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Exhibit 4.34
TRUST INDENTURE
Dated June 1, 1999
Between
DISPLAY TECHNOLOGIES, INC.
and
SOUTHTRUST BANK, NATIONAL ASSOCIATION
_________________________________________
Regarding
$2,500,000
Variable/Fixed Rate Secured Promissory Notes
_________________________________________
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This Trust Indenture was prepared by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Walston, Wells, ▇▇▇▇▇▇▇▇
& Bains, LLP, Suite 500, Financial Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
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TRUST INDENTURE
TABLE OF CONTENTS
(This Table of Contents is not a part of this Indenture
and is only for convenience of reference)
PAGE
PARTIES...................................................................... 1
RECITALS..................................................................... 1
GRANTING CLAUSES............................................................. 2
ARTICLE I
Definitions and Other Provisions
of General Application
-----------------------------
SECTION 1.01 Definitions.............................................. 2
SECTION 1.02 Acts of Noteholders...................................... 10
SECTION 1.03 Form and Contents of Documents Delivered to Trustee...... 11
SECTION 1.04 Compliance Certificates and Opinions..................... 12
SECTION 1.05 Effect of Headings and Table of Contents................. 13
SECTION 1.06 Date of Indenture........................................ 13
SECTION 1.07 Enforceability........................................... 13
SECTION 1.08 Governing Law............................................ 13
SECTION 1.09 Counterparts............................................. 13
SECTION 1.10 Notices.................................................. 13
SECTION 1.11 Notices to Noteholders; Waiver........................... 15
SECTION 1.12 Concerning the Credit Obligor and the Letter of Credit... 15
SECTION 1.13 Notice to Rating Agencies................................ 15
SECTION 1.14 Successors and Assigns................................... 16
SECTION 1.15 Benefits of Indenture.................................... 16
ARTICLE II
Granting Clauses
----------------
ARTICLE III
The Notes
---------
SECTION 3.01 General Terms............................................ 17
SECTION 3.02 Variable Rate............................................ 19
SECTION 3.03 Fixed Rate........................................................ 19
SECTION 3.04 Optional Tender................................................... 21
SECTION 3.05 Mandatory Tender.................................................. 22
SECTION 3.06 Procedures for Purchase and Remarketing of Notes;
Delivery of Purchased and Remarketed Notes.................... 25
SECTION 3.07 Execution, Authentication, Delivery and Dating.................... 28
SECTION 3.08 Temporary Notes................................................... 29
SECTION 3.09 Authentication and Delivery of Notes to Original
Purchasers.................................................... 29
SECTION 3.10 Letter of Credit.................................................. 29
SECTION 3.11 Additional Credit Enhancement..................................... 32
ARTICLE IV
Registration, Book-Entry System, and
General Provisions Regarding the Notes
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SECTION 4.01 Registration of Notes............................................. 32
SECTION 4.02 Registration, Transfer, and Exchange of Notes; Replacement
of Mutilated, Lost, Destroyed or Stolen Notes................. 32
SECTION 4.03 Book-Entry System................................................. 34
SECTION 4.04 Payment of Interest on Notes; Interest Rights Preserved........... 36
SECTION 4.05 Paying Agent...................................................... 37
SECTION 4.06 Payments Due on Non-Business Days................................. 37
SECTION 4.07 Cancellation...................................................... 37
ARTICLE V
Redemption of Notes
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SECTION 5.01 When Notes Are Subject to Redemption.............................. 38
SECTION 5.02 Election to Redeem; Notice to Trustee............................. 38
SECTION 5.03 Selection of Notes to be Redeemed................................. 38
SECTION 5.04 Notice of Redemption.............................................. 39
SECTION 5.05 Deposit of Redemption Price....................................... 40
SECTION 5.06 Notes Payable on Redemption Date.................................. 40
SECTION 5.07 Notes Redeemed in Part............................................ 40
ARTICLE VI
Application of Proceeds of Notes
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ARTICLE VII
Revenues
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SECTION 7.01 Note Fund and Letter of Credit Draws.............................. 41
SECTION 7.02 Note Purchase Fund................................................ 42
SECTION 7.03 Money for Note Payments to be Held in Trust; Repayment of
Unclaimed Money............................................... 44
SECTION 7.04 Investment of Special Funds....................................... 45
ARTICLE VIII
Representations and Covenants
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SECTION 8.01 General Representations........................................... 45
SECTION 8.02 Payment of Debt Service and Purchase of Tendered Notes............ 46
SECTION 8.03 Indemnity of Trustee.............................................. 47
SECTION 8.04 Obligations of Issuer Unconditional............................... 48
SECTION 8.05 General Covenants of the Issuer................................... 48
SECTION 8.06 Appointment of Successor Trustee.................................. 49
SECTION 8.07 Further Assurances................................................ 49
ARTICLE IX
Events of Default and Remedies
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SECTION 9.01 Events of Default................................................. 49
SECTION 9.02 Acceleration of Maturity; Rescission and Annulment;
Exercise of Remedies.......................................... 50
SECTION 9.03 Rights and Remedies of Trustee in the Event of Bankruptcy,
and the Occurrence of Similar Events Regarding, the Issuer.... 52
SECTION 9.04 Subrogation Rights of Credit Obligor.............................. 52
SECTION 9.05 Application of Money Collected.................................... 53
SECTION 9.06 Trustee May Enforce Claims without Possession of Notes............ 54
SECTION 9.07 Limitation on Suits by Holders.................................... 54
SECTION 9.08 Unconditional Right of Noteholders to Receive Principal,
Premium and Interest.......................................... 55
SECTION 9.09 Restoration of Positions.......................................... 55
SECTION 9.10 Rights and Remedies Cumulative.................................... 55
SECTION 9.11 Delay or Omission Not Waiver...................................... 55
SECTION 9.12 Control by Credit Obligor and Noteholders......................... 56
SECTION 9.13 Waiver of Past Defaults........................................... 56
SECTION 9.14 Waiver of Appraisement and Other Laws............................. 57
SECTION 9.15 Suits to Protect the Trust Estate................................. 57
SECTION 9.16 Remedies Subject to Applicable Law................................ 57
ARTICLE X
The Trustee
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SECTION 10.01 Certain Duties and Responsibilities.............................. 58
SECTION 10.02 Notice of Defaults............................................... 59
SECTION 10.03 Certain Rights of Trustee........................................ 59
SECTION 10.04 Not Responsible for Recitals..................................... 60
SECTION 10.05 May Hold Notes................................................... 60
SECTION 10.06 Money Held in Trust.............................................. 61
SECTION 10.07 Compensation and Reimbursement................................... 61
SECTION 10.08 Eligibility of Trustee; Appointment of Co-Trustee................ 61
SECTION 10.09 Resignation and Removal; Appointment of Successor................ 62
SECTION 10.10 Acceptance of Appointment by Successor........................... 64
SECTION 10.11 Merger, Conversion, Consolidation or Succession to Business...... 64
ARTICLE XI
Supplemental Indentures and Amendments of Letter of Credit
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SECTION 11.01 Supplemental Indentures Without Consent of Noteholders........... 65
SECTION 11.02 Supplemental Indentures With Consent of Noteholders.............. 66
SECTION 11.03 Discretion of Trustee; Acts of Noteholders....................... 67
SECTION 11.04 Consent of Credit Obligor........................................ 67
SECTION 11.05 Execution of Supplemental Indentures............................. 67
SECTION 11.06 Effect of Supplemental Indentures................................ 68
SECTION 11.07 Reference in Notes to Supplemental Indentures.................... 68
SECTION 11.08 Amendment of Letter of Credit.................................... 68
ARTICLE XII
The Remarketing Agent
and the Tender Agent
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SECTION 12.01 Remarketing Agent................................................ 68
SECTION 12.02 Tender Agent..................................................... 70
ARTICLE XIII
Defeasance
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SECTION 13.01 Payment of Indebtedness; Satisfaction and Discharge
of Indenture.................................................. 71
SECTION 13.02 Trust for Payment of Debt Service................................ 72
TESTIMONIUM........................................................................... 73
SIGNATURES............................................................................ 73
ACKNOWLEDGMENTS....................................................... 74-75
EXHIBIT A
EXHIBIT B
EXHIBIT C
TRUST INDENTURE
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THIS TRUST INDENTURE dated June 1, 1999 is entered into by DISPLAY
TECHNOLOGIES, INC., a Nevada corporation (the "Issuer"), and SOUTHTRUST BANK,
NATIONAL ASSOCIATION, a national banking association with its principal office
in Birmingham, Alabama (the "Trustee").
Recitals
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The Issuer has duly authorized, executed and delivered this Indenture and
has duly authorized the creation, execution and delivery pursuant hereto of
Variable/Fixed Rate Secured Promissory Notes dated the date of delivery and
payment therefor (the "Notes") to provide financing for various corporate
purposes.
As security for the payment of the Notes, the Issuer will cause SouthTrust
Bank, National Association (in its capacity as issuer of the initial letter of
credit referred to below, the "Credit Obligor") to issue an irrevocable letter
of credit in favor of the Trustee in the amount of (i) the aggregate principal
amount of the Notes, to enable the Trustee to pay the principal amount of the
Notes when due and to pay the principal portion of the purchase price of Notes
tendered (or deemed tendered) for purchase, plus (ii) interest on the Notes for
a period of 56 days at the rate of 12% per annum, to enable the Trustee to pay
interest on the Notes when due and to pay the interest portion of the purchase
price of Notes tendered (or deemed tendered) for purchase. The initial letter
of credit to be delivered to the Trustee and any substitute letter of credit
delivered to the Trustee pursuant to this Indenture are herein referred to as
the "Letter of Credit". The initial Letter of Credit is issued pursuant to
certain credit and security agreements between the Credit Obligor and the Issuer
which set forth and provide security for the obligations of the Issuer to
reimburse the Credit Obligor for all amounts drawn under the initial Letter of
Credit.
All things have been done which are necessary to make the Notes, when
executed by the Issuer and authenticated and delivered by the Trustee hereunder,
the valid obligations of the Issuer, and to constitute this Indenture a valid
trust indenture for the security of the Notes, in accordance with the terms of
the Notes and this Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
It is hereby covenanted and declared that all of the Notes are to be
authenticated and delivered and the property subject to this Indenture is to be
held and applied by the Trustee, subject to the covenants, conditions and trusts
hereinafter set forth, and the Issuer does hereby covenant and agree to and with
the Trustee, for the equal and proportionate benefit (except as otherwise
expressly provided herein) of all Holders (as hereinafter defined) of the Notes,
as follows:
ARTICLE I
Definitions and Other Provisions
of General Application
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SECTION 1.01 Definitions
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For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) The terms defined in this Article shall have the meanings assigned
in this Article. Singular terms shall include the plural as well as the
singular, and vice versa. Any pronoun shall include both singular and
plural and cover all genders.
(2) All accounting terms not otherwise defined herein have the
meanings assigned to them, and all computations herein provided for shall
be made, in accordance with generally accepted accounting principles. All
references herein to "generally accepted accounting principles" refer to
such principles as they exist at the date of application thereof.
(3) All references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and subdivisions of this instrument as originally executed.
(4) The terms "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
(5) The term "person" shall include any individual, corporation,
general or limited partnership, limited liability company or partnership,
joint venture, association, trust, unincorporated organization and any
government or any agency or political subdivision thereof.
Act, when used with respect to any Noteholder, has the meaning stated in
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Section 1.02.
Act of Bankruptcy shall mean the filing of a petition in bankruptcy (or the
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other commencement of a bankruptcy or similar proceeding) by or against the
Issuer or the Issuer under any applicable bankruptcy, insolvency,
reorganization, or similar law, now or hereafter in effect.
Affiliate of any specified person shall mean any other person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For purposes of this definition, "control"
when used with respect to any specified person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
2
Authorized Denomination or Denominations means with respect to all Notes
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(i) during any Variable Rate Period the amount of $100,000 and any integral
multiple of $5,000 in excess thereof and (ii) during any Fixed Rate Period the
amount of $5,000 and any integral multiple thereof for each maturity.
Authorized Issuer Representative shall mean any officer of the Issuer or
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any agent of the Issuer authorized by the Issuer to act as "Authorized Issuer
Representative" for purposes of this Indenture and identified as such in writing
delivered to the Trustee.
Beneficial Owner shall have the meaning set forth in Section 4.03.
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Board of Directors shall mean the board of directors of the Issuer as
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constituted from time to time.
Book-Entry System means a book-entry only system of evidence of purchase
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and transfer of beneficial ownership interests in the Notes.
Business Day shall mean any day other than (1) a Saturday, a Sunday or (2)
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a day on which the payment system of the Federal Reserve System is not
operational, or (3) a day on which banking institutions are required or
authorized to remain closed in any of the following locations: (i) the city in
which the Principal Office of the Trustee is located, (ii) the city in which the
principal office of the Remarketing Agent is located, (iii) the city in which
the office of the Credit Obligor where drawings under the Letter of Credit are
to be made is located, or (iv) the City of New York, New York.
Conversion Date shall mean the first day of any Fixed Rate Period.
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Credit Documents shall mean collectively that certain Credit Agreement
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dated the date of execution and delivery among the Credit Obligor and the Issuer
and all agreements, documents, guaranties, instruments, notes, notices, and
other writings executed and delivered by the Issuer or any other person or
persons which evidence, guarantee or provide security for the obligations of the
Issuer with respect to the Letter of Credit, including any amendments or
supplements to any thereof from time to time entered into pursuant to the
applicable provisions thereof, until a Substitute Letter of Credit shall have
been accepted by the Trustee, and thereafter "Credit Documents" shall mean
collectively all agreements, documents, guaranties, instruments, notes, notices,
and other writings which evidence, guarantee or provide security for the
obligations of the Issuer with respect to such Substitute Letter of Credit.
Credit Obligor shall mean SouthTrust Bank, National Association, a national
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banking association, and its successors and assigns, until a Substitute Letter
of Credit shall have been accepted by the Trustee, and thereafter "Credit
Obligor" shall mean the issuer of such Substitute Letter of Credit.
Credit Obligor Indebtedness shall mean all indebtedness or obligations of
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the Issuer to the Credit Obligor under the Credit Documents including without
limitation (i) the Issuer's obligation
3
to reimburse the Credit Obligor for draws made under the Letter of Credit and
(ii) the Issuer's obligation to pay fees and charges for the issuance and
continuation of the Letter of Credit.
Credit Obligor Insolvency Date shall mean the date on which the Credit
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Obligor notifies the Trustee in writing, or the date on which the Trustee is
notified in writing by the Issuer, or any Governmental Authority, that (i) a
receiver or conservator of the Credit Obligor or of any of the respective
properties or assets thereof shall have been appointed by any Governmental
Authority, or (ii) possession of the property and business of the Credit Obligor
shall have been taken by any Governmental Authority, or (iii) the Credit Obligor
shall have taken advantage of any reorganization, liquidation or dissolution law
or statute, or (iv) if corporate action shall have been taken by the Credit
Obligor for the purpose of effecting any of the foregoing.
Debt Service shall mean the principal of, premium (if any) and interest
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payable on the Notes.
Defaulted Interest shall have the meaning stated in Section 4.04.
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Direct Participant or Direct Participants means securities brokers and
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dealers, banks, trust companies and clearing corporations which have access to
the Book-Entry System.
Event of Default shall have the meaning stated in Article IX. An Event of
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Default shall "exist" if an Event of Default shall have occurred and be
continuing.
Existing Letter of Credit means the Letter of Credit held by the Trustee at
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the time a Substitute Letter of Credit is delivered to the Trustee.
Federal Securities shall mean any of the following so long as the same are
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not subject to prepayment or redemption at the option of the issuer: direct
obligations of, or obligations the timely payment of the principal of and
interest on which is fully guaranteed by, the United States of America.
Financing Documents shall mean collectively the Notes, Indenture, the
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Credit Documents, the Remarketing Agreement and the Letter of Credit.
Fixed Rate shall mean the fixed interest rate borne by the Notes during a
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Fixed Rate Period, more particularly described in Section 3.03.
Fixed Rate Interest Payment Date shall mean a date on which interest
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calculated according to the Fixed Rate is payable on the Notes, more
particularly described in Section 3.01(i).
Fixed Rate Period shall mean a period specified by the Issuer during which
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the Notes shall bear interest at a fixed rate per annum, more particularly
described in Section 3.03.
Fully Paid, (i) when used with respect to Indenture Indebtedness, shall
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have the meaning stated in Section 13.01, and (ii) when used with respect to
Credit Obligor Indebtedness, shall mean that all indebtedness under the Credit
Documents has been paid.
4
Governmental Authority shall mean any federal, state, county, municipal, or
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other government, domestic or foreign, and any agency, authority, department,
commission, bureau, board, court or other instrumentality thereof, having
jurisdiction in the premises.
Holder when used with respect to any Note shall mean the Noteholder with
------
respect to such Note.
Indebtedness shall mean collectively Indenture Indebtedness and Credit
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Obligor Indebtedness.
Indenture shall mean this instrument as originally executed or as it may
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from time to time be supplemented, modified or amended by one or more indentures
or other instruments supplemental hereto entered into pursuant to the applicable
provisions hereof.
Indenture Indebtedness shall mean all indebtedness of the Issuer at the
----------------------
time secured by this Indenture, including without limitation (i) all Debt
Service and (ii) all reasonable and proper fees, charges, expenses, and
disbursements of the Trustee for services performed and disbursements made under
this Indenture.
Independent, when used with respect to any person, shall mean a person who
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(i) is in fact independent, (ii) does not have any direct financial interest or
any material indirect financial interest in the Issuer, the Credit Obligor, or
in any other obligor with respect to the Notes or in any Affiliate of the
Issuer, the Credit Obligor, or of such other obligor, and (iii) is not connected
with the Issuer, the Credit Obligor, or such other obligor as an officer, in-
house attorney, employee, promoter, underwriter, trustee, partner, director or
person performing similar functions.
Indirect Participant means a broker, dealer, bank or other financial
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institution for which the Securities Depository holds Notes as securities
depository through a Direct Participant.
Interest Payment Date, when used with respect to any installment of
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interest on a Note, means the date specified in such Note as the fixed date on
which such installment of interest is due and payable.
Internal Revenue Code shall mean whichever of the following shall be
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applicable in the context: the Internal Revenue Code of 1954, as amended; the
Internal Revenue Code of 1986, as amended; and the transition rules of related
legislation.
Issuer shall mean Display Technologies, Inc., a Nevada corporation and the
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respective successors and assigns thereof, and thereafter "Issuer" shall mean
such persons.
Letter of Credit shall mean collectively the initial letters of credit
----------------
delivered to the Trustee on the date of delivery of the Notes, and, unless the
context or use indicates another or different meaning of intent, any Substitute
Letter of Credit accepted by the Trustee.
5
Letter of Representation shall mean and include (i) the Letter of
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Representation with respect to the Notes by the Issuer to the Securities
Depository and (ii) any other or subsequent agreement with respect to the Notes
among said parties by whatever name or identification.
Mandatory Tender shall mean a tender of Notes required by Section 3.05.
----------------
Mandatory Tender Date shall mean a date on which any Mandatory Tender is
---------------------
required, more particularly described in Section 3.05.
Maximum Rate shall mean the lesser of (i) the rate of 12% per annum or (ii)
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for any period during which the Notes are supported by a Letter of Credit, the
maximum rate per annum, specified therein, upon which there has been calculated
the amount available to be drawn on such Letter of Credit to pay interest on the
Notes.
Note shall mean any note authenticated and delivered pursuant to this
----
Indenture.
Note Counsel shall mean counsel with experience in matters relating to the
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issuance of obligations by or on behalf of states or local governmental units
who shall not be unacceptable to the Issuer and the Trustee.
Note Fund shall mean the fund established pursuant to Section 7.01.
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Noteholder when used with respect to any Note shall mean the person in
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whose name such Note is registered in the Note Register (which, during the time
the Book-Entry System is in effect for the Notes, shall be the Securities
Depository or the Securities Depository Nominee).
Note Payment Date shall mean each date (including any date fixed for
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optional or mandatory redemption of Notes) on which Debt Service is due and
payable on the Notes.
Note Purchase Fund shall mean the fund established pursuant to Section
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7.02.
Note Register shall mean the register or registers for the registration and
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transfer of Notes maintained by the Issuer pursuant to Section 4.01.
Note Registrar shall mean the agent of the Issuer appointed as such
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pursuant to Section 4.01 for the purpose of registering Notes and transfers of
Notes.
Notes shall mean the Variable/Fixed Rate Secured Promissory Notes,
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authorized to be issued pursuant to Section 3.01.
Opinion of Counsel shall mean a written opinion of counsel who may (except
------------------
as otherwise expressly provided in this Indenture) be counsel for the Credit
Obligor and which opinion shall not be unacceptable to the Trustee.
6
Opinion of Note Counsel shall mean a written opinion of Note Counsel, which
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opinion is not unacceptable to the Trustee.
Optional Tender shall mean a tender of Notes at the option of the Holder
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thereof pursuant to Section 3.04.
Optional Tender Date shall mean any date on which Notes are to be purchased
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pursuant to an Optional Tender.
Outstanding when used with respect to Notes shall mean, as of the date of
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determination, all Notes authenticated and delivered under this Indenture,
except:
(1) Notes canceled by the Trustee or delivered to the Trustee for
cancellation,
(2) Notes for the payment of which (either at maturity or upon prior
redemption) money in the necessary amount has been deposited with the
Trustee in trust for the Holders of such Notes, provided that, if such
Notes are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made,
(3) Unsurrendered Notes for the purchase of which money in the
necessary amount has been deposited in the Note Purchase Fund and is held
in trust for the Holders of such Unsurrendered Notes, and
(4) Notes in exchange for or in lieu of which other Notes have been
authenticated and delivered under this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of Notes Outstanding have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Notes owned by
the Issuer or any other obligor with respect to the Notes or any Affiliate of
the Issuer or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Notes which the Trustee knows to be so owned shall be
disregarded. Notes so owned which have been pledged in good faith (including
Pledged Notes) may be regarded as Outstanding for such purposes if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Notes and that the pledgee is not the Issuer or any other
obligor with respect to the Notes or any Affiliate of the Issuer, or of such
other obligor.
Paying Agent shall mean the Trustee and any other person authorized by the
------------
Issuer to pay Debt Service on any Notes on behalf of the Issuer.
Pledged Notes shall mean Notes purchased pursuant to the Optional Tender or
-------------
Mandatory Tender provisions of this Indenture with money drawn under the Letter
of Credit and held by the Tender Agent or Trustee for the benefit of, or
registered in the name of, the Credit Obligor, as
7
pledgee, pursuant to 3.06 of this Indenture and pursuant to any provision of the
Credit Documents with respect thereto.
Post-Default Rate shall mean (i) when used with respect to any payment of
-----------------
Debt Service on any Note, the rate specified in such Note for overdue
installments of Debt Service on such Note, computed as provided in such Note,
and (ii) when used with respect to all other payments due under this Indenture,
the rate of 9% per annum (computed on the basis of a 360-day year with 12 months
of 30 days each).
Principal Office of the Tender Agent shall mean the office where the Tender
------------------------------------
Agent maintains its principal office.
Principal Office of the Trustee shall mean the office where the Trustee
-------------------------------
maintains its principal corporate trust office in Birmingham, Alabama, or such
other office as shall be designated by the Trustee by written notice to the
Issuer, the Credit Obligor and the Holders of the Notes.
Qualified Investments shall mean:
---------------------
(1) Federal Securities,
(2) an interest in any trust or fund that invests solely in
obligations described in (1) or (4) of this definition (including without
limitation any fund or funds managed by the Trustee or any affiliate
thereof or person related thereto),
(3) a certificate of deposit or time deposit issued by (i) the
Trustee, or (ii) any other bank organized under the laws of the United
States of America or any state thereof with capital, surplus and undivided
profits of not less than $50,000,000, provided in each case such deposit is
insured by the Federal Deposit Insurance Corporation, or such deposit is
collaterally secured by the issuing bank by pledging Federal Securities
having a market value (exclusive of accrued interest) not less than the
face amount of such certificate less the amount of such deposit insured by
the Federal Deposit Insurance Corporation, and
(4) a repurchase agreement with respect to Federal Securities,
provided that the Federal Securities subject to such repurchase agreement
are held by or under the control of the Trustee free and clear of third-
party liens, and
(5) any other investment permitted by law.
Rating Agency shall mean any nationally recognized securities rating
-------------
agency.
Regular Record Date shall mean (i) with respect to any Variable Rate
-------------------
Interest Payment Date, the day immediately prior to such Interest Payment Date,
(ii) with respect to any Fixed Rate Interest Payment Date for a Fixed Rate
Period of less than 6 months, the day immediately prior to such Fixed Rate
Interest Payment Date, and (iii) with respect to any Fixed Rate Interest Payment
Date for a
8
Fixed Rate Period of 6 months or more, the 15th day (whether or not a Business
Day) next preceding such Fixed Rate Interest Payment Date.
Remarketing Agent shall mean the person appointed as "Remarketing Agent"
-----------------
pursuant to Section 12.01, until a successor Remarketing Agent shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Remarketing Agent" shall mean such successor.
Remarketing Agreement shall mean that certain Remarketing Agreement dated
---------------------
as of June 1, 1999 among the Issuer and the Remarketing Agent.
Securities Depository means The Depository Trust Company, a limited purpose
---------------------
trust company organized under the laws of the State of New York, and the
successors and assigns thereof, and any substitute securities depository
therefor that maintains a Book-Entry System for the Notes.
Securities Depository Nominee means the Securities Depository or the
-----------------------------
nominee of such Securities Depository in whose name there shall be registered on
the Note Register the Notes to be delivered to such Securities Depository during
a period in which the Notes are held pursuant to the Book-Entry System.
Special Funds shall mean the Proceeds Fund created in Article VI (b), the
-------------
Note Fund, the Note Purchase Fund, and any other fund or account established
pursuant to this Indenture.
Special Record Date for the payment of any Defaulted Interest on the Notes
-------------------
means a date fixed by the Trustee pursuant to Section 4.04.
Stated Expiration Date shall mean the date on which the Letter of Credit
----------------------
will, by its terms, expire unless the Letter of Credit is terminated on an
earlier date in accordance with its terms.
Substitute Letter of Credit shall mean a letter of credit delivered to the
---------------------------
Trustee in substitution for an Existing Letter of Credit then held by the
Trustee, as more particularly described in Section 3.10.
Tender Agent shall mean any person appointed as "Tender Agent" pursuant to
------------
Section 12.02, until a successor Tender Agent shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Tender Agent" shall
mean such successor.
Tender Date shall mean an Optional Tender Date or a Mandatory Tender Date,
-----------
as the case may be.
Tendered Notes shall mean Notes tendered (or deemed tendered) for purchase
--------------
pursuant to the Optional Tender or Mandatory Tender provisions of this
Indenture.
Trust Estate shall have the meaning stated in the habendum to the granting
------------
clauses to this Indenture.
9
Trustee shall mean SouthTrust Bank, National Association, a national
-------
banking association with its principal office in Birmingham, Alabama, until a
successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter "Trustee" shall mean such successor.
Unsurrendered Note shall mean Notes (or portions thereof in authorized
------------------
denominations) which are deemed purchased pursuant to Optional Tender or
Mandatory Tender provisions hereof, but which have not been presented to the
Trustee by the Holders thereof; provided, any Note which the Holder thereof
elects to retain under Section 3.05(c) shall not be an Unsurrendered Note for
purposes of this Indenture.
Variable Rate shall mean the variable interest rate borne by the Notes
-------------
during a Variable Rate Period, more particularly described in Section 3.02.
Variable Rate Interest Payment Date shall mean a date on which interest
-----------------------------------
calculated at the Variable Rate is payable on the Notes, more particularly
described in Section 3.01(i).
Variable Rate Period shall mean a period during which the Notes bear
--------------------
interest at the Variable Rate, more particularly described in Section 3.02.
SECTION 1.02 Acts of Noteholders
-------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given, made or taken by
Noteholders may be embodied in and evidenced by one or more substantially
concurrent instruments of substantially similar tenor signed by such Noteholders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee, and, where it is hereby
expressly required, to the Issuer. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent,
or of the holding by any person of Notes, shall be sufficient for any purpose of
this Indenture and conclusive in favor of the Issuer and (subject to Section
10.01) in favor of the Trustee, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officers authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Whenever such execution
is by an officer of a corporation or a member of a partnership, or limited
liability company or partnership, on behalf of any thereof, such certificate or
affidavit shall also constitute sufficient proof of the authority thereof.
(c) The ownership of Notes shall be proved by the Note Register.
10
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done or suffered to
be done by the Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
SECTION 1.03 Form and Contents of Documents Delivered to Trustee
---------------------------------------------------
(a) Whenever several matters are required to be certified by, or covered by
an opinion of, any specified person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such person, or that
they be so certified or covered by only one document, but one such person may
certify or give an opinion with respect to some matters and one or more other
such persons as to other matters, and any such person may certify or give an
opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Issuer or of an officer
of the Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such person
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any Opinion of Counsel may be
based, insofar as it relates to factual matters, upon a certificate or opinion
of, or representations by, an Authorized Issuer Representative stating that the
information with respect to such factual matters is in the possession of the
Issuer unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
(c) Whenever any person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Wherever in this Indenture, in connection with any application or
certificate or report to the Trustee, it is provided that the Issuer or the
Issuer shall deliver any document as a condition of the granting of such
application, or as evidence of the Issuer's or Issuer's compliance with any term
hereof, it is intended that the truth and accuracy, at the time of the granting
of such application or at the effective date of such certificate or report (as
the case may be), of the facts and opinions stated in such document shall in
such case be conditions precedent to the right of the Issuer or Issuer to have
such application granted or to the sufficiency of such certificate or report.
SECTION 1.04 Compliance Certificates and Opinions
------------------------------------
(a) Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Indenture, the Issuer, shall furnish to
the Trustee a certificate signed by an Authorized Issuer Representative stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such
11
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.05 Effect of Headings and Table of Contents
----------------------------------------
The Article and Section headings herein and in the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.06 Date of Indenture
-----------------
The date of this Indenture is intended as and for a date for the convenient
identification of this Indenture and is not intended to indicate that this
Indenture was executed and delivered on said date.
SECTION 1.07 Enforceability
--------------
If any provision in this Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.08 Governing Law
-------------
This Indenture shall be construed in accordance with and governed by the
laws of the State of Alabama.
12
SECTION 1.09 Counterparts
------------
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 1.10 Notices
-------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with, the Issuer, the Trustee,
the Tender Agent, the Remarketing Agent, or the Credit Obligor shall be
sufficient for every purpose hereunder if in writing and (except as otherwise
provided in this Indenture) (i) delivered personally to the party or, if such
party is not an individual, to an officer or other legal representative of the
party to whom the same is directed, at the address specified below, (ii) mailed
by first-class, registered or certified mail, postage prepaid, addressed as
specified below, or (iii) sent by telex or telecopy or other facsimile
transmission system to the number specified below. The hand delivery and
mailing address and telex or telecopy number for the parties are as follows:
Trustee
-------
SouthTrust Bank, National Association
Corporate Trust Department
110 Office Park Drive, 2/nd/ Floor (35223)
▇.▇. ▇▇▇ ▇▇▇▇ (35290)
Birmingham, Alabama
Telecopy number: 205/254-4180
Remarketing Agent
-----------------
SouthTrust Securities, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: 205/254-4989
Issuer
------
Display Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇
13
Credit Obligor
--------------
SouthTrust Bank, National Association
One Tampa City Center
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy number: 813/222-0245
(b) Any of such parties may change the address or number for receiving any
such notice or other document by giving notice of the change to the other
parties named in this Section.
(c) Any notice or other document shall be deemed delivered when actually
received by the party to whom directed (or, if such party is not an individual,
to an officer or other legal representative of the party) at the address or
number specified pursuant to this Section, or, if sent by mail, 3 days after
such notice or document is deposited in the United States mail, first class
postage prepaid, addressed as provided above.
SECTION 1.11 Notices to Noteholders; Waiver
------------------------------
(a) Where this Indenture provides for publication of notice to Noteholders
of any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, or
sent by telecopy or other facsimile transmission system, to each Holder of such
Notes, at the address of such Holder as it appears in the Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the first publication of such notice.
(b) In any case where notice to Noteholders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Noteholder shall affect the sufficiency of such notice with respect
to other Noteholders. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Noteholders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
SECTION 1.12 Concerning the Credit Obligor and the Letter of Credit
------------------------------------------------------
(a) No consent or direction or other exercise of discretion or control by
the Credit Obligor hereunder shall be required or permitted if the Letter of
Credit is no longer in effect or if the Credit Obligor has dishonored a draw
under the Letter of Credit or a Credit Obligor Insolvency Date shall have
occurred.
(b) Nothing contained in this Indenture shall be construed to require or
permit any consent or approval by the Credit Obligor for the performance by the
Trustee of its obligations under
14
Sections 7.01, 7.02 or 9.02, with respect to draws under the Letter of Credit
and acceleration of the maturity of the Notes, except where such consent or
approval of the Credit Obligor is expressly required or permitted in any of such
Sections.
SECTION 1.13 Notice to Rating Agencies
-------------------------
The Trustee shall promptly furnish to each Rating Agency that maintains a
rating with respect to the Notes a notice of (i) any change of the Trustee, the
Remarketing Agent or the Tender Agent, (ii) any change or amendment of the
Indenture, or the Letter of Credit, (iii) the expiration or renewal or extension
or termination of the term of the Letter of Credit, or substitution of the
Letter of Credit, (iv) the conversion of the interest rate on the Notes to a
Fixed Rate, (v) the acceleration of payment of principal and interest on the
Notes pursuant to Section 9.02, (vi) the payment in full, or the redemption
prior to maturity, of all Notes Outstanding hereunder, or (vii) receipt of
notice of the Issuer's intent to establish a trust for the payment of the Notes
in accordance with Section 13.02.
SECTION 1.14 Successors and Assigns
----------------------
All covenants and agreements in this Indenture by the Issuer shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.15 Benefits of Indenture
---------------------
Nothing in this Indenture or in the Notes, express or implied, shall give
to any person, other than the parties hereto and their successors hereunder, the
Holders of the Outstanding Notes, and the Credit Obligor, any benefit or any
legal or equitable right, remedy or claim under this Indenture.
ARTICLE II
Granting Clauses
----------------
To secure the payment of Debt Service on the Notes and all other Indenture
Indebtedness and the performance of the covenants contained herein and in the
Notes, and to declare the terms and conditions on which the Notes are secured,
and in consideration of the premises and of the purchase of the Notes by the
Holders thereof, the Issuer by these presents does hereby grant, bargain, sell,
alien, remise, release, convey, assign, transfer, mortgage, hypothecate, pledge,
set over and confirm unto the Trustee, and grant to the Trustee security title
to and a continuing security interest in, all and singular, the following
described property and all proceeds and products thereof:
I.
Money and investments from time to time on deposit in, or forming a part
of, the Special Funds, subject to the provisions of this Indenture permitting
the application thereof for the purposes and on the terms and conditions set
forth herein.
15
II.
Any and all property of every kind or description which may, from time to
time hereafter, by delivery or by writing of any kind, be subjected to the lien
of this Indenture as additional security by the Issuer or anyone on its part or
with its written consent, or which pursuant to any of the provisions hereof may
come into the possession or control of the Trustee or a receiver appointed
pursuant to this Indenture; and the Trustee is hereby authorized to receive any
and all such property as and for additional security for the Notes and to hold
and apply all such property subject to the terms hereof;
TO HAVE AND TO HOLD all said property, rights and privileges of every kind
and description, real, personal or mixed, hereby and hereafter (by supplemental
indenture or otherwise) granted, bargained, sold, aliened, remised, released,
conveyed, assigned, transferred, mortgaged, hypothecated, pledged, set over or
confirmed as aforesaid, or intended, agreed or covenanted so to be, together
with all the appurtenances thereto appertaining (said property, rights and
privileges being herein called the "Trust Estate") unto the Trustee and its
------------
successors and assigns forever;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit and
security of the Holders from time to time of the Notes without any priority of
any such Note over any other such Note;
PROVIDED, HOWEVER, that money collected by the Trustee pursuant to the
Letter of Credit shall be used solely for the purpose of paying Debt Service on
the Notes or the purchase price of Notes tendered for purchase pursuant to the
Optional Tender or Mandatory Tender provisions hereof.
ARTICLE III
The Notes
---------
SECTION 3.01 General Terms
-------------
(a) There is hereby authorized to be issued under and secured by this
Indenture a series of Notes in aggregate principal amount of $2,500,000 and
designated as provided in the form thereof set forth on Exhibit A hereto.
(b) No additional notes may be issued hereunder.
(c) The Notes shall be issued as registered notes, without coupons, in
Authorized Denominations, in substantially the form of Exhibit A to this
Indenture, with appropriate variations, omissions, insertions, notations,
legends or endorsements required by law or usage or permitted or required by
this Indenture. The Notes shall be numbered separately from 1 upward.
(d) The Notes shall mature on June 1, 2014 subject to the provisions of
Section 5.01(b).
16
(e) The Notes shall be dated as of the date of initial delivery thereof
and shall bear interest from such date, or the most recent date to which
interest has been paid or duly provided for, at the applicable rate per annum
set forth in this Article.
(f) The Notes shall bear interest at the Variable Rate or at the Fixed
Rate, as provided in Sections 3.02 and 3.03.
(g) Interest at the Variable Rate and interest at a Fixed Rate for each
Fixed Rate Period of less than 6 months shall be computed on the basis of a 365
day year for the actual number of days elapsed. Interest at the Fixed Rate for
each Fixed Rate Period of 6 months or more shall be computed on the basis of a
360-day year with 12 months of 30 days each.
(h) Interest shall be payable on overdue principal on the Notes and (to
the extent legally enforceable) on any overdue installment of interest on the
Notes at the Post-Default Rate.
(i) Interest shall be payable in arrears on the following dates:
(1) with respect to interest payable at the Variable Rate, on (i) the
first day of each month (first interest payable July 1, 1999) of each year
during the Variable Rate Period and (ii) the day immediately following any
Variable Rate Period;
(2) with respect to interest payable at a Fixed Rate for any Fixed
Rate Period of less than 6 months, on the day immediately following such
Fixed Rate Period; and
(3) with respect to interest payable at a Fixed Rate for any Fixed
Rate Period of 6 months or more, (i) on the first day of the calendar month
that is 6 months after the first day of the calendar month in which such
Fixed Rate Period began, (ii) semiannually thereafter, and (iii) on the day
immediately following such Fixed Rate Period.
(j) Payment of interest on the Notes due on any Interest Payment Date
shall be made by check or draft mailed by the Trustee to the Noteholder or
Noteholders at the address thereof appearing in the Note Register. Such payments
of interest shall be deemed timely made if so mailed on the Interest Payment
Date (or, if such Interest Payment Date is not a Business Day, on the Business
Day next following such Interest Payment Date). Payment of principal of (and
premium, if any, on) the Notes and payment of accrued interest on the Notes due
upon redemption on any date other than an Interest Payment Date shall be made
only upon surrender thereof at the Principal Office of the Trustee or at the
office of any other Paying Agent therefor.
(k) Subsection (j) of this Section to the contrary notwithstanding, upon
the written request of the Holder of any Note in a principal amount of not less
than $100,000, the Trustee will make payment of the Debt Service due on such
Note by wire transfer to an account of such Holder maintained at a bank in the
continental United States or by any other method providing for payment in same-
day funds that is acceptable to the Trustee, provided that:
17
(1) such written request contains adequate instructions for the method
of payment, and
(2) payment of the principal of (and redemption premium, if any, on)
such Note and payment of the accrued interest on such Note due upon
redemption on any date other than an Interest Payment Date shall be made
only upon surrender of such Note to the Trustee.
SECTION 3.02 Variable Rate
-------------
(a) The Notes shall initially bear interest at a Variable Rate. Upon the
expiration of any Fixed Rate Period for the Notes, such Notes shall bear
interest at the Variable Rate (unless the day immediately following such Fixed
Rate Period is a Conversion Date), and once the Variable Rate becomes effective,
it shall remain in effect until and including the day immediately prior to the
earlier of (i) a Conversion Date or (ii) the final maturity of the Notes.
(b) The Variable Rate shall be a fluctuating rate per annum determined by
the Remarketing Agent on the first day of each Variable Rate Period (beginning
upon initial issuance of the Notes and following a Fixed Rate Period) and on
each Thursday during a Variable Rate Period (or, if such Thursday is not a
Business Day, on the immediately preceding Business Day). The Variable Rate so
determined shall become effective (i) on the date of determination, if such date
is the first day of the Variable Rate Period, or (ii) if such date is not the
first day of a Variable Rate Period, on the day immediately following the date
of determination, and once effective shall remain in effect until and including
the next determination date or, if sooner, the end of such Variable Rate Period;
provided, however, that if the Remarketing Agent fails to determine the Variable
Rate on any such determination date, the last Variable Rate in effect shall
remain in effect until and including the next determination date, and provided
further, if the Remarketing Agent fails to determine the Variable Rate on two
consecutive determination dates therefor, the Variable Rate shall be equal to
the Maximum Rate until such determination date as the Remarketing Agent shall
determine the Variable Rate in accordance with the terms hereof.
(c) The Variable Rate shall be determined by the Remarketing Agent and
shall be the lowest interest rate that would, in the opinion of the Remarketing
Agent, result in the market value of the Notes being 100% of the principal
amount thereof on the date of such determination, taking into account relevant
market conditions and credit rating factors as they exist on such date;
provided, however, that the Variable Rate may never exceed the Maximum Rate. On
each Variable Rate determination date the Remarketing Agent shall deliver
written notice of the Variable Rate so determined to the Trustee, the Issuer.
Upon the request of any Noteholder, the Trustee shall confirm (by telephone and
in writing, if so requested) the Variable Rate then in effect.
(d) The Variable Rate determined from time to time by the Remarketing
Agent shall be conclusive and binding on the Issuer, the Trustee and the
Noteholders.
18
SECTION 3.03 Fixed Rate
----------
(a) The Notes shall bear interest at a Fixed Rate during each period of
time specified by the Issuer as provided below in this Section. Upon the
expiration of a Fixed Rate Period, interest on the Notes will automatically
convert to a Variable Rate unless and until the Issuer elects to have the
interest rate converted to another Fixed Rate for a Fixed Rate Period designated
by the Issuer.
(b) The Fixed Rate shall be a fixed rate per annum which shall be
applicable during the entire Fixed Rate Period and for each Fixed Rate Period
shall be determined by the Remarketing Agent as provided below in this Section.
(c) The Issuer may elect that the Notes bear interest at a Fixed Rate for
any period after the initial Variable Rate Period by delivery of written notice
of such election to the Trustee not less than 45 days prior to the proposed
Conversion Date. Such notice shall specify the first day and the last day of
the Fixed Rate Period elected; provided, however, that (i) if such election is
made during a Fixed Rate Period, the specified Conversion Date may not be sooner
than the first day immediately following the Fixed Rate Period then in effect,
(ii) the Conversion Date may not be less than 45 days prior to the Stated
Expiration Date of the Letter of Credit (if any) then in effect, (iii) the
designated Fixed Rate Period may not be less than 15 days, and (iv) the Fixed
Rate Period may not extend beyond the day immediately prior to the final
maturity of the Notes. The Trustee shall deliver a copy of such notice to the
Remarketing Agent, the Tender Agent and the Credit Obligor on or before the
third following Business Day. Any such election by the Issuer shall be
irrevocable after 10:00 a.m. (Birmingham, Alabama time) on the last Business Day
immediately prior to the proposed Conversion Date.
(d) Not less than 1 nor more than 10 days prior to the proposed Conversion
Date the Remarketing Agent shall determine the interest rate for such Fixed Rate
Period, which shall be the lowest interest rate that would, in the opinion of
the Remarketing Agent, result in the market value of the Notes being 100% of the
principal amount thereof on the date of such determination, taking into account
relevant market conditions and credit rating factors as they exist on such date,
and assuming that the Fixed Rate Period begins on such date; provided, however,
that the Fixed Rate may not exceed the Maximum Rate. The Remarketing Agent
shall deliver written notice of the Fixed Rate or Rates to the Trustee and the
Issuer on the date the same are determined.
(e) Notwithstanding the foregoing, a Fixed Rate or Fixed Rates shall not
be established if (i) the Issuer delivers to the Trustee written notice of
revocation of its election to establish the Fixed Rate before 10:00 a.m.
(Birmingham, Alabama time) on the last Business Day immediately prior to the
proposed Conversion Date or (ii) prior to 10:00 a.m. (Birmingham, Alabama time)
on the Conversion Date the Trustee does not receive the Substitute Letter of
Credit (if any) that is to be effective on such Conversion Date.
(f) If all conditions to the establishment of a Fixed Rate or Fixed Rates
are not satisfied, the Notes shall continue (or, if a Fixed Rate Period ended on
the preceding day, shall begin) to bear interest at the Variable Rate from the
proposed Conversion Date.
19
(g) The Fixed Rate or Rates determined by the Remarketing Agent shall be
conclusive and binding on the Issuer, the Trustee and the Noteholders.
SECTION 3.04 Optional Tender
---------------
(a) The Holder of any Note shall have the right to tender such Note to the
Trustee or Tender Agent for purchase in whole or in part (if in part, only in an
Authorized Denomination) on any Business Day during any Variable Rate Period,
but not during any Fixed Rate Period, at a purchase price equal to 100% of the
principal amount of Notes (or portions thereof) tendered plus accrued interest
to the specified purchase date. In order to exercise such option with respect
to any Note, the Holder thereof must deliver notice thereof to the Trustee, as
provided below in this Section, at its Principal Office at least 7 days prior to
the proposed Optional Tender Date.
(b) The written notice of Optional Tender must be substantially in the
form set forth on Exhibit C attached hereto, or in such other form as shall be
acceptable to the Trustee, and must be duly executed by the Noteholder and must
specify (i) the name of the registered Holder of the Note to be tendered for
purchase, (ii) the Optional Tender Date, (iii) the certificate number (if
applicable) and principal amount of such Note, and (iv) the principal amount of
such Note to be purchased (if such amount is less than the entire principal
amount, the amount to be purchased must be in an Authorized Denomination). Such
notice shall be given to the Trustee in writing or by telephone, but no such
telephonic notice shall be effective unless confirmed in writing delivered to
the Trustee not more than 2 Business Days after such telephonic notice.
(c) If any notice of Optional Tender specifies an Optional Tender Date
that is not a Business Day, then such notice shall be deemed to specify the next
following Business Day as the Optional Tender Date. Unless a notice of Optional
Tender indicates that less than the entire principal amount of the Note is being
tendered for purchase, the Holder will be deemed to have tendered the Note in
its entire principal amount for purchase.
(d) Not later than 3:00 p.m. (Birmingham, Alabama time) on the Business
Day after receipt of any such telephonic or written notice of Optional Tender
the Trustee shall deliver written notice to the Tender Agent, the Remarketing
Agent, the Issuer and the Credit Obligor specifying (i) the principal amount of
Notes for which a notice of Optional Tender has been given and (ii) the proposed
Optional Tender Date therefor.
(e) Upon delivery of a written notice of Optional Tender, the election to
tender shall be irrevocable and binding upon such Holder and may not be
withdrawn. The Trustee shall, in its sole discretion, determine whether, with
respect to any Note, the Holder thereof shall have properly exercised the option
to have his Note or any authorized part thereof purchased pursuant to this
Section.
(f) If a written notice of tender shall have been duly given with respect
to any Note or any authorized part thereof, the Holder of such Note shall
deliver such Note to the Trustee at its Principal Office or to the Tender Agent
at its Principal Office at or before 10:00 a.m. (Birmingham, Alabama time) on
the Optional Tender Date, together with an instrument of assignment or transfer
20
duly executed in blank (which instrument of assignment or transfer shall be in
the form provided on such Note or in such other form as shall be acceptable to
the Trustee or the Tender Agent). During a period in which the Book-Entry
System is in effect for the Notes, transfers of the beneficial ownership
interests in the Notes on such date shall be effected on the records of the
Securities Depository by the Securities Depository in accordance with rules and
procedures therefor and any requirement for physical delivery of Notes on an
Optional Tender Date shall be deemed satisfied thereby. Any Note or any
authorized part thereof for which a notice of Optional Tender has been given but
which is not so delivered to the Trustee or Tender Agent or transferred on the
records of the Securities Depository shall nevertheless be deemed to have been
tendered by the Holder thereof on the Optional Tender Date.
(g) On each Optional Tender Date the Trustee shall purchase, or cause to
be purchased, all Notes or any authorized part thereof as to which written
notices of Optional Tender for purchase have been received at a purchase price
equal to 100% of the principal amount thereof plus accrued interest to the
Optional Tender Date. Funds for payment of the purchase price of such Notes or
such parts shall be drawn by the Trustee from the Note Purchase Fund as provided
in Section 7.02.
(h) If there has been irrevocably deposited in the Note Purchase Fund an
amount sufficient to pay the purchase price of all Notes or authorized parts
thereof tendered or deemed to be tendered for purchase on an Optional Tender
Date, any Unsurrendered Notes shall be deemed to have been tendered for purchase
and purchased from the Holder thereof on such Optional Tender Date and the
Holder of any Unsurrendered Note shall not be entitled to receive interest on
such Unsurrendered Note for any period on and after the Optional Tender Date.
The Trustee shall issue a new Note or Notes in the same aggregate principal
amount for any Unsurrendered Notes which are not tendered for purchase on any
Optional Tender Date and, upon receipt by the Trustee or Tender Agent of any
such Unsurrendered Notes from the Holders thereof, shall pay, or cause to be
paid, the purchase price of such Unsurrendered Notes to the Holders thereof and
cancel such Unsurrendered Notes.
(i) Anything in this Indenture to the contrary notwithstanding, no
Optional Tender of Notes shall be permitted for Pledged Notes or for any Note
which is deemed Fully Paid.
SECTION 3.05 Mandatory Tender
----------------
(a) The Holder of each Note other than a Pledged Note or a Note that has
been deemed Fully Paid shall be required to tender such Note to the Trustee or
Tender Agent for purchase on the following dates; provided, however, if any of
such dates is not a Business Day, the Mandatory Tender Date shall be deemed to
be the next succeeding Business Day; provided further, however, each such Holder
may elect to retain the Note or Notes thereof by written notice meeting the
requirements of subsection 3.05(c) delivered to the Principal Office of the
Trustee not less than five days prior to the Mandatory Tender Date:
(1) each proposed Conversion Date,
(2) the date immediately following the expiration of a Fixed Rate
Period,
21
(3) the first day of the calendar month in which the Stated
Expiration Date of the Letter of Credit occurs, unless a Substitute Letter
of Credit and Related Documentation all meeting the requirements of this
Indenture therefor is delivered to the Trustee in accordance with the terms
of Section 3.10 of this Indenture,
(4) a Credit Obligor Insolvency Date,
(5) that date which is 15 days prior to the effective date of any
change in the frequency with which or the formula by which the interest
rate on the Notes is established during a Variable Rate Period,
(6) that date which is 15 days prior to the effective date of any
change in the optional tender terms of the Notes during a Variable Rate
Period, and
(7) that date which is 10 days after the Trustee receives a notice in
writing from the Credit Obligor, which notice (i) is delivered not later
than the close of business on the tenth day (if such tenth day is not a
Business Day, on the then next succeeding Business Day) after the date on
which the Credit Obligor has honored a B Drawing under the Letter of Credit
and (ii) states that the Interest Portion (as defined in the Letter of
Credit) will not be reinstated or that an Event of Default has occurred and
is continuing under the Credit Documents and (iii) directs the Trustee to
effect Mandatory Tender of the Notes on such date; provided, however, the
-----------------
Trustee shall not effect a Mandatory Tender of any Bond under this Section
4.05(a)(7) unless the Trustee verifies, prior to delivery of notice
pursuant to Section 4.05(b)(1)(ii), that the amount of the Interest Portion
(as defined in the Letter of Credit) under the Letter of Credit shall then
equal or exceed the amount necessary to pay interest accrued on such Bond
until and including the proposed Mandatory Tender Date, and if the amount
of said Interest Portion is then insufficient for such purpose, the Trustee
shall immediately notify the Credit Obligor thereof in writing, and shall
declare an Event of Default under Section 9.01(5) or Section 9.01(6) hereof
effective as of the date of receipt of the notice from the Credit Obligor
pursuant to this Section 4.05(a)(7).
(b) (1) Notice of a Mandatory Tender shall be given by the Trustee in
writing to the Tender Agent, the Remarketing Agent, the Issuer, and the Credit
Obligor and in writing by registered or certified mail to the Noteholder or
Noteholders at the address thereof appearing on the Note Register
(i) not less than 30 days prior to the Mandatory Tender Date
with respect to a Mandatory Tender pursuant to any of Section
3.05(a)(1) through Section 3.05(a)(6), inclusive, and
(ii) not less than 7 days prior to the Mandatory Tender Date with
respect to a Mandatory Tender pursuant to Section 3.05(a)(7).
(2) Such notice of Mandatory Tender shall
22
(i) specify the Mandatory Tender Date,
(ii) state the reason for the Mandatory Tender (being the applicable
event listed in subsection (a) of this Section), and whether the then
Existing Letter of Credit or a Substitute Letter of Credit will be in
effect following the Mandatory Tender Date,
(iii) state that all Notes shall be tendered by the Holders thereof on
such Mandatory Tender Date by appropriate transfer on the records of the
Securities Depository or by delivery to the Trustee at its Principal Office
or to the Tender Agent at its Principal Office at or before 10:00 a.m.
(Birmingham, Alabama time) together with an instrument of assignment or
transfer duly executed in blank (which instrument of assignment or transfer
shall be in the form provided in the Notes or such other form as shall be
acceptable to the Trustee or Tender Agent),
(iv) state that all Notes shall be purchased on the Mandatory Tender
Date at a purchase price equal to 100% of the principal amount thereof plus
accrued interest, if any, to the Mandatory Tender Date, and any Note that
is not so transferred on the records of the Securities Depository or so
delivered to the Trustee or Tender Agent shall be deemed to have been
tendered for purchase by the Holder thereof on the Mandatory Tender Date,
(v) state that any Holder may elect to retain the Note or Notes
thereof by written notice meeting the requirements of subsection 3.05(c) (a
description of which requirements shall be included in such notice)
delivered to the Principal Office of the Trustee not less than five days
prior to the Mandatory Tender Date.
(c)(1) The Holder of any Note subject to a Mandatory Tender pursuant to
Section 3.05(a)(1) through 3.05(a)(6), inclusive, may elect to retain the Note
or Notes thereof by written notice delivered to the Principal Office of the
Trustee not less than five days prior to the Mandatory Tender Date, which notice
shall be effective upon receipt and shall:
(i) state that the person delivering the same is a Holder and
the principal amount of the Notes such Holder is electing to retain,
(ii) state that the Holder has received notice of the Mandatory
Tender and the reason therefor,
(iii) direct the Trustee not to purchase the specified principal
amount of the Notes of the Holder.
(2) Any notice delivered to the Trustee by any Holder pursuant to this
subsection 3.05(c) shall be irrevocable and binding upon the Holder delivering
the same and upon all subsequent Holders of the Notes so retained (including any
Notes issued in exchange therefor or upon transfer thereof).
23
(3) Any Note which the Holder thereof elects to retain under this
subsection 3.05(c) shall not be an "Unsurrendered Note" for purposes of this
Indenture.
(d) All Notes to be tendered by the Holders thereof for purchase shall be
delivered at or before 10:00 a.m. (Birmingham, Alabama time) on the Mandatory
Tender Date, to the Trustee at its Principal Office or to the Tender Agent at
its Principal Office, together with an instrument of assignment or transfer duly
executed in blank (which instrument of assignment or transfer shall be in the
form provided in the Notes or such other form as shall be acceptable to the
Trustee or Tender Agent). During a period in which the Book-Entry System is in
effect for the Notes, transfers of the beneficial ownership interests in the
Notes on such date shall be effected on the records of the Securities Depository
by the Securities Depository in accordance with rules and procedures therefor
and any requirement for physical delivery of Notes on a Mandatory Tender Date
shall be deemed satisfied thereby. All Unsurrendered Notes shall nevertheless
be deemed to have been tendered for purchase by the Holders thereof on the
Mandatory Tender Date.
(e) On the Mandatory Tender Date, the Trustee shall purchase, or cause to
be purchased, all Notes tendered or deemed tendered for purchase on such date at
a purchase price equal to 100% of the principal amount thereof plus accrued
interest, if any, to the Mandatory Tender Date. Funds for payment of the
purchase price of such Notes shall be drawn by the Trustee from the Note
Purchase Fund as provided in Section 7.02.
(f) If there has been irrevocably deposited in the Note Purchase Fund an
amount sufficient to pay the purchase price of all Notes tendered or deemed
tendered for purchase on the Mandatory Tender Date, any Unsurrendered Notes
shall be deemed to be tendered for purchase and purchased from the Holder
thereof on such Mandatory Tender Date and the Holder of any Unsurrendered Note
shall not be entitled to receive interest on such Unsurrendered Note for any
period on and after the relevant Mandatory Tender Date. The Trustee shall issue
a new Note or Notes in the same aggregate principal amount for any Unsurrendered
Notes which are not tendered for purchase on any Mandatory Tender Date and, upon
receipt by the Trustee or Tender Agent of any such Unsurrendered Notes from the
Holders thereof, shall pay, or cause to be paid, the purchase price of such
Unsurrendered Notes to the Holders thereof and cancel such Unsurrendered Notes.
(g) After notice of a Mandatory Tender has been given by the Trustee, the
Notes shall be subject to Mandatory Tender (except with respect to Notes which
the Holders thereof have elected to retain as provided in subsection 3.05(c))
notwithstanding the fact that the reasons for giving such notice cease to exist
or are no longer applicable.
SECTION 3.06 Procedures for Purchase and Remarketing of Notes; Delivery
----------------------------------------------------------
of Purchased and Remarketed Notes
---------------------------------
(a) Anything in this Indenture to the contrary notwithstanding, for
purposes of this Section 3.06 during a period in which the Book-Entry System is
in effect for the Notes:
24
(1) the term "Note" and "Notes" when used in this Section 3.06 shall
mean and include the interests of the Beneficial Owners therein all or a
portion of which are tendered or deemed tendered for purchase pursuant to
this Indenture, and
(2) the term "Holder" and "Holders" when used in this Section 3.06
shall mean and include any Beneficial Owner or Beneficial Owners who shall
have tendered the interests (or a portion) thereof in the Notes for
purchase pursuant to this Indenture, and
(3) delivery, transfer, and registration of ownership and pledge of
the beneficial ownership interests in the Notes shall be effected on the
records of the Securities Depository by the Securities Depository in
accordance with rules and procedures therefor and any requirement for
physical delivery of Notes in connection with such tender shall be deemed
satisfied thereby.
(b) The Remarketing Agent will use its best efforts to remarket all Notes
tendered or deemed to be tendered for purchase pursuant to the Optional Tender
or Mandatory Tender provisions hereof, subject to the provisions of subsection
(h) of this Section. The Issuer may at any time, upon written direction to the
Remarketing Agent, direct the Remarketing Agent to cease or resume the
remarketing of some or all of the Notes.
(c) At or prior to 10:00 a.m. (Birmingham, Alabama time) on any Tender
Date (or at such other time to which the Trustee shall agree), the Remarketing
Agent shall give telegraphic or telephonic notice, promptly confirmed in
writing, to the Trustee specifying or confirming the names, addresses, and
taxpayer identification numbers of the purchasers of, and the principal amount
and denominations of, such Notes, if any, remarketed by it pursuant to this
Section. The Remarketing Agent shall make appropriate settlement arrangements
between the purchasers of such remarketed Notes and the Trustee, and shall
direct such purchasers by appropriate instructions to pay the purchase price of
such Notes to the Trustee at or before 12:00 noon (Birmingham, Alabama time) on
the Tender Date. The Trustee shall deposit the proceeds of any such remarketing
in the Note Purchase Fund.
(d) At or before 1:00 p.m. (Birmingham, Alabama time) on each Tender Date
the Trustee shall pay the purchase price to each Holder of a Note (or portion
thereof) tendered for purchase. The Trustee shall pay the purchase price of
each Note tendered by check or draft mailed by the Trustee to the Holder of such
Note at his address appearing in the Note Register or, upon the written request
of such Holder accompanied by adequate instructions, as provided in Section
3.01(k), by wire transfer to an account of such Holder maintained at a bank in
the continental United States or by any other method providing for payment in
same-day funds that is acceptable to the Trustee. The Trustee shall pay such
purchase price from money on deposit in the Note Purchase Fund in strict
compliance with the provisions thereof; provided, that the Trustee shall not pay
the purchase price of any Unsurrendered Note, unless and until the Holder of
such Unsurrendered Note presents such Unsurrendered Note to the Trustee or
Tender Agent. All Notes so purchased by the Trustee shall be delivered by the
Trustee or Tender Agent in accordance with this Section.
25
(e) The Trustee and the Tender Agent shall hold all Notes delivered to
them pursuant to the Optional Tender or Mandatory Tender provisions hereof in
trust solely for the benefit of the respective Holders who shall have so
delivered such Notes until money representing the purchase price of such Notes
shall have been delivered to or for the account of such Holder.
(f) Pledged Notes shall be held subject to the following terms and
conditions:
(1) If, on the Tender Date, the Trustee receives written notice (a
"Reimbursement Notice") from the Credit Obligor stating that it has been
---------------------
reimbursed for the drawing made under the Letter of Credit to pay the
purchase price of such Pledged Notes and that the Letter of Credit has been
reinstated to the extent of the amount so drawn to pay the purchase price
of such Pledged Notes (except as limited by the provisions of the Letter of
Credit relating to the "Maximum Interest Coverage", as defined therein),
then such Notes shall no longer be considered "Pledged Notes" and the
Trustee shall register such Notes as follows: (i) if such Notes have been
remarketed by the Remarketing Agent, as directed by the Remarketing Agent,
or (ii) if such Notes have not been remarketed, in the name of the Issuer.
Notes registered as directed by the Remarketing Agent shall be delivered by
the Trustee or Tender Agent to, or upon the direction of, the Remarketing
Agent. Notes registered in the name of the Issuer shall be held by the
Trustee or Tender Agent for the account of the Issuer or, upon written
request of the Issuer, shall be delivered to the Issuer.
(2) If the Trustee does not receive a Reimbursement Notice by the
close of business on the Tender Date, then the Trustee shall register such
Pledged Notes in the name of the Credit Obligor, as pledgee. Any Pledged
Notes held by the Tender Agent shall be transmitted to the Trustee. Such
Pledged Notes shall be held by the Trustee on behalf of the Credit Obligor,
as pledgee, until the Trustee receives a Reimbursement Notice with respect
to such Notes or, upon written request of the Credit Obligor, shall be
delivered to the Credit Obligor. Upon receipt by the Trustee of a
Reimbursement Notice with respect to any Pledged Notes, such Notes shall no
longer be considered "Pledged Notes" and shall, subject to the provisions
of subsection (h) of this Section, be disposed of as provided in paragraph
(1) of this subsection (f). The Trustee shall give prompt notice to the
Tender Agent of the receipt of any Reimbursement Notice.
(g) Notes purchased by the Trustee with money from any source other than
money drawn under the Letter of Credit shall be registered as follows: (i) if
such Notes have been remarketed by the Remarketing Agent, as directed by the
Remarketing Agent, or (ii) if such Notes have not been remarketed, in the name
of the Issuer. Notes registered as directed by the Remarketing Agent shall be
delivered by the Trustee or Tender Agent to, or upon the direction of, the
Remarketing Agent. Notes registered in the name of the Issuer shall be held by
the Trustee or Tender Agent for the account of the Issuer or, upon written
request of the Issuer, shall be delivered to the Issuer.
(h) Any provision of this Indenture to the contrary notwithstanding, if
the Notes are purchased pursuant to the Optional Tender or Mandatory Tender
provisions of this Indenture and the Letter of Credit has expired or terminated
(or will expire or terminate within 30 days), the Notes may not be sold or
remarketed unless (i) the Issuer provides disclosure materials to prospective
26
Noteholders that are adequate under securities laws and practices applicable to
remarketing under similar circumstances and (ii) the Notes will continue to
receive at least an "investment grade" rating by each Rating Agency then
maintaining a rating on the Notes following the expiration or termination of the
Letter of Credit, or the Issuer provides that the Notes will be remarketed only
to one or more financial institutions capable of assessing the risks of
ownership of the Notes, in which event any rating on the Notes may be reduced or
withdrawn and (iii) the Trustee and Issuer shall have received an Opinion of
Counsel stating in effect that the remarketing of the Notes under such
circumstances will not be in violation of any federal or state laws regarding
registration of, or other filing in connection with the issuance or sale of,
securities.
(i) Any Note remarketed by the Remarketing Agent that has been called for
prior redemption shall be delivered with a copy of the redemption notice, and
any Note as to which notice of Mandatory Tender has been given shall be
delivered with a copy of the notice of Mandatory Tender and any Note remarketed
by the Remarketing Agent that is subject to prepayment by acceleration under
Article IX hereof shall be delivered with a notice thereof, and in connection
with each such delivery the Remarketing Agent shall obtain an acknowledgment in
writing that each purchaser of such Notes understands the contents of such
notice.
(j) Any provision of this Indenture to the contrary notwithstanding, if the
Notes are purchased pursuant to a Mandatory Tender under Section 3.05(a)(7)
hereof, the Notes may not be remarketed unless the Trustee receives, on or
before the proposed date of such remarketing the written consent of the Credit
Obligor to such remarketing and reinstatement of the Existing Letter of Credit
by the Credit Obligor in the amount drawn to pay the purchase price of the
Notes, effective on the proposed date of such remarketing, or a Substitute
Letter of Credit effective on the proposed date of such remarketing.
(k) Notes purchased pursuant to the Optional Tender or Mandatory Tender
provisions of this Indenture shall not, by virtue of such purchase, be deemed
paid or canceled, but shall remain Outstanding until Fully Paid.
SECTION 3.07 Execution, Authentication, Delivery and Dating
----------------------------------------------
(a) The Notes shall be executed on behalf of the Issuer by its President or
Vice-President under its corporate seal affixed or reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any or all of these officers on the Notes may be manual or, to the extent
permitted by law, by facsimile. In case any officer whose signature or a
facsimile of whose signature shall appear on the Notes shall cease to be such
officer before the authentication and delivery of such Notes, such signature or
such facsimile shall nevertheless be valid and sufficient for all purposes, the
same as if such officer had remained in office until authentication and
delivery.
(b) At any time and from time to time after the execution and delivery of
this Indenture, the Issuer may deliver Notes executed by the Issuer to the
Trustee for authentication and registration and the Trustee or the Tender Agent
shall authenticate and register and deliver such Notes as in this Indenture
provided and not otherwise.
27
(c) No Note shall be secured by, or be entitled to any lien, right or
benefit under, this Indenture or be valid or obligatory for any purpose, unless
there appears on such Note a certificate of authentication substantially in the
form provided for herein, executed by the Trustee or Tender Agent by the manual
signature of a duly authorized officer thereof, and such certificate upon any
Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder.
SECTION 3.08 Temporary Notes
---------------
(a) Pending the preparation of definitive Notes, the Issuer may execute,
and upon request of the Issuer the Trustee shall authenticate and deliver,
temporary Notes which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
(b) If temporary Notes are issued, the Issuer will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the Principal Office of the Trustee, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes the Issuer shall execute and the Trustee shall authenticate,
register and deliver in exchange therefor a like principal amount of definitive
Notes of authorized denominations. Until so exchanged, temporary Notes shall in
all respects be entitled to the security and benefits of this Indenture.
SECTION 3.09 Authentication and Delivery of Notes to Original Purchasers
-----------------------------------------------------------
Upon the execution and delivery of this Indenture, Notes in the aggregate
principal amount authorized in this Article may be executed by the Issuer and
delivered to the Trustee for authentication and registration, and such Notes
shall thereupon be authenticated, registered and delivered by the Trustee to the
original purchaser or purchasers thereof.
SECTION 3.10 Letter of Credit
----------------
(a) Simultaneously with the delivery of the Notes to the original
purchasers thereof, the Issuer has caused the Credit Obligor to deliver to the
Trustee the Letter of Credit. The Letter of Credit will terminate on the Stated
Expiration Date, subject to extension (if applicable) by the Credit Obligor.
(b) The Issuer may at any time and from time to time deliver a Substitute
Letter of Credit to the Trustee in substitution for the Existing Letter of
Credit, provided that
(1) Notice of any intended delivery of a Substitute Letter of Credit
and the proposed issuer and effective date thereof is given (i) by the
Issuer to the Trustee not less than 45 days prior to the proposed effective
date of such Substitute Letter of Credit (unless
28
a shorter period shall be satisfactory to the Trustee and enable the
Trustee to comply with this Section), and (ii) by the Trustee to the
Holders, or, if the Securities Depository or Securities Depository Nominee
is the Holder, as provided in the Letter of Representation, not less than
30 days prior to the proposed effective date of such Substitute Letter of
Credit; and
(2) such Substitute Letter of Credit complies with the applicable
conditions set forth in subsection (d) of this Section and
(3) simultaneously with the delivery of such Substitute Letter of
Credit the Issuer delivers to the Trustee any related documentation
required by subsection (e) of this Section (the "Related Documentation").
(c) The Issuer may, but shall not be required to, deliver a Substitute
Letter of Credit to the Trustee prior to the expiration of the then Existing
Letter of Credit; provided, however, that if a Substitute Letter of Credit and
the Related Documentation are not delivered to the Trustee not less than 30 days
prior to the Stated Expiration Date of the then Existing Letter of Credit, the
Notes shall be subject to a Mandatory Tender.
(d) Each Substitute Letter of Credit delivered to the Trustee pursuant to
this Section must meet the following criteria:
(1) such Substitute Letter of Credit must have an effective date not
less than 30 days prior to the stated Expiration Date of the then Existing
Letter of Credit,
(2) such Substitute Letter of Credit must be substantially in the
same form and of the same tenor as the Letter of Credit, except that such
Substitute Letter of Credit must provide for the payment of interest on the
Notes (or the interest portion of the purchase price of Notes tendered, or
deemed tendered, for purchase) at the Maximum Rate computed on the interest
rate basis then applicable as provided in Section 3.01(g), for not less
than 56 days,
(3) if such Substitute Letter of Credit is being delivered in
connection with a conversion of the interest rate on the Notes to a Fixed
Rate, the effective date shall be not later than the Conversion Date,
(4) if such Substitute Letter of Credit will be effective during a
Fixed Rate Period when the Notes are subject to optional redemption, such
Substitute Letter of Credit must provide for payment of the maximum
redemption premium payable with respect to the Notes, and
(5) such Substitute Letter of Credit must have a Stated Expiration
Date that is (i) the same calendar day in the same calendar month as the
expiration date of the then existing Letter of Credit being replaced and
(ii) not sooner than one year after its effective date; provided, however,
that any Substitute Letter of Credit that is to be substituted for an
29
Existing Letter of Credit that is effective during a Fixed Rate Period must
have a Stated Expiration Date not sooner than the Stated Expiration Date of
such Existing Letter of Credit.
(e) Each Substitute Letter of Credit delivered to the Trustee must be
accompanied by the following, to the extent applicable:
(1) if any Rating Agency maintains a rating with respect to the Notes
at the time of delivery of such Substitute Letter of Credit to the Trustee,
written evidence from each such Rating Agency to the effect that the
substitution of the proposed Substitute Letter of Credit will not, by
itself, result in a reduction or withdrawal of its rating then assigned to
the Notes,
(2) an Opinion of Counsel for the issuer of such Substitute Letter of
Credit stating in effect that such Substitute Letter of Credit (1) is a
valid and binding obligation of the issuer thereof and (2) is exempt from
registration under the Securities Act of 1933, as amended.
(f) At the close of business on the effective date of any Substitute
Letter of Credit, the Trustee shall return the Existing Letter of Credit to the
issuer thereof, provided that any draws on such Existing Letter of Credit made
on or prior to such date have been honored. Any draws that, under the terms of
the Indenture, are to be made on the Letter of Credit on or prior to the
effective date of a Substitute Letter of Credit shall be made under the Existing
Letter of Credit. Not later than the close of business on the effective date of
a Substitute Letter of Credit, the Issuer shall certify in writing to the
Trustee that all obligations of the Issuer to the issuer of the Existing Letter
of Credit for reimbursement of amounts drawn thereunder have been satisfied, and
upon receipt of such evidence any Pledged Notes held by the Trustee or the
Tender Agent for the benefit of the issuer of the Existing Letter of Credit
shall be delivered to, or upon the order of, the Issuer.
(g) If the Trustee accepts a Substitute Letter of Credit as herein
provided, then, unless such Substitute Letter of Credit was described in a
notice of Mandatory Tender, the Trustee shall send written notice of such
substitution to the Noteholders.
(h) If Notes are redeemed prior to maturity, the Trustee shall take any
action necessary to reduce the interest portion of the Letter of Credit to the
Maximum Interest Coverage, as therein defined.
SECTION 3.11 Additional Credit Enhancement
-----------------------------
At the cost and expense of the Issuer, the Issuer may deliver to the
Trustee, and the Trustee shall accept, security for the payment of the Notes in
addition to the Letter of Credit then in effect, in the form of a confirmation
of such Letter of Credit, an additional standby letter of credit, insurance,
surety bonds, or otherwise.
30
ARTICLE IV
Registration, Book-Entry System, and
General Provisions Regarding the Notes
--------------------------------------
SECTION 4.01 Registration of Notes
---------------------
(a) The Issuer shall cause to be kept at the Principal Office of the
Trustee a register (the "Note Register") in which, subject to such reasonable
-------------
regulations as it may prescribe, the Issuer shall provide for the registration
of Notes and registration of transfers of Notes entitled to be registered or
transferred as herein provided. The Trustee is hereby appointed "Note
----
Registrar" for the purpose of registering Notes and transfers of Notes as herein
---------
provided.
(b) Each of the Notes shall be registered in the name of the owner thereof
in the Note Register.
(c) The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the person in whose name any Note is registered as the owner of such Note
for the purpose of receiving payment of Debt Service on such Note and for all
other purposes whatsoever whether or not such Note is overdue, and, to the
extent permitted by law, neither the Issuer, the Trustee nor any such agent
shall be affected by notice to the contrary.
SECTION 4.02 Registration, Transfer, and Exchange of Notes; Replacement
----------------------------------------------------------
of Mutilated, Lost, Destroyed or Stolen Notes
---------------------------------------------
(1) A Note shall be transferred by the Holders in person or by authorized
attorney only on the Note Register upon surrender of the Notes for transfer to
the Trustee or the Tender Agent. Upon surrender for transfer of any Note at the
Principal Office of the Trustee or the Principal Office of the Tender Agent, the
Issuer shall execute, and the Trustee or Tender Agent shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Notes of the same maturity, of any Authorized Denominations and of a like
aggregate principal amount.
(2) At the option of the Holder, Notes may be exchanged for other Notes of
the same maturity, of any Authorized Denominations and of a like aggregate
principal amount, upon surrender of the Notes to be exchanged at the Principal
Office of the Trustee or at the Principal Office of the Tender Agent. Whenever
any Notes are so surrendered for exchange, the Issuer shall execute, and the
Trustee or the Tender Agent shall authenticate and deliver, the Notes which the
Noteholder making the exchange is entitled to receive.
(3) All Notes surrendered upon any exchange or transfer provided for in
this Indenture shall be promptly canceled by the Trustee or the Tender Agent.
(4) All Notes issued upon any transfer or exchange of Notes shall be the
valid obligations of the Issuer and entitled to the same security and benefits
under this Indenture as the Notes surrendered upon such transfer or exchange.
31
(5) Every Note presented or surrendered for transfer or exchange shall (if
so required by the Trustee or the Tender Agent) be duly endorsed, or be
accompanied by a written instrument of assignment or transfer in form
satisfactory to the Trustee or the Tender Agent duly executed, by the Holder
thereof or his attorney duly authorized in writing.
(6) The Issuer and the Trustee shall not be required (i) to transfer or
exchange any Note during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of Notes and ending at
the close of business on the day of such mailing, or (ii) to transfer or
exchange any Note so selected for redemption in whole or in part, or (iii) to
exchange any Note during a period beginning at the opening of business on any
Regular Record Date for such Note and ending at the close of business on the
relevant Interest Payment Date therefor.
(7) If (i) any mutilated Note is surrendered to the Trustee, or the Issuer
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Note, and (ii) there is delivered to the Issuer and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Issuer or the Trustee that such
Note has been acquired by a bona fide purchaser, the Issuer shall execute and
upon its request the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of
like tenor, principal amount, maturity, and bearing a number not
contemporaneously outstanding.
(8) Upon the transfer or exchange of any Note, or the issuance of any new
Note under this Section, the Holder shall pay a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and any
other expenses connected therewith.
(9) Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the security and benefits of this Indenture equally and
ratably with all other Outstanding Notes.
(10) The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 4.03 Book-Entry System.
-----------------
(a) The Notes shall be initially issued pursuant to a Book-Entry System
administered by the Securities Depository with no physical distribution of any
Note to any person. One Note for each maturity will be issued, registered in
the name of the Securities Depository Nominee, and immobilized in the custody of
the Securities Depository. Beneficial ownership interests in the Notes may be
purchased by or through Direct Participants. The holders of these beneficial
ownership interests in the Notes are referred to as the "Beneficial Owners". The
-----------------
Beneficial Owners will not receive certificated notes representing their
beneficial ownership interests. Ownership of the interests in Notes in
Authorized Denominations will be evidenced, and transfers of interests in the
32
Notes will be effected, on the records of the Securities Depository and the
Direct Participants and Indirect Participants pursuant to rules and procedures
established by the Securities Depository. During a period in which the Book-
Entry System is in effect for the Notes the Issuer, the Trustee, and the
Remarketing Agent shall treat the Securities Depository or the Securities
Depository Nominee as the only registered owner of the Notes for all purposes
under this Indenture including receipt of all principal of, purchase price of,
premium (if any) and interest on the Notes, receipt of notices, voting, and
requesting or directing the Trustee or Issuer to take or not to take, or
consenting to, certain actions under this Indenture. In the event the
Securities Depository or the Securities Depository Nominee assigns its rights to
consent or vote under this Indenture to any Direct Participant or Indirect
Participant, the Issuer, the Trustee, and the Remarketing Agent shall treat such
assignee or assignees as the only registered owner or owners of the Notes for
the purpose of exercising such rights so assigned.
(b) During a period in which the Book-Entry System is in effect for the
Notes, payments of principal, purchase price, interest, and redemption premium,
if any, with respect to the Notes will be paid by the Trustee directly to the
Securities Depository, or the Securities Depository Nominee, as provided in the
Letter of Representation; provided, that payment of the principal of (premium,
if any) and interest on such Notes due at final maturity or upon redemption in
whole of any of such Notes shall be made only upon surrender thereof at the
principal office of the Trustee. The Securities Depository and the Direct
Participants and the Indirect Participants shall be responsible for the
disbursement of such payments to the Beneficial Owners. The Securities
Depository will disburse such payments to Direct Participants and such payments
will in turn be remitted by Direct Participants and, where appropriate, Indirect
Participants, to the Beneficial Owners. All such payments to the Securities
Depository or the Securities Depository Nominee of principal of, purchase price
of, premium (if any) and interest on the Notes on behalf of the Issuer or the
Trustee shall be valid and effectual to satisfy and discharge the liability of
the Issuer and the Trustee to the extent of the amounts so paid, and the Issuer,
the Remarketing Agent and the Trustee shall not be responsible or liable for
payment to any Beneficial Owner by the Securities Depository or by any Direct
Participant or by any Indirect Participant, or for sending transaction
statements or for maintaining, supervising or reviewing records maintained by
the Securities Depository or Direct Participants or Indirect Direct
Participants.
(c) Transfers of ownership interests in the Notes by the Beneficial Owners
thereof, conveyance of notices and other communications by the Securities
Depository to Direct Participants, by Direct Participants to Indirect
Participants, and by Direct Participants and Indirect Participants to Beneficial
Owners of the Notes, will be governed by arrangements among the Securities
Depository, Direct Participants, Indirect Participants and the Beneficial
Owners, subject to any statutory and regulatory requirements as may be in effect
from time to time. For every transfer and exchange of beneficial ownership in
the Notes, the Beneficial Owners may be charged a sum sufficient to cover any
tax, fee or other governmental charge that may be imposed in relation thereto.
(d) Redemption notices respecting the Notes held by the Securities
Depository shall be sent to the Securities Depository Nominee by the Trustee and
redemption of Notes shall be effected as provided in Article V.
33
(e) A Beneficial Owner shall give notice of its election to have its
interests in the Notes purchased through its Direct Participant or Indirect
Participant to the Securities Depository Nominee and then to the Trustee as
provided in this Indenture and shall effect delivery of such interest by causing
said Direct Participant or Indirect Participant to transfer the interest of such
Beneficial Owner in the Notes to the Trustee (or Tender Agent) on the records of
the Securities Depository. The requirement for physical delivery of Notes in
connection with an Optional Tender or a Mandatory Tender will be satisfied when
the ownership rights in the Notes are transferred on the records of the
Securities Depository.
(f) In the event that (1) the Securities Depository ceases to act as the
securities depository for the Notes or (2) the Issuer determines that the
continuation of the Book-Entry System for the Notes would adversely affect the
interests of the Beneficial Owners of the Notes, the Issuer shall discontinue
the Book-Entry System. If the Issuer fails to appoint another qualified
securities depository to replace the then acting Securities Depository, the
Issuer will cause the Trustee to authenticate and deliver fully registered
certificated Notes to each Beneficial Owner in evidence of the ownership
interests thereof. If the Book-Entry System is discontinued, payments to and
transfers by the Beneficial Owners shall be governed by the provisions set forth
in this Indenture with respect thereto.
(g) The Issuer and the Remarketing Agent may enter into a custody
agreement with any bank or trust company serving as custodian (which may be the
Trustee serving in the capacity of custodian) to provide for a Book-Entry System
or similar method for the registration and transfer of the Notes.
(h) During the period in which a Book-Entry System is in effect for the
Notes in accordance herewith, the provisions of this Indenture and the Notes
shall be construed in accordance with the Letter of Representation and to give
full effect to such Book-Entry System.
(i) The Beneficial Owners of all the Notes, by their acquisition of any
beneficial interest in a Note or Notes, and the Securities Depository, the
Securities Depository Nominee, and all Direct Participants and all Indirect
Participants severally agree that the Issuer, the Issuer, the Remarketing Agent,
and the Trustee shall not have any responsibility or obligation to any Direct
Participant or any Indirect Participant or any Beneficial Owner with respect to
(1) the accuracy of any records maintained by the Securities Depository or any
Direct Participant or any Indirect Participant; (2) the payment by the
Securities Depository or any Direct Participant or any Indirect Participant of
any amount due to any Beneficial Owner in respect of the principal of, purchase
price of, premium (if any) and interest on the Notes; (3) the delivery or
timeliness of delivery by the Securities Depository or any Direct Participant or
any Indirect Participant of any notice due to any Beneficial Owner which is
required or permitted under the terms of this Indenture to be given to
Beneficial Owners; or (4) any consent given or other action taken by the
Securities Depository, or the Securities Depository Nominee, as owner.
(j) The Securities Depository may determine to discontinue the Book-Entry
System with respect to the Notes at any time upon notice to the Issuer, the
Remarketing Agent, and the Trustee and upon discharge of its responsibilities
with respect thereto under applicable law. Upon such
34
notice and compliance with law the Book-Entry System for the Notes will be
discontinued unless a successor securities depository is appointed by the
Issuer. In addition, the Issuer may discontinue the Book-Entry System for the
Notes at any time by reasonable notice to the Securities Depository and to the
Beneficial Owners. In the event the Book-Entry System for the Notes is
discontinued, Notes in certificated form in Authorized Denominations will be
physically distributed to the Beneficial Owners thereof and the Notes will be
registered in the names of the owners thereof on the Note Register and the
Trustee will make payments of principal of, purchase price of, premium (if any)
and interest on the Notes to the registered owners thereof as provided in the
Notes and this Indenture.
SECTION 4.04 Payment of Interest on Notes; Interest Rights Preserved
-------------------------------------------------------
(a) Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Note is registered at the close of business on the Regular Record Date
for such Interest Payment Date.
(b) Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Holder on the relevant
Regular Record Date solely by virtue of such Holder having been such Holder; and
such Defaulted Interest shall be paid by the Issuer to the persons in whose
names such Notes are registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Issuer shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Note and the date of the
proposed payment (which date shall be such as will enable the Trustee to comply
with the provisions hereof), and at the same time the Issuer shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to be paid
in respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the persons entitled
to such Defaulted Interest as in this subsection provided and not to be deemed
part of the Trust Estate. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than 15 nor
less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Issuer of such Special Record Date and, in
the name and at the expense of the Issuer, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to the Noteholder or Noteholders at the
address thereof appearing in the Note Register not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid,
such Defaulted Interest shall be paid to the persons in whose names the Notes
are registered on such Special Record Date.
(c) Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Note shall carry all the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Note and each such Note shall bear
interest from such date that neither gain nor loss in interest shall result from
such transfer, exchange or substitution.
35
SECTION 4.05 Paying Agent
------------
The Debt Service on the Notes shall, except as otherwise provided herein,
be payable at the Principal Office of the Trustee. The Trustee is hereby
appointed as Paying Agent for the purpose of paying Debt Service on the Notes on
behalf of the Issuer.
SECTION 4.06 Payments Due on Non-Business Days
---------------------------------
If any payment on the Notes is due on a day which is not a Business Day,
such payment may be made on the first succeeding day which is a Business Day
with the same effect as if made on the day such payment was due.
SECTION 4.07 Cancellation
------------
All Notes surrendered for payment, redemption, transfer or exchange shall
be promptly canceled or destroyed by the Trustee. No Note shall be
authenticated in lieu of or in exchange for any Note canceled as provided in
this Section, except as expressly provided by this Indenture.
ARTICLE V
Redemption of Notes
-------------------
SECTION 5.01 When Notes Are Subject to Redemption
------------------------------------
(a) The Notes shall be subject to extraordinary, optional and mandatory
redemption as provided in the form thereof set forth on Exhibit A hereto.
(b) Notes shall be redeemed in accordance with the mandatory redemption
provisions of the Notes without any direction from or consent by the Issuer.
SECTION 5.02 Election to Redeem; Notice to Trustee
-------------------------------------
(a) In case of any redemption at the option of the Issuer of all of the
principal amount of the Outstanding Notes, the Authorized Issuer Representative
shall, not more than 60 and not less than 30 days prior to the proposed
redemption date (unless a shorter notice shall be satisfactory to the Trustee)
notify the Trustee of the redemption date, which notice, if required by this
Indenture, shall be accompanied by and the written consent of the Credit
Obligor.
(b) In case of any redemption at the option of the Issuer of less than all
of the principal amount of the Outstanding Notes, the Authorized Issuer
Representative shall, at least 60 days prior to the date fixed by the Issuer for
redemption of Notes (unless a shorter notice shall be satisfactory to the
Trustee) notify the Trustee of such redemption date and of the principal amount
of Notes to be redeemed.
36
SECTION 5.03 Selection of Notes to be Redeemed
---------------------------------
(a) If less than all of the Outstanding Notes are to be redeemed during a
period in which the Book-Entry System is in effect for the Notes, the Securities
Depository shall determine the amount of the interest of each Direct Participant
in the Notes to be redeemed, on the basis of the smallest Authorized
Denomination of the Notes, by lot or by such other method as the Securities
Depository shall deem fair and appropriate. The Securities Depository shall so
determine the amount of the interest of each Direct Participant in the Notes to
be redeemed in such manner so as to assure that after such redemption no
Beneficial Owner shall retain a beneficial ownership interest in the Notes in an
aggregate amount less than an Authorized Denomination.
(b) If less than all the Outstanding Notes are to be redeemed during a
period in which the Book-Entry System is not in effect for the Notes, the
Trustee shall select the particular Notes to be redeemed not less than 30 nor
more than 60 days prior to the redemption date from the Outstanding Notes which
have not previously been called for redemption, on the basis of the smallest
Authorized Denomination of the Notes, by lot or by such method as the Trustee
shall deem fair and appropriate. The Trustee shall so select Notes for
redemption in such manner so as to assure that after such redemption no
Noteholder shall retain Notes in an aggregate amount less than an Authorized
Denomination.
(c) The Trustee shall promptly notify the Issuer and the Issuer in writing
of the Notes selected for redemption and, in the case of any Note selected for
partial redemption, the principal amount thereof to be redeemed.
(d) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Notes shall relate, in
the case of any Note redeemed or to be redeemed only in part, to the portion of
the principal of such Note which has been or is to be redeemed.
SECTION 5.04 Notice of Redemption
--------------------
(a) Notice of any intended redemption shall be given by the Trustee to the
Holder of each Note, all or a portion of the principal of which is to be
redeemed, not less than 30 days prior to the proposed redemption date by United
States registered or certified mail or, if the Securities Depository or
Securities Depository Nominee is the Holder, at the times and in the manner as
provided in the Letter of Representation, at the address of such Holder
appearing in the Note Register; provided, however, any Holder may waive the
requirement of notice as to the redemption (in whole or in part) of the Note or
Notes thereof. During a period in which the Book-Entry System is in effect for
the Notes, notice of any intended redemption may be given to each Beneficial
Owner, all or any portion of the interest of which in the Notes is to be
redeemed, by the Direct Participants and, where appropriate, by the Indirect
Participants, pursuant to arrangements among said parties, subject to statutory
and regulatory requirements in effect from time to time; provided, however, any
Beneficial Owner may waive the requirement of notice as to the redemption of the
interest thereof in the Notes.
(b) All notices of redemption shall state:
37
(1) the redemption date,
(2) the redemption price,
(3) the principal amount of Notes to be redeemed, and, if less than
all Outstanding Notes are to be redeemed, the respective principal amounts
of the Notes to be redeemed,
(4) that on the redemption date the redemption price of each of the
Notes to be redeemed will become due and payable and that the interest
thereon shall cease to accrue from and after said date, and
(5) the place or places where the Notes to be redeemed are to be
surrendered for payment of the redemption price.
(c) Notice of redemption of Notes to be redeemed shall be given by the
Trustee in the name of the Issuer and at the expense of the Issuer.
(d) The Issuer and the Trustee shall, to the extent practical under the
circumstances, comply with the standards set forth in Securities and Exchange
Commission's Exchange Act Release No. 23856 regarding redemption notices,
provided that their failure to do so shall not in any manner defeat the
effectiveness of a call for redemption if notice thereof is given as prescribed
in this Section.
SECTION 5.05 Deposit of Redemption Price
---------------------------
Prior to any redemption date, the Issuer shall deposit with the Trustee
pursuant to Section 8.02 an amount of money sufficient to pay the redemption
price of all the Notes which are to be redeemed on that date. Such money shall
be held in trust for the benefit of the persons entitled to such redemption
price and shall not be deemed to be part of the Trust Estate.
SECTION 5.06 Notes Payable on Redemption Date
--------------------------------
(a) Notice of redemption having been given as aforesaid, the Notes to be
redeemed shall, on the redemption date, become due and payable at the redemption
price therein specified and from and after such date (unless the Issuer shall
default in the payment of the redemption price) such Notes shall cease to bear
interest. Upon presentation of any such Note for redemption, or compliance with
the requirements of the Securities Depository with respect to redemption in
part, in accordance with said notice such Note shall be paid by the Issuer at
the redemption price. Installments of interest due on or prior to the redemption
date shall be payable to the Holders of the Notes registered as such on the
relevant Record Dates according to the terms of such Notes and the provisions of
Section 4.04.
38
(b) If any Note called for redemption shall not be paid upon redemption
due to the failure of the Issuer or the Credit Obligor to make the required
payment, the principal (and premium, if any) shall, until paid, bear interest
from the redemption date at the Post-Default Rate.
SECTION 5.07 Notes Redeemed in Part
----------------------
(a) During a period in which the Book-Entry System is in effect for the
Notes, the recordation and evidence of any reduction in the aggregate principal
amount of the interest of the Direct Participants in the Notes as a result of
the redemption of a portion thereof shall be made in accordance with the Letter
of Representation and the rules and procedures of the Securities Depository with
respect thereto from time to time in effect.
(b) During a period in which the Book-Entry System is not in effect for
the Notes, unless otherwise provided herein, any Note which is to be redeemed
only in part shall be surrendered at the Principal Office of the Trustee (with,
if the Issuer or the Trustee requires, due endorsement by, or a written
instrument of assignment or transfer in form satisfactory to the Issuer and the
Trustee duly executed by the Holder thereof or his attorney duly authorized in
writing) and the Issuer shall execute and the Trustee shall authenticate and
deliver to the Holder of such Note, without service charge, a new Note or Notes
of any authorized denomination or denominations as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Note surrendered.
ARTICLE VI
Application of Proceeds of Notes
--------------------------------
(a) On the date of issuance of the Notes, the proceeds of the Notes in the
amount or amounts set forth on Exhibit D hereto shall be delivered to the
Trustee, shall be held by the Trustee in a special trust fund hereby created and
designated the "Proceeds Fund", and shall be paid by the Trustee to the Issuer
upon requisition therefor in the form of Exhibit B hereto, appropriately
completed,
(b) The Trustee shall have no liability for the use or application of the
funds in the Proceeds Fund if disbursed pursuant to the provisions of this
Article.
39
ARTICLE VII
Revenues
--------
SECTION 7.01 Note Fund and Letter of Credit Draws
------------------------------------
(a) There is hereby established a special trust fund in the name of the
Issuer which shall be designated the "Variable/Fixed Rate Secured Promissory
Notes Note Fund". The Trustee shall be the depository, custodian and disbursing
agent for the Note Fund. The money in the Note Fund shall be used (i) to pay
Debt Service on the Notes as the same shall become due and payable or (ii) to
reimburse the Credit Obligor for amounts drawn under the Letter of Credit, as
provided in subsection (c) of this Section.
(b) There shall be deposited in the Note Fund, as and when received:
(1) in the manner provided in subsection 7.01(c), all money drawn by
the Trustee under the Letter of Credit for the purpose of paying the
principal amount of the Notes and the premium (if any) on the Notes, and
the interest due thereon on any Note Payment Date,
(2) All payments with respect to Debt Service on the Notes made by
the Issuer pursuant to Section 8.02(a)(1) and Section 8.02(b),
(3) All other money required to be deposited in the Note Fund
pursuant to this Indenture, and
(4) All other money received by the Trustee when accompanied by
written directions that such money is to be deposited in the Note Fund.
(c) If the Letter of Credit is then in effect, on each Note Payment Date,
the Trustee shall, without making any prior claim or demand upon the Issuer for
the payment of any amounts under Section 8.02(a)(1), submit a draft under the
Letter of Credit in accordance with the terms thereof (i) in an amount equal to
the amount of Debt Service due on such Note Payment Date on Notes other than
Pledged Notes and (ii) by such time (as stated in the Letter of Credit) in
advance as shall enable the Trustee to pay said Debt Service from the proceeds
of such draft on said Note Payment Date in accordance with the provisions of
this Indenture with respect thereto. Any such money drawn under the Letter of
Credit shall be deposited and held in a separate, segregated account in the Note
Fund, and shall not be commingled with other money in the Note Fund and no
investment thereof shall be made. If money from any source other than the
Letter of Credit was, at the time of such draw, on deposit in the Note Fund and
available for the payment of Debt Service on Notes other than Pledged Notes, the
Trustee shall nevertheless draw under the Letter of Credit to make such payment
of Debt Service in the amount of the Debt Service to be so paid, and the money
available from such other source shall, to the extent of the amount paid by the
Credit Obligor against such draw, be paid to the Credit Obligor. All money so
drawn under the Letter of Credit shall be used to pay Debt Service on Notes
other than Pledged Notes; Debt Service on Pledged Notes shall be paid with money
deposited in the Note Fund from any source other than the Letter of Credit.
40
(d) The Issuer hereby authorizes and directs the Trustee to withdraw
sufficient money from the Note Fund to pay Debt Service on the Notes as the same
become due and payable, whether at maturity, by call for redemption,
acceleration, or otherwise, which authorization and direction the Trustee hereby
accepts. Funds for such payments of Debt Service on the Notes shall be derived
from the following sources in the order of priority indicated:
(1) First: money drawn by the Trustee under the Letter of Credit, and
-----
(2) Second: all other money on deposit in the Note Fund.
------
(e) Debt Service due on all Pledged Notes shall be paid to the Credit
Obligor.
SECTION 7.02 Note Purchase Fund
------------------
(a) There is hereby established a special trust fund in the name of the
Issuer which shall be designated the "Variable/Fixed Rate Secured Promissory
Notes Note Purchase Fund". The Trustee shall be the custodian for the Note
Purchase Fund, and money in such Fund may be disbursed by the Trustee as
hereinafter provided. The money in the Note Purchase Fund shall be used (i) to
pay the purchase price of Notes due on any Tender Date or (ii) to reimburse the
Credit Obligor for amounts drawn under the Letter of Credit, as provided in
subsection (c) of this Section.
(b) There shall be deposited in the Note Purchase Fund, as and when
received:
(1) in the manner provided in subsection 7.02(c), all money drawn by
the Trustee under the Letter of Credit for the purpose of paying the
purchase price of Notes due on any Tender Date,
(2) all payments with respect to the purchase price of Tendered Notes
made by the Issuer pursuant to Section 8.02(a)(2),
(3) the proceeds of any remarketing of Notes by the Remarketing
Agent,
(4) all other money required to be deposited in the Note Purchase
Fund pursuant to this Indenture, and
(5) all other money received by the Trustee when accompanied by
directions that such money is to be deposited in the Note Purchase Fund.
(c) If the Letter of Credit is then in effect, on each Tender Date, the
Trustee shall, without making any prior claim or demand upon the Issuer for
payments pursuant to Section 8.02(a)(2) with respect to the purchase price of
Tendered Notes, and without taking into account any proceeds anticipated (but
not then received) from the remarketing of Notes by the Remarketing Agent,
submit a draft under the Letter of Credit in accordance with the terms thereof
(i) in an amount equal to the purchase price of all Notes to be purchased on
such Tender Date and (ii) by such time (as stated in the Letter of Credit) in
advance as shall enable the Trustee to pay said purchase price from the
41
proceeds of such draft on said Tender Date in accordance with the provisions of
this Indenture with respect thereto. Any such money drawn under the Letter of
Credit shall be deposited and held in a separate, segregated account in the Note
Purchase Fund, and shall not be commingled with other money in the Note Purchase
Fund and no investment thereof shall be made. Except as otherwise provided in
Section 7.02(f), if money from any source other than the Letter of Credit was,
at the time of such draw, on deposit in the Note Purchase Fund and available for
the payment of such purchase price, the Trustee shall nevertheless draw under
the Letter of Credit to make the payment of such purchase price in the amount of
such purchase price to be so paid, and any money available in the Note Purchase
Fund on such Tender Date from such other sources (including without limitation,
proceeds of remarketing of Notes) shall, to the extent of the amount paid by the
Credit Obligor against such draw, be paid to the Credit Obligor. If proceeds
from the remarketing of Notes are deposited in the Note Purchase Fund after such
Tender Date, the Trustee shall pay such proceeds to the Credit Obligor.
(d) The Trustee is hereby authorized and directed to withdraw sufficient
money from the Note Purchase Fund to pay the purchase price of Notes due on any
Tender Date. Except as otherwise provided in Section 7.02(f), funds for such
payments shall be derived from the following sources in the order of priority
indicated:
(1) First: money drawn by the Trustee under the Letter of Credit,
-----
(2) Second: money received by the Trustee from the remarketing of
------
Notes by the Remarketing Agent to persons other than the Issuer, or
any Affiliate of any thereof, and
(3) Third: all other money on deposit in the Note Purchase Fund.
-----
(e) Anything in this Indenture to the contrary notwithstanding, the
Trustee shall not purchase any Notes under Section 3.06 with proceeds received
from remarketing of Notes to the Issuer or any Affiliate thereof.
(f) Anything herein to the contrary notwithstanding, if proceeds from the
remarketing of Notes by the Remarketing Agent are actually on deposit in the
Note Purchase Fund (and not anticipated to be so on deposit) at or prior to the
time of submission by the Trustee of a draft under the Letter of Credit pursuant
to Section 7.02(c), the Trustee may reduce the amount of such draft by the
amount of such proceeds.
SECTION 7.03 Money for Note Payments to be Held in Trust; Repayment of
---------------------------------------------------------
Unclaimed Money
---------------
(a) If money is on deposit in the Note Fund on any Note Payment Date
sufficient to pay Debt Service on the Notes due and payable on such Note Payment
Date, but the Holder of any Note that matures on such Date or that is subject to
redemption on such Date fails to surrender such Note to the Trustee for payment
of Debt Service due and payable on such Date, the Trustee shall segregate and
hold in trust for the benefit of the person entitled thereto money sufficient to
pay the Debt
42
Service due and payable on such Note on such Date. Money so segregated and held
in trust shall not be a part of the Trust Estate and shall not be invested, but
shall constitute a separate trust fund for the benefit of the persons entitled
to such Debt Service.
(b) If money is on deposit in the Note Purchase Fund on any Tender Date
sufficient to pay the purchase price on the Notes to be paid on such Tender
Date, but the Holder of any Note fails to deliver such Note to the Trustee or
Tender Agent for payment of such purchase price on such Tender Date, the Trustee
shall segregate and hold in trust, without liability for the investment thereof
for the benefit of the person entitled thereto money sufficient to pay such
purchase price due and payable on such Unsurrendered Note on such Tender Date.
Money so segregated and held in trust shall not be a part of the Trust Estate,
but shall constitute a separate trust fund for the benefit of the persons
entitled to such purchase price.
(c) Any money held in trust by the Trustee for the payment of Debt Service
on or the purchase price of any Note pursuant to subsections (a) and (b) of this
Section and remaining unclaimed for 3 years after such Debt Service has become
due and payable shall be paid to the Issuer upon request of an Authorized Issuer
Representative; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Issuer for payment thereof, and all liability
of the Trustee with respect to such trust money, and all liability of the Issuer
with respect thereto, shall thereupon cease; provided, however, that the
Trustee, before being required to make any such payment to the Issuer, may at
the expense of the Issuer cause to be published once, in a newspaper of general
circulation in the city where the Principal Office of the Trustee is located,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be paid to the Issuer.
SECTION 7.04 Investment of Special Funds
---------------------------
(a) Any money held as part of a Special Fund shall be invested or
reinvested in Qualified Investments by the Trustee in accordance with the
written instructions of the Issuer if no Event of Default exists, to the extent
that such investment is feasible and consistent with the purposes for which such
Fund was created; provided, however, that, except as provided below, money in
the Note Fund and Note Purchase Fund shall be invested only in Federal
Securities (or a fund thereof) with a maturity not later than the date such
money will be needed for the payment of Debt Service on, or the purchase price
of, Notes. Any investment made with money on deposit in a Special Fund shall be
held by or under control of the Trustee and shall be deemed at all times a part
of the Special Fund where such money was on deposit, and the interest and
profits realized from such investment shall be credited to such Fund and any
loss resulting from such investment shall be charged to such Fund.
(b) The proceeds of a draw under the Letter of Credit shall not be
invested.
(c) Any investment of money in the Special Funds may be made by the
Trustee through its own bond department, investment department or other
commercial banking department providing
43
investment services. Any certificate of deposit issued by, or other interest-
bearing deposit with, the Trustee shall be deemed an investment rather than a
deposit requiring security.
ARTICLE VIII
Representations and Covenants
-----------------------------
SECTION 8.01 General Representations
-----------------------
The Issuer makes the following representations and warranties as the basis
for the undertakings on its part herein contained:
(1) It is duly organized as a corporation under the laws of Nevada.
(2) It has the power to consummate the transactions contemplated by
the Financing Documents to which it is a party.
(3) By proper corporate action the Issuer has duly authorized the
issuance, execution and delivery of the Financing Documents to which it is
a party and the consummation of the transactions contemplated therein.
(4) It has obtained all consents, approvals, authorizations and
orders of governmental authorities that are required to be obtained by it
as a condition to the issuance of the Notes and the execution and delivery
of the Financing Documents to which it is a party.
(5) The execution and delivery by it of the Financing Documents to
which it is a party and the consummation by it of the transactions
contemplated therein will not (i) conflict with, be in violation of, or
result in a default under any bylaws or any agreement, instrument, order or
judgment to which it is a party or is subject or (ii) result in or require
the creation or imposition of any lien of any nature with respect to the
Trust Estate, except as contemplated by the Financing Documents.
(6) The Financing Documents to which it is a party constitute legal,
valid and binding obligations and are enforceable against it in accordance
with the terms of such instruments, except as enforcement thereof may be
limited by (i) the exercise of judicial discretion and (ii) bankruptcy,
insolvency, or other similar laws affecting the enforcement of creditors'
rights, to the extent constitutionally applicable.
(7) The Issuer has not created or permitted the creation of any
mortgage, pledge, encumbrance, security interest, assignment or other
charge of any kind with respect to the Trust Estate, except as effected or
contemplated by the Financing Documents.
44
(8) There is no action, suit, proceeding, inquiry or investigation
pending before any court or governmental authority, or threatened against
or affecting it or its properties, that involves (i) the consummation of
the transactions contemplated by, or the validity or enforceability of, the
Financing Documents, (ii) its organization, (iii) the election or
qualification of its directors or officers, or (iv) its powers.
(9) The Issuer has not created or permitted the creation of any
mortgage, pledge, encumbrance, security interest, assignment or other
charge of any kind with respect to the Trust Estate, except as effected or
contemplated by the Financing Documents.
(10) The Issuer is not an "investment company" or a company
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended.
SECTION 8.02 Payment of Debt Service and Purchase of Tendered Notes
------------------------------------------------------
(a) The Issuer shall:
(1) On or before 10:00 a.m. (Birmingham, Alabama time), on each Note
Payment Date, pay to the Trustee an amount equal to the Debt Service on the
Notes due on such Note Payment Date; provided, however, that (i) any amount
already on deposit in the Note Fund on the due date of such payment and
available for the payment of Debt Service on such Note Payment Date shall
be credited against the amount of such payment, and (ii) any amount drawn
by the Trustee pursuant to the Letter of Credit for the payment of such
Debt Service shall be credited against such payment; and
(2) On or before 10:00 a.m. (Birmingham, Alabama time), on each
Tender Date, pay to the Trustee an amount equal to the purchase price of
Notes tendered (or deemed tendered) for purchase on such Tender Date;
provided, however, that (i) any amount already on deposit in the Note
Purchase Fund on such Tender Date that is available for the payment of the
purchase price of such Tendered Notes shall be credited against the amount
of such payment, and (ii) any amount drawn by the Trustee pursuant to the
Letter of Credit for the payment of the purchase price of such Tendered
Notes shall be credited against such payment.
(b) Anything herein to the contrary notwithstanding, the Issuer shall pay
to the Trustee, on or before the first day of each March, June, September and
December, for deposit into the Note Fund, an amount equal to one-fourth (1/4) of
the principal of the Notes maturing or subject to mandatory redemption on the
then next succeeding June 1, which amounts shall be held, invested and applied
as provided for funds on deposit in the Note Fund.
(c) The Issuer covenants and agrees that until the Indenture Indebtedness
is paid in full the Issuer shall make such payments in such amounts and at such
times as shall be necessary to enable the Trustee to pay in full in accordance
with the Indenture (i) all Debt Service on the Notes when and as the same
becomes due and payable, whether at stated maturity and due dates, by call
45
for acceleration, by optional or mandatory redemption, or otherwise, and (ii)
the purchase prices of all Tendered Notes when and as the same become due and
payable.
(d) Any overdue payment shall bear interest from the related Note Payment
Date until paid at the Post-Default Rate.
SECTION 8.03 Indemnity of Trustee
--------------------
(a) The Issuer agrees to pay, and to indemnify and hold the Trustee
harmless against, any and all liabilities, losses, damages, claims or actions
(including all reasonable attorneys' fees and expenses of the Trustee), of any
nature whatsoever incurred by the Trustee without willful misconduct arising
from or in connection with its performance or observance of any covenant or
condition on its part to be observed or performed under the Financing Documents.
(b) The Issuer hereby agrees that the Trustee shall not incur any
liability to the Issuer, and shall be indemnified against all liabilities, in
exercising or refraining from asserting, maintaining or exercising any right,
privilege or power of the Trustee under the Financing Documents if the Trustee
is acting in good faith and without willful misconduct or in reliance upon a
written request by the Issuer.
(c) If the Trustee shall be obligated to pay any claim, liability or loss,
and if in accordance with all applicable provisions of this Section the Issuer
shall be obligated to indemnify and hold the Trustee harmless against such
claim, liability or loss, then, in such case, the Issuer shall have a primary
obligation to pay such claim, liability or loss on behalf of such indemnifiable
party and may not defer discharge of its indemnity obligation hereunder until
such indemnifiable party shall have first paid such claim, liability or loss and
thereby incurred actual loss.
(d) The covenants of indemnity contained in this Section shall survive the
termination of this Indenture with respect to events or occurrences happening
prior to or upon the termination of this Indenture and shall remain in full
force and effect until the commencement of an action with respect to any such
event or occurrence shall be prohibited by law.
SECTION 8.04 Obligations of Issuer Unconditional
-----------------------------------
The obligation of the Issuer to make all payments provided for herein and
to perform and observe the other agreements and covenants on its part herein
contained shall be absolute and unconditional. The Issuer will not suspend or
discontinue any such payment or fail to perform and observe any of its other
agreements and covenants contained herein or terminate this Indenture for any
cause whatsoever, including, without limiting the generality of the foregoing,
the invalidity or unenforceability of the Notes or any of the Financing
Documents or any provision thereof, failure of consideration or commercial
frustration of purpose, any failure of the Credit Obligor to make a payment
pursuant to the Letter of Credit or to reinstate the appropriate amount thereof,
any change in the tax or other laws or administrative rulings, actions or
regulations of the United States of America or of the State of Alabama or any
political or taxing subdivision of either thereof, or any failure of any party
to perform and observe any agreement or covenant, whether express or implied,
46
duty, liability or obligation arising out of or in connection with any of the
Financing Documents.
SECTION 8.05 General Covenants of the Issuer
-------------------------------
Until the Indenture Indebtedness is paid in full:
(a) The Issuer will maintain proper books of record and account, in which
full and correct entries will be made, in accordance with generally accepted
accounting principles (as the same exist on the date of application thereof), of
all its business and affairs. The Issuer shall, upon written request of the
Trustee, furnish to the Trustee with reasonable promptness audited annual
financial statements of the Issuer prepared by certified public accountants in
accordance with generally accepted accounting principles (as the same exist on
the date of application thereof).
(b) The Issuer will duly pay and discharge all taxes, assessments and
other governmental charges and liens lawfully imposed on the Issuer, and the
properties of the Issuer, provided, however, the Issuer will not be required to
pay any taxes, assessments or other governmental charges so long as in good
faith it shall contest the validity thereof by appropriate legal proceedings.
(c) Except as permitted by this Section the Issuer will maintain and
preserve its existence as a corporation under the laws of the State of Nevada
and will not voluntarily dissolve without first discharging its obligations
under this Indenture (except as permitted herein) and will comply with all valid
laws, ordinances, regulations and requirements applicable to it or to its
property.
(d) The Issuer will not in any manner transfer or convey any material
portion of its property, assets and licenses; without receipt of present and
adequate consideration therefor.
(e) The Issuer will do, execute, acknowledge, deliver and record such
further acts, conveyances, agreements, documents, instruments, financing
statements and assurances as the Trustee shall require for accomplishing the
purposes of the Financing Documents.
(f) The Issuer will (1) pay all amounts due after the dishonor of a
drawing request by or the insolvency of the Credit Obligor; and (2) not use the
proceeds of the Notes in violation of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System; and (c) will cause the proceeds from
(i) the sale of the Notes, (ii) the remarketing of the Notes and (iii) from
drawings on the Letter of Credit to be maintained in separate accounts,
segregated from each other and from any other funds provided by the Issuer to
make payments on the Notes or to reimburse the Credit Obligor.
SECTION 8.06 Appointment of Successor Trustee
--------------------------------
Whenever necessary to avoid or fill a vacancy in the office of the Trustee,
the Issuer will appoint a successor Trustee in the manner provided in Section
10.09.
47
SECTION 8.07 Further Assurances
------------------
The Issuer will at any time or times do, execute, acknowledge, deliver and
record or cause to be done, executed, acknowledged, delivered, and recorded all
such further acts, deeds, conveyances, assignments, pledges, transfers and
assurances in law as the Trustee shall reasonably require for the better
assuring, assigning, transferring, pledging and confirming unto the Trustee, all
and singular, the property and rights herein assigned, transferred and pledged
or intended so to be.
ARTICLE IX
Events of Default and Remedies
------------------------------
SECTION 9.01 Events of Default
-----------------
Any one or more of the following shall constitute an event of default under
this Indenture (whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Note when such
interest becomes due and payable; or
(2) default in the payment of the principal of (or premium, if any,
on) any Note when such principal (or premium, if any) becomes due and
payable, whether at its stated maturity, by declaration of acceleration or
call for redemption or otherwise; or
(3) failure to pay when due the purchase price of any Note tendered
for purchase pursuant to the Optional Tender or Mandatory Tender provisions
hereof; or
(4) the Credit Obligor dishonors a draw under the Letter of Credit;
or
(5) receipt of notice by the Trustee from the Credit Obligor that the
Credit Obligor has not reinstated the Credit Amount of the Letter of Credit
(as defined therein) in accordance with the terms thereof and directing the
Trustee to declare the Notes immediately due and payable under Section 9.02
hereof; or
(6) receipt by the Trustee of written notice from the Credit Obligor
that an event of default, as therein defined, has occurred and is
continuing under the Credit Documents and directing the Trustee to declare
the Notes immediately due and payable under Section 9.02 hereof; or
(7) the occurrence of an event of default, as therein defined, under
any other Financing Document (other than the Credit Documents) and the
expiration of the applicable grace period, if any, specified therein; or
48
(8) default in the performance, or breach, of any covenant,
representation or warranty of the Issuer in this Indenture (other than a
covenant or warranty a default in the performance or breach of which is
elsewhere in this Section specifically described), and continuance of such
default or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Issuer, and the Credit Obligor by the
Trustee or to the Issuer, the Trustee and the Credit Obligor by the Holders
of at least 10% in principal amount of the Outstanding Notes, a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "notice of default" hereunder.
SECTION 9.02 Acceleration of Maturity; Rescission and Annulment; Exercise
------------------------------------------------------------
of Remedies
-----------
(a) If an Event of Default exists under any of Section 9.01(1), (2), (3),
(4), (5), or (6) and the Letter of Credit is in effect, the Trustee shall (1)
declare the principal of all the Notes and the interest accrued thereon to be
due and payable immediately, by a notice in writing to the Issuer and the Credit
Obligor, and upon any such declaration such principal and the interest accrued
thereon to the date of declaration shall become immediately due and payable and
interest on the Notes shall cease to accrue from and after the date of
declaration and (2) immediately draw under the Letter of Credit to the full
extent permitted by the terms thereof to pay the principal of the Notes and the
interest accrued and to accrue thereon until and including the date of such
declaration.
(b) If an Event of Default exists under Section 9.01(7) or (8) or if any
other Event of Default exists and the Letter of Credit is no longer in effect or
the Credit Obligor has dishonored a draw thereon or there has occurred a Credit
Obligor Insolvency Date, then and in every such case (1) the Trustee or the
Holders of not less than 25% in principal amount of the Notes Outstanding may
(but only with the consent of the Credit Obligor if the Letter of Credit is in
effect and the Credit Obligor has not dishonored a draw thereon and a Credit
Obligor Insolvency Date has not occurred) declare the principal of all the Notes
and the interest accrued thereon to be due and payable immediately, by a notice
in writing to the Issuer (and to the Trustee, if given by Holders), and upon any
such declaration such principal and the interest accrued thereon to the date of
declaration shall become immediately due and payable and (2) the Trustee shall,
if the Letter of Credit is then in effect, immediately draw under the Letter of
Credit to the full extent permitted by the terms thereof to pay the principal of
the Notes and the interest accrued and to accrue thereon until and including the
date of such declaration.
(c) At any time after such a declaration of acceleration has been made
pursuant to subsection (b) of this Section, the Holders of a majority in
principal amount of the Notes Outstanding may (but only with the consent of the
Credit Obligor if the Letter of Credit is in effect and an Event of Default has
not occurred under Section 9.01(4) and a Credit Obligor Insolvency Date has not
occurred), by written notice to the Issuer and the Trustee, rescind and annul
such declaration and its consequences if
(1) the Issuer has deposited with the Trustee a sum sufficient to pay
(A) all overdue installments of interest on all Notes,
49
(B) the principal of (and premium, if any, on) any Notes which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Notes,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor in the Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the nonpayment of the principal
of Notes which have become due solely by such declaration of acceleration,
have been cured or have been waived as provided in Section 9.13.
No such rescission and annulment shall affect any subsequent default or impair
any right consequent thereon.
(d) Upon the occurrence of any Event of Default specified in Section 9.01
the Trustee may, only with the consent of the Credit Obligor if the Letter of
Credit is in effect and has been reinstated to the full amount required to be
available thereunder and the Credit Obligor has not dishonored a draft
thereunder and there has not occurred a Credit Obligor Insolvency Date, subject
to the terms of this Indenture, proceed to protect and enforce its rights and
the rights of the Noteholders by any suit, action or proceeding at law or in
equity, including but not limited to an action for mandamus, or for specific
performance of any agreement herein contained, or for enforcing payment and
collection of any revenues due under this Indenture or for making a demand for
payment from the Issuer, or for taking action pursuant to any other document to
which the Trustee is a party by signature, assignment, operation of law, or
otherwise.
SECTION 9.03 Rights and Remedies of Trustee in the Event of Bankruptcy,
----------------------------------------------------------
and the Occurrence of Similar Events Regarding, the Issuer.
-----------------------------------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, composition or other judicial
proceeding relative to any person obligated for payment of the Notes, the
Trustee (irrespective of whether there has been a default under this Indenture)
shall be entitled and empowered to intervene in such proceedings on behalf of
the Noteholders, to file and prove a claim or claims for the whole amount owing
and unpaid and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its gross negligence or bad faith)
and of the Noteholders allowed in any such judicial proceedings, to collect and
receive any moneys or other property payable or deliverable on any such claims,
and to take such other action therein as the Trustee may deem necessary or
appropriate to protect the interests of the Noteholders, and any receiver,
assignee or
50
trustee, liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each of the Noteholders to make
payments to the Trustee.
SECTION 9.04 Subrogation Rights of Credit Obligor.
-------------------------------------
If money is collected by the Trustee pursuant to the Letter of Credit, the
Credit Obligor shall be subrogated to the rights possessed under this Indenture
by the Trustee and the Holders; provided, however, that the Credit Obligor shall
be precluded from exercising or enforcing such subrogation rights until the
principal of, premium, if any, and interest on all Notes shall have been paid in
full as provided in Article XIII hereof. For purposes of the subrogation rights
of the Credit Obligor hereunder, (i) any reference herein to the registered
owners or Holders of the Notes shall mean the Credit Obligor, (ii) any principal
of, mandatory redemption premium, optional redemption premium and interest on
the Notes paid with moneys collected pursuant to the Letter of Credit shall be
deemed to be unpaid hereunder, and (iii) the Credit Obligor may exercise any
rights it would have hereunder as the Holder of the Notes. The subrogation
rights granted to the Credit Obligor in this Indenture are not intended to be
exclusive of any other remedy or remedies available to the Credit Obligor, and
such subrogation rights shall be cumulative and shall be in addition to every
other remedy given hereunder or under the Financing Documents, or any other
instrument or agreement with respect to the reimbursement of moneys paid by the
Credit Obligor pursuant to the Letter of Credit, and every other remedy now or
hereafter existing at law or in equity or by statute.
SECTION 9.05 Application of Money Collected
------------------------------
(a) The Trustee shall apply the following funds solely for the purposes
for which they were collected and held under this Indenture and not otherwise:
(1) funds collected from a draw under the Letter of Credit, (2) money held in
trust under Section 7.03 for the benefit of Unsurrendered Notes, and (3) funds
and investments held in trust under Section 13.02 for the Notes to be paid
therefrom.
(b) Any money collected by the Trustee pursuant to this Article and any
other sums then held by the Trustee as part of the Trust Estate (other than the
funds referred to in subsection (a) above shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Notes and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
(1) First: To the payment of all undeducted amounts due the Trustee
-----
under Section 10.07;
(2) Second: To the payment of the whole amount then due and unpaid
------
upon the Outstanding Notes for principal (and premium, if any) and
interest, in respect of which or for the benefit of which such money has
been collected, with interest (to the extent that such interest has been
collected by the Trustee or a sum sufficient therefor has been so collected
and payment thereof is legally enforceable at the respective rate or rates
prescribed therefor in the Notes) on overdue principal (and premium, if
any) and (to the extent legally
51
enforceable) on overdue installments of interest; and in case such
proceeds shall be insufficient to pay in full the whole amount so due and
unpaid upon such Notes, then to the payment of such principal (and premium,
if any) and interest, without any preference or priority, ratably according
to the aggregate amount so due; provided, however, that payments with
respect to Pledged Notes shall be made only after all other Notes have been
Fully Paid;
(3) Third: To the payment of all amounts then due to the Credit
-----
Obligor pursuant to the Credit Documents; and
(4) Fourth: To the payment of the remainder, if any, to the Issuer
------
or to whosoever may be lawfully entitled to receive the same or as a court
of competent jurisdiction may direct.
SECTION 9.06 Trustee May Enforce Claims without Possession of Notes
------------------------------------------------------
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as trustee
of an express trust. Any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Notes in respect of which such judgment has been recovered.
SECTION 9.07 Limitation on Suits by Holders
------------------------------
No Holder of any Note shall have any right to institute any proceeding,
judicial or otherwise, under or with respect to this Indenture, or for the
appointment of a receiver or trustee or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such proceeding;
(5) no direction inconsistent with such written request shall have
been given to the Trustee during such 60-day period by the Holders of 51%
in principal amount of the Outstanding Notes; and
52
(6) if the Letter of Credit is in effect and an Event of Default does
not exist under Section 9.01(4), (5), or (6), the Credit Obligor shall have
given its written consent to such direction or request;
it being understood and intended that no one or more Holders of Notes shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the lien of this Indenture or
the rights of any other Holders of Notes, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all Outstanding Notes.
SECTION 9.08 Unconditional Right of Noteholders to Receive Principal,
--------------------------------------------------------
Premium and Interest
--------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and interest on such Note on
the respective stated maturities expressed in such Note (or, in the case of
redemption, on the redemption date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 9.09 Restoration of Positions
------------------------
If the Trustee or any Noteholder shall have instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding shall have
been discontinued or abandoned for any reason or shall have been determined
adversely to the Trustee or to such Noteholder, then and in every such case the
Issuer, the Trustee and the Noteholders shall, subject to any determination in
such proceeding, be restored to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Noteholders shall continue as
though no such proceeding had been instituted.
SECTION 9.10 Rights and Remedies Cumulative
------------------------------
No right or remedy herein conferred upon or reserved to the Trustee or to
the Noteholders is intended to be exclusive of any other right or remedy, and
every such right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 9.11 Delay or Omission Not Waiver
----------------------------
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon an Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Noteholders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Noteholders, as the
case may be.
53
SECTION 9.12 Control by Credit Obligor and Noteholders
-----------------------------------------
The Holders of 51% in principal amount of the Outstanding Notes (but only
with the consent of the Credit Obligor, if the Letter of Credit is in effect and
the Credit Obligor has not dishonored any draws thereunder and there has not
occurred a Credit Obligor Insolvency Date) shall have the right, during the
continuance of an Event of Default,
(1) to require the Trustee to proceed to enforce this Indenture,
either by judicial proceedings for the enforcement of the payment of the
Notes or otherwise, and
(2) to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee hereunder, provided that
(A) the provisions of Section 9.02 requiring a declaration of
acceleration and a draw under the Letter of Credit may not be modified
or waived without the consent of all Noteholders,
(B) such direction shall not be in conflict with any rule of law
or this Indenture,
(C) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction,
(D) if such direction is given by the Holders of a majority in
principal amount of Notes Outstanding, the Trustee shall have not
determined that the action so directed would be unjustly prejudicial
to the Holders not taking part in such direction.
SECTION 9.13 Waiver of Past Defaults
-----------------------
(a) The Holders of not less than 51% in principal amount of the
Outstanding Notes may (but only with the consent of the Credit Obligor if the
Letter of Credit is in effect and the Credit Obligor has not dishonored any
draws thereunder and there has not occurred a Credit Obligor Insolvency Date and
subject to subsection (b) below), by Act of such Noteholders delivered to the
Trustee, the Issuer and the Issuer, on behalf of the Holders of all the Notes,
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Note,
(2) in the payment of any amounts due by the Issuer under Section
8.02 hereof, or
54
(3) in respect of a covenant or provision hereof which under Article
XI cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected.
(b) Anything herein to the contrary notwithstanding no default may be
waived unless the Letter of Credit shall have been reinstated to the full amount
then required to be available thereunder and the Credit Obligor shall have
rescinded any notice of default under the Credit Documents or any notice of
nonreinstatement of the Credit Amount of the Letter of Credit.
(c) Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 9.14 Waiver of Appraisement and Other Laws
-------------------------------------
(a) To the full extent that it may lawfully so agree, the Issuer will not
at any time insist upon, plead, claim or take the benefit or advantage of, any
appraisement, valuation, stay, extension or redemption law now or hereafter in
force, in order to prevent or hinder the enforcement of this Indenture; and the
Issuer, for itself and all who may claim under it, so far as it or they now or
hereafter may lawfully do so, hereby waives the benefit of all such laws. The
Issuer, for itself and all who may claim under it, waives, to the extent that it
may lawfully do so, all right to have the property in the Trust Estate
marshalled upon any enforcement hereof.
(b) If any law in this Section referred to and now in force, of which the
Issuer or its successor or successors might take advantage despite this Section,
shall hereafter be repealed or cease to be in force, such law shall not
thereafter be deemed to constitute any part of the contract herein contained or
to preclude the application of this Section.
SECTION 9.15 Suits to Protect the Trust Estate
---------------------------------
The Trustee shall have power to institute and to maintain such proceedings
as it may deem expedient to prevent any impairment of the Trust Estate by any
acts which may be unlawful or in violation of this Indenture and to protect its
interests and the interests of the Noteholders in the Trust Estate and in the
rents, issues, profits, revenues and other income arising therefrom, including
power to institute and maintain proceedings to restrain the enforcement of or
compliance with any governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interests of the Noteholders or the Trustee.
SECTION 9.16 Remedies Subject to Applicable Law
----------------------------------
All rights, remedies and powers provided by this Article may be exercised
only to the extent that the exercise thereof does not violate any applicable
provision of law in the premises, and all the provisions of this Article are
intended to be subject to all applicable mandatory provisions of law which may
be controlling in the premises and to be limited to the extent necessary so that
they will
55
not render this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
ARTICLE X
The Trustee
-----------
SECTION 10.01 Certain Duties and Responsibilities
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) If an Event of Default exists, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of
care and skill in their exercise, as a prudent man would exercise or use under
the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act, or its own willful misconduct, except that
(1) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith, unless it shall be proved that the Trustee was grossly
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding Notes
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; and
56
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 10.02 Notice of Defaults
------------------
Within 90 days after the occurrence of any default hereunder, the Trustee
shall transmit by mail to all Noteholders as their names and addresses appear in
the Note Register, notice of such default hereunder known to the Trustee, unless
such default shall have been cured or waived; provided, however, that, except in
the case of a default in the payment of Debt Service on any Note, the Trustee
shall be protected in withholding such notice if and so long as the Trustee in
good faith determines that the withholding of such notice is in the interests of
the Noteholders; and provided, further, that in the case of any default of the
character specified in Section 9.01(8) no such notice to Noteholders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default.
SECTION 10.03 Certain Rights of Trustee
-------------------------
Except as otherwise provided in Section 10.01:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, note, debenture, coupon or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by a certificate or order executed by an Authorized
Issuer Representative;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon a certificate executed by an Authorized Issuer Representative;
(4) the Trustee may consult with counsel and the written advice of
Independent Counsel or any Opinion of Independent Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by the Trustee hereunder in good faith and in reliance thereon;
57
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Noteholders pursuant to this Indenture, unless such Noteholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction, provided, that the Trustee cannot require such security or
indemnity as a condition to the performance by the Trustee of its obligations
under Sections 7.01, 7.02 and 9.02;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, note, debenture,
coupon or other paper or document but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books and records of the
Issuer, personally or by agent or attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 10.04 Not Responsible for Recitals
----------------------------
The recitals contained herein and in the Notes, except the certificate of
authentication and registration on the Notes, shall be taken as the statements
of the Issuer, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the value or condition of the Trust
Estate or any part thereof, or as to the title of the Issuer thereto or as to
the security afforded thereby or hereby, or as to the validity or sufficiency of
this Indenture or of the Notes.
SECTION 10.05 May Hold Notes
--------------
The Trustee in its individual or any other capacity, may become the owner
or pledgee of Notes and may otherwise deal with the Issuer with the same rights
it would have if it were not Trustee.
SECTION 10.06 Money Held in Trust
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by this Indenture or by law. The
Trustee shall be under no liability for interest on any money received by it
hereunder except as otherwise provided in Section 7.04.
SECTION 10.07 Compensation and Reimbursement
------------------------------
(a) The Issuer agrees to cause to be paid, solely from funds made
available to the Issuer for such purpose:
58
(1) to the Trustee from time to time reasonable compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust); and
(2) except as otherwise expressly provided herein, upon request,
reimbursement for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and Independent counsel), except any such
expense, disbursement or advance as may be determined by a court of
competent jurisdiction to be attributable to the Trustee's gross
negligence, or bad faith, or wilful misconduct.
(b) As security for the performance of the obligations of the Issuer under
this Section the Trustee shall be secured under this Indenture by a lien prior
to the Notes, and for the payment of such compensation, expenses, reimbursements
and indemnity the Trustee shall have the right to use and apply any money held
by it as a part of the Trust Estate; provided, however, that funds held by the
Trustee under Section 7.03 and Section 13.02 shall be used solely for the
purposes thereof and all funds received by the Trustee from the Letter of Credit
shall be used solely for the purpose of paying Debt Service on, or the purchase
price of, Notes as herein provided, and such funds held under Section 7.03 and
Section 13.02 and such funds received from the Letter of Credit shall never be
subject to any lien imposed by this Section in favor of the Trustee.
SECTION 10.08 Eligibility of Trustee; Appointment of Co-Trustee
-------------------------------------------------
(a) Except as provided in subsection (b), there shall at all times be a
Trustee hereunder which shall be a commercial bank or trust company organized
and doing business under the laws of the United States or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or State authority.
(b) It is the purpose of this Indenture that there shall be no violation
of the law of any jurisdiction denying or restricting the right of banking
corporations or associations to transact business as trustee in such
jurisdiction. It is recognized that in case of litigation under Financing
Documents, and in particular in case of the enforcement thereof on any default
or Event of Default, or in the case the Trustee deems that by reason of any
present or future law of any jurisdiction it may not exercise any of the powers,
rights, or remedies herein granted to the Trustee or hold title to the
properties, in trust, as herein granted, or take any action which may be
desirable or necessary in connection therewith, it may be necessary that the
Trustee appoint an additional individual or institution as a separate or co-
trustee pursuant to this section.
(c) In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and every
covenant and obligation necessary to the
59
exercise thereof by such separate or co-trustee shall run to and be enforceable
by either of them. The Trustee shall be jointly liable for the actions taken by
such separate or co-trustee, if such actions were taken at the direction of the
Trustee.
(d) Should any instrument in writing from the Issuer be required by the
separate or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer. In case any
separate or co-trustee or a successor to either shall die, become incapable of
acting, resign or be removed, all the estates, properties, rights, powers,
trusts, duties and obligations of such separate or co-trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate or co-trustee.
SECTION 10.09 Resignation and Removal; Appointment of Successor
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 10.10.
(b) The Trustee may resign at any time by giving written notice thereof to
the Issuer. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may (but only with the consent of the Credit Obligor if
the Letter of Credit is in effect and the Credit Obligor has not dishonored any
draws thereunder and there has not otherwise been instituted insolvency
proceedings with respect to the Credit Obligor) be removed at any time by Act of
the Holders of 51% in principal amount of the Outstanding Notes delivered to the
Trustee, the Issuer.
(d) If at any time:
(1) the Trustee shall cease to be eligible under Section 10.08 and
shall fail to resign after written request therefor by the Issuer or by any
Noteholder who has been a Holder of a Note for at least 6 months, or
(2) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by a resolution of its Board of Directors
may remove the Trustee, or (ii) any Noteholder who has been a Holder of a Note
for at least 6 months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee.
60
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Issuer,
by a resolution of its Board of Directors, shall (with the consent of the Credit
Obligor if the Letter of Credit is in effect and the Credit Obligor has not
dishonored any draws thereunder and there has not occurred a Credit Obligor
Insolvency Date) promptly appoint a successor Trustee. In case all or
substantially all of the Trust Estate shall be in the possession of a receiver
or trustee lawfully appointed, such receiver or trustee, by written instrument,
may (with the consent of the Credit Obligor if the Letter of Credit is in effect
and the Credit Obligor has not dishonored any draws thereunder and there has not
otherwise been instituted insolvency proceedings with respect to the Credit
Obligor) similarly appoint a successor to fill such vacancy until a new Trustee
shall be so appointed by the Noteholders. If, within 1 year after such
resignation, removal or incapability or the occurrence of such vacancy, a
successor Trustee shall (with the consent of the Credit Obligor under the
conditions herein prescribed) be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Notes delivered to the Issuer, and the
retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the
successor Trustee appointed by the Issuer or by such receiver or trustee. If no
successor Trustee shall have been so appointed by the Issuer or the Noteholders
and accepted appointment in the manner hereinafter provided, any Noteholder who
has been a Holder of a Note for at least 6 months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Notes as their names and addresses appear in the Note Register. Each notice
shall include the name of the successor Trustee and the address of its Principal
Office.
(g) Any successor Trustee shall be acceptable to any Rating Agency which
shall then maintain a rating with respect to the Notes.
SECTION 10.10 Acceptance of Appointment by Successor
--------------------------------------
(a) Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Issuer and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the estates, properties,
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Issuer or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument conveying and transferring to
such successor Trustee upon the trusts herein expressed all the estates,
properties, rights, powers and trusts of the retiring Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder, subject nevertheless to its lien, if
any, provided for in Section 10.07. Upon request of any such successor Trustee,
the Issuer shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such estates,
properties, rights, powers and trusts.
61
(b) No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article, to the extent operative.
SECTION 10.11 Merger, Conversion, Consolidation or Succession to Business
-----------------------------------------------------------
Any corporation or association into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation or
association resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation or association succeeding to all or
substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation or association
shall be otherwise qualified and eligible under this Article, to the extent
operative, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
ARTICLE XI
Supplemental Indentures and Amendments of Letter of Credit
----------------------------------------------------------
SECTION 11.01 Supplemental Indentures Without Consent of Noteholders
------------------------------------------------------
Without the consent of the Holders of any Notes, the Issuer, when
authorized by a resolution of its Board of Directors, and the Trustee may,
subject to the provisions of Sections 11.03 and 11.04, from time to time enter
into one or more indentures supplemental hereto or in amendment hereof, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to correct or amplify the description of any property at any time
subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Trustee any property subject or required to be subjected
to the lien of this Indenture, or to subject to the lien of this Indenture
additional property; or
(2) to add to the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue of the Notes; or
(3) to evidence the succession of another corporation to the Issuer
and the assumption by any such successor of the covenants of the Issuer
herein and in the Notes contained; or
(4) to add to the covenants of the Issuer for the benefit of the
Holders of Notes and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants an Event of
Default permitting the enforcement of all or any of the
62
several remedies provided in this Indenture; provided, however, that with
respect to any such covenant, such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(5) to surrender any right or power herein conferred upon the Issuer;
or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to make
any other provisions, with respect to matters or questions arising under
this Indenture, which shall not be inconsistent with the provisions of this
Indenture, provided such action shall not adversely affect the interests of
the Holders of the Notes; or
(7) to permit fully registered Notes to be exchanged for coupon Notes
(which may be registrable as to principal only); or
(8) to make further provisions with respect to the administration and
operation of the Book-Entry System and the transfer, payment, selection for
redemption and redemption of Notes in accordance therewith; or
(9) to secure or maintain ratings from a Rating Agency, provided that
(i) the changes necessary to obtain or secure such ratings do not adversely
affect the interests of the Holders of the Notes and (ii) the Trustee
receives an Opinion of Note Counsel to the effect that such changes are
permitted by applicable law; or
(10) to modify, amend or supplement this Indenture in such manner as
to permit the qualification hereof under the Trust Indenture Act of 1939 or
any similar federal statute hereafter in effect or to permit the
qualification of the Notes for sale under the securities laws of any of the
states of the United States, and, if they so determine, to add to this
Indenture such other terms, conditions and provisions as may be permitted
by said Trust Indenture Act of 1939 or similar federal statute.
SECTION 11.02 Supplemental Indentures With Consent of Noteholders
---------------------------------------------------
With the consent of the Holders of not less than a majority in principal
amount of the Notes then Outstanding affected by such supplemental or amendatory
indenture, by Act of such Holders delivered to the Issuer and the Trustee, the
Issuer, when authorized by a resolution of its Board of Directors, and the
Trustee may, subject to the provisions of Sections 11.03 and 11.04, enter into
an indenture or indentures supplemental hereto or in amendment hereof for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders of the Notes under this Indenture; provided, however, that no such
supplemental indenture or any amendment shall, without the consent of the Holder
of each Outstanding Note affected thereby,
63
(1) change the stated maturity of the principal of, or any
installment of interest on, any Note, or reduce the principal amount
thereof or the interest thereon or any premium payable upon the redemption
thereof, or change any place of payment where, or the coin or currency in
which, any Note, or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
stated maturity thereof (or, in the case of redemption, on or after the
redemption date); or
(2) reduce the percentage in principal amount of the Outstanding
Notes the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver
provided for in this Indenture of compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences; or
(3) modify or alter the provisions of the proviso to the definition
of the term "Outstanding"; or
(4) modify any of the provisions of this Section or Section 9.13,
except to increase any percentage provided thereby or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Note affected thereby; or
(5) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to the Trust Estate or any
part thereof or terminate the lien of this Indenture on any property at any
time subject hereto or deprive the Holder of any Note of the security
afforded by the lien of this Indenture; or
(6) release any rights under the Letter of Credit; provided, however,
no consent of the Noteholders will be required for any extension of the
term of the Letter of Credit by the Credit Obligor, or for the acceptance
by the Trustee of a Substitute Letter of Credit and the concomitant release
of the then Existing Letter of Credit as provided in Section 3.10, or any
amendment to the Letter of Credit which is provided for, and contemplated
by, this Indenture.
SECTION 11.03 Discretion of Trustee; Acts of Noteholders
------------------------------------------
(a) The Trustee may in its discretion determine whether or not any Notes
would be affected by any supplemental indenture and any such determination shall
be conclusive upon the Holders of all Notes, whether theretofore or thereafter
authenticated and delivered hereunder. The Trustee shall not be liable for any
such determination made in good faith.
(b) It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture
but it shall be sufficient if such Act shall approve the substance thereof.
64
SECTION 11.04 Consent of Credit Obligor
-------------------------
Subject to Section 1.12, no amendment or change to this Indenture shall be
made without the prior written consent of the Credit Obligor.
SECTION 11.05 Execution of Supplemental Indentures
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and, subject to Section 10.01, shall be fully protected in relying upon, an
Opinion of Independent Counsel stating that the execution of such supplemental
indenture or amendment is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture or consent to any such amendment which affects the Trustee's own
rights, duties or immunities under this Indenture, or otherwise.
SECTION 11.06 Effect of Supplemental Indentures
---------------------------------
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 11.07 Reference in Notes to Supplemental Indentures
---------------------------------------------
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and if required by the Trustee shall,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Issuer shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Issuer, to any such supplemental indenture may be prepared and executed
by the Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 11.08 Amendment of Letter of Credit
-----------------------------
(a) The Trustee may, without the consent of or notice to the Holders of
the Notes, consent to any amendment, modification or other change of the Letter
of Credit for the purpose of curing any ambiguity or formal defect or omission
or obtaining a rating on the Notes from any Rating Agency, provided that the
Trustee shall receive an Opinion of Note Counsel with respect to the Notes, to
the effect that such change is permitted by applicable law.
(b) Except as provided in subsection (a) of this Section, and except for
extensions of the term of the Letter of Credit by the Credit Obligor, no
amendment, modification or other change of the Letter of Credit shall be made
without the consent of the Holders of all Notes Outstanding.
65
ARTICLE XII
The Remarketing Agent
and the Tender Agent
--------------------
SECTION 12.01 Remarketing Agent
-----------------
(a) SouthTrust Securities, Inc. is hereby appointed as "Remarketing Agent"
for the Notes, subject to the conditions set forth in this Section.
(b) The Remarketing Agent shall signify its acceptance of the duties and
obligations imposed upon it by this Indenture by execution and delivery of an
agreement satisfactory to the Trustee.
(c) The Remarketing Agent shall be authorized by law to perform all the
duties imposed upon it by this Indenture.
(d) The Remarketing Agent may resign at any time by giving 30 days' prior
written notice thereof to the Issuer, the Trustee, and the Credit Obligor;
provided, however, that no such resignation shall become effective until a
successor Remarketing Agent has been appointed and has accepted its duties and
obligations hereunder.
(e) The Issuer may, with the prior written consent of the Credit Obligor,
remove the Remarketing Agent at any time upon 30 days' prior written notice
thereof to the Remarketing Agent, the Issuer and the Trustee.
(f) If at any time:
(1) the Remarketing Agent shall cease to be eligible under this
Section and shall fail to resign after written request therefor by the
Issuer, or
(2) the Remarketing Agent shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Remarketing Agent
or of its property shall be appointed or any public officer shall take
charge or control of the Remarketing Agent or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Issuer may remove the Remarketing Agent upon 7 days'
written notice thereof to the Remarketing Agent, the Credit Obligor, the Issuer.
(g) If the Remarketing Agent shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Remarketing Agent for
any cause, the Issuer shall, with the prior written consent of the Issuer and
the Credit Obligor, promptly appoint a successor Remarketing Agent.
66
(h) Any successor Remarketing Agent shall be appropriately registered and
licensed, and be acceptable to the Issuer, the Trustee and to any Rating Agency
which shall then maintain a rating with respect to the Notes.
(i) The Trustee shall give notice of each resignation and each removal of
the Remarketing Agent and each appointment of a successor Remarketing Agent by
mailing written notice of such event by first-class mail, postage prepaid, to
the Holders of Notes as their names and addresses appear in the Note Register.
Each notice shall include the name of the successor Remarketing Agent and the
address of its principal office.
SECTION 12.02 Tender Agent
------------
(a) The Trustee shall act as Tender Agent. At the written request of the
Trustee, the Issuer shall appoint an agent to act on behalf of the Trustee in
the acceptance of delivery of Notes tendered for purchase pursuant to the
Optional Tender or Mandatory Tender provisions of this Indenture and in the
authentication and delivery of Notes pursuant to the transfer and exchange
provisions of this Indenture. For all purposes of this Indenture, (i) Notes to
be purchased pursuant to the Optional Tender or Mandatory Tender provisions of
this Indenture may be delivered to the Tender Agent, as well as the Trustee, and
(ii) the authentication and delivery of Notes by a duly authorized officer of
the Tender Agent pursuant to the transfer and exchange provisions of this
Indenture shall be deemed to be the authentication and delivery of Notes "by the
Trustee".
(b) Any Tender Agent appointed hereunder shall signify its acceptance of
such appointment by execution and delivery of an agreement satisfactory to the
Trustee.
(c) Any such Tender Agent shall at all times be a bank or trust company
having its principal office in New York, New York and shall at all times be a
corporation organized and doing business under the laws of the United States or
of any state with a combined capital and surplus of at least $5,000,000 and
authorized under such laws to exercise corporate trust powers and subject to
supervision and examination by federal or state authority and shall be
acceptable to any Rating Agency which shall then maintain a rating with respect
to the Notes. If such corporation publishes reports of condition at least
annually pursuant to law or the requirements of such authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published.
(d) Any corporation or association into which any Tender Agent may be
merged or converted or with which it may be consolidated, or any corporation or
association resulting from any merger, consolidation or conversion to which any
Tender Agent shall be a party, or any corporation or association succeeding to
the corporate trust business of any Tender Agent, shall be the successor of the
Tender Agent hereunder, if such successor corporation or association is
otherwise eligible under this Section, without the execution or filing of any
further act on the part of the parties hereto or the Tender Agent or such
successor corporation or association.
(e) Any Tender Agent may at any time resign by giving written notice of
resignation to the Trustee, the Issuer. The Trustee may at any time terminate
the agency of any Tender Agent by
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giving written notice of termination to such Tender Agent, the Issuer. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time any Tender Agent shall cease to be eligible under this Section, the
Issuer shall promptly appoint a successor Tender Agent, shall give written
notice of such appointment to the Issuer, and shall mail notice of such
appointment to all Holders of Notes as the names and addresses of such Holders
appear on the Note Register.
(f) The Issuer shall to pay to the Tender Agent from time to time
reasonable compensation for its services.
ARTICLE XIII
Defeasance
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SECTION 13.01 Payment of Indebtedness; Satisfaction and Discharge of
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Indenture
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(a) Whenever all Indenture Indebtedness has been Fully Paid, then, upon
the request of an Authorized Issuer Representative, this Indenture and the lien,
rights and interests created hereby shall cease, determine and become null and
void (except as to any surviving rights of transfer or exchange of Notes herein
or therein provided for) and the Trustee shall execute and deliver a termination
statement and such instruments of satisfaction and discharge as may be necessary
and pay, assign, transfer and deliver to the Issuer or upon the order of the
Issuer, all cash and securities then held by it hereunder as a part of the Trust
Estate.
(b) A Note shall be deemed "Fully Paid" if
(1) such Note has been canceled by the Trustee or delivered to the
Trustee for cancellation, or
(2) such Note shall have matured or been called for redemption and,
on such maturity date or redemption date, money for the payment of Debt
Service on such Note is held by the Trustee in trust for the benefit of the
person entitled thereto, or
(3) such Note is alleged to have been mutilated, destroyed, lost or
stolen and has been replaced as provided in Section 4.02, or
(4) a trust for the payment of such Note has been established in
accordance with Section 13.02 and the Trustee shall have received (i) an
Opinion of Counsel experienced in bankruptcy matters stating in effect that
upon the occurrence of an Act of Bankruptcy, money and investments in such
trust will not be subject to any preference claim under the Federal
Bankruptcy Code, which opinion shall be satisfactory to any Rating Agency
then rating the Notes and (ii) a certificate of an Independent certified
public accountant or firm thereof to the effect that the funds on deposit
in such trust and the income therefrom without reinvestment will be
sufficient to pay when due the principal of, premium if any and interest on
such Notes. The Issuer shall give each Rating Agency that maintains a
rating with respect
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to the Notes 10 days' notice of its intent to establish such a trust for
the payment of Notes, but failure to give any such notice shall not result
in a Note not being deemed Fully Paid.
(c) Indenture Indebtedness other than Debt Service on the Notes shall be
deemed "Fully Paid" whenever the Issuer has paid, or made provisions
satisfactory to the Trustee for payment of, all such Indenture Indebtedness
other than Debt Service on the Notes.
SECTION 13.02 Trust for Payment of Debt Service
---------------------------------
(a) The Issuer may provide for the payment of any of the Notes by
establishing a trust for such purpose with the Trustee and depositing therein
cash or Federal Securities which (assuming the due and punctual payment of the
principal of and interest on such Federal Securities) will provide funds
sufficient to pay the Debt Service on such Notes as the same becomes due and
payable until the maturity or redemption of such Notes; provided, however, that
(1) such Federal Securities must not be subject to redemption prior
to their respective maturities at the option of the issuer of such
Securities,
(2) if any of such Notes are to be redeemed prior to their respective
maturities, either (i) the Trustee shall receive evidence that notice of
such redemption has been given in accordance with the provisions of this
Indenture and such Notes or (ii) the Issuer shall confer on the Trustee
irrevocable authority for the giving of such notice on behalf of the
Issuer,
(3) such trust must be established only during a Fixed Rate Period
and, if established during a Fixed Rate Period, all Notes to be retired
with funds from such trust must either mature or be called for redemption
on or before the date immediately following such Fixed Rate Period, and
(4) the Trustee has received the opinions referred to in Section
13.01(b)(4).
(b) Cash and Federal Securities deposited with the Trustee pursuant to
this Section shall not be a part of the Trust Estate but shall constitute a
separate, irrevocable trust fund for the benefit of the Holders of the Notes to
be paid from such fund. Such cash and the principal and interest payable on such
Federal Securities shall be applied by the Trustee solely to the payment of Debt
Service on such Notes. Any funds deposited with the Trustee pursuant to this
Section shall be invested only in Federal Securities meeting the requirements of
this Section.
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this instrument
to be duly executed, and their respective corporate seals to be hereunto affixed
and the same attested, by officers thereof duly authorized thereunto.
DISPLAY TECHNOLOGIES, INC.
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Its President
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S E A L
-------
Attest: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Its: Secretary
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SOUTHTRUST BANK,
NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Its Vice President and Trust Officer
-----------------------------------
[S E A L]
Attest: /s/ ▇. ▇▇▇▇▇▇
-------------------------
Its Assistant Vice President
and Trust Officer
-----------------------------
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STATE OF ALABAMA
Jefferson COUNTY
I, the undersigned, a Notary Public in and for said County in said State,
do hereby certify that J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, whose name as President of Display
Technologies, Inc., a Nevada corporation, is signed to the foregoing instrument
and who is known to me, acknowledged before me on this day that, being informed
of the contents of said instrument, he, as such officer and with full authority,
executed the same voluntarily for and as the act of said corporation.
Given under my hand and seal this the 2/nd/ day of June, 1999.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Strong
------------------------------------
Notary Public
NOTARIAL SEAL
My commission expires: January 30, 2001.
------------------
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STATE OF ALABAMA
JEFFERSON COUNTY
I, the undersigned, a Notary Public in and for said County, in said State,
hereby certify that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, whose name as Vice President and Trust
Officer of SouthTrust Bank, National Association, a national banking
association, is signed to the foregoing instrument, and who is known to me,
acknowledged before me on this day that, being informed of the contents of said
instrument, (s)he, as such officer and with full authority, executed the same
voluntarily for and as the act of said national banking association.
Given under my hand and seal this the 14/th/ day of June, 1999.
/s/ [SIGNATURE ILLEGIBLE]^^
------------------------------------
Notary Public
NOTARIAL SEAL
My commission expires: NOTARY PUBLIC STATE OF ALABAMA
AT LARGE MY COMMISSION EXPIRES:
NOV. 19, 2002 BONDED THRU NOTARY
PUBLIC UNDERWRITERS
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