the Bond Legislation
for such Additional Bonds) shall be deposited in the Construction Fund. Moneys
in the Construction Fund shall be held in trust by the Trustee for the purposes
set forth in this Bond Legislation and shall be invested in accordance with
Section 16 of this Bond Legislation and disbursed in accordance with the
provisions of the Loan Agreement.
The Issuer covenants and agrees to take all necessary and appropriate
action promptly in approving and ordering all such disbursements. The Trustee is
hereby authorized and directed to make any such disbursement from the
Construction Fund in accordance with the provisions of the Loan Agreement and to
transfer moneys and investments from the Construction Fund to the Bond Fund as
provided in Section 8.05 of the Indenture.
Section 13. Source of Payment; Creation of Bond Fund. There is hereby
created by the Issuer and ordered maintained as a separate bank account in the
custody of the Trustee a trust fund to be designated "County of Delaware, Ohio -
Radiation Sterilizers, Incorporated Revenue Bond Fund", and within the Bond
Fund, two separate subaccounts, to wit: the A Subaccount and the B Subaccount.
From the proceeds received from the sale of the Project Bonds, the Trustee shall
deposit an amount equal to the Interest Reserve Requirement in the A Subaccount
of the Bond Fund. All payments by the Company pursuant to Sections 4.1 or 4.3 of
the Loan Agreement are to be remitted directly to the Trustee for the account of
the Issuer and deposited in the B Subaccount of the Bond
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Fund, except that monies drawn under the Letter of Credit shall be maintained by
the Trustee in a separate account. Such payments are required to be sufficient
in amount to pay the principal of and premium, if any, and interest on the
Bonds, and the entire amount of such payments is pledged to the payment of the
principal of and premium, if any, and interest on the Bonds.
The Trustee shall maintain a record of the date and amount of each
deposit to the B Subaccount of the Bond Fund. On the day on which each such
deposit becomes Available Money, the Trustee shall transfer an amount equal to
the amount of such deposit to the A Subaccount of the Bond Fund. On the
Expiration Date of the Letter of Credit, the Trustee shall combine the balances
in the A Subaccount of the Bond Fund and the B Subaccount of the Bond Fund into
one account in the Bond Fund.
The Issuer hereby covenants and agrees that so long as any of the Bonds
issued hereunder are outstanding it will deposit, or cause to be deposited, in
the Bond Fund sufficient Revenues promptly to meet and pay the principal of and
premium, if any, and interest on the Bonds as the same become due and payable.
The Issuer further covenants and agrees that should there be a default or Event
of Default under the Loan Agreement the Issuer shall fully cooperate with the
Trustee and with the Bondholders to the end of fully protecting the rights and
security of the Bondholders. Nothing herein shall be construed as requiring the
Issuer to use or deposit any moneys from any source other than Revenues.
Subject to the provisions of Section 4.05 of the Indenture, moneys in
the Bond Fund shall be used solely for the payment of the principal of and
premium, if any, and interest on the Bonds and for the redemption of the Bonds
at or prior to maturity, all in accordance with the provisions of the Indenture.
After the Conversion Date, whenever the amount in the Bond Fund, from
any source whatsoever, is sufficient to redeem all the Bonds outstanding
hereunder and to pay interest to accrue thereon prior to such redemption, the
Issuer covenants and agrees that upon the request of the Company it will take
and cause to be taken the necessary steps to redeem all of said Bonds on the
next succeeding redemption date for which the required redemption notice may be
given.
Nothing in this Bond Legislation is intended to prevent the Company
from delivering moneys to the Trustee pursuant to Section 4.3(b) of the Loan
Agreement for application as provided in such Section.
Section 14. Additional Bonds. The Issuer, at the request of the Company
and to the extent permitted by and consistent with the law in effect at the time
thereof, shall use its best efforts to issue Additional Bonds from time to time
for
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providing funds (i) to refund, in advance or otherwise, the Project Bonds or any
Additional Bonds; (ii) to make repairs to the Facilities of a major nature
arising from casualty or unanticipated conditions; (iii) to acquire, construct,
equip or improve land, buildings, structures, facilities, machinery or
equipment, all to be used in connection with the Facilities when such
acquisition, construction, equipping or improvement will fulfill the purposes of
Chapter 165 of the Ohio Revised Code, or any successor law; (iv) to pay that
portion of the costs of the Facilities as may be in excess of the moneys
available therefor in the Construction Fund prior to the issuance of such
Additional Bonds; or (v) for any combination of the foregoing, on a parity with
the Project Bonds and any Additional Bonds theretofore or thereafter issued and
payable from the Bond Fund; provided that before any Additional Bonds are
authenticated there is delivered to and filed with the Trustee (a) any necessary
amendment to the Loan Agreement so that the aggregate amounts payable by the
Company pursuant to the Loan Agreement, as amended, shall be sufficient in
amount to make all required payments into the Bond Fund in order to pay, or
redeem at or prior to maturity, all Bonds then to be outstanding, and to pay all
other charges required to be paid under the provisions of the Loan Agreement and
this Bond Legislation and all Bond Legislation authorizing Additional Bonds; and
(b) the other items required by Section 2.08 of the Indenture; and provided,
further, that prior to the Expiration Date of the Letter of Credit, no
Additional Bonds shall be issued unless (i) the proceeds thereof are to be used
to refund the Project Bonds, in full; or (ii) the Company has received the prior
written consent of the Bank to the issuance of such Additional Bonds.
Additional Bonds shall be in such principal amounts, shall be dated,
shall bear interest at such rate or rates, shall be subject to redemption at
such times and prices, and shall mature in such years as the Bond Legislation
authorizing the issuance thereof shall fix and determine, subject to Section 10
of this Bond Legislation.
Section 15. Covenants of the Issuer. In addition to the other covenants
of the Issuer in this Bond Legislation and in the Indenture, the Issuer further
covenants with the Bondholders and the Trustee as follows:
(a) Payment of Principal, Premium, if Any, and Interest. The Issuer
will, solely from the sources herein provided, pay the principal of and premium,
if any, and interest on every Bond on the dates and at the places and in the
manner mentioned in the Bonds according to the true intent and meaning thereof.
(b) Performance of Covenants, Authority and Actions. The Issuer
covenants that it will faithfully observe and perform at all times all
agreements, covenants, undertakings, stipulations on its part to be observed and
performed and
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contained in the Bond Legislation, the Indenture and in any and every
Bond executed, authenticated and delivered under the Indenture and in all
proceedings pertaining to the Bonds or the Loan Agreement. The Issuer covenants
that it is duly authorized by the Constitution and laws of the State,
particularly and without limitation Chapter 165 of the Ohio Revised Code, and
the authorities therein mentioned, to issue the Bonds authorized hereby and to
execute, deliver and perform the Indenture, and to assign and pledge the
Revenues in the manner and to the extent herein and in the Indenture set forth;
that all actions on its part for the issuance of the Project Bonds and
execution, delivery and performance of the Indenture have been duly and
effectively taken and, if Additional Bonds are issued pursuant hereto, will be
duly taken as provided herein and in the Indenture, and that the Bonds in the
hands of the holders thereof are and will be valid and binding special
obligations of the Issuer according to the terms thereof. All the obligations
and duties of the Issuer and its officers in its behalf, under the Loan
Agreement, this Bond Legislation and the Indenture are hereby established as
duties specifically enjoined by law and resulting from an office, trust or
station of the Issuer and its officers within the meaning of Section 2731.01 of
the Ohio Revised Code.
(c) Maintenance of Lien. The Issuer will not pledge or assign the
Revenues, or create or suffer to be created any debt, lien or charge thereon
other than the pledge and assignment under this Bond Legislation and Indenture.
(d) Inspection of Books. The Issuer covenants and agrees that all books
and documents in its possession relating to the Facilities and the Revenues
shall at all times during Issuer's regular business hours be open to inspection
by such accountants or other agencies as the Trustee may from time to time
designate.
(e) Recordings and Filings. The Issuer covenants that it will do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged and
delivered such indentures supplemental hereto and such further acts, instruments
and transfers as the Trustee may reasonably require for better pledging and
confirming unto the Trustee any right, title and interest assigned, transferred
and pledged hereby. At the expense of the Company, the Issuer will cause the
Loan Agreement and the Indenture, and any amendments or supplements to either,
and all necessary financing statements, amendments thereto, continuation
statements, and instruments of similar character relating to the pledges and
assignments made by it to secure the Bonds, to be registered, recorded and filed
and re-registered, re-recorded and re-filed in such manner and in such places as
may be required by law in order at all times fully to preserve and protect the
security of the holders of the Bonds and the rights of the Trustee under the
Indenture.
(f) Rights Under Loan Agreement. The Loan Agreement, a duly executed
counterpart of which upon delivery of the Project Bonds will have been filed
with the Trustee, sets forth the
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covenants and obligations of the Issuer and the Company, including a provision
in Section 7.8 thereof that subsequent to the issuance of Project Bonds and
prior to payment of the Bonds in full or provision for payment thereof in
accordance with the provisions hereof and of the Indenture, the Loan Agreement
may not be amended, changed, modified, altered, or terminated (other than as
provided therein or herein) without the prior written consent of the Trustee,
and reference is hereby made to the Loan Agreement for a detailed statement of
said covenants and obligations of the Company under the Loan Agreement.
(g) Rights and Enforcement of the Loan Agreement. The Trustee may
enforce, in its name or in the name of the Issuer, all rights of the Issuer for
and on behalf of the Bondholders, except for rights expressly reserved to the
Issuer, and may enforce covenants, agreements and obligations of the Company
under and pursuant to the Loan Agreement, regardless of whether the Issuer is in
default in the pursuit or enforcement of those rights, covenants, agreements or
obligations. The Issuer, however, will do all things and take all actions on its
part necessary to comply with covenants, agreements, obligations, duties and
responsibilities on its part to be observed or performed under the Loan
Agreement and will take all actions within its authority to keep the Loan
Agreement in effect in accordance with the terms thereof,
Section 16. Investments. Any moneys held as a part of the Bond Fund,
the Construction Fund or any other fund or account held by the Trustee pursuant
to the Indenture or the Loan Agreement shall, at the written direction of the
Authorized Company Representative, as defined in the Loan Agreement, or at the
oral direction of such Authorized Company Representative, confirmed as soon as
practicable in writing, be held as a cash account or be invested or reinvested
by the Trustee in Eligible Investments. The type, amount and maturity (which
shall be such so that the moneys invested will be available to make payments
from the respective funds in accordance with the provisions of the Bond
Legislation) of such investments shall be as specified by said Authorized
Company Representative. Any such investment made by the Trustee may be purchased
from or through the Trustee or any affiliate of the Trustee, and such
investments shall be held by or under the control of the Trustee and shall be
deemed at all times a part of the Bond Fund, Construction Fund or such other
fund or account, as the case may be, and the interest accruing thereon and any
profit realized therefrom shall be credited to such respective fund or account
and any loss resulting from such investments shall be charged to such respective
fund or account. The Trustee shall sell and reduce to cash a sufficient portion
of investments held in any fund or account under the provisions of this Section
whenever the cash balance in any such fund or account is insufficient to pay the
obligations properly chargeable to such fund or account when due and shall
advise the Company when any such action is taken. The Issuer covenants that the
Loan Agreement will include a covenant by the Company that moneys in all funds
and accounts will be so invested as
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not to make any of the Bonds arbitrage bonds within the meaning of Section
103(c) of the Code.
Section 17. Arbitrage Provisions. The Issuer will restrict the use of
the proceeds of the Project Bonds in such manner and to such extent, if any, as
may be necessary, after taking into account reasonable expectations at the time
of the delivery of and payment for the Project Bonds, so that they will not
constitute arbitrage bonds within the meaning of Section 103(c) of the Code. Any
member of the Legislative Authority is authorized and directed, alone or in
conjunction with any other officer, employee, consultant or agent of the Issuer,
or with the Company or any employee, consultant or agent of the Company, to give
an appropriate certificate of the Issuer for inclusion in the transcript of
proceedings for the Project Bonds, setting forth the reasonable expectations of
the Issuer regarding the amount and use of the proceeds of the Project Bonds and
the facts and estimates on which they are based, all as of the date of delivery
of and payment for the Project Bonds, such certificate to be premised on the
reasonable expectations and the facts, estimates and circumstances on which
those expectations are based as provided by the Company. The Issuer shall
furnish to the Original Purchasers a true transcript of proceedings, certified
by the Clerk or Assistant Clerk of the Legislative Authority, of all proceedings
with reference to the issuance of the Project Bonds along with such other
information from the records as is necessary to determine the regularity and
validity of the issuance of the Project Bonds.
Section 18. Indenture and Loan Agreement. In order to secure the
payment of The principal of and premium, if any, and interest on the Bonds, a
member of the Legislative Authority shall execute, acknowledge and deliver, as
may be appropriate, in the name and on behalf of the Issuer, the Indenture and
the Loan Agreement, in substantially the forms submitted to the Issuer, which
instruments are hereby approved in all respects with such changes therein not
inconsistent with this Bond Legislation and not substantially adverse to the
Issuer as may be permitted by law and approved by the officer executing the
same, The approval of such changes by such officer and that such are not
substantially adverse to the Issuer, shall be conclusively evidenced by the
execution of the Indenture and the Loan Agreement, respectively, by such
officer, The Clerk of the Legislative Authority is hereby directed to insert
copies thereof in the record of proceedings of the Issuer with the minutes of
this meeting and to certify thereon that the same is in the form so submitted to
the Issuer and approved by this Bond Legislation and identified herein as the
Indenture and the Loan Agreement. The Indenture contains provisions authorized
and permitted by Chapter 165 of the Ohio Revised Code, and this Bond Legislation
shall constitute a part thereof as therein provided and for all purposes of the
Indenture, including the provisions thereof relating to supplemental indentures
and to the severability of provisions of the Indenture,
Section 19. Remarketing Agent. Prudential-Bache Securities Inc., New
York, New York, is hereby appointed the
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Remarketing Agent for the Project Bonds. The Remarketing Agent shall designate
to the Trustee, the Company, the Issuer and the Bank its principal office and
signify the acceptance of the duties and obligations imposed upon it under the
Indenture by a written instrument of acceptance delivered to the Issuer and the
Trustee under which the Remarketing Agent will agree, particularly:
(a) to hold all Project Bonds delivered to it pursuant to the
Indenture in trust for the benefit of the respective Bondholders who
shall have so delivered such Project Bonds until moneys representing
the purchase price of such Project Bonds shall have been delivered to
or for the account of or to the order of such Bondholders;
(b) to hold all moneys delivered to it for the purchase of
Project Bonds in trust for the benefit of the Person who shall have so
delivered such moneys until the Project Bonds purchased with such
moneys shall have been delivered to or for the account of such Person;
(c) 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 Company, the Bank and the Trustee at
all reasonable times;
(d) not later than 10:30 a.m., New York City time., on each
Interest Payment Date, to give telegraphic or telephonic notice,
promptly confirmed by a written notice, to the Company, the Trustee and
the Bank specifying the principal amount of Project Bonds, if any,
delivered to it for purchase on such Interest Payment Date pursuant to
Section 7(a) of this Bond Legislation;
(e) not later than 10:30 a.m., New York City time on each
Interest Payment Date, to give telegraphic or telephonic notice,
promptly confirmed by a written notice, to the Company, the Trustee and
the Bank specifying the principal amount of such Project Bonds, if any,
sold by it pursuant to Section 7(g) of this Bond Legislation;
(f) not later than the fourth Business Day preceding each
Interest Payment Date, to give telegraphic or telephonic notice,
promptly confirmed by a written notice, to the Company, the Trustee and
the Bank specifying the interest rate on the Project Bonds for the
Interest Period commencing on such Interest Payment Date, determined
pursuant to and in accordance with Section 4 of this Bond Legislation;
(g) to deliver to the Company, the Trustee and the Bank a copy
of each notice delivered to it in accordance
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with Section 7(c) of this Bond Legislation and, immediately upon the
delivery to it of Project Bonds in accordance with said Section 7(c),
to give telephonic or telegraphic notice to the Company, the Trustee
and the Bank specifying the principal amount of the Project Bonds so
delivered and the principal amount of such Project Bonds remarketed;
and
(h) to deliver all Project Bonds and due-▇▇▇▇ checks delivered
to it pursuant to the Indenture to the Persons to whom the same are to
be delivered in accordance with Section 7(1) of this Bond Legislation.
The Issuer shall cooperate with the Trustee to cause the necessary
arrangements to be made and to be thereafter continued whereby Project Bonds
executed by the Issuer and authenticated by the Trustee shall be made available
to the Remarketing Agent to the extent necessary for delivery to purchasers
thereof.
The Remarketing Agent may at any time resign and be discharged of the
duties and obligations created by the Indenture by giving at least ninety (90)
days' written notice to the Issuer, the Company, the Bank and the Trustee. The
Remarketing Agent may be removed at any time, at the direction of the Company,
by an instrument signed by a member of the Legislative Authority and filed with
the Remarketing Agent, the Bank and the Trustee. In the event of the resignation
or removal of the Remarketing Agent, a successor Remarketing Agent shall be
designated by a member of the Legislative Authority, at the direction of the
Company and with the consent of the Bank. Any successor Remarketing Agent shall
be authorized by law to perform all the duties imposed upon it by the Indenture
and shall be a commercial bank having an aggregate of capital, paid in surplus
and retained earnings of not less than $50,000,000 or a member of the National
Association of Securities Dealers, Inc. having a capitalzation of at least
$15,000,000 or having a line of credit with a commercial bank in the amount of
at least $15,000,000. In addition, any successor Remarketing Agent (or its
parent corporation, if such successor is a subsidiary of a holding company)
shall have outstanding securities rated not lower than Baa3 (or a substantially
equivalent rating) by ▇▇▇▇▇'▇ if such a requirement is a condition to the
maintenance of the then existing ▇▇▇▇▇'▇ rating of the Project Bonds.
Section 20. Other Documents. Any member of the Legislative Authority is
hereby further authorized and directed to execute such certifications, financing
statements, assignments and instruments and to accept delivery of such
instruments as are in the opinion of the counsel to the Issuer necessary to
perfect the pledges set forth in the Indenture and to consummate the
transactions provided for in the Indenture, the Loan Agreement and the Contract
of Purchase.
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Section 21. Prevailing Wage Rates. All wages paid to laborers and
mechanics employed on the Facilities shall be paid at the prevailing rates of
wages of laborers and mechanics for the class of work called for by the
Facilities, which wages shall be determined in accordance with the requirements
of Chapter 4115 of the Ohio Revised Code, for determination of prevailing wages;
provided, that such requirements shall not apply where the federal government or
any of its agencies furnished by loan or grant all or any part of the funds used
in connection with the Facilities and prescribes predetermined minimum wages to
be paid to such laborers and mechanics; and provided, further, that should the
Company or other non public user beneficiary undertake construction of the
Facilities to be performed by its regular bargaining unit employees who are
covered under a collective bargaining agreement which was in existence prior to
the Commitment Date, as defined in the Loan Agreement, the rate of pay provided
under the collective bargaining agreement may be paid to such employees. To the
extent required by section 4115.032 of the Ohio Revised Code, the Company shall
comply, and shall require compliance by all contractors and subcontractors
working on the Facilities, with Sections 4115.03 through 4115.16, inclusive, of
the Ohio Revised Code. ▇▇▇▇▇ ▇▇▇▇▇▇▇ is hereby appointed Prevailing Wage
Coordinator, within the meaning of Section 4115.071 of the Ohio Revised Code,
for the Facilities,
Section 22. Open Meetings. It is found and determined that all formal
actions of the Issuer concerning and relating to the adoption of this resolution
were adopted in an open meeting of the Legislative Authority, and that all
deliberations of the Legislative Authority and any of its committees that
resulted in such formal action were in meetings open to the public, in
compliance with all legal requirements, including Section 121.22 of the Ohio
Revised Code,
Section 23. Determination and Approval of Legislative Authority.
Pursuant to section 165.03, Ohio Revised Code, the Legislative Authority hereby
finds and determines that the Facilities constitute a "project" as defined in
Chapter 165 of the Ohio Revised Code and are consistent with the provisions of
Section 13 of Article VIII, Ohio Constitution.
The Legislative Authority, as the "applicable elected representative"
of the Issuer for purposes of Section 103(k) of the Code, hereby approves the
issuance of the Project Bonds in the principal amount of $4,900,000, the
proceeds of which will be loaned to the Company to assist in financing the costs
of the Project, generally consisting of the acquisition, construction and
equipping of a 20,800 square foot steel frame one-story facility for the
sterilization of packaged products using ionizing radiation, located in the
Green ▇▇▇▇▇▇▇ Corporate Park.
Section 24. Effective Date. This Bond Legislation shall take effect and
be in force upon its adoption.
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Commissioner ___________________ moved adoption of the foregoing resolution.
Commissioner ___________________ seconded adoption of the foregoing resolution.
__________________________________
Voting aye: Commissioner
__________________________________
Commissioner
__________________________________
Commissioner
The undersigned Assistant Clerk of the Board of County Commissioners of
Delaware County, Ohio hereby certifies that the foregoing resolution was duly
adopted by the Board of County Commissioners of Delaware County, Ohio on
December 24, 1984,
Dated: December 24, 1984 ____________________________________
Assistant Clerk of the
Board of County Commissioners
County of Delaware, Ohio
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WHEREAS, all acts, conditions and things required to happen, exist, and
be performed precedent to and in the issuance of the Project Bonds and in the
execution and delivery of this Indenture have happened, exist and have been
performed in order to make the Project Bonds, when delivered, valid and binding
special obligations of the Issuer in accordance with the terms thereof and
hereof, and in order to make this Indenture a valid, binding and legal trust
agreement for the security of the Bonds in accordance with its terms; and
WHEREAS, the Trustee has accepted the trusts created by this Indenture,
and in evidence thereof has joined in the execution hereof; and
WHEREAS, the text of the Project Bonds, the certificate of
authentication of the Trustee to be endorsed thereon and other provisions to be
included therein are to be substantially in the following form with the
appropriate omissions, insertions and variation as in this Indenture provided or
permitted:
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[FORM OF PROJECT BOND - FRONT]
No. R- $
UNITED STATES OF AMERICA
STATE OF OHIO
COUNTY OF DELAWARE, OHIO
VARIABLE RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE BOND
(RADIATION STERILIZERS, INCORPORATED PROJECT)
Maturity Date: December 1, 2004
Original Issuance Date: December __ 1984 CUSIP
Registered Holder
Principal Amount______________ Dollars ($____________________)
The County of Delaware, Ohio (hereinafter sometimes called the
"Issuer"), a county and political subdivision in and of the State of Ohio, for
value received, promises to pay to the Registered Holder identified above, or
registered assigns, but solely from the sources and in the manner hereinafter
set forth, the Principal Amount identified above on the Maturity Date identified
above, and to pay from said sources interest thereon from the Original Issuance
Date identified above, or if this Bond is authenticated after the Original
Issuance Date, from and including the last date to which interest shall have
been paid on the Project Bonds, as hereinafter defined, at the rates and on the
dates set forth herein until payment of such principal sum has been made or
provided for, subject to the provisions hereinafter mentioned with respect to
redemption prior to maturity. The principal sum of this Bond is payable in
lawful money of the United States of America without deduction for services of
any paying agent, at the principal corporate trust office of the Trustee,
currently BANK ONE TRUST COMPANY, NA, Columbus, Ohio, but only upon presentation
and surrender of this Bond at maturity. Interest payable on any Interest Payment
Date (as hereinafter defined) will be paid, in lawful money of the United States
of America without deduction for services of the paying agent and, subject to
certain exceptions provided in the Indenture hereinafter identified, to the
person in whose name this Bond is registered at the close of business on the
Record Date, as hereinafter defined, for such Interest Payment Date. Except as
otherwise provided in the Indenture, interest on this Bond is payable by check
drawn upon the Trustee and mailed to the registered holder of this Bond at his
address as it appears on the registration books of the Trustee. This Bond shall
be purchased on the demand of the registered holder by the Trustee as
hereinafter described.
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This Bond is one of a duly authorized issue of County of Delaware, Ohio
Variable Rate Demand Industrial Development Revenue Bonds (Radiation
Sterilizers, Incorporated Project) (hereinafter sometimes referred to as the
"Project Bonds"), issuable under a Trust Agreement, dated as of December 1, 1984
(hereinafter, as the same may be amended and supplemented in accordance with its
terms, referred to as the "Indenture"), duly executed and delivered by the
Issuer to Bank One Trust Company, NA, as Trustee (the term "Trustee" where used
herein referring to said Trustee or its successors in said trust appointed
pursuant to the Indenture), aggregating in principal amount Four Million Nine
Hundred Thousand Dollars ($4,900,000) and issued for the purpose of providing
funds to lend to Radiation Sterilizers, Incorporated (the "Company") so that the
Company may acquire, construct and equip property comprising an industrial
facility for the sterilization of packaged products using ionizing radiation,
located in Delaware County, Ohio (the "Facilities"), in order to promote the
industrial and economic development of the State of Ohio and benefit the people
of the Issuer by preserving and creating jobs and increasing opportunities for
employment and strengthening the economic welfare of the people of the Issuer
and the State of Ohio, The proceeds of the Project Bonds will be loaned to the
Company pursuant to the terms of the Loan Agreement (the "Loan Agreement") dated
as of December 1, 1984 between the Issuer and the Company,
The Project Bonds are issued pursuant to the Constitution and laws of
the State of Ohio, particularly Chapter 165, Ohio Revised Code, the authorities
therein mentioned and a resolution duly adopted by the Board of County
Commissioners of the Issuer. The Project Bonds are special obligations of the
Issuer, are payable as to principal, premium, if any, and interest solely from
the Revenues as defined in the Indenture (generally the loan payments and other
amounts which under the Loan Agreement are payable by or on behalf of the
Company directly to the Trustee to meet amounts due with respect to the
principal of and premium, if any, and interest on the Project Bonds, all other
moneys received by the Issuer, or the Trustee on behalf of the Issuer, in
respect of the payment of loan payments under the Loan Agreement, and income and
profit from the investment of such payments and moneys, subject to certain
provisions in the Indenture with respect to the Trustee's holding moneys for the
benefit of the holders of particular Bonds) and are not otherwise an obligation
of the Issuer, the State of Ohio or any political subdivision thereof. The
Project Bonds do not represent or constitute a debt, or a pledge of the faith
and credit, of the Issuer or of the State of Ohio or of any political
subdivision thereof, and the holders or owners thereof have no right to have
taxes levied by the General Assembly of the State of Ohio or the taxing
authority of any political subdivision thereof for the payment of the principal
of and premium, if any, and interest thereon. Payments sufficient for the prompt
payment when due of the
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principal of and premium, if any, and interest on the Project Bonds are required
by the Loan Agreement to be paid to the Trustee for the account of the Issuer
and have been duly pledged and assigned for that purpose.
The registered holder of this Project Bond shall not be entitled to
enforce the provisions of the indenture or to institute, appear in or defend any
suit, action or proceeding at law or in equity to enforce any rights, remedies
or covenants granted by the Indenture, or to take any action with respect to any
Event of Default as defined in the Indenture, except as provided in the
Indenture.
If an Event of Default shall occur, the principal of this Project Bond
and all other Bonds secured by the Indenture then issued and outstanding may be
declared due and payable in the manner and with the effect provided by the
Indenture, but subject to waiver of such Event of Default as provided in the
Indenture.
The Project Bonds shall not constitute the personal obligation, either
jointly or severally, of any officer or employee of the Issuer,
Reference is made to the further provisions of this Project Bond set
forth on the reverse hereof. Such further provisions shall for all purposes have
the same effect as though fully set forth at this place.
AND IT IS HEREBY CERTIFIED AND RECITED that all acts, conditions and
things necessary to be done by the Issuer precedent to and in the issuing of the
Project Bonds in order to make them legal, valid and binding special obligations
of the Issuer in accordance with their terms, and in the execution and delivery
of the Indenture and the Loan Agreement, have been done and performed and have
happened in regular and due form as required by law; that the Issuer has, on its
behalf, received payment in full for the Project Bonds; and that the Project
Bonds do not exceed or violate any constitutional or statutory limitation.
This Project Bond shall not be entitled to any security or benefit
under the Indenture or become valid or obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee.
IN WITNESS WHEREOF, the County of Delaware, Ohio has caused this
Project Bond to be executed in its name by the
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facsimile signatures of at least two members of its Board of County
Commissioners.
COUNTY OF DELAWARE, OHIO
________________________________
County Commissioner
________________________________
County Commissioner
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This Project Bond is one of the Project Bonds described in the
within-mentioned Indenture.
BANK ONE TRUST COMPANY, NA, Trustee
By: ______________________________
Authorized Signature
Date of Authentication: __________
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[FORM OF PROJECT BOND - BACK]
Definitions
In addition to the words and terms defined on the face of this Project
Bond, the following words and terms as used herein shall have the following
meanings unless the context or use indicates another or different meaning or
intent and such definitions shall be equally applicable to both the singular and
plural forms of any of the words and terms herein defined:
"Additional Bonds" means the industrial development revenue bonds of
the Issuer which may be issued under Section 14 of the Bond Legislation.
"Adjustment Date" means, after the Conversion Date, the Interest
Payment Date next preceding the Expiration Date of the Alternate Credit Facility
or the Expiration Date of the Letter of Credit, as the case may be.
"Alternate Credit Facility" means a credit facility other than the
Letter of Credit, including without limitation, an irrevocable letter of credit
or bond insurance policy, which provides for payment of the principal of and
interest on the Project Bonds, when due.
"Alternate Interest Index" means for any Interest Period ending prior
to the Conversion Date 65% of the interest rate applicable to 13-week United
States Treasury bills determined by the Remarketing Agent on the basis of the
average per annum bond equivalent yield at which such 13-week Treasury bills
shall have been sold at the most recent Treasury auction during the next
preceding Interest Period. If no such auction shall have been conducted during
the next preceding Interest Period, or if the Remarketing Agent shall fail to
determine the Alternate Interest Index, the Alternate Interest Index during such
Interest Period will be the same as for the preceding Interest Period.
"Alternate Letter of Credit" means an irrevocable letter of credit
other than the Letter of Credit issued in accordance with the Loan Agreement.
"Bank" means the issuer of the Letter of Credit, initially ▇▇▇▇▇ Fargo
Bank, N.A., San Jose, California.
"Business Day" means any day, other than a Saturday or Sunday, on which
banks located in the cities in which the principal corporate trust office of the
Trustee and the principal office of the Bank are located and in New York, New
York are not required or authorized by law to remain closed and on which The New
York Stock Exchange is not closed.
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"Conversion Date" means the date upon which the Project Bonds begin to
bear interest at the Fixed Interest Rate.
"Date of Taxability" means the date as of which all or any part of the
interest on the Bonds is first required to be included in the gross income of
any holder or former holder thereof for federal income tax purposes by reason of
the occurrence of any circumstance on the basis of which a Determination of
Taxability is made.
"Determination of Taxability" means the receipt by the Trustee or a
Bondholder of a ruling or technical advice by the Internal Revenue Service in
which the Company has participated or a written opinion by an attorney or firm
of attorneys of recognized standing on the subject of municipal bonds selected
by the Trustee or a Bondholder and approved by the Company, which approval shall
not be unreasonably withheld, to the effect that interest on the Project Bonds
is includible in the gross income for federal income tax purposes of a holder
thereof (other than a holder who is a "substantial user" of the Facilities or a
"related person", as such terms are used in Section 103(b) of the Internal
Revenue Code of 1954, as amended).
"Expiration Date of the Alternate Credit Facility" means the date
established in the Alternate Credit Facility for the expiration thereof, and in
the event such date is extended, such date as extended,
"Expiration Date of the Letter of Credit" means the date established in
the Letter of Credit for the expiration thereof in accordance with its terms,
initially January 15, 1988, and in the event such date is extended, such date as
extended.
"First Optional Redemption Date" means the December 1 occurring in the
year which is a number of years after the Conversion Date equal to the number of
years between the December 1 immediately following the Conversion Date (unless
the Conversion Date is a December 1, in which case from such December 1) and
December 1, 2004, multiplied by 1/2 and rounded up to the nearest whole number.
"Fixed Interest Rate" means a fixed non-floating interest rate on the
Project Bonds.
"Interest Index" means for any Interest Period ending prior to the
Conversion Date 55% of the rate of interest per annum publicly announced by
▇▇▇▇▇▇ Guaranty Trust Company of New York in New York, New York as its prime
rate.
"Interest Payment Date" means with respect to the Project Bonds prior
to and including the Conversion Date the first
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Business Day of each month commencing February 1, 1985, and after the Conversion
Date the first day of each June and December.
"Interest Period" means with respect to the Project Bonds prior to the
Conversion Date a period from and including the Interest Payment Date in each
calendar month to and including the day next preceding the Interest Payment Date
in the following calendar month, except that the first Interest Period shall be
the period from and including the Original Issuance Date to and including
January 31, 1985.
"Investment Company" means any open-end diversified management
investment company registered under the Investment Company Act of 1940, as
amended.
"Letter of Credit" means the irrevocable letter of credit issued by the
Bank contemporaneously with the original issuance of the Project Bonds, except
that upon the issuance and delivery of an Alternate Letter of Credit, "Letter of
Credit" shall mean such Alternate Letter of Credit, and upon the delivery of an
Alternate Credit Facility, "Letter of Credit" shall, unless the context
otherwise requires, include reference to the Alternate Credit Facility.
"Letter of Credit Agreement" means the Letter of Credit Agreement,
dated as of December 1, 1984, between the Company and the Bank pursuant to which
the Letter of Credit is issued by the Bank and delivered to the Trustee, and any
and all modifications, alterations, amendments and supplements thereto, and
includes any agreement between the Company and the Bank pursuant to which any
Alternate Letter of Credit is issued.
"Loan Agreement" means the Loan Agreement, dated as of December 1,
1984, between the Issuer and the Company, as from time to time supplemented or
amended in accordance with the provisions thereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Record Date" means with respect to any Interest Payment Date on or
before the Conversion Date the fifth (5th) day next preceding such Interest
Payment Date; provided that if such day is not a Business Day, then the next
preceding Business Day, and with respect to any Interest Payment Date after the
Conversion Date the fifteenth (15th) day of the month next preceding such
Interest Payment Date.
"Remarketing Agent" means the remarketing agent appointed in accordance
with the Indenture, initially Prudential-Bache Securities Inc., New York, New
York.
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"S&P" means Standard & Poor's Corporation.
Interest
For the first Interest Period, the Project Bonds shall bear interest at
the rate set forth in the Indenture. Thereafter, for each Interest Period ending
before the Conversion Date, the interest rate on the Project Bonds shall be a
rate determined by the Remarketing Agent, in its discretion to be that rate
which, if borne by the Project Bonds, would, in the judgment of the Remarketing
Agent, having due regard to prevailing financial market conditions, be the
interest rate necessary to enable the Remarketing Agent to remarket all
outstanding Project Bonds on the Interest Payment Date occurring in such
Interest Period at a price equal to 100% of the principal amount thereof,
provided, however, that the interest rate so determined shall not be more than
120% of the greater of, nor less than the lesser of, the Interest Index and the
Alternate Interest Index for such Interest Period unless the Interest Index and
the Alternate Interest Index have been eliminated pursuant to a supplemental
indenture entered into in accordance with the provisions of the Indenture.
Notwithstanding anything to the contrary contained herein, the interest
rate on the Project Bonds shall never exceed twenty percentum (20%) per annum.
Redemption
Prior to the Conversion Date, the Project Bonds are subject to
redemption by the Issuer, at the option of the Company, in whole or in part in
integral multiples of $100,000 on any Interest Payment Date on a date selected
by the Company at a price equal to 100% of the principal amount redeemed plus
accrued interest to the redemption date.
After the Conversion Date, the Project Bonds are subject to redemption
by the Issuer, at the option of the Company, in whole at any time or, to the
extent permitted by Section 4.3(c) of the Loan Agreement, in part in integral
multiples of $5,000 on any Interest Payment Date, at a redemption price of 100%
of the principal amount thereof plus accrued interest to the redemption date, in
the event of (1) condemnation of the Facilities or any
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part thereof to the extent provided in Section 4.3(c) of the Loan Agreement or
(2) exercise by the Company of its prepayment option as provided in Section
4.3(d) of the Loan Agreement.
After the Conversion Date, the Project Bonds are subject to redemption
by the Issuer, at the option of the Company, on or after the First Optional
Redemption Date, in whole at any time or in part on any Interest Payment Date in
integral multiples of $5,000, on a date selected by the Company at the
redemption prices (expressed as percentages of the principal amount redeemed)
set forth in the following table plus accrued interest to the redemption date:
Redemption
Redemption Dates Prices
---------------- ----------
First Optional Redemption Date through
the following November 30 103%
First Anniversary of the First Optional
Redemption Date through the following
November 30 102%
Second Anniversary of the First Optional
Redemption Date through the following
November 30 101%
Third Anniversary of the First Optional
Redemption Date and thereafter 100%
Upon the occurrence of a Determination of Taxability, the Project Bonds
are subject to mandatory redemption by the Issuer at a redemption price of 100%
of the principal amount redeemed plus accrued interest to the redemption date on
the fifteenth (15th) Business Day following the date of such Determination of
Taxability if the date of such Determination of Taxability precedes the
Conversion Date, or on the seventy-fifth (75th) day following the date of such
Determination of Taxability if the date of Determination of Taxability is on or
after the Conversion Date. The Project Bonds shall be redeemed in whole unless,
in the opinion of Independent Tax Counsel (as defined in the Loan Agreement) the
redemption of a portion of the outstanding principal amount of the Project Bonds
would have the result that the interest payable on the Project Bonds remaining
outstanding after such redemption would not be included in the gross income for
federal income tax purposes of any holder of the Project Bonds (other than a
holder who is a "substantial user" of the Facilities or a "related person"
within the meaning of Section 103(b) of the Internal Revenue Code of 1954, as
amended), in which event only such portion of the outstanding Project Bonds
shall be redeemed,
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If less than all of the Project Bonds are called for redemption at any
time, the selection of Project Bonds or portions thereof to be called shall be
made by lot in such manner as the Trustee shall determine.
Purchase of Project Bonds
On or before the Conversion Date, any Project Bond or portion thereof
in an integral multiple of $100,000 shall be purchased by the Remarketing Agent,
on the demand of the holder thereof, on any Interest Payment Date at a purchase
price equal to the principal amount thereof, upon: (i) delivery to the
Remarketing Agent at its principal office in New York, New York at or prior to
4:00 p.m., New York City time, on the third Business Day prior to such Interest
Payment Date of a telephone notice (unless the Trustee shall be serving as
Remarketing Agent, in which case written notice shall be required) which (A)
states the principal amount of such Project Bond to be purchased and (B) states
that such Project Bond or portion thereof shall be purchased on such Interest
Payment Date pursuant to this paragraph; and (ii) delivery of such Project Bond
to an office designated by the Remarketing Agent in New York, New York,
presently c/o Marine Midland Bank, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Clearance Department Level A. at or prior to 10:00 a.m., New York
City time, on such Interest Payment Date; provided, however, that such Project
Bond or portion thereof shall be so purchased pursuant to this paragraph only if
the Project Bond so delivered to the Remarketing Agent shall conform in all
respects to the description thereof in the aforesaid notice.
On or before the Conversion Date, any Project Bond or portion thereof
in an integral multiple of $100,000 shall be purchased by the Trustee, on the
demand of the holder thereof, if such holder shall be an Investment Company, on
any Business Day at a purchase price equal to the principal amount thereof plus
accrued interest, if any, to the date of purchase, upon: (i) delivery to the
Trustee at its principal office in Columbus, Ohio of a written notice which
states (A) that such holder is an Investment Company, (B) the principal amount
of such Project Bond to be purchased and (C) the date on which such Project Bond
or portion thereof shall be purchased pursuant to this paragraph, which date
shall be a Business Day not prior to the seventh (7th) day next succeeding the
date of the delivery of such notice to the Trustee; and (ii) delivery of such
Project Bond, and, in the case of a Project Bond or portion thereof to be
purchased prior to an Interest Payment Date and after the Record Date in respect
thereof, a due-▇▇▇▇ check, in form satisfactory to the Trustee, for interest due
on such Interest Payment Date,
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at the Trustee's principal corporate trust office in Columbus, Ohio at or prior
to 10:00 a.m., on the date specified in the aforesaid notice; provided, however,
that such Project Bond or portion thereof shall be so purchased pursuant to this
paragraph only if the Project Bond so delivered to the Trustee shall conform in
all respects to the description thereof in the aforesaid notice.
On or before the Conversion Date, any Project Bond or portion thereof
in an integral multiple of $100,000 shall be purchased by the Remarketing Agent,
on the demand of the holder thereof, on any Business Day at a purchase price
equal to the principal amount thereof plus accrued interest, if any, to the date
of purchase, upon: (i) delivery to the Remarketing Agent at its principal office
in New York, New York of a written notice which (A) states the principal amount
of such Project Bond to be purchased and (B) states the date on which such
Project Bond or portion thereof shall be purchased pursuant to this paragraph,
which date shall be a Business Day not prior to the seventh (7th) day next
succeeding the date of the delivery of such notice to the Remarketing Agent; and
(ii) delivery of such Project Bond and, in the case of a Project Bond or portion
thereof to be purchased prior to the Interest Payment Date for any Interest
Period and after the Record Date in respect thereof, a due-▇▇▇▇ check, in form
satisfactory to the Remarketing Agent, for interest due on such Interest Payment
Date to an office designated by the Remarketing Agent in New York, New York,
presently c/o marine Midland Bank, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Clearance Department Level A, at or prior to 10:00 am., New York City
time, or the date specified in the aforesaid notice; provided, however, that
such Project Bond or portion thereof shall be so purchased pursuant to this
paragraph only if the Project Bond so delivered to the Remarketing Agent shall
conform in all respects to the description thereof in the aforesaid notice.
All Project Bonds shall be purchased by the Trustee on the Interest
Payment Date next preceding the Expiration Date of the Letter of Credit and on
the Interest Payment Date next preceding the Expiration Date of the Alternate
Credit Facility, at a purchase price equal to the principal amount thereof,
except (i) Project Bonds, or portions thereof in an integral multiple of
$100,000 if prior to the Conversion Date or $5,000 if on or after the Conversion
Date, with respect to which the Trustee shall have received written directions
not to so purchase such Project Bonds from the holders of the same, (ii) Project
Bonds delivered to the Remarketing Agent or the Trustee as described in the
three preceding paragraphs for purchase on any Business Day in the Interest
Period next preceding such Interest Payment Date and (iii) Project Bonds issued
upon the registration of transfer of Project Bonds referred to in clauses (i) or
(ii) above. Any
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Project Bonds not delivered to the Trustee for purchase as described above
(other than Project Bonds described in clauses (i) (ii) or (iii) above) shall
nonetheless be deemed to be tendered for sale by the holders thereof and
purchased by the Trustee,
All Project Bonds shall be purchased by the Trustee on the Conversion
Date at a purchase price equal to the principal amount thereof except (i)
Project Bonds, or portions thereof in an integral multiple of $5,000, with
respect to which the Trustee shall have received written directions not to so
purchase such Project Bonds or portions thereof from the holders of the same,
(ii) Project Bonds delivered to the Remarketing Agent or the Trustee as
described in the second, third and fourth preceding paragraphs for purchase on
any Business Day in the Interest Period next preceding the Conversion Date and
(iii) Project Bonds issued upon the registration of transfer of Project Bonds
referred to in clauses (i) or (ii) above. Any Project Bonds not delivered to the
Trustee for purchase (other than Project Bonds described in clauses (i), (ii) or
(iii) above) shall nonetheless be deemed to be tendered for sale by the holders
thereof and purchased by the Trustee. The provisions of this paragraph shall not
apply if there has occurred and is continuing on the prospective purchase date
an Event of Default as defined in the Indenture.
In the event that all Project Bonds are to be purchased by the Trustee
pursuant to either of the two next preceding paragraphs; a holder of Project
Bonds may direct the Trustee not to purchase any Project Bonds or portion
thereof owned by him by delivering to the Trustee, on or before the third (3rd)
Business Day preceding the date fixed for such purchase, an instrument or
instruments in writing executed by such holder (i) specifying the numbers of the
Project Bonds held by him, (ii) specifically acknowledging each of the matters
set forth in clauses (i) through (vii) of the second paragraph under the heading
"Notices" hereinafter set forth, and (iii) directing the Trustee not to purchase
such Project Bonds or portions thereof. Any instrument delivered to the Trustee
in accordance with this paragraph shall be irrevocable with respect to the
Project Bonds for which such instrument is delivered and shall be binding upon
subsequent holders of such Project Bonds.
Conversion to Fixed Interest Rate
At any time, the Company may, by notice in writing to the Issuer, the
Trustee, the Remarketing Agent and the Bank, direct that a Fixed Interest Rate
be established for the Project Bonds, The Company's notice shall set forth: (i)
the Conversion Date desired by the Company, which shall be an Interest Payment
Date not less than thirty (30) days after the date of such notice; and
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54
(ii) the date the Fixed Interest Rate shall be established which shall be not
less than twelve (12) Business Days prior to the Conversion Date. The notice
shall be accompanied by an opinion of Independent Tax Counsel stating that the
conversion to a Fixed Interest Rate is authorized and permitted by the Indenture
and Chapter 165 of the Ohio Revised Code, and that such conversion will not
adversely affect the exemption of interest on the Project Bonds from federal
income taxation. The Remarketing Agent shall determine the Fixed Interest Rate
on the date specified in such notice, which rate shall be the lowest rate at
which the Remarketing Agent shall have received bids, not later than the twelfth
(12th) Business Day prior to the Conversion Date, to purchase all of the
outstanding Project Bonds at a purchase price of 100% of the outstanding
principal amount thereof on the Conversion Date. Conversion to the Fixed
Interest Rate shall require the prior written consent of the Company and the
Bank.
Any Project Bonds purchased by the Trustee pursuant to the terms of the
Indenture after the Trustee has given notice of the establishment of a
Conversion Date shall not be remarketed except to a buyer who agrees at the time
of such purchase either (i) to accept the Fixed Interest Rate on the Conversion
Date or (ii) to require purchase of such Project Bonds by the Trustee on or
before the Conversion Date pursuant to the first paragraph under the heading
"Purchase of Project Bonds" set forth above.
The Letter of Credit shall be cancelled on the fifteenth (15th) day
following the Conversion Date, and the Trustee shall deliver the Letter of
Credit to the Bank on such day, unless prior to such day the Trustee has
received written notification from both the Company and the Bank stating that
the Letter of Credit is not to be cancelled on such day.
In the event that the Letter of Credit or an Alternate Credit Facility
is in effect with respect to the Project Bonds following the Conversion Date,
the Fixed Interest Rate shall be adjusted on the Adjustment Date so as to equal
the rate of interest, recommended by the Remarketing Agent and approved by the
Company, for which the Remarketing Agent has received commitments on or prior to
the twelfth (12th) Business Day next preceding the Adjustment Date to purchase
all outstanding Project Bonds on the Adjustment Date at a price of 100% of the
principal amount thereof. Following such adjustment, the Project Bonds shall
bear interest at such Fixed Interest Rate until maturity.
Notices
In the event any Project Bonds are called for redemption, the Trustee,
on behalf of the Issuer, shall give notice of such redemption, which notice
shall (i) identify the Project Bonds or
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portions thereof to be redeemed, the redemption date, the redemption price and
the place or places where the amounts due upon such redemption shall be payable
(which shall be principal corporate trust office of the Trustee) and (ii) state
that on the redemption date the Project Bonds to be redeemed shall cease to bear
interest. Such notice shall be given at least ten (10) Business Days prior to
the redemption date if the redemption date is on or prior to the Conversion Date
and at least thirty (30) days prior to the redemption date if the redemption
date is after the Conversion Date.
The Trustee, on behalf of the Issuer, shall give notice of the
establishment of the Conversion Date or the Expiration Date of the Letter of
Credit or the Expiration Date of the Alternate Credit Facility, which notice
shall include a statement (i) of the date on which the Project Bonds are to be
purchased by the Trustee as a result of the establishment of the Conversion Date
or the expiration of the Letter of Credit or the Alternate Credit Facility, (ii)
if applicable, that the Letter of Credit or the Alternate Credit Facility shall
terminate fifteen (15) days after such purchase date, (iii) that any ratings of
the Project Bonds by Moody's or S&P may be withdrawn or reduced from the ratings
on the Project Bonds then prevailing, (iv) that the Indenture provides that
Project Bonds are required to be delivered to the Trustee for purchase on the
date specified in such notice, and that Project Bonds not delivered to the
Trustee on such date shall nonetheless be deemed to have been purchased by the
Trustee (unless the holders thereof have directed the Trustee not to purchase
such Project Bonds or portions thereof) and, accordingly, no interest subsequent
to the date specified in such notice shall be payable to such holders, (v) of
the rights of the holders to direct the Trustee not to purchase Project Bonds
held by them, and the method of exercising such rights, (vi) that on the
purchase date designated in such notice the Trustee shall hold moneys equal to
the purchase price for all Project Bonds not delivered on such date, in trust,
for the holders of such Project Bonds, which moneys shall be paid upon surrender
of Project Bonds to the Trustee, and (vii) that, if the purchase of the Project
Bonds will result from the establishment of the Conversion Date, after the
Conversion Date the Project Bonds will bear interest at the Fixed Interest Rate
and the holders of the Project Bonds will not have the right to require the
Trustee to purchase Project Bonds. Such notice shall be given at least ten (10)
Business Days prior to the date on which the Project Bonds are to be purchased
as a result of the establishment of a Conversion Date or the expiration of the
Letter of Credit or the Alternate Credit Facility.
If the Company shall direct the Trustee to notify the Bank and the
holders of outstanding Project Bonds that an Alternate Letter of Credit or an
Alternate Credit Facility will be delivered to the Trustee, the Trustee shall
give such notice, which notice
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shall state (i) the proposed date of delivery to the Trustee of the Alternate
Letter of Credit or Alternate Credit Facility, (ii) the date of the Alternate
Letter of Credit or Alternate Credit Facility, (iii) the expiration date of the
Letter of Credit for which the Alternate Letter of Credit or Alternate Credit
Facility is to be substituted, (iv) the expiration date of the Alternate Letter
of Credit or Alternate Credit Facility, (v) the issuer of the Alternate Letter
of Credit or Alternate Credit Facility, and a brief description of such issuer,
and (vi) if the Project Bonds are then rated by Moody's or S&P, either (A) that
any ratings of the Project Bonds by Moody's or S&P may be withdrawn or reduced
from such ratings then prevailing, or (B) such ratings of the Project Bonds by
Moody's or S&P as shall have been based upon such Alternate Letter of Credit or
Alternate Credit Facility. Such notice shall be given at least thirty (30)
Business Days prior to the delivery of the Alternate Letter of Credit or
Alternate Credit Facility to the Trustee.
Any notice required to be given pursuant to any of the preceding three
(3) paragraphs shall be given by mailing a copy thereof by registered or
certified mail to the holder of each Project Bond (provided, however, that a
notice of redemption need be given only to holders of Project Bonds to be
redeemed in whole or in part) at the address for such holder shown on the
registration books maintained by the Trustee pursuant to the Indenture. Failure
to give such notice by mailing, or any defect in such notice, to the holder of
any Project Bonds shall not affect the validity of the proceedings with respect
to any other Project Bonds.
If, because of the temporary or permanent suspension of regular mail
service, or for any other reason, it is impossible or impractical to mail such
notice of redemption or purchase in the manner herein provided, then such other
manner of giving notice in lieu thereof as shall be made with the approval of
the Trustee shall constitute a sufficient notice. Failure to give or receive
such notice with respect to any Project Bond shall not affect the validity of
any proceedings for the redemption or purchase of any other Project Bonds.
Miscellaneous
Pursuant to the Loan Agreement, the Company has agreed to make loan
payments in the amounts and at the times necessary to meet the principal of and
premium, if any, and interest on the Project Bonds and any Additional Bonds (the
Project Bonds and any Additional Bonds hereafter referred to as the "Bonds").
The obligation of the Company to make any loan payments under the
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Loan Agreement shall be deemed to be satisfied and discharged to the
extent of corresponding payments made by the Bank to the Trustee under the
Letter of Credit.
The Project Bonds, together with any Additional Bonds, are all issued
or may be issued under and are to be equally and ratably secured and entitled to
the protection given by the Indenture, which Indenture is on file in the office
of the Trustee, and reference is hereby made to the Indenture and to all
indentures supplemental thereto for a more complete description of the
provisions, among others, with respect to the nature and extent of the security,
the rights, duties and obligations of the Issuer, the Trustee, the Bank and the
holders of the Bonds and the terms and conditions upon which the Bonds are
issued and secured, to all of the provisions of which Indenture each holder, by
the acceptance hereof, assents.
The Project Bonds are issuable only as fully registered bonds in the
denomination of $100,000 or any integral multiple thereof, provided, however,
that any Project Bonds issued upon exchange or transfer on or after the
Conversion Date shall be in the denomination of $5,000 or any integral multiple
thereof. Project Bonds are interchangeable in equal aggregate principal amounts
and in authorized denominations at the principal corporate trust office of the
Trustee, as Bond Registrar, in the manner, subject to the limitations and on
payment of the charges provided in the Indenture.
This Project Bond is transferable by the registered holder hereof in
person or by his attorney duly authorized in writing at the principal corporate
trust office of the Bond Registrar, upon presentation hereof to the Bond
Registrar, all subject to the terms and conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee
without the consent of the holders of the Bonds at the time outstanding or the
Bank to execute supplemental indentures in certain cases enumerated in the
Indenture and, with the consent of the holders of a majority in aggregate
principal amount of the Bonds at the time outstanding and, under certain
conditions prior to the Expiration Date of the Letter of Credit, the Bank, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or any supplemental
indenture restricting in any manner the rights of the holders of the Bonds;
provided, however, that no such supplemental indenture shall (i) extend the
maturity of the principal of or the interest on any Bond or reduce the principal
amount of any Bond or the rate of interest or redemption premium thereon, or
change the terms of the purchase thereof by the Trustee, or reduce the amount or
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extend the time of any sinking fund payment, without the consent of the holders
of each Bond affected; or (ii) permit a privilege or priority of any Bond or
Bonds over any other Bond or Bonds, or reduce the aggregate principal amount of
the Bonds required for consent to such supplemental indentures, without the
consent of the holders of all Bonds then outstanding.
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(FORM OF ASSIGNMENT]
FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto
___________ the within Project Bond and all rights thereunder, and does hereby
irrevocably constitute and appoint ________________, Attorney to transfer the
within Project Bond on the books kept for registration thereof, with full power
of substitution in the premises.
Dated:
__________________________
In the Presence of: Signature guaranteed,
____________________________ ____________________________
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NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the principal of and premium, if any, and interest on the Bonds
according to their true intent and meaning and to the extent herein provided,
and to secure the performance and observance of all of the covenants and
conditions therein and herein contained and to declare the terms and conditions
upon and subject to which the Bonds are and are intended to be issued,
authenticated, held, secured and enforced, and for and in consideration of the
premises and of the purchase and acceptance of the Bonds by the holders thereof
from time to time, and the acceptance by the Trustee of the trusts hereby
created, and for other good and valuable considerations, the receipt of which is
hereby acknowledged, the Issuer has executed and delivered this Indenture and,
subject to and in accordance with this Indenture, has pledged and assigned and
does hereby pledge and assign to the Trustee and to its successor in trust, and
it and their assigns: (a) all the Revenues; (b) any right, title and interest of
the Issuer in the proceeds derived from the sale of the Bonds, and in any
securities in which moneys in the Bond Fund, the Construction Fund or any other
fund or account created by the Indenture are invested and the proceeds derived
therefrom, and in any moneys in such funds; and (c) subject to the proviso
below, the Issuer's right, title and interest in and to the Loan Agreement.
TO HAVE AND TO HOLD to the Trustee and its successors in said Trust and
to its and their assigns forever;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit,
security and protection of all present and future holders of the Bonds issued or
to be issued under and secured by this Indenture, and for the enforcement of the
payment of the principal of and premium, if any, and interest on the Bonds, when
payable, according to the true intent and meaning thereof and of this Indenture
and to secure the performance of and compliance with the covenants, terms and
conditions of this Indenture, without preference, priority or distinction, as to
lien or otherwise, of any one Bond over any other by reason of priority in the
issue or negotiation thereof or otherwise, so that each and all Bonds shall have
the same right, lien and privilege under this Indenture, and shall be equally
and ratably secured hereby, as if all the Bonds had been made, issued and
negotiated simultaneously with the delivery of this Indenture (provided,
however, that moneys drawn under the Letter of Credit shall be applied only to
the payment of the purchase price of, or the principal of and interest on, the
Project Bonds), it being intended that the lien and security of this Indenture
shall take effect from the date hereof, without regard to the date of actual
issue, sale or disposition of the Bonds as if upon such date all the Bonds were
actually issued, sold and delivered to purchasers for value; provided, however,
that if the Issuer, its successors
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or assigns, shall pay, or cause to be paid the principal of the Bonds and the
interest due or to become due thereon together with any premium required by
redemption of any of the Bonds prior to maturity, at the times and in the manner
mentioned in the Bonds, respectively, according to the true intent and meaning
thereof, and shall cause the payments to be made into the Bond Fund as required
under Section 13 of the Bond Legislation authorizing the Project Bonds and as
required by the Bond Legislation authorizing any Additional Bonds, or shall have
caused the Bonds to have been paid and discharged in accordance with Sections
7.01 and 7.02 of this Indenture, and shall keep, perform and observe all the
covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to the Trustee
and any Paying Agents any sums of money due or to become due to them in
accordance with the terms and provisions hereof, then this Indenture and the
rights hereby granted shall cease, determine and be void; otherwise, this
Indenture shall remain in full force and effect.
PROVIDED, that the pledge and assignment of the Issuer's right, title
and interest in and to the Loan Agreement pursuant to this Indenture is intended
solely for purposes of securing the Bonds, the enforcement of the payment of the
principal thereof and any premium and interest thereon, when payable, according
to the true intent and meaning thereof and of this Indenture and the performance
of and compliance with the covenants, terms and conditions of this Indenture,
and such pledge and assignment shall not in any way (a) affect, diminish or
impair the Issuer's obligations under the Loan Agreement or impose any such
obligations on the Trustee; (b) affect, restrict or preclude the Issuer from
exercising its rights, or enforcing the Company's obligations, under the Loan
Agreement; or (c) constitute a pledge or assignment, or affect the collection by
or receipt of the Issuer of moneys (other than moneys received in respect of the
repayment of the Loan) which, pursuant to the Loan Agreement, are to be paid
directly to the Issuer including, without limitation, (i) amounts paid to the
Issuer in reimbursement of expenses incurred by it pursuant to the Loan
Agreement and (ii) any moneys to which the Issuer may be entitled under Section
5.3 of the Loan Agreement.
And it is expressly declared that the Bond Legislation set forth above
is part of this Indenture and that all Bonds issued and secured hereunder are to
be issued, authenticated and delivered and all said amounts hereby pledged are
to be dealt with and disposed of under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes
provided in this Indenture and the Issuer has agreed and covenanted, and does
hereby further agree and covenant, with the Trustee and with the respective
holders from time to time of the Bonds, or any part thereof as follows:
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ARTICLE I
Definitions
In addition to the words and terms elsewhere defined in this Indenture,
including the Bond Legislation, the following words and terms as used in this
Indenture shall have the following meanings unless the context or use indicates
another or different meaning or intent:
"Extraordinary Services" and "Extraordinary Expenses" mean all
services rendered and all reasonable expenses (including counsel fees)
properly incurred under this Indenture other than Ordinary Services and
ordinary Expenses.
"Ordinary Services" and "Ordinary Expenses" mean those
services normally rendered and those expenses (including counsel fees)
normally incurred by a trustee under instruments similar to this
Indenture.
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ARTICLE II
Form, Terms, Execution, Authentication,
Registration and Exchange of Bonds
SECTION 2.01. Form of Bonds. The Bonds and Trustee's certificate of
authentication shall be substantially in the forms hereinabove set forth and, in
the case of Additional Bonds, with such omissions, insertions and variations as
may be authorized or permitted by the Bond Legislation authorizing such
Additional Bonds consistent with this Indenture.
SECTION 2.02. Terms of Bonds. The terms of the Project Bonds shall be
as provided in this Indenture. Any series of Additional Bonds shall have
maturities, interest rates, interest payment dates, redemption provisions,
denominations, registration provisions and other terms as provided in the Bond
Legislation authorizing issuance or award thereof, provided that such terms and
provisions shall not be otherwise inconsistent with this Indenture.
SECTION 2.03 Execution of Bonds-Authentication. The Bonds shall be
executed in the manner provided in the Bond Legislation authorizing such Bonds,
provided, however, that such manner of execution shall not be inconsistent with
any requirements of this Indenture.
No Bond shall be valid or become obligatory for any purpose or shall be
entitled to any security or benefit under this Indenture unless and until a
certificate of authentication substantially in the form hereinabove set forth in
connection with the Project Bonds, shall have been duly endorsed upon such Bond,
and such authentication by the Trustee upon any Bond shall be conclusive
evidence that the Bond so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the security of this
Indenture. Such certificate of authentication of the Trustee may be executed by
any person duly authorized by the Trustee, but it shall not be necessary that
the same person sign the certificate of authentication on all the Bonds.
SECTION 2.04. Transfer and Exchange of Bonds. Bonds of each series are
issuable only as fully registered Bonds in the denominations set forth in the
Bond Legislation for such series. Each Bond shall be of a single maturity;
provided, however, that any member of the Legislative Authority, with approval
of the Trustee, may authorize issuance of one or more Bonds representing more
than one maturity of the same series with appropriate changes in the Bond form
to cover more than the maturity. Except
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as otherwise provided in the Bond Legislation, each Bond shall bear interest
from its date and shall be dated as of the Interest Payment Date next preceding
the date of its authentication, unless authenticated upon an Interest Payment
Date, in which case it shall be dated as of the date of its authentication;
provided, however, that if at any time of authentication of any Bond, interest
is in default, such Bond shall be dated as of the date to which interest has
been paid.
Unless otherwise provided in the Bond Legislation, the principal of and
premium, if any, on all Bonds shall be payable at the principal corporate trust
office of the Trustee, and payment of the interest on all Bonds shall be made on
each Interest Payment Date to the person appearing on the registration books
hereinafter provided for as the registered holder thereof on the Record Date for
such Interest Payment Date, by check or draft by the Trustee to such registered
holder at his address as it appears on such registration books.
Upon surrender thereof at the corporate trust office of the Trustee, as
Bond Registrar, together with an assignment duly executed by the registered
holder or his duly authorized attorney in such form as shall be satisfactory to
the Bond Registrar, Bonds may, at the option of the registered holder thereof,
be exchanged for other Bonds of the same series of any denomination or
denominations authorized by the applicable Bond Legislation in the aggregate
principal amount not exceeding the unmatured and unredeemed principal amount of
such fully registered Bonds, and bearing interest at the same rate and maturing
on the same date.
Any Bond may be transferred only upon the books kept for the
registration and transfer of Bonds, upon surrender thereof at the corporate
trust office of the Trustee, as Bond Registrar, together with an assignment duly
executed by the registered holder or his duly authorized attorney in such form
as shall be satisfactory to the Bond Registrar. Upon the transfer of any Bond
and on request of the Bond Registrar, the Issuer shall execute in the name of
the transferee and the Trustee shall authenticate and deliver at the option of
the transferee, a new Bond or Bonds of the same series of any denomination or
denominations permitted by this Indenture and the applicable Bond Legislation in
aggregate principal amount equal to the unmatured and unredeemed principal
amount of such transferred Bond and bearing interest at the same rate and
maturing on the same date.
In all cases in which Bonds shall be exchanged or transferred
hereunder, the Issuer shall execute and the Trustee shall authenticate and
deliver Bonds in accordance with the provisions of this Indenture. Except as
otherwise provided in the Bond Legislation authorizing the Bonds, if approved by
the
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Company, the Issuer and Bond Registrar may make a charge for every such exchange
or transfer of Bonds sufficient to reimburse themselves for any tax, fee or
other governmental charge required to be paid with respect to such exchange or
transfer and such charge or charges shall be paid before any new Bond shall be
delivered. In the event the Company does not approve any such charges, then the
Company shall reimburse the Bond Registrar or the Issuer, as the case may be,
for any such tax, fee or other governmental charge. Except in connection with
the purchase of Project Bonds in accordance with Section 7 of the Bond
Legislation for the Project Bonds, neither the Issuer nor the Bond Registrar
shall be required to make any such exchange or transfer of any Bond during the
ten (10) days next preceding any selection of Bonds to be redeemed, or after
such Bond has been selected for redemption.
The person in whose name a Bond shall be registered shall be deemed and
regarded as the absolute owner thereof for all purposes, and payment of or on
account of the principal of and premium, if any, on any such Bond and the
interest on such Bond shall be made only to or upon the order of the registered
holder thereof or his duly authorized attorney in such form as shall be
satisfactory to the Bond Registrar, and neither the Issuer, the Bond Registrar
nor any Paying Agent shall be affected by any notice to the contrary, but such
registration may be changed as hereinabove provided. All such payments shall be
valid and effectual to satisfy and discharge the liability upon such Bond,
including the interest and any premium thereon, to the extent of the sum or sums
so paid.
In case any Bond is redeemed in part only, the Issuer on or after the
redemption date and upon surrender of such Bond, shall cause execution of, and
the Trustee shall authenticate and deliver, a new Bond or Bonds in an authorized
denomination or denominations and in an aggregate principal amount equal to the
unredeemed portion of such Bon.
So long as any of the Bonds remain outstanding, the Issuer will cause
to be maintained and kept, at the corporate trust office of the trustee as Bond
Registrar, books for the aforesaid registration and transfer of Bonds.
SECTION 2.05. Mutilated, Lost, Wrongfully Taken or Destroyed Bonds. In
the event any Bond is mutilated, lost, wrongfully taken or destroyed, the Issuer
may execute a new Bond, as the case may be, and the Trustee may authenticate
such new Bond, of like date, maturity and denomination and of the same series as
that mutilated, lost, wrongfully taken 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
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of any lost, wrongfully taken or destroyed Bond, there shall be first furnished
to the Company and the Trustee evidence of such loss, wrongful taking or
destruction satisfactory to the Authorized Company Representative, as defined in
the Loan Agreement, and the Trustee, together with indemnity satisfactory to
them. In the event any such lost, wrongfully taken or destroyed Bond shall have
matured, instead of issuing a duplicate Bond the Issuer, by any member of the
Legislative Authority, may direct the Trustee to pay the same without surrender
thereof upon the furnishing of the satisfactory evidence and indemnity as in the
case of issuance of a new Bond. The Issuer, the Company and the Trustee may
charge the holder of such Bond with their reasonable fees and expenses in
connection with their action pursuant to this Section 2.05.
Every substituted Bond issued pursuant to this Section 2.05 by reason
of any Bond being lost, wrongfully taken or destroyed shall, with respect to
such Bond constitute an additional contractual obligation of the Issuer, whether
or not the lost, wrongfully taken or destroyed Bond shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Bonds duly issued hereunder. All Bonds
shall be held and owned on the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated, lost,
wrongfully taken or destroyed Bonds and shall preclude any and all rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.06. Cancellation of Bonds. Any Bond surrendered for the
purpose of payment or retirement, or for exchange or transfer, or for
replacement pursuant to Section 2.05 hereof, shall be cancelled upon surrender
thereof to the Trustee or any Paying Agent. Any Bonds cancelled by any Paying
Agent other than the Trustee shall be promptly transmitted by such Paying Agent
to the Trustee. Certification of Bonds cancelled by the Trustee and Bonds
cancelled by a Paying Agent other than the Trustee which are transmitted to the
Trustee shall be made to the Issuer and to the Company at least once each
calendar year. Unless otherwise directed by the Issuer or other lawful
authority, cancelled Bonds shall be destroyed by shredding or cremation by the
Trustee, and certificates of such destruction (describing the manner thereof)
shall be provided by the Trustee to the Issuer and the Company at least once
each calendar year.
If any Project Bonds are deemed to have been purchased by the Trustee
pursuant to subsections (d) or (e) of Section 7 of the Bond Legislation for the
Project Bonds with moneys described
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in clause (iii) of subsection (j) of said Section 7, then such Project Bonds
shall be deemed cancelled whether or not such Project Bonds shall have been
delivered to the Trustee; and the Issuer shall execute and the Trustee shall
authenticate and deliver to or upon the order of the Company, a Project Bond in
the principal amount equal to the aggregate principal amount of Project Bonds
deemed cancelled in accordance with this paragraph.
SECTION 2.07. Delivery of the Project Bonds. Upon the execution and
delivery of this Indenture and subject to Section 5 of the Bond Legislation, the
Issuer shall execute and deliver to the Trustee and the Trustee shall
authenticate the Project Bonds and deliver them to, or for the account of, the
Original Purchasers thereof as may be directed by the Issuer as hereinafter in
this Section 2.07 provided.
Prior to the delivery by the Trustee of any of the Project Bonds there
shall be filed with the Trustee:
1. Executed counterparts of the Indenture, the Loan Agreement and
the Letter of Credit Agreement.
2. The executed Letter of Credit.
3. A copy, duly certified by the Clerk or Assistant Clerk of the
Legislative Authority, of the Bond Legislation authorizing the execution
and delivery of this Indenture and the Loan Agreement and the issuance and
sale of the Project Bonds.
4. A request and authorization to the Trustee on behalf of the
Issuer, signed by any member of the Legislative Authority, to authenticate
and deliver the Project Bonds to, or on the order of, the Original
Purchasers upon payment to the Trustee, but for the account of the Issuer,
of the sum specified therein, which shall be deposited as provided in
Section 12 of the Bond Legislation.
5. A copy, duly certified by the secretary or an Assistant
Secretary of the Company, of the resolutions of the board of directors of
the Company authorizing the execution and delivery of the Loan Agreement
and the Letter of Credit Agreement,
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6. An executed counterpart of the written instrument of
acceptance of the Remarketing Agent required pursuant to Section 19 of the
Bond Legislation for the Project Bonds.
7. Such other items as may be required by bond counsel.
SECTION 2.08. Delivery of Additional Bonds. Before any Additional Bonds
authorized by Section 14 of the Bond Legislation authorizing the Project Bonds
shall be authenticated and delivered by the Trustee, there shall be filed with
the Trustee those items required by Section 14 of such Bond Legislation and the
following:
1. An executed counterpart of a supplemental indenture of the
character permitted by Section 10.01(g) of the Indenture setting forth the
terms and provisions of such Additional Bonds.
2. Executed counterparts of any amendment to the Loan Agreement
entered into in connection with the issuance of such Additional Bonds.
3. A copy, duly certified by the Clerk of the Legislative
Authority, of the resolution of the Legislative Authority authorizing the
execution and delivery of any required amendment or amendments to the Loan
Agreement together with a copy of the written request from the Company to
the Issuer or issuance of such Additional Bonds.
4. A copy, duly certified by the Clerk of the Legislative
Authority, of the Bond Legislation authorizing the execution and delivery
of the supplemental indenture referred to above and the issuance and sale
of such Additional Bonds.
5. A request and authorization to the Trustee on behalf of the
Issuer, signed by any member of the Legislative Authority, to authenticate
and deliver such Additional Bonds to, or on the order of, the Original
Purchasers thereof who are therein identified, upon payment to the Trustee
for the account of the Issuer of the sum specified in such request and
authorization.
6. A copy, duly certified by the Secretary or an Assistant
Secretary of the Company, of the resolutions of the board of directors of
the Company authorizing the execution and delivery of an amendment to the
Loan Agreement, if applicable.
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7. The written opinion of counsel for the Issuer, or other
counsel satisfactory to the Company and to the Trustee, to the effect that
the issuance of such Additional Bonds has been duly authorized, and that
such Additional Bonds constitute valid and binding special obligations of
the Issuer in accordance with the terms and provisions thereof and are
payable from, and secured equally and ratably with any other Bonds
outstanding under the Indenture by a pledge of, the Bond Fund and the
Revenues.
8. The written opinion of Independent Tax Counsel, as defined in
the Loan Agreement, or a ruling of the Internal Revenue Service that the
issuance of the Additional Bonds will not adversely affect the exemption
from federal income taxation of the interest on any outstanding Bonds.
9. Such other items as may be specified in any supplemental
indenture relating to such Additional Bonds.
When the foregoing documents have been duly filed and the Trustee shall
have determined that no Event of Default exists with respect to the payment of
any amounts required to be paid by the Company pursuant to Sections 4.1 or 4.3
of the Loan Agreement, and the Additional Bonds have been executed and
authenticated, the Trustee shall deliver them to or upon the order of the
Original Purchasers thereof identified in the request and authorization referred
to in subsection 5 of this Section 2.08, but only upon payment to the Trustee
for the account of the Issuer of the specified sum set forth in the request and
authorization referred to in such subsection 5.
ARTICLE III
Redemption of Bonds
SECTION 3.01 Privilege of Redemption and Redemption Price. The Bonds
shall be subject to redemption prior to maturity at such times, to the extent
and in the manner provided in the applicable Bond Legislation, all subject to
this Indenture.
SECTION 3.02. Issuer's Election to Redeem. The Issuer, or the Company
at the request and on behalf of the Issuer, except in the case of sinking fund
redemption as provided in the Bond
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Legislation, shall give written notice to the Trustee of its intention so to
redeem in accordance with the Bond Legislation, of the redemption date and of
the principal amount of Bonds to be redeemed, which notice shall be given in
accordance with the requirements of the Bond Legislation for the series of Bonds
being redeemed. In the event notice of redemption shall have been given as
provided in Section 3.03 hereof, the Issuer shall, and hereby covenants that it
will prior to the redemption date, pay to the Trustee an amount in cash which,
in addition to other moneys, if any, available therefor held by the Trustee,
will be sufficient to redeem at the redemption price thereof, plus interest
accrued to the redemption date, all of the redeemable Bonds which the Issuer has
so elected to redeem.
SECTION 3.03 Notice of Redemption. When the Trustee shall receive
notice from the Issuer with respect to its intention to redeem Bonds or in order
to carry out the sinking fund redemption requirements of the Bond Legislation,
the Trustee shall give notice of redemption as provided in the applicable Bond
Legislation.
SECTION 3.04. Payment of Redeemed Bonds. Notice having been given in
the manner provided in Section 3.03 hereof, the Bonds so called for redemption
shall become due and payable on the redemption date so designated at the
redemption price, plus interest accrued to the redemption date, and, upon
presentation and surrender thereof at the place or places specified in such
notice, such Bonds shall be paid at the redemption price plus interest accrued
to the redemption date. If, on the redemption date, moneys for the redemption of
all such Bonds to be redeemed, together with interest to the redemption date,
shall be held by the Trustee or any Paying Agent so as to be available therefor
on said date and if notice of redemption shall have been given as aforesaid,
then, from and after the redemption date such Bonds so called for redemption
shall cease to bear interest, and said Bonds shall no longer be considered as
outstanding hereunder. If said moneys shall not be so available on the
redemption date, such Bonds shall continue to bear interest until paid at the
same rate as they would have borne had they not been called for redemption.
All moneys deposited in the Bond Fund and held by the Trustee or Paying
Agents for the redemption of particular Bonds shall be held in trust for the
account of the holders thereof and shall be paid to them respectively upon
presentation and surrender of such Bonds.
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ARTICLE IV
Further Provision as to Funds and Payments
SECTION 4.01. Provision for Payment. The Issuer hereby authorizes and
directs the Trustee to cause withdrawal of sufficient funds from the Bond Fund
to pay the principal of and premium, if any, and interest on the Bonds as the
same become due and payable, for the purposes of paying, or transferring
necessary funds to Paying Agents to pay, said principal of and premium, if any,
and interest, which authorization and direction the Trustee hereby accepts. The
Trustee shall provide the Company with a written statement of any amounts
withdrawn from the Bond Fund and transferred to any other fund or account.
Nothing in this Section 4.01 is intended to prevent the Company from delivering
to the Trustee moneys pursuant to Section 4.3 of the Loan Agreement for the
purchase or redemption of Bonds in accordance with that Section.
SECTION 4.02. Nonpresentment of Bonds. In the event any Bond shall not
be presented for payment when the principal thereof becomes due, either at
maturity, at the date fixed for redemption thereof, or otherwise, if funds
sufficient to pay such Bond shall have been made available to the Trustee for
the benefit of the holder thereof, all liability of the Issuer to the holder
thereof for the payment of such Bond shall thereupon cease and be completely
discharged, and it shall be the duty of the Trustee to hold such funds, without
liability for interest thereon, for the benefit of the holder of such Bond, who
shall thereafter be restricted exclusively to such funds, for any claim of
whatever nature on his part under this Indenture or on, or with respect to, said
Bond; provided that any funds which shall be so held by the Trustee and which
remain unclaimed by the holder of the Bond not presented for payment for a
period of four (4) years after the date on which such Bond shall have become
payable, shall be paid to the Company and thereafter the holder of such Bond
shall look only to the Company for payment and then only to the amounts so
received without any interest thereon and the Trustee shall have no
responsibility with respect to such moneys.
SECTION 4.03. Trustee's and Paying Agents' Fees, Charges and Expenses.
Pursuant to the provisions of the Loan Agreement, the Company has agreed to pay
to the Trustee, commencing with the commencement of the Loan Term, as defined in
the Loan Agreement, and continuing until the principal of and premium, if any,
and interest on the Bonds shall have been fully paid or provision for the
provisions thereof shall have been made in accordance with the provisions of
this Indenture: (i) an amount equal to the fee of the Trustee, as Trustee, which
will be
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payable in each year on such date as is mutually agreeable to the Trustee and
the Company, and the Trustee will give notice to the Company of the Ordinary
Services of the Trustee rendered and its Ordinary Expenses incurred under this
Indenture, (ii) any reasonable fees, charges and expenses of the Trustee, as
Bond Registrar and Paying Agent, not reimbursed by any holder pursuant to
Section 2.04 hereof as and when the same become due, and (iii) the reasonable
fees, charges and expenses of the Trustee for necessary Extraordinary Services
and Extraordinary Expenses under this Indenture, as and when the same become due
and payments of all such amounts shall be given preference in payment over any
of the Bonds, and shall be paid out of the Revenues; provided however, that such
amounts shall not be paid with proceeds from a draw on the Letter of Credit; and
provided, further, that either the Issuer or the Company may, without creating a
default or Event of Default hereunder, contest in good faith the necessity for
any such Extraordinary Services and Extraordinary Expenses and the
reasonableness of any such fees, charges or expenses. It is further understood
and agreed that the initial or acceptance fee of the Trustee and the fees,
charges and expenses of the Trustee referred to in the first sentence of this
Section 4.03 which become due during the Construction Period (as defined in the
Loan Agreement), may be paid by the Trustee from the Construction Fund as and
when the same shall become due.
SECTION 4.04. Moneys to Be Held in Trust. All moneys required to be
deposited with or paid to the Trustee on behalf of the Issuer to be used in the
payment of the principal of or premium, if any, or interest on the Bonds, under
any provision of this Indenture and the Loan Agreement shall be held by the
Trustee in trust for the benefit of the Bondholders, and except for moneys
deposited with or paid to the Trustee for the redemption of Bonds, notice of
redemption of which has been duly given, shall, while held by the Trustee, be
subject to the lien hereof.
SECTION 4.05. Repayment to the Company from the Bond Fund and Other
Funds or Accounts. Except as provided in Section 4.02 of this Indenture, any
amounts remaining in the Bond Fund or any other funds or accounts held by the
Trustee under any provision of this Indenture or the Loan Agreement, after all
of the Bonds shall be deemed to have been paid and discharged under the
provisions of this Indenture and the fees, charges and expenses of the Trustee
and the Paying Agents and all other amounts required to be paid under this
Indenture and the Loan Agreement shall have been paid, shall be paid to the Bank
if there are outstanding obligations of the Company to the Bank under the Letter
of Credit Agreement, or otherwise to the Company as provided in section 7.4 of
the Loan Agreement.
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SECTION 4.06. Notice of Failure to Make Payments Under Loan Agreement.
If any amounts payable pursuant to Sections 4.1. or 4.3 of the Loan Agreement
shall not be paid at the time therein specified, then the Trustee shall, within
three hours of the occurrence of such failure, use its best efforts to give
telephonic or personal notice of such failure to the Authorized Company
Representative, as defined in the Loan Agreement, and the Bank, and the Trustee
shall immediately thereafter confirm such notice by telegram or by letter mailed
by special delivery, postage prepaid.
SECTION 4.07. Provision for Payment of Project Bonds. Notwithstanding
the provisions of Section 4.01 of this Indenture, funds for the payment of
principal of and premium, if any, and interest on the Project Bonds, whether at
maturity, by optional or mandatory redemption, acceleration or otherwise, shall
be derived from the following sources in the order of priority indicated:
(i) Available moneys constituting proceeds from the sale of Additional
Bonds issued for the purpose of refunding the Project Bonds;
(ii) Available Moneys constituting proceeds described in Section 5.11
of the Loan Agreement;
(iii) prior to the Expiration Date of the Letter of Credit, moneys
deposited in the A Subaccount of the Bond Fund, provided, however, that
such moneys shall be used only to pay principal of or interest on the
Project Bonds;
(iv) moneys drawn by the Trustee under the Letter of Credit, provided,
however, that such moneys shall be used only to pay the principal of and
interest on Project Bonds other than Project Bonds delivered to the Bank
pursuant to any draw under the Letter of Credit;
(v) amounts deposited into the Bond Fund pursuant to Section 3.3(k) of
the Loan Agreement; and
(vi) other moneys furnished by the Company to the Trustee pursuant to
the Loan Agreement for application to the payment of principal of and
premium, if any, and interest on the Project Bonds.
SECTION 4.08. Letter of Credit.
(a) The Trustee shall draw moneys under the Letter of Credit in
accordance with the terms thereof to the extent necessary to make timely
payments of principal of and interest on the Project Bonds and to pay the
purchase price of Project Bonds purchased pursuant to Section 7 of the Bond
Legislation for the Project Bonds,
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(b) If at any time there shall have been delivered to the Trustee (i)
an Alternate Letter of Credit or an Alternate Credit Facility and (ii) an
opinion of Independent Tax Counsel stating that the delivery of such
Alternate Letter of Credit or Alternate Credit Facility to the Trustee is
authorized under the Loan Agreement and Chapter 165, Ohio Revised Code, and
complies with the terms of the Loan Agreement, then the Trustee shall
accept such Alternate Letter of Credit or Alternate Credit Facility and
immediately surrender the previously held Letter of Credit to the Bank, in
accordance with the terms of such Letter of Credit, for cancellation.
Unless the Company and the Bank shall have given written notice to the
Trustee to the contrary, the Trustee shall 15 days after the Conversion
Date surrender the Letter of Credit to the Bank, in accordance with the
terms of the Letter of Credit, for cancellation. If at any time there shall
cease to be any Project Bonds outstanding under the Indenture, other than
Project Bonds delivered to the Bank pursuant to any draw under the Letter
of Credit, the Trustee shall immediately surrender the Letter of Credit to
the Bank, in accordance with the terms of the Letter of Credit, for
cancellation. The Trustee shall comply with the procedures set forth in the
Letter of Credit Agreement and the Letter of Credit (including, but not
limited to, execution and delivery of appropriate certificates) relating to
the extension, reduction, reinstatement or termination of the Letter of
Credit.
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ARTICLE V
Further Provisions as to Construction Fund and Project
SECTION 5.01. Records of Construction Fund. The Trustee shall cause to
be kept and maintained adequate records pertaining to the Construction Fund and
all disbursements therefrom and not less than monthly the Trustee shall file an
accounting thereof with the Company.
SECTION 5.02. Completion of the Facilities. The completion of the
Facilities and payment of all costs and expenses incident thereto shall be
evidenced by the filing with the Trustee of (i) the certificate of the
Authorized Company Representative, as defined in the Loan Agreement, required by
the provisions of Section 3.5 of the Loan Agreement and (ii) a certificate
signed by the Authorized Company Representative, which certificate shall state
that all obligations and costs in connection with the Facilities and payable out
of the Construction Fund have been paid and discharged except for amounts
retained by the Trustee, as approved under the Loan Agreement, for the payment
of costs of the Facilities as provided in the Loan Agreement. Any balance
remaining in the Construction Fund after the Completion Date (as defined in the
Loan Agreement) shall be applied by the Trustee in accordance with Section
3.3(k) of the Loan Agreement.
ARTICLE VI
Investments
SECTION 6.01. Investments. Any moneys held as part of the Construction
Fund, the Bond Fund or any other fund or account held by the Trustee pursuant to
this Indenture or the Loan Agreement shall be held as a cash account or invested
and reinvested in accordance with the provisions of Section 16 of the Bond
Legislation for the Project Bonds.
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ARTICLE VII
Defeasance
SECTION 7.01. Release of Indenture. When all of the Bonds shall have
been paid and discharged, and there shall have been paid all fees, charges and
expenses of the Trustee and any Paying Agents due or to become due through the
date on which the last of the Bonds is retired, then this Indenture shall cease,
determine and become null and void, and thereupon the Trustee shall release this
Indenture including the cancellation and discharge of the lien hereof, and
execute and deliver to the Issuer such instruments in writing as shall be
requisite to satisfy the lien hereof and to enter on the records such
satisfaction and discharge and to reconvey to the Issuer the estate hereby
conveyed and such other instruments to evidence such release and discharge as
may be reasonably required by the Issuer, and the Trustee and Paying Agents
shall each assign and deliver to the Issuer any property at the time subject to
the lien of this Indenture which may then be in its possession, except amounts
in the Bond Fund or any other funds or accounts held by the Trustee under any
provision of this Indenture or the Loan Agreement required to be paid to the
Bank or the Company under Section 4.05 hereof and except such cash and
investments as held by the Trustee and Paying Agents for the payment of the
principal of and premium, if any, and interest on the Bonds. Prior to the
Expiration Date of the Letter of Credit, Project Bonds shall be paid and
discharged only with funds derived from the sources, and in the order of
priority, set forth in Section 4.07 hereof.
SECTION 7.02. Payment of Bonds. On or after the Conversion Date, Bonds
shall be deemed to have been paid and discharged within the meaning of Section
7.01:
(a) if the Trustee and any Paying Agent shall hold, in trust for and
irrevocably committed thereto, sufficient moneys; or
(b) if the Trustee shall hold, in trust for and irrevocably committed
thereto, Government Obligations certified by an independent accounting firm
of national reputation to be of such maturities and bearing such interest
payable on such dates as will, without further investment or reinvestment
of either the principal amount thereof or the interest earnings therefrom
(likewise to be held in trust and committed, except as hereinafter
provided), be sufficient together with moneys referred to in subsection (a)
above;
for the payment, at their maturity or redemption date, of the principal thereof,
together with any redemption premium and interest accrued to the date of
maturity or redemption, as the
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case may be, or if failure to make such payment shall have occurred on such date
then to the date of the tender of such payment; provided, that if any Bonds are
to be redeemed prior to the maturity thereof, notice of such redemption shall
have been duly given or provision satisfactory to the Trustee shall have been
duly made for giving notice. Any moneys held in accordance with the provisions
of this Section 7.02 shall be invested, upon written direction of the Authorized
Company Representative, only in direct obligations of the United States of
America, which shall mature or be redeemable at the option of the Trustee not
later than the time or times at which said moneys will be required for the
aforesaid purposes. Any income or interest earned by, or increment to, the
investments held under this Section shall, to the extent not required for the
purposes of this Section 7.02, be transferred to the Bond Fund.
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ARTICLE VIII
Default Provisions and Remedies of Trustee
and Bondholders
SECTION 8.01. Default; Events of Default. If any of the following
events occur, subject to the provisions of Section 8.09 hereof, it is hereby
defined as and declared to be and to constitute an Event of Default:
(a) failure in the payment of the principal of or any interest or
premium on any Bond when and as the same shall have become due, whether at
the stated maturity thereof, by acceleration or call for redemption;
(b) the occurrence of an Event of Default specified in subsection (a)
of Section 6.1 of the Loan Agreement;
(c) failure in the performance or observance of any covenant, agreement
or condition on the part of the Issuer included in this Indenture, in the
Bonds or in the Loan Agreement, other than as set forth in subsection (a)
or (b) above, which materially adversely affects the lien of this Indenture
on the Revenues, the Bond Fund or the Construction Fund; provided, however,
that prior to the Expiration Date such failure shall not constitute an
Event of Default;
(d) the occurrence of any Event of Default specified in subsections
(b), (c) or (d) of Section 6.1 of the Loan Agreement; provided, however,
that prior to the Expiration Date of the Letter of Credit such occurrences
shall not constitute an Event of Default;
(e) failure to pay amounts due to holders of Project Bonds who have
delivered Project Bonds to the Trustee for purchase for a period of five
(5) days after such payment has become due and payable; or
(f) receipt by the Trustee of notice from the Bank of the occurrence of
an Event of Default under the Letter of Credit Agreement.
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The term "default" shall mean (i) any Event of Default described above;
and (ii) the occurrence of an event specified in subsections (b), (c) or (d) of
Section 6.1 of the Loan Agreement exclusive of any period of grace required to
constitute such occurrence an Event of Default as defined in the Loan Agreement.
If a default or an Event of Default shall occur under the provisions of
this Section 8.01, the Trustee shall, within two Business Days after having
actual knowledge of such default or Event of Default or being deemed to have
notice thereof under subsection (g) of Section 9.01 hereof, give written notice
of such default or Event of Default to the Issuer, the Company, the Bank, the
Guarantor and the original Purchasers of each series of Bonds.
SECTION 8.02. Acceleration. Upon the occurrence of any Event of Default
described in subsections (a) through (e), inclusive, of Section 8.01 hereof the
Trustee may, and upon the written request of the holders of not less than
twenty-five percent (25%) in aggregate principal amount of Bonds then
outstanding the Trustee shall, by notice in writing delivered to the Issuer and
the Company, declare the principal of all Bonds then outstanding and premium, if
any, on Bonds called for redemption, and the interest accrued thereon
immediately due and payable. Upon the occurrence of an Event of Default
described in subsection (f) of Section 8.01 and receipt by the Trustee of a
request from the Bank to do so, the Trustee shall, by notice in writing
delivered to the Issuer and the Company, declare the principal of all Bonds then
outstanding and premium, if any, on Bonds called for redemption, and the
interest accrued thereon immediately due and payable. Any such principal,
premium and interest shall thereupon become and be immediately due and payable.
Upon such declaration of acceleration and if an Event of Default under Section
6.1 of the Loan Agreement shall have happened and be subsisting, the Trustee
shall immediately declare all amounts payable under Sections 4.1 or 4.3 of the
Loan Agreement to be immediately due and payable in accordance with Section 6.2
of the Loan Agreement.
The provisions of this Section 8.02 are subject, however, to the
condition that after the Expiration Date of the Letter of Credit if, at any time
after the principal of and premium, if any, and interest accrued on the Bonds
shall have been so declared due and payable, all sums payable hereunder except
the principal of the Bonds which have not reached their maturity date shall have
been duly paid and all existing Events of Default shall have been cured, all
before a judgment or decree
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for payment of moneys due has been obtained by the Trustee, then and in every
such case such payment or cure of such Event of Default shall constitute a
waiver of such Event of Default and its consequences and an automatic rescission
and annulment of such declaration but no such waiver shall extend to or affect
any subsequent Event of Default or impair any rights consequent thereon.
The provisions of this Section 8.02 are further subject to the
condition that any waiver of any Event of Default under the Letter of Credit
Agreement and a rescission and annulment of its consequences shall constitute a
waiver of the corresponding Event of Default under this Indenture and a
rescission and annulment of the consequences thereof. If notice of such Event of
Default under the Letter of Credit Agreement shall have been given and if the
Trustee shall thereafter have received notice that such Event of Default shall
have been waived, the Trustee shall promptly give written notice of such waiver,
rescission and annulment to the Issuer, the Company and the Remarketing Agent,
and shall give notice thereof to holders of the Bonds in the same manner as a
notice of redemption; but no such waiver, rescission and annulment shall extend
to or affect any subsequent Event of Default under this Indenture or impair any
right or remedy consequent thereon.
SECTION 8.03. Other Remedies. Upon the occurrence of an Event of
Default the Trustee may pursue any available remedy to enforce the payment of
the principal of and any premium and interest on the Bonds then outstanding.
If an Event of Default shall have occurred, and if requested to do so
by the holders of twenty-five percent (25%) in aggregate principal amount of
Bonds then outstanding, and prior to the Expiration Date of the Letter of
Credit, the Bank if it is not then in default in making any payment under the
Letter of Credit and indemnified as provided in Section 9.01 hereof, the Trustee
shall be obligated to exercise such one or more of the rights and powers
conferred by this Section 8.03 as the Trustee, being advised by counsel, shall
deem most expedient in the interests of the holders or owners of the Bonds.
No remedy by the terms of this Indenture conferred upon or reserved to
the Trustee (or to the holders or owners of the Bonds) 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 or
to the holders or owners of the Bonds hereunder or now or hereafter existing.
No delay or omission to exercise any right or power accruing upon any
default or Event of Default shall impair any
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such right or power or shall be construed to be a waiver of any such default or
Event of Default or acquiescence therein; and every such right and power may be
exercised from time to time and as often as may be deemed expedient.
No waiver of any Event of Default hereunder, whether by the Trustee or
by the holders or owners of the Bonds shall extend or shall affect any
subsequent default or Event of Default or shall impair any rights or remedies
consequent thereon.
SECTION 8.04. Right of Bondholders to Direct Proceeding. Anything in
this Indenture to the contrary notwithstanding, the holders of a majority in
aggregate principal amount of Bonds then outstanding shall have the right, at
any time, by an instrument or instruments in writing executed and delivered to
the Trustee, to annul or overrule any direction given to the Trustee by holders
of less than a majority in aggregate principal amount of Bonds or to direct the
method and place of conducting all proceedings to be taken in connection with
the enforcement of the terms and conditions of this Indenture or any other
proceedings hereunder; provided, that (i) such direction shall not be otherwise
than in accordance with the provisions of law and of this Indenture, (ii) the
Trustee shall be indemnified to its satisfaction, and (iii) prior to the
Expiration Date of the Letter of Credit and so long as the Bank is not then in
default in making any payment under the Letter of Credit, the Bank shall have
the exclusive right to annul or overrule or give any such direction to the
Trustee.
SECTION 8.05. Application of Moneys. If, prior to the Completion Date
as defined in the Loan Agreement, all of the Bonds should be called for
redemption pursuant to Section 3 of the Bond Legislation for the Project Bonds
or there shall occur a declaration by the Trustee that the principal of all
Bonds then outstanding and premium, if any, on Bonds called for redemption, and
the interest accrued thereon are immediately due and payable, then the Trustee
shall immediately transfer all moneys and investments then on deposit in the
Construction Fund to the Bond Fund and shall hold the same in a special account
in the Bond Fund which account is hereby created and use such moneys and those
resulting from the liquidation of such investments for the retirement of
principal of the Bonds ratably to the principal amount of Bonds then
outstanding. All moneys, other than those received pursuant to the next
preceding sentence, received by the Trustee pursuant to any right given or
action taken under the provisions of this Article VIII shall, after payment of
the cost and expenses of the proceedings resulting in the collection of such
moneys and of the expenses, liabilities and advances incurred or made by the
Trustee, including, without limitation, any amounts payable to the Trustee
pursuant to Section 9.02, hereof, be deposited in the Bond Fund and all such
moneys in the Bond Fund shall be applied as follows:
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(a) unless the principal of all the Bonds shall have become or 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 on the Bonds, in the order of the
maturity of the installments of such interest and, if the amount
available shall not be sufficient to pay in full any particular
installment, then to the payment ratably, according to the amounts due
on such installment, to the persons entitled thereto, without any
discrimination or privilege; and
Second--To the payment to the persons entitled thereto of the
unpaid principal of any of the Bonds which shall have become due (other
than Bonds previously called for redemption for the payment of which
moneys are held pursuant to the provisions of this Indenture), in the
order of their due date, with interest on such Bonds from the
respective dates upon which they become due and if the amount available
shall not be sufficient to pay in full all Bonds due on any particular
date, together with such interest, then to the payment ratably,
according to the amount of principal due on such date, to the persons
entitled thereto without any discrimination or privilege;
(b) if the principal of all the Bonds shall have become due or shall
have been declared due and payable, all such moneys shall be applied to the
payment of the principal and interest then due and unpaid upon the Bonds,
without preference or priority of principal over interest or of interest
over principal, or of any installment of interest over any other
installment of interest, or of any Bond over any other Bond, ratably,
according to the amounts due respectively for principal and interest, to
the persons entitled thereto without any discrimination or privilege; and
(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 the provisions of Section 8.02 or 8.09 then, subject to the
provisions of subsection (b) of this Section 8.05 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 the provisions of
subsection (a) of this Section 8.05.
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Whenever the Trustee shall apply such funds, it shall fix the date
(which shall be an Interest Payment Date unless it shall deem another date more
suitable) upon which such application is to be made and upon such date interest
on the amounts of principal to be paid on such date, and for which moneys are
available, shall cease to accrue. The Trustee shall give such notice as it may
deem appropriate of the deposit with it of any moneys and of the fixing of any
such date, and may make payment but shall not be required to make payment to the
holder of any Bond until such Bond shall be presented to the Trustee for
appropriate endorsement, or for cancellation if fully paid.
Whenever all Bonds and interest thereon have been paid under the
provisions of this section 8.05 and all expenses and charges of the Trustee and
Paying Agents have been paid, any balance remaining in the Bond Fund shall be
paid to the Bank or the Company as provided in Section 4.05 hereof.
Notwithstanding the provisions of this Section 8.05 proceeds of a draw
on the Letter of Credit received by the Trustee pursuant to the exercise of any
right or action taken under this Article VIII shall be applied only to the
payment of principal of and interest on the Project Bonds.
SECTION 8.06. Remedies Vested in Trustee. All rights of action
(including the right to file proof of claims) 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 proceeding 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 holders of the Bonds, and any recovery of judgment shall (except
for any amounts payable to the Trustee pursuant to Section 9.02 hereof) be
applied first for the ratable benefit of the holders of the outstanding Bonds
and when all such Bonds have been paid or provision for their payment has been
made in accordance with the Indenture then for the benefit of the Bank or the
Company pursuant to Section 4.05 hereof.
SECTION 8.07. Rights and Remedies of Bondholders. No holder of any Bond
shall have any right to institute any suit, action or proceeding for the
enforcement of this Indenture or for the execution of any trust thereof or any
other remedy hereunder, unless an Event of Default has occurred of which the
Trustee has been notified as provided in subsection (g) of Section 9.01, or of
which by said subsection it is deemed to have notice, and the holders of a
majority in aggregate principal amount of Bonds then outstanding, or the Bank,
in accordance with the provisions of Section 8.04 hereof, shall have made
written request to the
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Trustee and shall have offered reasonable opportunity either to proceed to
exercise the powers hereinbefore granted or to institute such action, suit or
proceeding in its own name, nor unless also they have offered to the Trustee
indemnity as provided in Section 9.01 nor unless the Trustee shall thereafter
fail or refuse to exercise the powers hereinbefore granted, or to institute such
action, suit or proceeding in its, his, her or their own name or names; and such
notification, request and offer of indemnity are hereby declared in every case
at the option of the Trustee to be conditions precedent to any action or cause
of action for the enforcement of this Indenture or for any other remedy
hereunder; it being further understood and intended that no one or more holders
of the Bonds shall have any right in any manner whatsoever to affect, disturb or
prejudice the lien of this Indenture by its, his, her or their action or to
enforce any right hereunder except in the manner herein provided and that
proceedings shall be instituted, had and maintained in the manner herein
provided and for the ratable benefit of the holders and owners of all Bonds then
outstanding. Nothing in this Indenture contained shall, however, affect or
impair the right of any Bondholder to enforce the payment of the principal of
and interest on any Bond at and after the maturity thereof, or the obligation of
the Issuer to pay the principal of, premium, if any, and interest on each of the
Bonds issued hereunder to the respective holders thereof at the time, place,
from the source and in the manner provided in the Bonds.
SECTION 8.08. Termination of Proceedings. In case the Trustee shall
have proceeded to enforce any right under this Indenture by the appointment of a
receiver 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 and the Trustee shall be restored to their former
positions and rights hereunder with respect to the property herein conveyed, and
all rights, remedies and powers of the Trustee shall continue as if no such
proceedings had been taken.
SECTION 8.09. Waivers of Events of Default. The Trustee may in its
discretion waive any Event of Default hereunder and its consequences and rescind
any declaration of maturity of principal, and shall do so upon the written
request of (a) the holders of (i) a majority in aggregate principal amount of
all the Bonds then outstanding in respect of which an Event of Default in the
payment of principal or interest exists, or (ii) a majority in aggregate
principal amount of all Bonds then outstanding in case of any other default or
Event of Default and (b) prior to the Expiration Date of the Letter of credit,
the Bank; provided, however, that there shall not be waived any Event of Default
after the Trustee has drawn on the Letter of Credit to
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provide funds for the payment of the principal of and interest on the Project
Bonds called for redemption pursuant to section 8.02 of this Indenture; and
there shall not be waived (a) an Event of Default in respect of any failure in
the payment of the principal of any outstanding Bonds when due, whether at the
date of maturity specified therein, by acceleration or by call for redemption or
(b) an Event of Default in respect of any failure in the payment when due of the
interest on any such Bonds unless prior to such waiver or rescission, all
arrears of payments of principal, premium and interest (with interest to the
extent permitted by law at the rate borne by the Bonds in respect of which such
failure shall have occurred on overdue installments of interest), 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, 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 Trustee, the Bank and the
Bondholders shall be restored to their former positions and rights hereunder
respectively, but no such waiver or rescission shall extend to any subsequent or
other Event of Default, or impair any right consequent thereon.
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ARTICLE IX
The Trustee
SECTION 9.01. Trustee's Acceptance and Responsibilities. 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 terms and
conditions:
(a) The Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers or
employees but shall be answerable for the conduct of the same in accordance
with the standard specified in subsection (f) of this Section 9.01, and
shall be entitled to advice of counsel concerning all matters or trusts
hereof and duties hereunder, and may in all cases pay such reasonable
compensation (and shall be entitled to reimbursement thereof by the
Company) to all such attorneys, agents, receivers and employees as may
reasonably be employed in connection with the trusts hereof. The Trustee
may act upon the opinion or advice of any attorney (who may be the attorney
or attorneys for the Issuer or the Company), approved by the Trustee in the
exercise of reasonable care. The Trustee shall not be responsible for any
loss or damage resulting from any action or nonaction in good faith in
reliance upon such opinion or advice.
(b) Except for its certificate of authentication on the Bonds, the
Trustee shall not be responsible for any recital herein or in the Bonds, or
for the validity, priority, recording or re-recording, filing or re-filing
of this Indenture or the Loan Agreement or any financing statements,
amendments thereto or continuation statements, or for the validity of the
execution by the Issuer of this Indenture or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the security
for the Bonds issued hereunder or intended to be secured hereby or for the
value or title of the Facilities or for insuring the Facilities, nor shall
the Trustee be bound to ascertain or inquire as to the performance or
observance of any covenants, conditions or agreements on the part of the
Issuer or on the part of the Company under Section 5.5 of the Loan
Agreement, but the Trustee may require of the Issuer and the Company full
information as to performance and observance thereof. The Trustee shall not
be responsible or liable for any loss suffered in connection with any
investment of funds made in accordance with Article VI hereof. The Trustee
shall have no obligation to perform any of the duties of the Issuer under
the Loan Agreement.
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(c) The Trustee shall not be accountable for the use of any Bonds
authenticated or delivered hereunder or the application of the proceeds
thereof. The Trustee may become the owner of Bonds secured hereby with the
same rights which it would have if not Trustee.
(d) The Trustee shall be protected in acting upon any notice, request,
consent, certificate, order, affidavit, letter, telegram or other paper or
document believed to be genuine and correct and to have been signed or sent
by the proper person or persons, Any action taken by the Trustee pursuant
to this Indenture upon the request or authority or consent of any person
who at the time of making such request or giving such authority or consent
is the holder of any Bonds, shall be conclusive and binding upon all future
holders of the same Bond and upon Bonds issued in exchange therefor or in
place thereof.
(e) As to the existence or nonexistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the Trustee
shall be entitled to rely upon a certificate signed on behalf of the Issuer
by an authorized officer thereof as sufficient evidence of the facts
therein contained and, prior to the occurrence of a default of which the
Trustee has been notified as provided in subsection (g) of this Section
9.01, or of which by said subsection it is deemed to have notice, shall
also be at liberty to rely on a similar certificate to the effect that any
particular dealing, transaction or action is necessary or expedient, but
may at its discretion require such further evidence deemed necessary or
advisable, but shall in no case be bound to do so. The Trustee may accept a
certificate of the officer, or an assistant thereto, having charge of the
appropriate records to the effect that legislation or resolutions in the
form therein set forth have been adopted by the Issuer or by the partners
of the Company as conclusive evidence that such legislation or resolutions
have been duly adopted and are in full force and effect.
(f) The permissive right of the Trustee to take actions under this
Indenture shall not be construed as a duty and the Trustee, except during
the continuance of an Event of Default, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture, the
Loan Agreement and the Letter of Credit Agreement. In the performance of
such duties, the Trustee shall be answerable only for its gross negligence
or wilful default. In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture, the Loan Agreement and the Letter of Credit
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Agreement, and use the same degree of care and skill in their exercise, as
an ordinarily prudent trustee would exercise or use under a trust
agreement.
(g) The Trustee shall not be required to take notice or be deemed to
have notice of any default or Event of Default hereunder, except Events of
Default defined in subsection (a) of Section 6.1 of the Loan Agreement or
subsections (a) or (b) of Section 8.01 of this Indenture, unless the
Trustee shall be specifically notified in writing of such default or Event
of Default by the Issuer, the Bank or the holders of at least twenty-five
percent (25%) in aggregate principal amount of Bonds then outstanding, and
in the absence of such notice so delivered the Trustee may conclusively
assume there is no default or Event of Default except as aforesaid.
(h) At any and all reasonable times the Trustee, and its duly
authorized agents, attorneys, experts, accountants and representatives
shall have the right fully to inspect any and all books, papers and records
of the Issuer pertaining to Revenues and the Bonds, and to take such
memoranda from and in regard thereto as may be desired.
(i) The Trustee shall not be required to give any bond or surety in
respect of the execution of the said trusts and powers or otherwise in
respect of the premises.
(j) Notwithstanding anything elsewhere in this Indenture contained, the
Trustee shall have the right, but shalll not be required, to demand, in
respect of the authentication of any Bonds, the withdrawal of any cash, the
release of any property, or any action whatsoever within the purview of
this Indenture, any showings, certificates opinions, appraisals, or other
information, or corporate action or evidence thereof, in addition to that
by the terms hereof required as a condition of such action by the Trustee,
deemed desirable for the purpose of establishing the right of the Issuer to
the authentication of any Bonds, the withdrawal of any cash, or the taking
of any other action by the Trustee.
(k) Before taking action under Article VIII or Section 9.04 hereof, the
Trustee may require that a satisfactory indemnity bond be furnished for the
reimbursement of all expenses to which it may be put and to protect it
against all liability by reason of any action so taken, except liability
which is adjudicated to have resulted from its gross negligence or wilful
default.
(l) All moneys received by the Trustee shall, until used or applied or
invested as herein provided be held in trust
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for the purposes for which they were received but need not be segregated
from other funds except to the extent required by law. The Trustee shall
not be under any liability for interest on any moneys received hereunder.
(m) The Trustee shall not be personally liable for any debts
contracted, or for injury or damage to persons or to personal property, or
with respect to the Facilities, for salaries or nonfulfillment of
contracts.
SECTION 9.02. Fees, Charges and Expenses of Trustee and Paying Agents.
The Trustee shall be entitled to payment or reimbursement for reasonable fees
for its Ordinary Services rendered hereunder and all advances, 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 misconduct of the Trustee, it shall
not be entitled to compensation or reimbursement therefor. The obligation to pay
the fees, charges and expenses of the Trustee shall survive the termination of
this Indenture. The Trustee and any Paying Agent shall be entitled to payment
and reimbursement for the reasonable fees, charges and expenses of the Trustee,
as Paying Agent, and any Paying Agent for the Bonds.
The obligation for all payments or reimbursements pursuant to this
Section 9.02 shall be that of the Company as set forth in the Loan Agreement and
shall be subject to Section 4.03 of this Indenture. Proceeds resulting from a
draw on the Letter of Credit shall not be applied to any payments described in
this Section 9.02.
SECTION 9.03. Notice to Bondholders if Event of Default Occurs. If an
Event of Default occurs of which the Trustee is by subsection (g) of Section
9.01 hereof required to take notice or if notice of an Event of Default be given
as in said subsection (g) provided, then the Trustee shall, within 30 days after
the Trustee has or is deemed to have such notice, give written notice thereof
unless previously cured or waived by first class, postage prepaid mail to the
holders of all Bonds then outstanding as shown by the registration books
maintained by the Bond Registrar pursuant to Section 2.04 of this Indenture
unless the board of directors, the executive committee, or a trust committee of
directors or responsible officers of the Trustee in good faith determines that
the withholding of such notice is in the best interests of the Bondholders.
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SECTION 9.04. Intervention by Trustee. In any judicial proceeding to
which the Issuer or the Company is a party and which in the opinion of the
Trustee and its attorney has a substantial bearing on the interests of holders
of the Bonds, the Trustee may intervene on behalf of Bondholders and shall do so
if requested in writing by the holders of at least twenty-five percent (25%) of
the aggregate principal amount of Bonds then outstanding.
SECTION 9.05. Successor Trustee. Any corporation or association into
which the Trustee may be converted or merged, or with which it or any successor
to it may be consolidated, or to which it may sell or transfer its assets and
trust business as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion sale, merger, consolidation or
transfer to which it is a party, ipso facto, shall be and become successor
Trustee hereunder and vested with all of the title to the whole property or
trust estate and all the trusts, powers, discretions, immunities, privileges and
all other matters 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, anything
herein to the contrary notwithstanding.
SECTION 9.06. Resignation by the Trustee. The Trustee may at any time
resign from the trusts hereby created by giving sixty (60) days' written notice
to the Issuer, the Company and the Bank, if prior to the Expiration Date, and to
each holder of Bonds then outstanding as shown on the registration books
maintained by the Bond Registrar pursuant to Section 2.04 of this Indenture, and
such resignation shall take effect at the appointment of a successor Trustee by
the Bondholders or by the Issuer and acceptance by the successor Trustee of such
trusts. If no successor Trustee shall have been so appointed and have accepted
appointment within thirty (30) days of the giving of written notice by the
resigning Trustee as aforesaid, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
SECTION 9.07. Removal of the Trustee. The Trustee may be removed at any
time, by an instrument or concurrent instrument in writing delivered to the
Trustee, to the Issuer, and to the Company and signed by or on behalf of the
holder or holders of a majority in aggregate principal amount of Bonds then
outstanding. Such removal shall not become effective until the appointment of a
successor Trustee by the Bondholders or by the Issuer and acceptance by the
successor Trustee of the trusts hereby created.
SECTION 9.08. Appointment of Successor Trustee by the Bondholders. In
case the Trustee hereunder shall resign or be removed, or be dissolved, or
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
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court, a successor shall be appointed by the Issuer with the written consent of
the Company and, prior to the Expiration Date of the Letter of Credit, the Bank;
provided that if a successor Trustee is not so appointed within ten (10) days
after the notice of resignation is mailed or instrument of removal is delivered
as provided in section 9.06 and 9.07, respectively or the Trustee is dissolved,
taken under control or otherwise incapable of action as above provided, then the
holders of a majority in aggregate principal amount of Bonds then outstanding,
by an instrument or concurrent instruments in writing signed by or on behalf of
such holders may designate a successor Trustee. Every such successor Trustee
appointed pursuant to the provisions of this Section 9.08 shall be a trust
company or bank in good standing, duly authorized to exercise trust powers
within the State, having a reported capital and surplus of not less than
$25,000,000 and willing to accept the trusteeship under the terms and conditions
of this Indenture.
SECTION 9.09. Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer and the Company, an instrument in writing accepting such
appointment hereunder, and thereupon such successor, without any further act
shall become fully vested with all the rights, powers, trusts, duties and
obligations of its predecessor; but such predecessor shall, nevertheless, on the
written request of the Issuer, or of its successor, execute and deliver any
instrument transferring to such successor trustee all the estates, properties,
rights, powers and trusts of such predecessor hereunder, and shall duly assign,
transfer and deliver all property, securities and moneys held by it as Trustee
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 rights, powers and duties hereby vested or intended to be vested in the
predecessor any and all such instruments in writing shall, on request, be
executed, acknowledged and delivered by the Issuer.
SECTION 9.10. Trustee Protected in Relying Upon Resolutions, etc. The
resolutions, opinions, certificates and other instruments provided for in this
Indenture may be accepted by the Trustee as conclusive evidence of the facts and
conclusions stated therein and shall be full warrant, protection and authority
to the Trustee for its actions taken hereunder.
SECTION 9.11. Successor Trustee as Custodian, Bond Registrar and Paying
Agent. In the event of a change in the office of Trustee, the predecessor
Trustee which has resigned or been removed shall cease to be custodian of any
funds it may hold pursuant to this Indenture or any indenture supplemental
hereto, and cease to be Bond Registrar and Paying Agent for principal of and
premium, if any, or interest on the Bonds and the successor Trustee shall become
such custodian, Bond Registrar and Paying Agent.
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SECTION 9.12. Adoption of Authentication. In case any of the Bonds
contemplated to be issued hereunder shall have been authenticated but not
delivered, any successor Trustee may adopt the certificate of authentication of
the original Trustee or of any successor of it as Trustee hereunder and deliver
the said Bonds so authenticated as hereinbefore provided; and in case any of
such Bonds shall not have been authenticated, any successor Trustee may
authenticate such bonds in its own name. In all such cases such certificate of
authentication shall have the same force and effect as provided in the Bonds or
in this Indenture with respect to the certificate of authentication of the
Trustee.
SECTION 9.13. Succession of Paying Agents. Any bank or trust company
with or into which any Paying Agent may be merged or consolidated, or to which
the assets and business of such Paying Agent may be sold, shall be deemed the
successor of such Paying Agent for the purposes of this Indenture. If the
position of Paying Agent shall become vacant for any reason, the Issuer shall,
within thirty (30) days thereafter, appoint a bank or trust company selected by
the Company (and, prior to the Expiration Date of the Letter of Credit, approved
by the Bank) and located in the same city as such Paying Agent to fill such
vacancy; provided, however, that if the Issuer shall fail to select such
successor within said period, the Trustee shall make such appointment.
The Paying Agents shall enjoy the same protective provisions in the
performance of their duties hereunder as are specified in section 9.01 with
respect to the Trustee, in so far as such provisions may be applicable.
Section 9.14. Right of Trustee to Pay Taxes and other Charges. In case
any tax, assessment or governmental or other charge upon any part of the
Facilities, is not paid as required therein, the Trustee may, but shall not be
obligated to, pay such tax, assessment or governmental charge without prejudice,
however, to any rights of the Trustee or the holders of the Bonds 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 the Interest
Rate for Advances, as defined in the Loan Agreement, shall become so much
additional indebtedness secured by this Indenture, and the same shall be given
preference in payment over any of the Bonds, and shall be paid out of the
Revenues, if not otherwise caused to be paid; provided, however, that such
amounts shall not be paid with proceeds from a draw on the Letter of Credit.
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ARTICLE X
Supplemental Indentures
SECTION 10.01. Supplemental Indentures Not Requiring Consent of
Bondholders. The Issuer and the Trustee may, without the consent of, or notice
to, any of the Bondholders, but, if prior to the Expiration Date of the Letter
of Credit, with prior written notice to the Bank, enter into indentures
supplemental to this Indenture for any one or more of the following purposes:
(a) to cure any ambiguity, inconsistency or formal defect or omission
in this Indenture;
(b) to grant to or confer upon the Trustee for the benefit of the
Bondholders any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the Bondholders or the Trustee or
either of them;
(c) to subject to the lien and pledge of this Indenture additional
revenues;
(d) to add to the covenants and agreements of the Issuer contained in
this Indenture other covenants and agreements thereafter to be observed for
the protection of the Bondholders, or to surrender or limit any right,
power or authority herein reserved to or conferred upon the Issuer;
(e) to evidence any succession to the Issuer and the assumption by such
successors of the covenants and agreements of the Issuer herein and in the
Loan Agreement and Bonds contained;
(f) to modify, amend or supplement the Indenture in such manner as to
permit the qualification thereof under the Trust Indenture Act of 1939, as
amended, or to comply with any similar requirements of any other law;
(g) in connection with the issuance of Additional Bonds in accordance
with Section 2.08 hereof; or
(h) to change the method for determining the Interest Index or the
Alternate Interest Index or to eliminate such indices or to implement the
Fixed Interest Rate.
SECTION 10.02. Supplemental Indentures Requiring Consent of
Bondholders. Exclusive of supplemental indentures covered by Section 10.01
hereof and subject to the terms and provisions contained in this Section 10.02,
and not otherwise the holders of a majority in aggregate principal amount of the
Bonds then
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outstanding shall have right, from time to time, 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 indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by the Issuer for
the purpose of modifying, altering, amending, adding to or rescinding, in any
particular any of the terms or provisions contained in this Indenture or in any
supplemental indenture; provided, however, that nothing in this Section 10.02
contained shall permit, or be construed as permitting (a) an extension of the
maturity of the principal of or the interest on any Bond issued hereunder, or a
reduction in the principal amount of any Bond or the rate of interest or
redemption premium thereon, or a change in the terms of purchase thereof by the
Trustee or a reduction in the amount or extension of the time of any payment
required by any mandatory sinking fund requirements provided in the Bond
Legislation, without the consent of the holder of each Bond so affected, or (b)
a privilege or priority of any Bond or Bonds over any other Bond or Bonds, or a
reduction in the aggregate principal amount of the Bonds required for consent to
such supplemental indenture, without the consent of the holders of all of the
Bonds then outstanding.
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 10.02, the
Trustee shall, upon being satisfactorily indemnified with respect to expenses,
cause notice of the proposed execution of such supplemental indenture to be
mailed by first class mail, postage prepaid, to all holders of Bonds then
outstanding at their addresses as they appear on the registration books provided
for herein. Such notice shall briefly set forth the nature of the proposed
supplemental indenture and shall state that copies thereof are on file at the
corporate trust office of the Trustee for inspection by all Bondholders. If
because of temporary or permanent suspension of mail service, or for any other
reason, it is impossible or impractical to publish or mail such notice in the
manner herein provided, then any such other manner of giving notice as shall be
made with the approval of the Trustee shall constitute a sufficient notice.
If within sixty (60) days or such longer period, as shall be prescribed
by the Issuer following the giving of such notice, the Trustee shall receive an
instrument or instruments purporting to be executed by the holders of a majority
in aggregate principal amount of the Bonds then outstanding which instrument or
instruments shall refer to the proposed supplemental indenture described in such
notice and shall specifically consent to and approve the execution thereof in
substantially the form of the copy thereof referred to in such notice as on file
with the Trustee, thereupon, but not otherwise,
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the Trustee shall execute such supplemental indenture in substantially such
form, without liability or responsibility to any holder of any Bond, whether or
not such holder shall have consented thereto.
Any such consent shall be binding upon the holder of the Bond giving
such consent and, anything in Section 12.01 hereof to the contrary
notwithstanding, upon any subsequent holder of such Bond and of any Bond issued
in exchange therefor (whether or not such subsequent holder thereof has notice
thereof), unless such consent is revoked in writing by the holder of such Bond
giving such consent or by a subsequent holder thereof by filing with the
Trustee, prior to the execution by the Trustee of such supplemental indenture,
such revocation. At any time after the holders of the required percentage of
Bonds shall have filed their consents to the supplemental indenture, the Trustee
shall make and file with the Issuer a written statement that the holders of such
required percentage of Bonds have filed such consents. Such written statement
shall be conclusive that such consents have been so filed.
If the holders of the required percentage in aggregate principal amount
of the Bonds outstanding shall have consented to and approved the execution
thereof as herein provided, no holder of any Bond shall have any right to object
to the execution of such supplemental indenture, or 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 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 10.02 permitted and provided, this Indenture shall be and is deemed to
be modified and amended in accordance therewith.
SECTION 10.03. Modification by Unanimous Consent. Notwithstanding
anything contained elsewhere in the Indenture, the rights and obligations of the
Issuer and of the holders of the Bonds, and the terms and provisions of the
Bonds and this Indenture or any supplemental indenture, may be modified or
altered in any respect with the consent of the Issuer and the consent of the
holders of all of the Bonds then outstanding and, if required by Section 10.04
hereof, the consent of the Company.
SECTION 10.04. Supplemental indentures Requiring Consent of the Bank.
Notwithstanding the provisions of Sections 10.02 and 10.03 of this Indenture,
the Issuer and the Trustee shall not enter into any supplemental indenture after
the initial authentication and delivery of Project Bonds and prior to the
Expiration Date without the prior written consent of the Bank.
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SECTION 10.05. Rights of Company. Anything herein to the contrary
notwithstanding, a supplemental indenture under this Article X which affects any
rights of the Company shall not become effective unless and until the Company
shall have consented 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 as provided in Section 12.04
of this Indenture to the Company at least thirty (30) days prior to its proposed
execution.
SECTION 10.06. Execution by Trustee. The Trustee may require an opinion
of counsel (who may be counsel for the Issuer or the Company and who shall be
satisfactory to the Trustee) that any supplemental indenture entered into by the
Issuer and the Trustee complies with the provisions of this Article X and the
Trustee may rely on such opinion. The Trustee may, but shall not be obligated
to, enter into any such supplemental indenture which adversely affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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ARTICLE XI
Amendment of Loan Agreement
SECTION 11.01. Amendments, etc., to Loan Agreement Not Requiring
Consent of Bondholders. The Issuer and the Trustee may, without the consent of
or notice to the Bondholders, consent to any amendment, change or modification
of the Loan Agreement as may be required (i) by the provisions of the Loan
Agreement and this Indenture, (ii) in connection with the issuance of Additional
Bonds as specified in Section 2.08 hereof, (iii) for the purpose of curing any
ambiguity, inconsistency or formal defect or omission or (iv) in connection with
any other change herein which, in the judgment of the Trustee, is not to the
prejudice of the Trustee or the holders of the Bonds.
SECTION 11.02. Amendments, etc., to Loan Agreement Requiring Consent of
Bondholders. Except for the amendments, changes or modifications as provided in
Section 11.01 hereof, neither the Issuer nor the Trustee shall consent to any
amendment, change or modification of the Loan Agreement which would change the
amounts payable under Section 4.1 of the Loan Agreement, Bond maturities or
interest rates or payment dates for the Bonds without publication of notice and
the written approval or consent of the holders of all of the then outstanding
Bonds, or to any other amendment, change or modification of the Loan Agreement
without giving of notice to, and the written approval or consent of, the holders
of not less than a majority in aggregate principal amount of the Bonds at the
time outstanding, given and procured as in Section 10.02 provided. If at any
time the Issuer and the Company shall request the consent of the Trustee to any
such proposed amendment, change or modification of the Loan Agreement, the
Trustee shall, upon being satisfactorily indemnified with respect to expenses,
cause notice of such proposed amendment, change or modification to be given in
the same manner as provided by Section 10.02 hereof with respect to supplemental
indentures. Such notice shall briefly set forth the nature of such proposed
amendment, change or modification and shall state that copies of the instrument
embodying the same are on file at the corporate trust office of the Trustee for
inspection by all Bondholders.
SECTION 11.03. Consent by Trustee. In consenting to any amendment,
change or modification of the Loan Agreement, the Trustee may require an opinion
of counsel (who may be counsel for the Issuer or the Company and who shall be
satisfactory to the Trustee) that such amendment, change or modification
complies with the provisions of this Article XI, and the Trustee may rely on
such opinion.
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ARTICLE XII
Miscellaneous
Section 12.01. Consents, etc., of Bondholders. Any consent, request,
direction, approval, objection or other instrument required by this Indenture to
be signed and executed by the Bondholders may be in any number of concurrent
writings of similar tenor and may be signed or executed by such Bondholders in
person or by agent appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other 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,
and shall be conclusive in favor of the Trustee with regard to any action taken
under such request or other instrument, namely:
(1) The fact and date of the execution by any person of any
such writing 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 writing acknowledged before
him the execution thereof, or by affidavit of any witness to such
execution,
(2) The fact of ownership of Bonds shall be proved by the
registration books maintained by the Bond Registrar.
Nothing contained herein shall be construed as limiting the Trustee to
such proof, it being intended that the Trustee may accept any other evidence of
the matter herein stated which it deems to be sufficient. Any request or consent
of the holder of any Bond shall bind every future holder of the same Bond in
respect to anything done or suffered to be done by the Issuer, the Trustee or
any Paying Agent in pursuance of such request or consent.
Section 12.02. Limitation of Rights. With the exception of rights
herein expressly conferred, nothing expressed or mentioned in or to be implied
from this Indenture or the Bonds is intended or shall be construed to give to
any person other than the parties hereto, the Bank, the Company and the holders
of the Bonds, any legal or equitable right, remedy or claim under or in respect
to this Indenture or any covenants; conditions and provisions herein contained;
this Indenture and all of the covenants, conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of the parties
hereto, the Bank, the Company and the holders of the Bonds as
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herein provided. No recourse shall be had for any claim based on the Loan
Agreement, the Indenture or the Bonds against any member, officer or employee
past, present or future, of the issuer either directly or through the Issuer
under any constitutional provision, statute or rule of law or by the enforcement
of any assessment, penalty or otherwise.
Section 12.03. Extent of Covenants; No Personal Liability. All
covenants, stipulations, obligations and agreements of the Issuer contained in
this Indenture shall be effective to the extent authorized and permitted by
applicable law. No such covenant, stipulation, obligation or agreement shall be
deemed to be a covenant, stipulation, obligation or agreement of any present or
future member, officer, agent or employee of the Issuer in his individual
capacity, and neither the members of the Legislative Authority nor any official
executing the Bonds shall be liable personally on the Bonds or be subject to any
personal liability or accountability by reason of the issuance thereof.
Section 12.04. Severability. If any provision of this Indenture shall
be held or deemed to be or shall, in fact, be 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
circumstance, 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.
Section 12.05. Notices. It shall be sufficient service or giving of any
notice, request, complaint demand or other paper if the same shall be duly
mailed by first class mail addressed as follows: if to the Issuer, at County of
Delaware, Ohio, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
Clerk; if to the Company, at Radiation Sterilizers, Incorporated, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; if to the Trustee, at Bank One Trust
Company, NA, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Corporate Trust Administration; and if to the Bank, at the address of the Bank
set forth in the Letter of Credit Agreement. Duplicate copies of each notice,
certificate or other communication given hereunder by the Issuer, Trustee, the
Bank or the Company to one or both of the others, shall also be given to the
others, The Issuer, the Company, the Bank and the Trustee may, by notice given
hereunder,
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designate any further or different addresses to which subsequent notices,
certificates or other communications shall be sent. Except as otherwise provided
in this Indenture, all notices and other communications shall, when mailed, be
effective three days after the date of deposit in the mails, or when received,
if earlier, and if personally delivered, telegrammed or telexed, upon receipt.
Section 12.06. Trustee as Paying Agent and Bond Registrar. The Trustee
is hereby designated and agrees to act as a Paying Agent and Bond Registrar for
and in respect to the Bonds.
Section 12.07. Payments Due on Days Other Than Business Days. After the
Conversion Date, in any case where the date of maturity of principal of or
interest on the Bonds or the date fixed for redemption of any Bonds shall not be
a Business Day, then payment of interest or principal and any premium need not
be made on such date but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of maturity or the date fixed
for redemption and if made on such next succeeding Business Day no additional
interest shall accrue for the period after such date.
Section 12.08. Priority Over Other Liens. It is intended that this
Indenture shall be superior to any other liens which may be placed upon the
Revenues, the Bond Fund, the Construction Fund or any other funds or accounts
created pursuant to this Indenture or the Loan Agreement.
Section 12.09. Binding Effect. This instrument shall inure to the
benefit of and shall be binding upon the Issuer and the Trustee and their
respective successors and assigns, subject, however, to the limitations
contained in this Indenture.
Section 12.10. Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 12.11. Captions. The captions or headings in this Indenture are
for convenience only and in no way define, limit or describe the scope or intent
of any provisions or sections of this Indenture.
Section 12.12. Governing Law. This Indenture and the Bonds shall be
governed exclusively by and construed in accordance with the laws of the State.
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Section 12.13. Notice to S & P
The Trustee agrees to notify S & P in writing, signed by an authorized
officer of the Trustee, with respect to: (a) any change of Trustee under the
Indenture; (b) any amendment of or supplement to the Indenture or the Loan
Agreement; (c) redemption, in full, of the Project Bonds; (d) conversion of the
interest rate borne by the Project Bonds to a Fixed Interest Rate; (e) the
expiration of the Letter of Credit; or (f) any amendment to the Letter of
Credit.
IN WITNESS WHEREOF, the Issuer has caused this Indenture to be executed
in its name and on its behalf by its authorized officer; and the Trustee, in
token of its acceptance of the trusts created hereunder, has caused this
Indenture to be executed in its name and by its duly authorized agent; all as of
the day and year first above written.
Signed and acknowledged COUNTY OF DELAWARE, OHIO
in the presence of:
[SIG] By: [SIG]
------------------------ ----------------------------
[SIG] Commissioner
------------------------
Signed and acknowledged BANK ONE TRUST COMPANY, NA
in the presence of: Trustee
[SIG] By: [SIG]
------------------------ ----------------------------
Authorized Officer
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
STATE OF OHIO :
:ss.
COUNTY OF DELAWARE :
On this 24 day of December, 1984, before me, a Notary Public in and for
said County and State, personally appeared ______________ of the Board of County
Commissioner of the County of Delaware, Ohio, and acknowledged the execution of
the foregoing instrument, and that the same is
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his voluntary act and deed on behalf of said County and the voluntary act and
deed of said Commissioner as such.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
/s/ [SIG]
------------------------
Notary Public
[SEAL]
STATE OF OHIO :
:ss
COUNTY OF FRANKLIN :
On this 20 day of December, 1984, before me, a Notary Public in and for
said County and State, personally appeared ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an Authorized Officer
of Bank One Trust Company, NA, the bank which executed the foregoing instrument
as Trustee, who acknowledged that he did sign said instrument as such officer,
for and on behalf of said bank and by authority granted in its rules and
regulations and by its Board of Directors; that the same is his free act and
deed as such officer and the free act and deed of said bank.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my
official seal on the day and year aforesaid.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------
Notary Public
[SEAL]
This instrument was prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
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