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EXHIBIT 10.8(b)
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INDENTURE OF TRUST
by and between
COUNTIES OF ▇▇▇▇▇▇ AND WASHINGTON
INDUSTRIAL DEVELOPMENT AGENCY
and
▇▇▇▇▇▇ TRUST AND SAVINGS BANK,
as Trustee
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Dated as of December 1, 1994
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$5,300,000
COUNTIES OF ▇▇▇▇▇▇ AND WASHINGTON INDUSTRIAL DEVELOPMENT AGENCY
INDUSTRIAL DEVELOPMENT REVENUE
BONDS, SERIES 1994
(▇▇▇▇▇▇▇▇ MICRO SCIENCE, INC. PROJECT)
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.02. Article and Section Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 1.03. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE II. AUTHORIZATION AND ISSUANCE OF THE BONDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.01. Authorization of Bonds; No Additional Bonds . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.02. Issuance of Bonds; Terms of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 2.03. Optional Tenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 2.04. Mandatory Tenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 2.05. Form of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.06. Execution and Authentication of Bonds; Limited Obligations . . . . . . . . . . . . . . . . 23
Section 2.07. Registration and Exchange of Bonds; Persons Treated as Owners . . . . . . . . . . . . . . . 24
Section 2.08. Mutilated, Lost, Stolen or Destroyed Bonds . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.09. Cancellation of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 2.10. Temporary Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 2.11. Conditions Precedent to Authentication and Delivery of Bonds . . . . . . . . . . . . . . . 25
Section 2.12. Book-Entry System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE III. REDEMPTION OF BONDS, PURCHASE AND REMARKETING OF BONDS . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.01. Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 3.02. Extraordinary Optional Redemption. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.03. Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 3.04. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 3.05. Effect of Deposit of Redemption Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.06. Partial Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.07. Purchase of Tendered Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 3.08. Remarketing of Tendered Bonds; Payment of Purchase Price . . . . . . . . . . . . . . . . . 32
Section 3.09. Funds for Purchase Price of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 3.10. Delivery of Purchased Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 3.11. Pledged Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE IV. GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.01. Payment of Principal, Premium, If Any, and Interest . . . . . . . . . . . . . . . . . . . . 36
Section 4.02. Instruments of Further Assurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.03. Tax-Exempt Status of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 4.04. Books, Records and Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 4.05. Notice to Rating Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE V. REVENUES AND FUNDS; LETTER OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.01. Application of Original Proceeds of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . 37
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Section 5.02. Creation of Bond Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 5.03. Letter of Credit, Alternate Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . 38
Section 5.04. Letter of Credit Draws and Bond Fund Moneys to Pay Principal,
Premium or Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Section 5.05. Investment of Moneys . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Section 5.06. Moneys to Be Held in Trust; Nonpresentment of Bonds . . . . . . . . . . . . . . . . . . . . 42
Section 5.07. Repayment from Indenture Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Section 5.08. Tax Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.09. Construction Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.10. Payments into Construction Fund; Disbursements . . . . . . . . . . . . . . . . . . . . . . 43
Section 5.11. Completion of Project . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.12. Transfer of Construction Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 5.13. Custody of Funds and Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE VI. DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Section 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 6.04. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VII. TRUSTEE, REMARKETING AGENT AND TENDER AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.06. Compensation and Indemnity of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 7.07. Eligibility of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 7.09. Duties of Remarketing Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.10. Eligibility of Remarketing Agent; Replacement . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.11. Tender Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Section 7.12. Successor Trustee, Remarketing Agent or Tender Agent by Merger . . . . . . . . . . . . . . 54
ARTICLE VIII. SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 8.01. Without Consent of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 8.02. With Consent of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.03. Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Section 8.04. Notation on or Exchange of Bonds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
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Section 8.05. Execution and Delivery by Trustee of Amendments and Supplements . . . . . . . . . . . . . . 56
Section 8.06. Company and Bank Consent Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 8.07. Notice to Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
ARTICLE IX. AMENDMENT OF AGREEMENT, GUARANTY OR LETTER OF CREDIT . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.01. Without Consent of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Section 9.02. With Consent of Bondholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.03. Bank Consent Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.04. Modifications of Letter of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 9.05. Release of Guaranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE X. DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 10.01. Bonds Deemed Paid; Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 57
Section 10.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 10.03. Repayment to Bank and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE XI. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.01. Bondholders Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.02. Limitation of Rights; Rights of Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Section 11.03. No Personal Liability of Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.04. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.05. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Section 11.06. Payments or Performance Due on Other Than Business Day . . . . . . . . . . . . . . . . . . 62
Section 11.07. Execution of Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Section 11.08. Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Exhibit A - Form of Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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INDENTURE OF TRUST
THIS INDENTURE OF TRUST is made and entered into as of December 1,
1994 by and between the COUNTIES OF ▇▇▇▇▇▇ AND WASHINGTON INDUSTRIAL
DEVELOPMENT AGENCY, a corporate governmental agency constituting a body
corporate and politic and a public benefit corporation of the State of New York
(the "Issuer" ), and ▇▇▇▇▇▇ TRUST AND SAVINGS BANK, a banking corporation
organized under the laws of the State of Illinois (the "Trustee"), as trustee.
WITNESSETH:
WHEREAS, the Issuer is authorized under the New York State Industrial
Development Agency Act, Title I of Article 18-A of the New York State General
Municipal Law, as amended, and Chapter 862 of the Laws of 1971 of the State of
New York (collectively, the "Act"), to issue its revenue bonds for the purpose
of providing financing for a "project" located within the Issuer as therein
defined; and
WHEREAS, ▇▇▇▇▇▇▇▇ Micro Science, Inc., a Delaware corporation
authorized to do business in the State of New York (the "Company"), proposes to
finance the cost of the acquisition, construction, rehabilitation and equipping
of certain land, building and equipment constituting industrial development
facilities located in the Town of ▇▇▇▇▇▇▇▇▇, Washington County, New York (the
"Project") and to finance a portion of the cost of the Project through the
issuance by the Issuer of its hereinafter defined Bonds; and
WHEREAS, the Issuer has duly entered into a Lease Agreement (the
"Agreement") with the Company specifying the terms and conditions of such
financing, the use of the proceeds of its Counties of ▇▇▇▇▇▇ and Washington
Industrial Development Agency Industrial Development Revenue Bonds, Series 1994
(▇▇▇▇▇▇▇▇ Micro Science, Inc. Project) (the "Bonds") for such purpose and the
payment by the Company of lease installments under the Agreement; and
WHEREAS, it has been determined that the amount necessary to finance
the Project will require the issuance, sale and delivery of the Issuer's Bonds
in the aggregate principal amount of $5,300,000 as hereinafter provided.
WHEREAS, all things necessary to make the Bonds, when authenticated by
the Trustee and issued as in this Indenture provided, the valid, binding and
legal obligations of the Issuer according to the import thereof, and to
constitute this Indenture a valid assignment and pledge of the security pledged
hereunder, have been done and performed, and the creation, execution and
delivery of this Indenture of Trust, and the creation, execution and issuance
of the Bonds, subject to the terms hereof, have in all respects been duly
authorized;
NOW, THEREFORE, THIS INDENTURE OF TRUST WITNESSETH:
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GRANTING CLAUSE
To secure the timely payment of the principal of, premium, if any, and
interest on the Bonds according to their tenor and effect and to secure the
performance and observance by the Issuer of all of the covenants set forth
herein and in the Bonds, the Issuer hereby assigns to the Trustee and grants to
the Trustee a security interest in all right, title and interest of the Issuer
in and to (a) the Agreement, including the current and continuing right to
claim, collect, receive and give receipts for all amounts payable by or
receivable from the Company under the Agreement, to bring actions and
proceedings under the Agreement or for the enforcement of the Agreement and to
do all things that the Issuer is entitled to under the Agreement, but excluding
the Unassigned Rights, and (b) all moneys and securities held from time to time
by the Trustee under this Indenture as provided in this Indenture (other than
moneys and securities held in the Purchase Fund or the Rebate Fund), all for
the equal and proportionate benefit of all holders of the Bonds without
priority or distinction as to lien or otherwise of any Bonds over any other
Bonds.
To secure the Obligations (as defined in the Reimbursement Agreement)
of the Company to the Bank under the Reimbursement Agreement, the Issuer
assigns and grants to the Trustee for the benefit of the Bank a security
interest in all right, title and interest of the Issuer in and to the moneys
held in the funds and accounts created hereunder until such monies are applied
for their intended purposes as provided herein, provided, however, the said
security interest shall be subordinate to the security interest in and to such
moneys granted to the Trustee in the preceding paragraph for the benefit of the
holders of the Bonds.
TO HAVE AND TO HOLD all and singular the Trust Estate (as defined
below) whether now owned or hereafter acquired, to the Trustee and its
respective successors in trust and assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for
the equal and proportionate benefit, security and protection of all present and
future Owners of the Bonds issued under and secured by this Indenture without
privilege, priority or distinction as to the lien or otherwise of any of the
Bonds over any of the other Bonds;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns,
shall well and truly pay, or cause to be paid, the principal of, premium, if
any, and interest on the Bonds due or to become due thereon, at the times and
in the manner mentioned in the Bonds and as provided in Section 4.01 hereof
according to the true intent and meaning thereof, or shall provide, as
permitted hereby, for the payment thereof in accordance with Article X hereof,
and shall well and truly keep, perform and observe all the covenants and
conditions pursuant to the terms of this Indenture to be kept, performed and
observed by it, and shall pay or cause to be paid to the Trustee all sums of
money due or to become due in accordance with the terms and provisions hereof
and the Company shall have satisfied all Obligations to the Bank under the
Reimbursement Agreement, then upon such final payments or deposits as provided
in Article X hereof, this Indenture and the rights hereby granted shall cease,
terminate and be void and the Trustee shall thereupon cancel and discharge this
Indenture and execute and deliver to the Issuer
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and the Company such instruments in writing as shall be requisite to evidence
the discharge hereof.
THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is expressly
declared, that all Bonds issued and secured hereunder are to be issued,
authenticated and delivered and all of the Trust Estate is to be dealt with and
disposed of, under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes hereinafter expressed and the
Issuer has agreed and covenanted, and does hereby agree and covenant, with the
Trustee and with the respective Owners, from time to time, of the Bonds or any
part thereof, as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions. Each of the following terms shall have
the meaning assigned to it in this Section 1.01 whenever it is used in this
Indenture, unless the context in which it is used clearly requires otherwise
(certain terms used, and not defined, herein are defined in the Agreement):
"Adequate Interest Coverage" shall have the meaning set forth in
Section 2.02(f)(iii) hereof.
"Adjustable Rate" shall mean the interest rate per annum from time to
time borne by the Bonds when in the Adjustable Rate Mode, as established in
accordance with Section 2.02(e) hereof.
"Adjustable Rate Conversion Date" shall mean each Interest Payment
Date on which the Bonds, upon having been converted to the Adjustable Rate Mode
from another Mode, shall first begin to bear interest at an Adjustable Rate in
accordance with the terms hereof, and each subsequent Adjustable Rate Reset
Date.
"Adjustable Rate Interest Payment Date" means (i) with respect to an
Adjustable Rate Period which extends over a period covering all or part of at
least six calendar months, the first day of the sixth calendar month following
the Adjustable Rate Conversion Date and the first day of each successive sixth
calendar month, if any, of such Adjustable Rate Period; provided, however, the
final Adjustable Rate Interest Payment Date with respect to any such Adjustable
Rate Period (unless such date is the maturity date of the Bonds) shall be the
first Business Day of the calendar month immediately following the expiration
of such Adjustable Rate Period, or the maturity date of the Bonds (if such
Adjustable Rate Period extends to the final maturity of the Bonds), and (ii)
with respect to an Adjustable Rate Period which extends over a period covering
all or part of less than six calendar months, the first Business Day of the
calendar month immediately following the Adjustable Rate Period or the maturity
date of the Bonds (if such Adjustable Rate Period extends to the final maturity
of the Bonds).
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"Adjustable Rate Mode" shall mean the Mode in which the Bonds bear
interest at an Adjustable Rate.
"Adjustable Rate Period" shall mean any period of not less than one
month in duration, commencing on an Adjustable Rate Conversion Date or an
Adjustable Rate Reset Date, as appropriate, and ending on the day preceding the
subsequent Conversion Date or Adjustable Rate Reset Date, as appropriate.
"Adjustable Rate Reset Date" shall mean an Adjustable Rate Interest
Payment Date on which the Bonds begin to bear interest at a new Adjustable Rate
in accordance with the terms hereof.
"Agreement" shall mean the Lease Agreement, dated as of December 1,
1994, between the Issuer and the Company, as amended and supplemented.
"Alternate Credit Facility" shall mean an irrevocable letter of credit
or other credit facility described in Section 5.03(b) hereof delivered pursuant
to such Section in substitution for a Letter of Credit.
"Authorized Company Representative" shall mean any person at the time
designated to act on behalf of the Company by a written certificate furnished
to the Issuer, the Remarketing Agent and Trustee.
"Authorized Denomination" shall mean $100,000 and any integral
multiple thereof or, upon conversion to any Adjustable Rate Period extending to
the final maturity of the Bonds, $5,000 or any integral multiple thereof.
"Available Moneys" shall mean
(1) During any period the Letter of Credit is in effect:
(a) proceeds from the remarketing of any Bonds, tendered
for purchase pursuant to this Indenture, to any person other than the
Issuer, the Company or any "insider" (as defined in the Bankruptcy
Code) of the Issuer or the Company;
(b) moneys derived from any draw on the Letter of Credit;
(c) any other moneys or securities, if there is delivered
to the Trustee an opinion of an attorney-at-law, duly admitted to
practice before the highest court of the jurisdiction in which such
attorney maintains an office, who is not a full-time employee of the
Company, the Bank, the Issuer or the Remarketing Agent, having
expertise in bankruptcy matters (who, for purposes of such opinion,
may assume that no Bondholder is an "insider," as defined in the
Bankruptcy Code) to the effect that the use of such moneys or
securities to pay the principal or purchase price of, premium, if any,
or interest on the Bonds would not be avoidable as preferential
payments under Section 547 of the Bankruptcy Code recoverable under
Section 550 of the Bankruptcy Code should the
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Company become a debtor in a proceeding commenced thereunder, which
opinion shall also be addressed to and acceptable to any Rating Agency
then rating the Bonds; and
(d) earnings derived from the investment of any of the
foregoing; and
(2) During any period the Letter of Credit is not in effect, any
moneys held by the Trustee in any Fund or Account under this Indenture and
available, pursuant to the provisions hereof, to be used to pay principal of,
premium, if any, or interest on, or the purchase price of, the Bonds.
"Bank" shall mean the entity issuing the Letter of Credit, if any then
in effect, and its successors in such capacity and their assigns; or if an
Alternate Credit Facility is issued, the issuer thereof, and its successors in
such capacity and their assigns. All references to "Bank" shall be of no
effect at any time that no Letter of Credit is issued and secures the Bonds,
except with respect to rights of any Bank established hereunder which do not,
by their terms, expire upon the expiration of the Letter of Credit issued by
such Bank.
"Bankruptcy Code" shall mean the United States Bankruptcy Reform Act
of 1978, as amended from time to time, or any substitute or replacement
legislation.
"Beneficial Owner" means the person in whose name a Bond is recorded
as beneficial owner of such Bond by the Securities Depository or a Participant
or an Indirect Participant on the records of such Securities Depository,
Participant or Indirect Participant, as the case may be, or such Person's
subrogee.
"Bond Counsel" shall mean, with respect to the original issuance of
the Bonds, ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, Chicago, Illinois, and thereafter, any firm of
attorneys of nationally recognized expertise with respect to the tax-exempt
obligations of political subdivisions, selected by the Company and acceptable
to the Remarketing Agent, the Trustee and the Issuer.
"Bond Fund" shall mean the Fund by that name established by Section
5.02 of this Indenture.
"Bond Owner," "Bondowner," "Owner," "owner," "Bond holder,"
"bondholder," "holder" or "owner of the Bonds," when used with respect to a
Bond, shall mean the person or entity in whose name such Bond shall be
registered.
"Bonds" shall mean the $5,300,000 Counties of ▇▇▇▇▇▇ and Washington
Industrial Development Agency Industrial Development Revenue Bonds, Series 1994
(▇▇▇▇▇▇▇▇ Micro Science, Inc. Project), issued pursuant to this Indenture.
"Book-Entry System" means a book-entry system established and operated
for the recordation of Beneficial Owners of the Bonds pursuant to Section 2.12
hereof.
"Business Day" or "business day" shall mean any day which is not (i) a
Saturday or a Sunday, (ii) a day on which banking institutions in the cities of
New York, New York or
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Chicago, Illinois (or, if different, in the cities in which the principal
corporate trust office of the Trustee and the office of the Bank at which
drawings under the Letter of Credit are to be honored are located) are
authorized or required by law or executive order to close, or (iii) a day on
which the New York Stock Exchange is closed.
"Closing Date" shall mean the date of initial issuance and delivery of
the Bonds to the purchasers thereof.
"Code" shall mean the Internal Revenue Code of l986, as amended.
Each citation to a section of the Code shall include the Regulations applicable
to such Section.
"Company" shall mean ▇▇▇▇▇▇▇▇ Micro Science, Inc., a Delaware
corporation, its successors and assigns.
"Company Bonds" shall mean Bonds purchased with moneys described in
Section 3.09(c) hereof.
"Construction Fund" shall mean the Fund by that name established by
Section 5.09 of this Indenture.
"Conversion Date" shall mean an Adjustable Rate Conversion Date, a
Weekly Rate Conversion Date, a Daily Rate Conversion Date or a CP Rate
Conversion Date, as appropriate.
"CP Rate" shall mean the interest rate per annum on each Bond
established in accordance with Section 2.02(d) hereof.
"CP Rate Conversion Date" shall mean each Interest Payment Date on
which the Bonds. having been converted to the CP Rate Mode from another Mode,
first begin to bear interest at a CP Rate in accordance with the terms hereof.
"CP Rate Interest Payment Date" shall mean with respect to each Bond,
the Business Day which immediately succeeds the last date of any CP Rate Period
applicable to such Bond.
"CP Rate Mode" shall mean the interest rate Mode in which Bonds bear
interest at the CP Rate.
"CP Rate Period" shall mean with respect to each Bond, while the Bonds
are in the CP Rate Mode, a period (a) which begins on a CP Rate Conversion Date
or a CP Rate Reset Date, as appropriate, and (b) has a duration which shall
have been set by the Remarketing Agent as provided in Section 2.02(d), from l
to 360 days' length, and (c) which ends on a day which immediately precedes a
Business Day and which falls on or prior to the maturity date of the Bonds.
"CP Rate Reset Date" shall mean with respect to each Bond, each CP
Rate Interest Payment Date on which commences a new CP Rate Period applicable
to such Bond, whereon a new CP Rate which shall have been set pursuant to
Section 2.02(d) shall first become effective.
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"Daily Interest Period" shall mean, while the Bonds are in the Daily
Rate Mode, the period from and including each day which is a Business Day to
but excluding the next succeeding day which is a Business Day.
"Daily Rate" shall mean the interest rate per annum on the Bonds
established in accordance with Section 2.02(c) hereof.
"Daily Rate Conversion Date" shall mean each date on which the Bonds,
having been converted to the Daily Rate Mode from another Mode, first begin to
bear interest at a Daily Rate in accordance with the terms hereof.
"Daily Rate Interest Payment Date" shall mean the first Business Day
of each month during which the Bonds shall be in the Daily Rate Mode,
commencing with the first Business Day of the month next succeeding each Daily
Rate Conversion Date or, if applicable, the Closing Date.
"Daily Rate Mode" shall mean the Mode in which the Bonds bear interest
at a Daily Rate.
"Daily Rate Period" shall mean the period from the Daily Rate
Conversion Date to the earlier to occur of the following Conversion Date or the
date on which principal of the Bonds is paid in full.
"Determination of Taxability" shall mean the receipt by the Trustee of
evidence of a judgment or order of a court of competent jurisdiction, or a
final ruling, technical advice or decision of the Internal Revenue Service to
the effect that the interest on the Bonds (other than interest on any Bond for
any period during which such Bond is held by a "substantial user" of the
Project or a "related person," as such terms are used in the Internal Revenue
Code of 1986, as amended) is includable for Federal income tax purposes in the
gross incomes of the owners or Beneficial Owners thereof; provided, however,
that in no event shall a Determination of Taxability be based upon the
inclusion of interest in any minimum tax or indirect tax. For purposes of
this definition, a ruling or decision of the Internal Revenue Service shall be
considered final if no appeal or action for a judicial review has been filed
and the time for filing of such appeal or action has expired.
"Event of Default," used with respect to this Indenture, shall mean
any event specified in Section 6.01 of this Indenture.
"Government Obligations" shall mean direct obligations of, or
obligations the timely payment of the principal of, and interest on, which are
fully and unconditionally guaranteed by the United States of America, which, at
the time of investment, are not subject to prepayment or redemption prior to
maturity and are legal investments under the laws of the State for the moneys
proposed to be invested therein.
"Guaranty" shall mean the Guaranty Agreement dated as of December 1,
1994 between the Company, as guarantor, and the Trustee, as supplemented and
amended.
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"Indenture" shall mean this Indenture of Trust, as amended and
supplemented.
"Indirect Participant" means a broker-dealer, bank or other financial
institution for which the Securities Depository holds Bonds as a securities
depository through a Participant.
"Initial Letter of Credit" shall mean the irrevocable Letter of Credit
delivered on the Closing Date by the Bank for the purpose of securing the
Bonds, as extended or amended from time to time.
"Interest Payment Date" shall mean an Adjustable Rate Interest Payment
Date, a Weekly Rate Interest Payment Rate, a Daily Rate Interest Payment Date,
a CP Rate Interest Payment Date (with respect to any Bond), each date upon
which Bonds shall be subject to mandatory tender for purchase pursuant to
Section 2.04 hereof and any date upon which the outstanding principal amount of
the Bonds becomes due.
"Issuer" shall mean the Counties of ▇▇▇▇▇▇ and Washington Industrial
Development Agency, and its successors and assigns.
"Letter of Credit" shall mean the Initial Letter of Credit and, if an
Alternate Credit Facility is issued, each Alternate Credit Facility, as
extended or amended from time to time. All references to the "Letter of
Credit" shall be of no effect at any time that no Letter of Credit secures the
Bonds, except with respect to rights of any Bank created hereunder which do
not, by their terms, expire upon the termination of the Letter of Credit issued
by such Bank.
"Maximum Rate" shall mean the rate per annum equal to the lesser of
(a) 15% per annum, or (b) if a Letter of Credit is then in effect, the maximum
interest rate stated in such Letter of Credit for purposes of calculating the
interest portion of the stated amount of such Letter of Credit.
"Mode" shall mean any of the interest rate modes which may exist from
time to time with respect to the Bonds, including the Adjustable Rate Mode, the
Weekly Rate Mode, the Daily Rate Mode or the CP Rate Mode, as appropriate.
"Offering Agent" shall mean The First National Bank of Chicago,
Chicago, Illinois.
"Offering Agreement" shall mean the Offering Agreement, dated December
28, 1994, among the Issuer, the Company and the Offering Agent, including all
amendments thereof and supplements thereto.
"Outstanding" or "Bonds outstanding" or "Bonds then outstanding," at
the time in question, shall mean all Bonds which have been executed and
delivered by the Issuer and authenticated by the Trustee or the Tender Agent
under this Indenture, except:
(i) Bonds theretofore canceled by the Trustee or
surrendered to the Trustee for cancellation;
(ii) Bonds paid or deemed to be paid pursuant to Article X
hereof;
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(iii) Bonds in lieu of or in exchange for which other Bonds
shall have been executed and delivered by the Issuer and authenticated
by the Trustee or the Tender Agent pursuant to Sections 2.07, 2.08,
2.10 or 3.06 hereof; and
(iv) Undelivered Bonds.
"Participant" shall mean a broker-dealer, bank or other financial
institution for which the Securities Depository holds Bonds as a securities
depository.
"Pledged Bonds" shall mean Bonds purchased with moneys provided
pursuant to Section 3.09(b) hereof.
"Principal Office" shall have the respective meanings set forth herein
under "Remarketing Agent" and "Tender Agent."
"Project" or "Project Facility" shall mean the industrial development
facilities as described in Exhibit B to the Agreement.
"Project Certificate" shall mean the Certificate Re: Use of Bond
Proceeds and the Project of the Company dated the date of initial issuance of
the Bonds.
"Purchase Fund" shall mean the fund by that name established pursuant
to Section 3.07(b) of this Indenture.
"Qualified Investments" shall mean, subject to any restrictions
imposed by State law, (i) Government Obligations, (ii) obligations of the
Federal National Mortgage Association, the Government National Mortgage
Association or the Federal Home Loan Mortgage Corporation, (iii) commercial
paper or finance company paper rated not less than "P-1" by ▇▇▇▇▇'▇ Investors
Service or "A-1+" by S&P, (iv) certificates of deposit or other time or demand
deposits of banks (including, without limitation, the Trustee and the Bank)
that are fully insured by the Federal Deposit Insurance Corporation or fully
secured by obligations described in (i) or (ii) above, (v) repurchase
agreements secured by obligations described in (i) or (ii) above or bonds or
obligations which are authorized by law as security for public deposits,
provided that no proceeding under any applicable insolvency or reorganization
law has been commenced by or against the issuer of such bonds or obligations,
and provided, further, that such bonds or obligations and debt of the issuer of
the repurchase agreement bear one of the three highest full credit ratings
assigned by ▇▇▇▇▇'▇ Investors Service and S&P, (vi) any investment fund or
other investment pooling arrangement which purchases and holds exclusively
Government Obligations or repurchase agreements meeting the requirements of (v)
above, (vii) Tax-Exempt Obligations (as defined in the Tax Agreement) rated in
one of the two highest full rating categories by either of the Rating Agencies,
and (viii) any other investment approved in writing by the Bank. The Trustee
may rely upon the certificate or direction of the Company as to the
qualification of any specific investment under this definition.
"Rating Agencies" shall mean S&P and/or ▇▇▇▇▇'▇ Investors Service,
according to which of such rating agencies then rates the Bonds; and provided
that if neither of such rating
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agencies then rates the Bonds, the term "Rating Agencies" shall refer to any
national rating agency (if any) which provides such rating. If at any time
only one Rating Agency then rates the Bonds, "Rating Agencies" shall at that
time mean only such Rating Agency as is then rating the Bonds.
"Rebate Fund" shall mean the fund by that name created under the Tax
Agreement.
"Record Date" shall mean (a) with respect to any Weekly Rate Interest
Payment Date, Daily Rate Interest Payment Date, CP Rate Interest Payment Date
or Adjustable Rate Interest Payment Date for an Adjustable Rate Period of less
than six months in duration, the close of business on the Business Day next
preceding such Interest Payment Date, and (b) with respect to any Adjustable
Rate Interest Payment Date for an Adjustable Rate Period of six months or more
in duration, the close of business on the fifteenth day of the calendar month
next preceding such Interest Payment Date.
"Regulations" shall mean the temporary and permanent Income Tax
Regulations promulgated or proposed by the Department of the Treasury pursuant
to the Code, as applicable to the Bonds.
"Reimbursement Agreement" shall mean the Initial Reimbursement
Agreement and with respect to each subsequent Letter of Credit, the agreement
pursuant to which such Letter of Credit is issued. All references to
"Reimbursement Agreement" shall be of no effect at any time that no Letter of
Credit is issued and secures the Bonds, except with respect to rights of any
Bank which do not, by their terms, expire upon the expiration of the Letter of
Credit issued by such Bank.
"Remarketing Agent" shall mean the Remarketing Agent appointed in
accordance with Section 7.10 hereof, and shall mean initially The First
National Bank of Chicago, Chicago, Illinois. "Principal Office" of the
Remarketing Agent shall mean the office thereof designated in writing to the
Issuer, the Trustee, the Bank and the Company, and shall mean initially the
office of the Remarketing Agent located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Municipal Bond Department/Short
Term Trading.
"Remarketing Agreement" shall mean the Remarketing Agreement dated as
of December 1, 1994 between the Company and the Remarketing Agent.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., its successors and assigns.
"Securities Depository" means The Depository Trust Company and any
substitute for or successor to such securities depository that shall maintain a
Book-Entry System with respect to the Bonds.
"Securities Depository Nominee" means the Securities Depository or the
nominee of such Securities Depository in whose name there shall be registered
on the registration books of
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the Issuer the Bonds to be delivered to such Securities Depository during the
continuation with such Securities Depository of participation in its Book-Entry
System.
"State" shall mean the State of New York.
"Tax Agreement" shall mean the Tax Exemption Certificate and Agreement
dated the Closing Date among the Company, the Issuer and the Trustee, as
amended and supplemented.
"Tender Agent" shall mean the Tender Agent appointed in accordance
with Section 7.11 hereof if the Bonds are not then in a Book-Entry System.
"Principal Office" of the Tender Agent shall mean the office thereof designated
in writing to the Issuer, the Trustee, the Bank, the Remarketing Agent and the
Company.
"Trustee" shall mean ▇▇▇▇▇▇ Trust and Savings Bank, Chicago, Illinois,
or any successor trustee or co-trustee serving as such under this Indenture.
"Trust Estate" shall mean the property conveyed to the Trustee
pursuant to the Granting Clause of this Indenture.
"Unassigned Rights" shall mean the rights of the Issuer under Sections
4.3, 6.2 and 9.3 of the Agreement, the Issuer's rights to consent to amendments
to the Agreement, its rights to receive notices thereunder and any other rights
relating to any agreement with the Company with respect to payments in lieu of
taxes.
"Undelivered Bonds" shall mean, during any period the Bonds are not in
the Book-Entry System, Bonds for which notice of optional tender shall have
been given pursuant to Section 2.03 and Bonds subject to mandatory tender
pursuant to Section 2.04, for which Available Moneys sufficient to pay the
purchase price have been deposited with the Tender Agent on or before the
purchase date of such Bonds, but which Bonds were not delivered to the Tender
Agent on or before such purchase date.
"Weekly Interest Period" shall mean, while the Bonds are in the Weekly
Rate Mode, each period from and including Wednesday of each week (and, if the
first day of any Weekly Rate Period is not a Wednesday, the Weekly Rate
Conversion Date on which such Weekly Rate Period commences) through and
including the following Tuesday, whether or not such days are Business Days.
In addition, and notwithstanding the foregoing, the initial Weekly Interest
Period shall commence on the Closing Date and shall end on the next following
Tuesday.
"Weekly Rate" shall mean the interest rate per annum on the Bonds
established in accordance with Section 2.02(b) hereof.
"Weekly Rate Conversion Date" shall mean each date on which the Bonds,
having been converted to the Weekly Rate Mode from another Mode, first begin to
bear interest at a Weekly Rate in accordance with the terms hereof.
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"Weekly Rate Interest Payment Date" shall mean the first Business Day
of each month during which the Bonds are in the Weekly Rate Mode, commencing
with the first Business Day of the month following the Weekly Rate Conversion
Date or, if applicable, the Closing Date.
"Weekly Rate Mode" shall mean the Mode in which the Bonds bear
interest at a Weekly Rate.
"Weekly Rate Period" shall mean the period from the Closing Date or
any Weekly Rate Conversion Date to the earlier of the next following Conversion
Date or the maturity date of the Bonds.
Section 1.02. Article and Section Headings. The headings or titles
of the several Articles and Sections of this Indenture, and the Table of
Contents appended hereto, are solely for convenience of reference and shall not
affect the meaning or construction of the provisions hereof.
Section 1.03. Interpretation. The singular form of any word used
herein shall include plural, and vice versa, if applicable. The use of a word of
any gender shall include all genders, if applicable. Any reference to a
particular Article or Section shall be to such Article or Section of this
Indenture unless the context shall otherwise require. Any reference to any time
of day on any date shall be to prevailing time in New York City, New York on
such date unless otherwise specified herein.
ARTICLE II
AUTHORIZATION AND ISSUANCE OF THE BONDS
Section 2.01. Authorization of Bonds; No Additional Bonds. (a) The
Bonds are hereby authorized to be issued in a single series, which shall be
designated as Counties of ▇▇▇▇▇▇ and Washington Industrial Development Agency
Industrial Development Revenue Bonds, Series 1994 (▇▇▇▇▇▇▇▇ Micro Science, Inc.
Project) (the "Bonds"). The Bonds shall be issued in the aggregate principal
amount of $5,300,000.
(b) The Bonds shall be issued for the purpose of providing funds
to enable the Issuer to acquire, construct and equip the Project and lease it
to the Company, as provided in the Agreement. No Bonds may be issued pursuant to
this Indenture in addition to those authorized by this Section 2.01, except
Bonds issued upon transfer or exchange pursuant to Section 2.07 hereof,
temporary Bonds issued pursuant to Section 2.10 hereof, replacement Bonds issued
pursuant to Section 2.08 hereof, Bonds issued pursuant to Section 3.06 hereof,
and Bonds delivered pursuant to Section 3.10 hereof.
Section 2.02. Issuance of Bonds; Terms of Bonds. (a) General
Provisions. The Bonds shall:
(i) be dated as provided in Section 2.02(i) below,
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(ii) bear interest initially in the Weekly Mode and,
thereafter, as set forth in paragraphs (b) through (f) of this
Section, until paid, at the rates therein provided (computed, while
the Bonds are in the Weekly Rate Mode, the CP Rate Mode or the Daily
Rate Mode, on the basis of a 365- or 366-day year, for the actual
number of days elapsed and, while the Bonds are in the Adjustable Rate
Mode, on the basis of a 360-day year, composed of twelve 30-day
months), payable on each Interest Payment Date,
(iii) all be in the same Mode at the same time (except as
provided pursuant to subsection (d) herein), and
(iv) mature on December 1, 2014.
(b) Weekly Rate Provisions. The Bonds shall bear interest at a
Weekly Rate from the Closing Date (if applicable) and from each Weekly Rate
Conversion Date to the earlier of their redemption, the following Conversion
Date or their maturity date. The Weekly Rate for each Weekly Interest Period
shall be the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent, having due regard for prevailing financial market
conditions, permit the Bonds to be remarketed at par on the first day of such
Weekly Interest Period. Notwithstanding the foregoing, the Weekly Rate so
established shall be not more than the Maximum Rate. Each determination of a
Weekly Rate by the Remarketing Agent shall be conclusive and binding upon the
Issuer, the Company, the Trustee, the Tender Agent, the Bank and the
Bondholders. Notwithstanding the foregoing, if at any time the Remarketing
Agent shall fail to determine a Weekly Rate as set forth above, then, until the
Remarketing Agent shall next determine the Weekly Rate in such fashion, the
Weekly Rate shall be the rate from time to time established as the ▇.▇. ▇▇▇▇▇▇
index rate for high grade tax-exempt obligations having maturities of 30 days.
If such index rate is not available, the Weekly Rate shall be the rate from
time to time established by the Public Securities Association Municipal Swap
Index, and if such index is not available, the Weekly Rate shall be the rate
from time to time established by such other comparable index as may be selected
by the Company upon notice to the Trustee. In no event however may the
interest rate on the Bonds exceed the Maximum Rate.
On Tuesday (unless Tuesday is not a Business Day, then on the next
preceding Monday; unless Monday and Tuesday are not Business Days, then on the
next subsequent Wednesday, whether or not a Business Day) of each calendar week
during a Weekly Rate Period, with respect to each Weekly Interest Period, the
Remarketing Agent shall determine and furnish to the Trustee the Weekly Rate
for the ensuing Weekly Interest Period. On the Business Day preceding each
Weekly Rate Interest Payment Date, the Trustee shall furnish to the Company,
the Bank and, if the Bonds are not in a Book-Entry System, to the Tender Agent,
the Weekly Rates applicable to the Bonds from the time of the prior notice of
such rates. Should any Bondholder or Beneficial Owner request such in writing,
the Remarketing Agent shall also furnish (by first class mail, postage prepaid)
the Weekly Rate to such requesting Bondholder or Beneficial Owner.
(c) Daily Rate Provisions. (i) The Bonds shall bear interest at
a Daily Rate from the Closing Date (if applicable) and from each Daily Rate
Conversion Date to the earlier of their
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redemption, the following Conversion Date with respect to such Bonds or their
maturity date. The Daily Rate for each Daily Interest Period shall be the
interest rate determined by the Remarketing Agent on the first day of such
Daily Interest Period (by not later than 11:00 a.m., New York time), which
shall be the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent having due regard for prevailing financial market conditions,
permit the Bonds to be remarketed at par on the said first day of such Daily
Interest Period. Notwithstanding the foregoing, the Daily Rate so established
shall be not more than the Maximum Rate. In the event no Daily Rate is
determined by the Remarketing Agent for a Daily Interest Period, then the Bonds
shall thereupon bear interest at the last Daily Rate previously determined
pursuant to this Indenture. Upon such event the Trustee shall promptly notify
the Bondholders, the Company, the Remarketing Agent, the Tender Agent, if any,
and the Bank of such fact. Each determination of a Daily Rate by the
Remarketing Agent shall be conclusive and binding upon the Issuer, the Company,
the Trustee, the Tender Agent, the Bank and the Bondholders.
(ii) On the Business Day preceding each Interest Payment Date
during each Daily Rate Period, the Remarketing Agent will furnish to the
Trustee, and the Trustee will furnish to the Bank, the Company and the Tender
Agent, if any, the Daily Rates applicable to the Bonds during such Daily Rate
Period. Should any Bondholder or Beneficial Owner request in writing the Daily
Rate applicable to the Bonds for any particular day, the Remarketing Agent will
furnish such Daily Rate to such requesting Bondholder or Beneficial Owner.
(d) CP Rate Provisions. While the Bonds are in the CP Rate Mode,
each Bond shall bear interest at a CP Rate from each CP Rate Conversion Date or
CP Rate Reset Date, as appropriate, to the earlier of its redemption or
maturity, the following Conversion Date for all Bonds or the following CP Rate
Reset Date applicable to such Bond. Different CP Rate Periods may apply to
different Bonds at any time and from time to time while the Bonds are in a CP
Rate Mode. In the case of each CP Rate Period, on the first day thereof, the
Remarketing Agent shall determine (i) the duration of such CP Rate Period and
(ii) the CP Rate which shall apply during such CP Rate Period. The duration of
the CP Rate Period so determined shall be that which, together with all such
other CP Rate Periods for all Bonds then outstanding, in the sole judgment of
the Remarketing Agent will provide the lowest overall interest cost with
respect to the Bonds, with due regard to prevailing financial market
conditions, foreseeable changes in such conditions, the anticipated duration of
the period the Bonds may remain in the CP Rate Mode, and such other factors
which the Remarketing Agent, in its sole judgment, shall deem relevant and
economically advantageous to consider. Upon determination of the duration of a
CP Rate Period with respect to any Bonds, the Remarketing Agent shall determine
the CP Rate which shall be in effect with respect to such Bonds during such CP
Rate Period, which shall be the lowest rate of interest which, in the sole
judgment of the Remarketing Agent, having due regard to prevailing financial
market conditions, will permit such Bonds to be sold at par on the first day of
such CP Rate Period. Notwithstanding the foregoing, the CP Rate so determined
shall not be more than the Maximum Rate. Unless and until the Company elects
to effect a conversion of the Bonds from the CP Rate Mode to another Mode, the
Remarketing Agent shall continually redetermine the duration of, and the CP
Rate to be effective during, each new CP Rate Period with respect to each Bond,
which will commence, without further action on the part of the
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Company, on each CP Rate Reset Date with respect to such Bond. If on any CP
Rate Reset Date, the Remarketing Agent shall fail to determine either the
duration of, or the CP Rate to be effective during, the CP Rate Period which
commences on such date with respect to any Bonds, such Bonds without further
action on the part of any person, shall automatically convert to the Weekly
Rate Mode upon such date, and the Weekly Rate which will be effective on such
date will be determined as described in Section 2.02(b) hereof. Such Bonds may
not thereafter be converted from the Weekly Rate Mode until such time as all
Bonds then outstanding are in the Weekly Rate Mode. Upon such automatic
conversion of a portion of the Bonds to the Weekly Rate Mode, any Bonds then
remaining in the CP Rate Mode shall be automatically converted to the Weekly
Rate Mode upon the expiration of the CP Rate Period applicable to such Bond
without further action on the part of any person (and notwithstanding any
attempted act to the contrary on the part of any person). Upon such event the
Trustee shall promptly notify the affected Bondholders, the Company, the
Remarketing Agent, the Tender Agent, if any, and the Bank of such automatic
conversion. Each determination by the Remarketing Agent pursuant to this
paragraph shall be conclusive and binding upon the Issuer, the Company, the
Trustee, the Tender Agent, the Bank and the Bondholders.
On the first day of each CP Rate Period, the Remarketing Agent shall
furnish to the Trustee, the Bank, the Company and, if the Bonds are not in a
Book-Entry System, the Tender Agent, notice of the duration of such CP Rate
Period and the CP Rate to be effective during such CP Rate Period. Should any
Bondholder or Beneficial Owner request notice of such items in writing, the
Remarketing Agent shall provide such notice (by first class mail, postage
prepaid) to such requesting Bondholder or Beneficial Owner.
The Securities Depository has established separate procedures
applicable to Bonds held in the CP Mode. The Issuer and the Trustee agree to
comply with such procedures whenever Bonds in the CP Mode are held in a
Book-Entry System.
At any time that the Company has given notice of conversion of the
Bonds from the CP Rate Mode to another Mode as provided in Section 2.02(f)
herein, the Remarketing Agent shall thereafter determine CP Rate Periods of
such duration so that, as soon as possible, all CP Rate Periods shall end on
the same date, which date shall be the day preceding the Conversion Date.
(e) Adjustable Rate Provisions. The Bonds shall bear interest at
an Adjustable Rate from each Adjustable Rate Conversion Date or each Adjustable
Rate Reset Date, as appropriate, to the earlier of their redemption or
maturity, the following Conversion Date, the following Adjustable Rate Reset
Date or the following date on which the Bonds shall be subject to mandatory
tender for purchase pursuant to Section 2.04 hereof. Upon a conversion of the
Bonds to the Adjustable Rate Mode, the duration of the initial Adjustable Rate
Period shall be that period specified in the Company's conversion notice
delivered pursuant to Section 2.02(f)(i) for the purpose of effecting such
conversion. An Adjustable Rate Period shall be of at least one month in
duration and shall end on the day preceding the first Business Day of a
calendar month or, if such Adjustable Rate Period extends to the final maturity
date of the Bonds, such final maturity date. The Bonds thereupon shall remain
in the Adjustable Rate Mode for as long as the Company shall continue to
deliver timely notices pursuant to Section 2.02(f)(i) specifying the
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duration of the next subsequent Adjustable Rate Period which is to commence on
the expiration of any current Adjustable Rate Period. The Remarketing Agent,
on or prior to the commencement of each Adjustable Rate Period, shall determine
the Adjustable Rate to be borne by the Bonds during such Adjustable Rate
Period, which shall be the lowest rate which, in its sole judgment having due
regard for prevailing financial market conditions, will permit the Bonds to be
sold at par on the first day of such Adjustable Rate Period. Notwithstanding
the foregoing, the Adjustable Rate shall not be more than the Maximum Rate.
If, during any period the Bonds shall be in the Adjustable Rate Mode, either
(i) the Company shall not deliver a timely conversion notice specifying the
duration of the next subsequent Adjustable Rate Period, or (ii) on or prior to
any Adjustable Rate Reset Date the Remarketing Agent shall fail to determine
the Adjustable Rate to be borne by the Bonds during such Adjustable Rate
Period, then, subject to the provisions described in the following sentences,
the Bonds, without further action on the part of any other person, shall
automatically convert to the Weekly Rate Mode on the date which otherwise would
have been the Adjustable Rate Reset Date and, the Bonds shall thereupon bear
interest at the Weekly Rate determined pursuant to Section 2.02(b)(i). Upon
such event, the Trustee shall promptly notify the Bondholders, the Company, the
Remarketing Agent, the Tender Agent, if any, and the Bank of such automatic
conversion. If, however, prior to such date, the Bonds were in a Long-Term
Mode, the Bonds shall not be automatically converted to the Weekly Mode, as
described in the preceding sentence, unless there shall have been delivered to
the Trustee on or prior to such date an opinion of Bond Counsel to the effect
that such automatic conversion will not adversely affect the exclusion of
interest on the Bonds from the federal gross income of the owners thereof.
Absent delivery of such opinion, the Bonds will convert automatically on such
date to the shortest possible Adjustable Rate Period of a duration of at least
one year and one day. In such event, the Bonds shall bear interest during such
period at a rate to be determined by the Remarketing Agent as described herein,
or if no rate is so determined, at a rate equal to 75% of the average interest
rate for one year U.S. Treasury Notes, as published in the Federal Reserve
Bulletin (published by the Board of Governors of the Federal Reserve System)
most recently published prior to the Conversion Date, as determined by the
Trustee. Each determination of an Adjustable Rate by the Remarketing Agent
shall be conclusive and binding upon the Issuer, the Company, the Trustee, the
Tender Agent, the Bank and the Bondholders.
(f) Conversion Options. (i) In General. The interest rate Mode
of the Bonds shall be converted from one Mode to another, and an Adjustable
Rate Period of one duration shall be converted to an Adjustable Rate Period of
the same or another duration, if the Company shall notify the Trustee, the
Tender Agent, the Bank and the Remarketing Agent of its election to effect such
a conversion and each other condition to any such conversion set forth herein
shall have been satisfied. The Company's conversion notice shall specify the
date on which the Conversion Date will occur (which date shall be not sooner
than 25 days after the date such notice is given) and if the conversion is to
an Adjustable Rate Period shall specify the Interest Payment Date which shall
be the day following the last day of such Adjustable Rate Period.
Notwithstanding the foregoing, no conversion from a Short Term Mode to a Long
Term Mode or from a Long Term Mode to a Short Term Mode (as such terms are
defined in Section 5.03(d) below), and no conversion effected in connection
with either a change in the Bank issuing the Letter of Credit supporting
payment of the Bonds, a change in the security for the Bonds or an
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amendment to this Indenture or this Agreement, shall be effective unless the
Company has delivered with such notice an opinion of Bond Counsel (which
opinion must be confirmed on the Conversion Date) stating that such conversion
will not adversely affect the excludability from gross income of interest on
the Bonds for federal income tax purposes. The Conversion Date shall be the
date specified in the Company notice; provided that no conversion from the
Adjustable Rate Mode shall be effective prior to the Business Day following the
last day of the Adjustable Rate Period which is then in effect and no such
optional conversion from the CP Rate Mode shall be effective prior to the
Business Day following the day which is the last day of the CP Rate Periods for
all of the Bonds. In the event any condition precedent to conversion
(including, but not limited to, the establishment by the Remarketing Agent of
the initial interest rate to be in effect after the Conversion Date or, if
required, the delivery of the Bond Counsel opinion described above) is not
satisfied on or prior to the Conversion Date, the Bonds shall nonetheless be
subject to mandatory tender on the Conversion Date and, subject to the
provisions described in the following sentences, upon such date, the Bonds,
without any further action on the part of any person, shall automatically
convert to the Weekly Mode, and the Bonds shall thereupon bear interest at the
Weekly Rate determined pursuant to Section 2.02(b)(i). If, however, prior to
such date, the Bonds were in a Long-Term Mode, the Bonds shall not be
automatically converted to the Weekly Mode, as described in the preceding
sentence, unless there shall have been delivered to the Trustee on or prior to
such date an opinion of Bond Counsel to the effect that such automatic
conversion will not adversely affect the exclusion of interest on the Bonds
from the federal gross income of the owners thereof. Absent delivery of such
opinion, the Bonds will convert automatically on such date to the shortest
possible Adjustable Rate Period of a duration of at least one year and one day.
In such event, the Bonds shall bear interest during such period at a rate to be
determined by the Remarketing Agent as described herein, or if no rate is so
determined, at a rate equal to 75% of the average interest rate for one year
U.S. Treasury Notes, as published in the Federal Reserve Bulletin (published by
the Board of Governors of the Federal Reserve System) most recently published
prior to the Conversion Date, as determined by the Trustee.
(ii) Conversion Notice. At least 20 days prior to each Conversion
Date, the Trustee shall give to each Bondholder notice by first class mail,
postage prepaid, stating: (A) the Conversion Date, (B) that on the Conversion
Date, the Bonds are subject to mandatory tender and purchase; (C) that subject
to clause (E) below, all owners who fail to tender their Bonds for purchase on
the mandatory tender date will nonetheless be deemed to have tendered their
Bonds for purchase on such date; (D) that, subject to clause (E) below, any
Bonds not delivered to the Tender Agent on or prior to the mandatory tender
date, for which there has been irrevocably deposited in trust with the Trustee
or the Tender Agent on or prior to the mandatory tender date Available Moneys
sufficient to pay the purchase price of such Undelivered Bonds on the mandatory
tender date, shall be deemed to have been so purchased at the purchase price,
and such Bonds shall no longer be considered to be outstanding for purposes of
this Indenture and shall no longer be entitled to the benefits of this
Indenture, except for the payment of the purchase price thereof (and no
interest shall accrue thereon subsequent to the mandatory tender date) and (E)
that notwithstanding the foregoing, while the Bonds are held in the Book-Entry
System, Bonds need not be physically tendered on the mandatory tender date, and
transfers of
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beneficial ownership interests will be effected by the Securities Depository in
accordance with its rules and procedures.
(iii) Letter of Credit Interest Coverage. The interest component of
each Letter of Credit in effect during any Mode shall be sufficient to provide
Adequate Interest Coverage (as defined below). With respect to the Weekly Rate
Mode, the Daily Rate Mode or the CP Rate Mode, "Adequate Interest Coverage"
shall mean the aggregate amount of interest which would accrue on all
Outstanding Bonds (other than Pledged Bonds and Company Bonds) at a rate equal
to 10% per annum, computed on the basis of a 365-day year, (1) for a period of
forty-eight (48) days, in the case of Bonds in the Weekly Rate Mode or the
Daily Rate Mode, and (2) for a period of three hundred eighty (380) days, in
the case of Bonds in the CP Rate Mode, or in either case such shorter period
acceptable to each Rating Agency then rating the Bonds and which will not
result in a withdrawal or lowering of any rating on the Bonds from that which
would otherwise accrue from a longer interest coverage period.
Notwithstanding the foregoing, Adequate Interest Coverage during the Weekly
Rate Mode, the Daily Rate Mode or the CP Rate Mode may cover interest on Bonds
at a rate other than 10% per annum if (l) the Company provides the Trustee with
an opinion of Bond Counsel to the effect that such coverage and the effect of
such coverage upon clause (b) of the definition of "Maximum Rate" herein will
not adversely affect the exclusion from gross income of interest on the Bonds
for Federal income tax purposes and (2) if the applicable rate is to be less
than 10% per annum, such lower rate will not result in a withdrawal or lowering
of any rating on the Bonds from that which would otherwise accrue from a
maintenance of coverage at the 10% rate. With respect to the Adjustable Rate
Mode, "Adequate Interest Coverage" shall mean the aggregate amount of interest
which would accrue on all Outstanding Bonds (other than Pledged Bonds and
Company Bonds) at a rate equal to the Adjustable Rate to be borne by the Bonds
during such Mode, computed on the basis of a 360-day year composed of twelve
30-day months, for a period of two hundred (200) days or with respect to an
Adjustable Rate Period of less than six months' duration, for a period equal to
the number of days in such Adjustable Rate Period plus twenty, or in either
such case, such shorter period acceptable to the Rating Agencies and which will
not result in a withdrawal or lowering of any rating on the Bonds from that
which would otherwise accrue from a longer interest coverage period.
(g) Denominations; Numbering. The Bonds are issuable only as
registered Bonds without coupons in Authorized Denominations. The Bonds shall
be numbered from 1 upwards, provided that the number assigned to each
definitive Bond shall be prefixed by the letter "R." Temporary Bonds shall be
prefixed by the letters "TR."
(h) Payment Terms. Principal of, and premium, if any, on, the
Bonds shall be payable by the Trustee from moneys held by the Trustee in the
Bond Fund to the Bondholders upon presentation and surrender of the Bonds as
the same become due at the principal corporate trust office of the Trustee.
Interest on the Bonds shall be paid by the Trustee by check or draft drawn upon
the Trustee and mailed by first class mail on the respective Interest Payment
Dates to the Bondholders at their addresses shown on the registration books of
the Trustee, or such other addresses as are furnished to the Trustee (in form
satisfactory to the Trustee) by such Bondholders, as of the close of business
on the Record Date with respect to such Interest
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Payment Date; provided that payment of interest shall be made by the Trustee by
wire transfer to any Owner of $1,000,000 or more in aggregate principal amount
of Bonds upon such Owner providing the Trustee with written wire transfer
instructions acceptable to the Trustee before the applicable Record Date and
upon compliance with the reasonable requirements of the Trustee. If and to
the extent there shall be a default in the payment of the interest due on an
Interest Payment Date, such defaulted interest shall be paid to the Bondholders
in whose names any such Bonds (or any Bond or Bonds issued upon registration of
transfer or exchange thereof) are registered at the close of business on the
Business Day next preceding the date of payment of such defaulted interest.
Payment of the principal or purchase price of, and the premium, if any, and
interest on, the Bonds shall be made in such lawful money of the United States
of America as, at the respective times of payment, shall be legal tender for
the payment of public and private debts.
(i) Dating. The Bonds shall be dated and initially bear interest
from the Closing Date, and thereafter shall bear interest from the Interest
Payment Date next preceding the date of authentication, unless (i)
authenticated prior to the first Interest Payment Date, in which event such
Bonds shall bear interest from the Closing Date, (ii) authenticated on an
Interest Payment Date, in which event such Bonds shall bear interest from the
date of authentication, or (iii) authenticated after a Record Date and before
the following Interest Payment Date, in which event such Bonds shall bear
interest from the following Interest Payment Date. If, as shown by the records
of the Trustee, interest on the Bonds is in default, Bonds issued in exchange
for Bonds surrendered for registration of transfer or exchange shall bear
interest from the date to which interest has been paid in full on the Bonds,
or, if no interest has been paid on the Bonds, from the Closing Date.
Section 2.03. Optional Tenders. (a) While the Bonds are in the
Weekly Rate Mode, any Outstanding Bond or portion thereof in an Authorized
Denomination (except any Pledged Bond or Company Bond) shall be purchased on
the demand of the registered owner thereof on any Business Day at a price equal
to 100% of the principal amount thereof, plus accrued and unpaid interest
thereon to the date of purchase. upon delivery (by telecopy or otherwise) to
the Tender Agent at its Principal Office or any Business Day, of the following:
(i) a written irrevocable notice, which will be effective
upon receipt, which (A) states the name and address of the registered
owner, the principal amount of such Bond (and the portion thereof to
be tendered, if less than the full principal amount is to be tendered)
and the Bond number, and (B) states the date on which such Bond shall
be so purchased, which date shall be a Business Day not prior to the
seventh day next succeeding the date of the delivery of such notice to
the Tender Agent; and
(ii) such Bond (with all necessary endorsements and
guarantee of signature) attached to such notice; provided, however,
that the purchase price of such Bond shall be paid by the close of
business on the purchase date, but only upon the delivery of the Bond
to the Tender Agent and provided such Bond shall conform in all
material respects to the description thereof in such notice; and
provided, further, that if the registered owner of the tendered Bond
is an open-ended diversified management investment company
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(registered under the Investment Company Act of 1940, as amended), the
delivery required under this paragraph (ii) need not be made until
11:00 a.m., New York City time, on the date such Bond is to be
purchased from such registered owner. Undelivered Bonds shall be
deemed to have been delivered at the time and on the date required,
and as of such date and time shall no longer be deemed to be
Outstanding under this Indenture. The registered owner of any
Undelivered Bond shall be entitled only to the purchase price payable
for such Bond on the required delivery date thereof, and such purchase
price shall be paid to such registered owner only upon surrender of
such Bond to the Tender Agent.
Notwithstanding the foregoing, if the Bonds in the Weekly Rate Mode
are held in a Book-Entry System, a Beneficial Owner shall have the right to
optionally tender for purchase its beneficial interest in any Outstanding Bonds
(or portion thereof in an Authorized Denomination) at the purchase price set
forth above, which right may be exercised as follows. Such right shall be
exercised by delivery by the Beneficial Owner to the Remarketing Agent at its
Principal Office of a notice identifying the name and address of such
Beneficial Owner and stating that such Beneficial Owner will cause its
beneficial interest (or portion thereof in an Authorized Denomination) to be
purchased, the amount of such interest to be purchased, the date on which such
interest will be purchased (which date shall be a Business Day at least seven
days after delivery of such notice to the Remarketing Agent) and specifying the
Remarketing Agent as the Participant through which the Beneficial Owner
maintains its interest. Upon delivery of such notice, the Beneficial Owner
shall cause its beneficial ownership interest in the Bonds (or the portion
thereof specified in the foregoing notice) being purchased to be transferred to
the Remarketing Agent at or prior to 11:00 a.m., New York time, on the optional
tender date, in accordance with the rules and procedures of the applicable
Securities Depository.
(b) While the Bonds are in the Daily Rate Mode, any Outstanding
Bond or portion thereof in an Authorized Denomination (except any Pledged Bond
or Company Bond) shall be purchased on the demand of the registered owner
thereof on any Business Day at a price equal to 100% of the principal amount
thereof, plus accrued and unpaid interest thereon to the date of purchase, upon
delivery (by telecopy or otherwise) to the Tender Agent at its Principal Office
(i) no later than 10:00 a.m., New York time, on such Business Day, of a written
irrevocable notice, which will be effective upon receipt, which states the name
and address of the registered owner, the principal amount of such Bond (and the
portion thereof to be tendered, if less than the full principal amount is to be
tendered) on such Business Day and the Bond number, and (ii) no later than
11:00 a.m., New York time, on such Business Day such Bond (with all necessary
endorsements and guarantees of signature); provided, however, that the purchase
price of such Bond shall be paid by the close of business on the purchase date,
but only upon the delivery of the Bond to the Tender Agent and provided such
Bond shall conform in all material respects to the description thereof in such
notice. Undelivered Bonds shall be deemed to have been delivered at the time
and on the date required, and as of such date and time shall no longer be
deemed to be Outstanding under this Indenture. The registered owner of any
Undelivered Bond shall be entitled only to the purchase price payable for such
Bond on the required delivery date thereof, and such purchase price shall be
paid to such registered owner only upon surrender of such Bond to the Tender
Agent.
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Notwithstanding the foregoing, if the Bonds in the Daily Rate Mode are
held in a Book-Entry System, a Beneficial Owner shall have the right to
optionally tender for purchase its beneficial interest in any Outstanding Bonds
(or portion thereof in an Authorized Denomination) at the purchase price set
forth above, which right may be exercised as follows. Such right shall be
exercised by delivery, by the Beneficial Owner to the Remarketing Agent at its
Principal Office no later than 10:00 a.m., New York time, on the date on which
the beneficial interest of such Beneficial Owner is to be purchased, of a
notice identifying the name and address of such Beneficial Owner and stating
that such Beneficial Owner will cause its beneficial interest (or portion
thereof in an Authorized Denomination) to be purchased, the amount of such
interest to be purchased, and specifying the Remarketing Agent as the
Participant through which the Beneficial Owner maintains its interest. Upon
delivery of such notice, the Beneficial Owner shall cause its beneficial
ownership interest in the Bonds (or the portion thereof specified in the
foregoing notice) being purchased to be transferred to the Remarketing Agent at
or prior to 11:00 a.m. New York time, on the optional tender date, in
accordance with the rules and procedures of the applicable Securities
Depository.
Section 2.04. Mandatory Tenders. The Bonds are subject to
mandatory tender in whole (except as provided in (b) below) by the Bondholders
to the Tender Agent at its Principal Office on each date described below:
(a) On each Conversion Date (provided that, in the event
less than all of the Bonds are being converted from the CP Rate Mode
to the Weekly Rate Mode as described in this Indenture, only the Bonds
being converted shall be subject to mandatory tender);
(b) On each CP Rate Reset Date with respect to any Bond
(provided that only those Bonds whose interest rates are being reset
on such date shall be subject to mandatory tender);
(c) On the second Business Day prior to the release,
expiration or termination of the Letter of Credit, if the Trustee has
not received evidence satisfactory to it as required by Section
5.03(b) hereof by the 25th day preceding the scheduled Letter of
Credit release, expiration or termination date of either an extension
of the then existing Letter of Credit or the issuance of an Alternate
Credit Facility meeting the requirements set forth therefor in the
Agreement, including the Maintenance of Rating requirement (as defined
in Section 5.03(b) of this Indenture);
(d) On the date of substitution of an Alternate Credit
Facility for the then existing Letter of Credit supporting payment of
such Bonds if the Trustee has not received evidence of a Maintenance
of Rating (as defined in Section 5.03 hereof) with respect thereto by
the 25th day preceding the date of substitution of the Alternate
Credit Facility;
(e) On each optional redemption date pursuant to Section
3.01 hereof for which the Company has elected to purchase Bonds in
lieu of an optional redemption pursuant to Section 3.01(c) hereof; and
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(f) On any date on which the Guaranty is released as
provided in Section 9.05 hereof.
The purchase price of Bonds subject to mandatory tender shall be 100%
of the principal amount thereof (except in the case of a mandatory tender
described in paragraphs (c), (d), (e) or (f) above, during, but prior to the
expiration date of, an Adjustable Rate Period in which case the purchase price
shall include a premium equal to the then applicable optional redemption
premium, if any, on the Bonds). Not later than 20 days prior to a mandatory
tender date described in (b), (c), (d) or (f) above, the Trustee shall mail
notice to all Owners of Bonds subject to mandatory tender stating that (1) due
to the occurrence of one of the events described above (which event shall be
specified), such Owner's Bonds will be subject to mandatory tender on the
mandatory tender date (which date shall be specified), (2) that, subject to
clause (4) below, all such owners who fail to tender their Bonds for purchase
on the mandatory tender date will nonetheless be deemed to have tendered their
Bonds for purchase on such date; (3) that, subject to clause (4) below, any
such Bonds not delivered to the Tender Agent on or prior to the mandatory
tender date, for which there has been irrevocably deposited in trust with the
Trustee or the Tender Agent on or prior to the mandatory tender date Available
Moneys sufficient to pay the purchase price of such Undelivered Bonds on the
mandatory tender date, shall be deemed to have been so purchased at the
purchase price, and such Bonds shall no longer be considered to be outstanding
for purposes of this Indenture and shall no longer be entitled to the benefits
of this Indenture, except for the payment of the purchase price thereof (and no
interest shall accrue thereon subsequent to the mandatory tender date) and (4)
that notwithstanding the foregoing, while the Bonds are held in the Book-Entry
System, Bonds need not be physically tendered on the mandatory tender date, and
transfers of beneficial ownership interests will be effected by the Securities
Depository in accordance with its rules and; procedures. Notice of mandatory
tenders described in clauses (a) and (e) above shall be given as part of the
notice of conversion referenced in Section 2.02(f)(ii) hereof or notice of
redemption referenced in Section 3.04 hereof, respectively. No failure on the
part of the Trustee to give such notice shall affect the requirement that Bonds
be purchased or tendered for purchase on said mandatory tender or purchase
date.
When Bonds are not in a Book-Entry System, Undelivered Bonds shall, if
Available Moneys sufficient to pay the purchase price of such Bonds in full and
available for the purchase of such Bonds have been deposited with the Tender
Agent on the mandatory tender date, shall be deemed to have been tendered for
purchase on the mandatory tender date, and from such date shall no longer be
deemed to be Outstanding for purposes of this Indenture. Owners of such Bonds
shall have no rights or benefits under this Indenture other than to receive the
purchase price for such Bonds upon surrender of such Bonds to the Tender Agent.
Notwithstanding the foregoing, if on any mandatory tender date the Bonds shall
be in the Book-Entry System, it shall not be necessary that Bonds be physically
tendered to the Tender Agent on the mandatory tender date. Transfers of
beneficial ownership interests shall be effected in accordance with the rules
and procedures established by the Securities Depository.
Upon the occurrence of any mandatory tender described in paragraphs
(c), (d), (e) or (f) above during an Adjustable Rate Period, commencing on the
date of such mandatory tender the Bonds shall bear interest in a Mode (and, in
the case of the Adjustable Rate Mode, for an
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Adjustable Rate Period) to be designated by the Company by notice to the
Trustee given to the Trustee at least 25 days prior to such date, provided,
however, the said designated Mode or Adjustable Rate Period shall be effective
on the mandatory tender date only if each prerequisite to a conversion
specified in Section 2.02(f) shall have been satisfied. If no designation of a
Mode or an Adjustable Rate Period is made by the Company, or if the
prerequisites of Section 2.02(f) have not been satisfied, then, subject to the
same exception as is set forth in Section 2.02(e) hereof, upon the mandatory
tender date the Bonds shall convert automatically to the Weekly Rate Mode, and
the Bonds thereupon shall bear interest at the Weekly Rate determined pursuant
to Section 2.02(b).
Section 2.05. Form of Bonds. The Bonds and the certificate of
authentication, the provision for registration and the form of assignment
thereof shall be in substantially the form set forth in Exhibit A hereto, with
such appropriate variations, omissions, substitutions, insertions, notations,
legends and endorsements as may be deemed necessary or appropriate by the
officers of the Issuer executing the same and as shall be permitted or required
by the Act and this Indenture.
Section 2.06. Execution and Authentication of Bonds; Limited
Obligations. (a) The Bonds shall be executed on behalf of the Issuer with the
manual or facsimile signature of the Chairman or the Vice Chairman of the
Issuer, and attested, under a manual or facsimile impression of the seal of the
Issuer, with the manual or facsimile signature of the Secretary of the Issuer.
In case any officer of the Issuer whose signature or a facsimile thereof
appears on a Bond shall cease to be such officer before the delivery of such
Bond, such signature or such facsimile shall nevertheless be valid and
sufficient for all purposes, the same as if such officer had remained in the
office until delivery.
(b) No Bond shall be valid or obligatory for any purpose or be
entitled to any security or benefit under this Indenture unless and until a
certificate of authentication on such Bond substantially in the form of Exhibit
A hereto shall have been duly executed by the Trustee, or, in the case of
purchased Bonds delivered by the Tender Agent pursuant to Section 3.10, by the
Tender Agent. Any such executed certificate upon any such Bond shall be
conclusive evidence that such Bond has been authenticated and delivered under
this Indenture. The certificate of authentication on any Bond shall be deemed
to have been executed by it if signed by an authorized officer or signatory of
the Trustee, or the Tender Agent but it shall not be necessary that the same
officer or signatory sign the certificate of authentication on all of the Bonds
issued hereunder.
(c) The obligations and agreements of the Issuer contained herein
and with respect to the Bonds shall not constitute or give rise to an
obligation of the State of New York or of the Counties of ▇▇▇▇▇▇ and
Washington, New York and neither the State of New York nor the Counties of
▇▇▇▇▇▇ and Washington, New York shall be liable hereof or thereon. Such
obligations and agreements shall not constitute or give rise to a general
obligation of the Issuer, but rather shall constitute limited obligations of
the Issuer payable solely from the revenues of the Issuer derived and to be
derived from the lease of the Project pursuant to the Agreement
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(except for revenues derived by the Issuer with respect to the Unassigned
Rights) and the other security pledged to the payment of the Bonds.
Section 2.07. Registration and Exchange of Bonds; Persons Treated
as Owners. (a) Bonds may be transferred only on the registration books of the
Issuer for the Bonds, maintained by the Trustee. Upon surrender for transfer
of any Bond to the Trustee, duly endorsed for transfer or accompanied by an
assignment duly executed by the holder or the holder's attorney duly authorized
in writing, the Trustee will authenticate a new Bond or Bonds in an equal total
principal amount and registered in the name of the transferee.
(b) Bonds may be exchanged for an equal total principal amount of
Bonds of different denominations. The Trustee will authenticate and deliver
Bonds that the Bondholder making the exchange is entitled to receive, bearing
numbers not then outstanding.
(c) The Trustee will not be required to transfer or exchange any
Bond during the period beginning 15 Business Days before the mailing of notice
calling such Bond or any portion of such Bond for redemption and ending on the
redemption date, except as provided in Sections 2.03 and 2.04 hereof.
(d) The holder of a Bond shall, except as otherwise described
herein with respect to certain rights of Beneficial Owners, be the absolute
owner of the Bond for all purposes, and payment of principal, interest or
purchase price shall be made only to or upon the written order of the holder or
the holder's legal representative.
(e) The Trustee will require the payment by a Bondholder
requesting exchange or transfer of any tax or other governmental charge
required to be paid in respect of the exchange or transfer but will not impose
any other charge.
(f) Notwithstanding the foregoing, for so long as the Bonds are
held under the Book-Entry System, transfers of beneficial ownership will be
effected pursuant to rules and procedures established by the Securities
Depository.
Section 2.08. Mutilated, Lost, Stolen or Destroyed Bonds. If any
Bond is mutilated, lost, stolen or destroyed, the Trustee will authenticate a
new Bond of the same denomination if any mutilated Bond shall first be
surrendered to the Trustee, and if, in the case of any lost, stolen or
destroyed Bond, there shall first be furnished to the Issuer, the Trustee, the
Bank and the Company evidence of such loss, theft or destruction, together with
an indemnity satisfactory to each of them to save each of them harmless from
all risks related thereto, however remote. If the Bond has matured, instead of
issuing a duplicate Bond, the Trustee may with the consent of the Company pay
the Bond without requiring surrender of the Bond and make such requirements as
the Trustee deems fit for its protection, including a lost instrument bond.
The Issuer, the Company and the Trustee may charge their reasonable fees and
expenses in this connection.
Section 2.09. Cancellation of Bonds. Whenever a Bond is delivered
to the Trustee for cancellation (upon payment, redemption or otherwise), or for
transfer, exchange or replacement pursuant to Section 2.07 or 2.08, the Trustee
will promptly cancel the Bond and deliver the
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canceled Bond or a certificate of destruction as appropriate to the Company at
its request. Upon cancellation of any tendered Bond by the Tender Agent, the
Tender Agent shall forward the canceled Bond to the Trustee.
Section 2.10. Temporary Bonds. Until definitive Bonds are ready
for delivery, the Issuer may execute and the Trustee or the Tender Agent will
authenticate temporary Bonds substantially in the form of the definitive Bonds,
with appropriate variations. The Issuer will, without unreasonable delay,
prepare and the Trustee or the Tender Agent will authenticate definitive Bonds
in exchange for the temporary Bonds. Such exchange shall be made by the
Trustee or the Tender Agent without charge.
Exchanges and transfers shall be made without charge to the
Bondholders; provided that in each case the Trustee shall require the payment
by the Bondholder requesting exchange or transfer of any tax or other
governmental charge required to be paid with respect thereto.
Section 2.11. Conditions Precedent to Authentication and Delivery
of Bonds. The Issuer shall execute and deliver the Bonds to the Trustee, and
the Trustee shall, upon receipt by the Trustee of those items specified in this
Section below, authenticate the Bonds (or cause the Tender Agent to
authenticate the Bonds) and deliver them to the persons set forth in the order
described in clause (iii) below. Prior to and as a condition precedent to the
authentication and delivery of the Bonds there shall be filed with and
delivered to the Trustee:
(i) a copy, duly certified by an authorized representative of
the Issuer, of the resolution adopted by the Issuer in accordance with
the Act authorizing the execution and delivery of this Indenture and
the issuance of the Bonds;
(ii) original duly executed and delivered counterparts of this
Indenture, the Agreement, the Guaranty and the Tax Agreement;
(iii) an opinion of Bond Counsel to the effect that Bonds
executed, authenticated and delivered as provided in this Indenture
will be duly and validly issued and will constitute valid and binding
limited obligations of the Issuer; and
(iv) the duly executed and delivered Initial Letter of Credit.
Section 2.12. Book-Entry System. (a) The Bonds shall be issued
pursuant to a Book-Entry System administered by the Securities Depository with
no physical distribution of Bond certificates to be made except as provided in
this Section 2.12. Any provision of this Indenture or the Bonds requiring
physical delivery of the Bonds shall, with respect to any Bonds held under the
Book-Entry System, be deemed to be satisfied by a notation on the registration
books maintained by the Trustee that such Bonds are subject to the Book-Entry
System.
(b) So long as a Book-Entry System is being used, one Bond in the
aggregate principal amount of the Bonds and registered in the name of the
Securities Depository Nominee will be issued and deposited with the Securities
Depository to be held in its custody. The Book-Entry System will be maintained
by the Securities Depository and the Participants and Indirect Participants and
will evidence beneficial ownership of the Bonds in Authorized Denominations,
with transfers of ownership effected on the records of the Securities
Depository, the Participants and
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Indirect Participants pursuant to rules and procedures established by the
Securities Depository, the Participants and the Indirect Participants. The
principal or purchase price of and any premium on each Bond shall be payable to
the Securities Depository Nominee or any other person appearing on the
registration books maintained by the Trustee as the registered Holder of such
Bond or his registered assigns or legal representative at the principal office
of the Trustee. So long as the Book-Entry System is in effect, the Securities
Depository will be recognized as the Holder of the Bonds for all purposes.
Transfers of principal, purchase price, interest and any premium payments or
notices to Participants and Indirect Participants will be the responsibility of
the Securities Depository, and transfers of principal, purchase price, interest
and any premium payments or notices to Beneficial Owners will be the
responsibility of the Participants and the Indirect Participants. No other
party will be responsible or liable for such transfers of payments or notices
or for maintaining, supervising or reviewing such records maintained by the
Securities Depository, the Participants or the Indirect Participants. While
the Securities Depository Nominee or the Securities Depository, as the case may
be, is the registered owner of the Bonds, notwithstanding any other provisions
set forth herein, payments of principal or purchase price of, redemption
premium, if any, and interest on the Bonds shall be made to the Securities
Depository Nominee or the Securities Depository, as the case may be, by wire
transfer in immediately available funds to the account of such Holder. Without
notice to or the consent of the Beneficial Owners, the Trustee, with the
consent of the Company and the Securities Depository may agree in writing to
make payments of principal, redemption price or purchase price and interest in
a manner different from that set out herein. In such event, the Trustee shall
make payments with respect to the Bonds in such manner as if set forth herein.
(c) With the consent of the Remarketing Agent, the Company may at
any time elect (i) to provide for the replacement of any Securities Depository
as the depository for the Bonds with another qualified Securities Depository,
or (ii) to discontinue the maintenance of the Bonds under a Book-Entry System.
In such event, the Company shall give 30 days' prior notice of such election to
the Securities Depository (or such fewer number of days as shall be acceptable
to such Securities Depository).
(d) Upon the discontinuance of the maintenance of the Bonds under
a Book-Entry System, the Issuer will cause Bonds to be issued directly to the
Beneficial Owners of Bonds, or their designees, as further described below. In
such event, the Trustee shall make provisions to notify Participants and the
Beneficial Owners of the Bonds, by mailing an appropriate notice to the
Securities Depository, or by other means deemed appropriate by the Trustee in
its discretion, that Bonds will be directly issued to the Beneficial Owners of
Bonds as of a date set forth in such notice, which shall be a date at least 10
days after the date of mailing of such notice (or such fewer number of days as
shall be acceptable to the Securities Depository).
(e) In the event that Bonds are to be issued to the Beneficial
Owners of the Bonds, or their designees, the Issuer, at the expense of the
Company, shall promptly have prepared Bonds in certificated form registered in
the names of the Beneficial Owners of Bonds shown on the records of the
Participants provided to the Trustee, as of the date set forth in the notice
described
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above. Bonds issued to the Beneficial Owners, or their designees, shall be in
fully registered form substantially in the form set forth in Exhibit A.
(f) If any Securities Depository is replaced as the depository for
the Bonds with another qualified Securities Depository, the Issuer, at the
expense of the Company, will issue to the replacement Securities Depository
Bonds substantially in the form set forth in Exhibit A, registered in the name
of such replacement Securities Depository.
(g) The Issuer, the Company, the Tender Agent, the Remarketing
Agent and the Trustee shall have no liability for the failure of any Securities
Depository to perform its obligation to any Participant, any Indirect
Participant or any Beneficial Owner of any Bonds, and the Issuer, the Company,
the Tender Agent, the Remarketing Agent or the Trustee shall not be liable for
the failure of any Participant, Indirect Participant or other nominee of any
Beneficial Owner of any Bonds to perform any obligation that such Participant,
Indirect Participant or other nominee may incur to any Beneficial Owner of the
Bonds.
(h) Notwithstanding any other provision of this Indenture, on or
prior to the date of issuance of the Bonds the Trustee shall have executed and
delivered to the initial Securities Depository a Letter of Representations
governing various matters relating to the Securities Depository and its
activities pertaining to the Bonds. The terms and provisions of such Letter
of Representations are incorporated herein by reference and, in the event there
shall exist any inconsistency between the substantive provisions of the said
Letter of Representations and any provisions of this Indenture, then, for as
long as the initial Securities Depository shall serve with respect to the
Bonds, the terms of the Letter of Representations shall govern.
(i) The Issuer, the Company, the Trustee and the Tender Agent may
rely conclusively upon (i) a certificate of the Securities Depository as to the
identity of the Participants in the Book-Entry System; (ii) a certificate of
any Participant as to the identity of any Indirect Participant and (iii) a
certificate of any Participant or Indirect Participant as to the identity of,
and the respective principal amount of Bonds beneficially owned by, the
Beneficial Owners.
ARTICLE III
REDEMPTION OF BONDS; PURCHASE AND REMARKETING OF BONDS
Section 3.01. Optional Redemption. The Bonds shall be subject to
optional redemption only as follows:
(a) Weekly Rate Mode, CP Rate Mode or Daily Rate Mode. While the
Bonds are in the Weekly Rate Mode or the Daily Rate Mode, the Bonds shall be
subject to optional redemption, in whole or in part on any Business Day, and
while the Bonds are in the CP Rate Mode each Bond in any given CP Rate Period
shall be subject to optional redemption in whole or in part on any Interest
Payment Date applicable to such Bond in said CP Rate Period, in all cases at
the direction of the Company, upon at least 35 days' prior written notice from
the Company to the Trustee, the Bank and the Remarketing Agent, at a redemption
price equal to 100% of the
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aggregate principal amount of the Bonds to be redeemed, plus accrued interest
thereon to the redemption date, without premium.
(b) Adjustable Rate Mode. While the Bonds are in the Adjustable
Rate Mode, the Bonds shall be subject to optional redemption, after the dates
specified in the table below, in whole or in part on any date at the direction
of the Company, upon at least 40 days' prior written notice from the Company to
the Trustee, the Bank and the Remarketing Agent, at the applicable redemption
price (expressed as a percentage of the principal amount to be redeemed) set
forth below, plus accrued interest thereon to the date of redemption:
LENGTH OF CURRENTLY
APPLICABLE ADJUSTABLE DATES AFTER WHICH REDEMPTION
RATE PERIOD IS ALLOWED AND
(expressed in whole years) REDEMPTION PRICES*
greater than 10 after 10 years at 102%, declining by 1%
annually to 100%
less than or equal to 10 and greater than 7 after 5 years at 102%, declining by 1%
annually to 100%
less than or equal to 7 and greater than 4 after 3 years at 102%, declining by 1%
annually to 100%
less than or equal to 4 not callable
The payment of any premium upon the optional redemption of Bonds shall
be made solely from Available Moneys.
Notwithstanding the foregoing, the Bonds when in an Adjustable Rate
Period may be subject to optional redemption upon terms different than those
set forth above (or not subject to optional redemption during such period) if
the Company delivers to the Trustee on or before the first day of such
Adjustable Rate Period a certificate specifying different optional redemption
dates or prices to be in effect during such period (or that the Bonds will not
be subject to optional redemption during such Period) and an opinion of Bond
Counsel to the effect that the adoption of such optional redemption provisions
would not adversely affect the exclusion of interest on the Bonds from the
Federal gross income of the holders thereof.
(c) Purchase in Lieu of Optional Redemption. The Company shall
have the option to cause the Bonds to be subject to mandatory tender and
purchase pursuant to Section 2.04 hereof in lieu of an optional redemption of
Bonds pursuant to Section 3.01(a) or (b) above. Such option may be exercised
by delivery by the Company to the Trustee and Remarketing Agent on or prior to
the Business Day preceding the optional redemption date of a written notice
specifying that all
---------------
* Measured from the start of the currently applicable Adjustable Rate
Period.
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of the Bonds shall not be redeemed, but instead shall be subject to mandatory
tender and purchase pursuant to Section 2.04 hereof. Upon delivery of such
notice, the Bonds shall not be redeemed but shall instead be subject to
mandatory tender pursuant to Section 2.04 hereof at a tender price equal to the
price at which the Bonds would have been redeemed on the date which would have
been the optional redemption date.
Section 3.02. Extraordinary Optional Redemption. While the Bonds
are in the Adjustable Rate Mode or the CP Rate Mode, the Bonds are subject to
extraordinary redemption in whole on any date at a redemption price equal to
the principal amount of outstanding Bonds plus accrued interest to the
redemption date without premium, upon the exercise by the Company of its option
to cause the Bonds to be redeemed as a result of the occurrence of any of the
events described below:
(1) the Project Facility has been damaged or destroyed to
such an extent that, in the judgment of the Company, (i) it cannot be
reasonably restored to substantially the condition thereof immediately
preceding such damage or destruction, (ii) the Company is thereby
prevented from carrying on normal operations at the Project Facility
for a period of nine or more consecutive months following such damage
or destruction, or (iii) it would not be economically feasible for the
Company to replace, repair, rebuild or restore the same;
(2) title in and to, or the temporary use of, all or
substantially all of the Project Facility has been taken under the
exercise of the power of eminent domain (or sold in lieu of such a
taking) by any governmental authority, or person acting under
governmental authority and such a taking or sale, in the judgment of
the Company, may result in the Company being prevented thereby from
carrying on normal operations at the Project Facility for a period of
nine or more consecutive months; or
(3) as a result of any changes in the Constitution of the
State or the Constitution of the United States of America or by
legislative or administrative action (whether state or federal) or by
final decree, judgment, decision or order of any court or
administrative body (whether state or federal), the Agreement has
become void or unenforceable or impossible of performance in
accordance with the intent and purposes of the parties as expressed
therein.
To exercise its option to effect an extraordinary optional redemption,
the Company must deliver to the Trustee written notice of the occurrence of any
such event and of its election to cause the Bonds to be redeemed as a result
thereof. Such notice shall specify the redemption date which shall be at least
40 days after the date of delivery of such notice to the Trustee.
Section 3.03. Mandatory Redemption. The Bonds are subject to
mandatory redemption in whole on the earliest redemption date for which timely
notice of redemption can be given by the Trustee after the occurrence of a
Determination of Taxability at a redemption price equal to the aggregate
outstanding principal amount of the Bonds plus accrued interest thereon to the
redemption date, without premium. The foregoing amount shall constitute the
total amount
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required to be paid to the Bondholders as a result of the occurrence of a
Determination of Taxability.
The Company shall have the option to cause the Bonds to be subject to
mandatory tender and purchase pursuant to the Indenture in lieu of an optional
redemption of Bonds. Such option may be exercised by delivery by the Company
to the Trustee and Remarketing Agent on or prior to the Business Day preceding
the optional redemption date of a written notice specifying that the Bonds
shall not be redeemed, but instead shall be subject to mandatory tender and
purchase. Upon delivery of such notice, the Bonds will not be redeemed but
will instead be subject to mandatory tender and purchase. Upon tender as
described herein, the Bonds shall be payable at a tender price equal to the
price at which the Bonds would have been redeemed on the date which would have
been the optional redemption date.
Section 3.04. Notice of Redemption. (a) At least 30 days prior to
the date of any redemption of the Bonds, the Trustee shall cause notice of the
call for redemption to be sent by first class mail, postage prepaid, to the
Tender Agent, the Bank, the Remarketing Agent, the Company and the Owner of
each Bond to be redeemed. In addition, such notice shall also be given (at
least two Business Days before the redemption notice described in the preceding
sentence) by registered, certified or overnight mail, to all registered
securities depositories then in the business of holding substantial amounts of
obligations of types comprising the Bonds and to one or more national
information services that disseminate notices of redemption of obligations such
as the Bonds. Neither the failure to give any such notice nor any defect in
any notice so mailed shall affect the sufficiency or the validity of any
proceedings for the redemption of the Bonds.
(b) The redemption notice shall identify the Bonds or portions
thereof to be redeemed and shall state (1) the date of said notice and the
redemption date, (2) the redemption price, (3) the original date of execution
and delivery of the Bonds to be redeemed, (4) the rate of interest borne by the
Bonds to be redeemed, (5) the date of maturity of the Bonds, (6) the numbers
and CUSIP numbers of the Bonds to be redeemed, (7) that the redemption price of
any Bond is payable only upon the surrender of the Bond to be Trustee at its
principal corporate trust office, (8) the address at which the Bonds must be
surrendered, (9) that interest on the Bonds called for redemption ceases to
accrue on the redemption date provided that, on such date, Available Moneys are
on deposit in the Bond Fund sufficient to pay the redemption price of the Bonds
in full, and (10) such additional descriptive information identifying the Bonds
to be redeemed, including their interest rate and stated maturity date as may
be deemed appropriate by the Trustee to effect the redemption.
Any notice of optional redemption shall also state that the Company
may elect that the Bonds be subject to mandatory tender and purchase in lieu of
optional redemption at a tender price equal to the redemption price. Any
notice of optional redemption may also state (and shall state, if the Company
shall so direct) that the redemption is conditioned on receipt of moneys for
such redemption by the Trustee on or prior to the redemption date; if such
moneys are not received, the redemption of the Bonds for which notice was given
shall not be made.
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Section 3.05. Effect of Deposit of Redemption Moneys. If on any
redemption date Available Moneys sufficient to pay in full the redemption price
of the Bonds called for redemption have been deposited with the Trustee and
shall be available to be utilized to pay the redemption price of such Bonds,
such Bonds shall no longer be secured by or be deemed to be Outstanding under
the provisions of this Indenture. Interest shall not continue to accrue on
such Bonds after the redemption date. If sufficient Available Moneys shall not
be on deposit on the redemption date, such Bonds or portions thereof shall
continue to bear interest until paid at the same rate as they would have borne
had they not been called for redemption.
Section 3.06. Partial Redemption. (a) Any partial redemption of
Bonds shall be made only in Authorized Denominations. If fewer than all of the
Bonds shall be called for redemption, the portion of Bonds to be redeemed shall
be selected by lot by the Trustee from among all Outstanding Bonds; provided
that the Trustee shall first select Pledged Bonds and Company Bonds for
redemption. Each Bond shall be considered separate Bonds in Authorized
Denominations for purposes of selecting the Bonds to be redeemed. Subject to
the provisions of the Bonds with respect to the Book-Entry System, if any Bond
shall be called for redemption only in part, then the Owner of such Bond, upon
surrender of such Bond to the Trustee for payment, shall be entitled to receive
a new Bond or Bonds in the aggregate principal amount of the unredeemed balance
of the principal amount of such Bond, without charge therefor.
(b) If the Owner of any Bond which is called for redemption only
in part shall fail to present such Bond to the Trustee for payment and exchange
as aforesaid, such Bond shall, nevertheless, become due and payable on the date
fixed for redemption, to the extent called for redemption (and to that extent
only) and to such extent such Bond shall no longer be deemed to be Outstanding
for purposes of this Indenture.
(c) Notwithstanding the foregoing, if the Bonds are held in the
Book-Entry System at the time of a partial redemption of the Bonds, beneficial
ownership interests in the series of Bonds shall be selected for redemption in
accordance with the rules and procedures established by the Securities
Depository.
Section 3.07. Purchase of Tendered Bonds. (a) In performing their
duties hereunder, the Tender Agent and the Remarketing Agent shall act as
agents of (i) the persons to whom purchased Bonds are to be delivered pursuant
to Section 3.10, (ii) persons tendering such Bonds, and (iii) the Company, and
shall not be considered to be purchasing Bonds for their own account and, in
the absence of written notification from the Trustee to the contrary, shall be
entitled to assume that any Bond tendered or deemed tendered to the Remarketing
Agent or the Tender Agent for purchase is entitled under the Indenture to be so
purchased. No acceptance of Bonds by the Tender Agent or the Remarketing Agent
hereunder shall effect any merger or discharge of the indebtedness of the
Issuer evidenced by the Bonds. The Tender Agent and the Remarketing Agent
shall accept all Bonds properly tendered for purchase in accordance with the
provisions of the Bonds and as set forth in this Indenture.
(b) During any period that no Book-Entry System for the Bonds is
in effect, a Tender Agent shall be appointed as provided in Section 7.11
hereof. Immediately upon the effectiveness
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of such appointment, the Tender Agent shall establish a special trust fund
designated as the "Counties of ▇▇▇▇▇▇ and Washington Industrial Development
Agency Industrial Development Revenue Bonds (▇▇▇▇▇▇▇▇ Micro Science, Inc.
Project), Series 1994-Purchase Fund" (the "Purchase Fund"). The Tender Agent
shall hold all Bonds delivered to it in trust for the exclusive benefit of the
respective Owners of Bonds tendering such Bonds for sale until moneys
representing the purchase price of such Bonds have been delivered to or for the
account of such Owners of Bonds. Pledged Bonds, registered in the name of the
Company pursuant to Section 3.10 hereof shall be held in trust for the
exclusive benefit of the Bank. The Tender Agent shall hold all moneys
delivered to it for the purchase of Bonds in the Purchase Fund in trust, solely
for the benefit of the persons delivering such moneys until the Bonds purchased
with such moneys have been delivered to or for the account of such persons and
thereafter solely for the benefit of the persons entitled to such moneys.
Moneys held in the Purchase Fund shall not be invested. The Issuer and the
Trustee hereby authorize and direct the Tender Agent to withdraw sufficient
funds from the Purchase Fund to pay the purchase price of tendered Bonds as the
same becomes due and payable, which authorization and direction the Tender
Agent accepts.
(c) During any period the Bonds are held in a Book-Entry System,
the purchase price of tendered Bonds, (i) if derived from the source described
in Section 3.09(a), shall be paid on the tender date by the Remarketing Agent
from moneys received from the purchaser of the remarketed Bonds, and (ii) if
derived from any of the sources described in Section 3.09(b), 3.09(c) or
3.09(d) shall be paid on the tender date by the Trustee from moneys drawn on
the Letter of Credit or received from the Company, as the case may be. Moneys
received and held by the Remarketing Agent shall be held uninvested, in
separate accounts according to the source of such moneys.
Section 3.08. Remarketing of Tendered Bonds; Payment of Purchase
Price. (a) The Remarketing Agent shall use its best efforts to remarket
tendered Bonds of which it has received notice of tender from the Tender Agent
(or Beneficial Owners, as the case may be), at a price equal to 100% of the
principal amount thereof plus accrued interest to the purchase date. Such
remarketing shall be made in accordance with, and subject to the conditions of,
the provisions of the Remarketing Agreement. Bonds which have been duly
tendered for purchase and which have not been remarketed shall be purchased on
the tender date with the proceeds of an appropriate draw under the Letter of
Credit; provided however, (i) during any period the Bonds are not secured by a
Letter of Credit, or (ii) if the Bank shall fail to honor a draw on the Letter
of Credit to provide for the purchase price of tendered Bonds, then such Bonds
will be purchased by the Company on the tender date.
(b) Upon receipt of a duly tendered written notice of an optional
tender of Bonds, the Tender Agent shall notify, in writing, the Remarketing
Agent, the Company and the Trustee of the principal amount of Bonds tendered
and the date fixed for purchase of the tendered Bonds. During any period the
Bonds are in the Book-Entry System, such notice will be given, in writing, by
the Remarketing Agent to the Company and the Trustee.
(c) Prior to 4:00 p.m. on the Business Day which immediately
precedes the purchase date for any Bonds (or, in the case of Bonds in the Daily
Rate Mode, prior to 11:00 a.m. on the
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purchase date of such Bonds), the Remarketing Agent shall give notice to the
Tender Agent (if the Bonds are not then held in the Book-Entry System), the
Company and the Trustee of the principal amount of such Bonds which have been
remarketed, the names, addresses and taxpayer identification numbers of the
purchasers of such Bonds and the denominations in which the Bonds are to be
purchased by and delivered to each purchaser. If less than all of the Bonds
to be tendered on such purchase date have been remarketed, the Remarketing
Agent shall, in addition, notify the Trustee, the Tender Agent (if the Bonds
are not then held in the Book-Entry System) and the Company prior to 10:30 a.m.
(or, in the case of Bonds in the Daily Rate Mode. 11:00 a.m.) on the purchase
date of the principal amounts of Bonds which have and which have not been
remarketed and the amount of accrued interest to be paid on such Bonds on such
purchase date. Purchasers of Bonds which have been remarketed shall be
required to deliver the purchase price thereof directly to the Tender Agent for
deposit in the Purchase Fund (or, during any period the Bonds are in the
Book-Entry System, such moneys shall be transferred to the account of the
Remarketing Agent on the records of the Securities Depository) not later than
10:30 a.m. (or, in the case of Bonds in the Daily Rate Mode, 11:00 a.m.), on
the purchase date. By 11:00 a.m., on the purchase date, the Tender Agent shall
notify the Trustee, the Remarketing Agent, the Company and the Bank, by
telephone, promptly confirmed in writing, of any Bonds which have been
remarketed for which payment has not been received and the amount of
remarketing proceeds which have been received. During any period the Bonds are
in the Book-Entry System, such notice shall be given by the Remarketing Agent.
(d) Prior to 11:30 a.m., on any purchase date (whether optional or
mandatory), the Trustee shall draw upon the Letter of Credit, in an amount
equal to the purchase price of all Bonds to be purchased on such purchase date,
less the amount of remarketing proceeds of which the Trustee has notice were
deposited with the Tender Agent (or the Remarketing Agent during any period the
Bonds are in the Book-Entry System) by 11:00 a.m., on such date. In the event
of a draw on the Letter of Credit upon a mandatory tender due to a substitution
of an Alternate Credit Facility, the draw shall be made upon the Letter of
Credit being replaced. If the Bonds are not then secured by a Letter of
Credit, by 1:30 p.m. on the purchase date for any Bonds, the Tender Agent (or
the Trustee during any period the Bonds are in the Book-Entry System) shall
receive from the Company, pursuant to Section 4.2(b) of the Agreement, an
amount equal to the purchase price of all Bonds to be purchased on such date,
less the amount of remarketing proceeds of which the Trustee has notice were on
deposit with the Tender Agent or the Remarketing Agent, as the case may be, by
11:00 a.m. on such date. No draw on the Letter of Credit shall be made with
respect to Pledged Bonds or Company Bonds.
(e) The Trustee shall, to the extent it has drawn moneys under the
Letter of Credit for the purchase of Bonds, authorize direct payment by the
Bank to the Tender Agent (or, during any period the Bonds are in the Book-Entry
System, to the payee specified by the Securities Depository) of the moneys so
drawn.
(f) Notices pursuant to this Section shall be by telephone, tested
telecopy (receipt confirmed by telephone), telefacsimile transmittal or
telegram, promptly confirmed in writing, except that any drawing under the
Letter of Credit shall be in accordance with the terms thereof.
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(g) Anything in this Indenture to the contrary notwithstanding,
there shall be no obligation on the part of the Remarketing Agent to remarket
Bonds (i) if there shall have occurred and be continuing an Event of Default
under this Indenture or a Determination of Taxability, or (ii) which are
subject to mandatory tender hereunder, except as the Remarketing Agent and the
Company have otherwise agreed in the Remarketing Agreement.
(h) Any Bond optionally tendered for purchase after the date on
which such Bond has been selected for redemption or the Trustee has notified
the Bondholders of pendency of a conversion of the interest rate Mode of the
Bonds shall not be remarketed unless the purchaser has been notified by the
Trustee of the redemption or the interest rate Mode conversion, as appropriate.
Any purchaser so notified must deliver a notice to the Trustee and the Tender
Agent (or, during any period the Bonds are in the Book-Entry System, to the
Remarketing Agent) stating that such purchaser is aware of the pendency of the
redemption or of the interest rate Mode conversion, as appropriate, and
agreeing not to resell the Bonds prior to the date of such redemption or
conversion, as the case may be.
Section 3.09. Funds for Purchase Price of Bonds. On the date
Bonds are to be purchased pursuant to the optional or mandatory tender
provisions of this Indenture, the Tender Agent shall deliver the purchase price
to the tendering Bondholder (or, if the Bonds are in a Book-Entry System, the
Remarketing Agent or the Trustee, as appropriate, shall deliver the purchase
price to the appropriate payee on the records of the Securities Depository),
but only from the funds listed below, in the order of priority indicated:
(a) the proceeds of the sale of such Bonds which have
been remarketed by the Remarketing Agent to any person other than the
Company or the Issuer (or any "insider" of the Company or the Issuer
within the meaning of the Bankruptcy Code) which have been delivered
to the Tender Agent or the Remarketing Agent by 11:00 a.m., New York
time, on the purchase date;
(b) moneys drawn under the Letter of Credit;
(c) moneys deposited by the Company with the Trustee
pursuant to Section 4.2(b) of the Agreement: and
(d) moneys paid by the Company pursuant to Section 2.1(c)
of the Guaranty.
Section 3.10. Delivery of Purchased Bonds. The Tender Agent shall
make available by 2:00 p.m. on the purchase date of any tendered Bonds (whether
such tender was optional or mandatory), at its principal office in New York
City, Bonds which have been purchased with moneys described in Section 3.09(a)
for receipt by the purchaser thereof, which Bonds shall be authenticated by the
Tender Agent. Bonds purchased with moneys described in Section 3.09(a) shall
be registered in the manner directed by the Remarketing Agent and delivered to
the Remarketing Agent for redelivery to the purchasers thereof. Bonds
purchased with moneys described in Section 3.09(b) shall be delivered by the
Tender Agent to the Trustee, and registered by the Trustee in the name of the
Company indicating their status as Pledged Bonds (or if the Bonds are held in
the Book-Entry System, such Bonds shall be recorded in the books of the
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Securities Depository for the account of the Trustee and shall be deemed to be
pledged to the Bank). Bonds purchased with moneys described in Section 3.09(c)
or (d) hereof shall be registered in the name of the Company and delivered to
the Company.
Notwithstanding anything herein to the contrary, so long as the Bonds
are held under the Book-Entry System, Bonds will not be delivered as set forth
in the preceding paragraph; rather, transfers of beneficial ownership of the
Bonds to the persons indicated above will be effected pursuant to its rules and
procedures established by the Securities Depository.
Section 3.11. Pledged Bonds. If any Bond is purchased pursuant to
Section 3.07 hereof with moneys drawn under the Letter of Credit pursuant to
Section 3.09(b) hereof, if no Book-Entry System is then in effect, that Bond
shall be delivered to and held by the Trustee, registered in the name of the
Company and shall constitute a Pledged Bond until released as herein provided.
A Pledged Bond so held by the Trustee shall be released only upon receipt by
the Trustee or the Bank of an amount equal to the principal amount thereof plus
accrued interest, if any, thereon to the date of purchase and receipt by the
Trustee of written confirmation from the Bank of the reinstatement of the
amounts available to be drawn under the Letter of Credit to cover the full
principal amount of all Outstanding Bonds, plus Adequate Interest Coverage. If
a Book-Entry System is then in effect, Bonds purchased with Letter of Credit
proceeds pursuant to Section 3.09(b) hereof shall be reflected on the records
of the Securities Depository as being held for the account of the Trustee, and
the Trustee agrees that it shall hold such Bonds solely for the benefit of the
Bank. While a Book-Entry System is in effect, the Trustee shall cause the
release of such Bonds from its account on the records of the Securities
Depository only under the conditions for release of Pledged Bonds set forth
above in this paragraph.
During the Daily Rate Mode, CP Rate Mode and the Weekly Rate Mode, the
Remarketing Agent shall use its best efforts to remarket Pledged Bonds in
accordance with the provisions of the Offering Agreement. If the Remarketing
Agent remarkets any Pledged Bond, the Remarketing Agent shall give the notice
described in the first sentence of Section 3.08(c) hereof, and shall direct the
purchaser of such Pledged Bond to transfer, by 10:00 a.m. (or, in the case of
Bonds in the Daily Rate Mode, 11:00 a.m.) on the purchase date, the purchase
price of such remarketed Pledged Bond to the Bank, with notice thereof to the
Company and the Trustee. The Remarketing Agent shall deliver remarketed
Pledged Bonds to the purchasers thereof in accordance with Section 3.10 hereof.
On each Interest Payment Date prior to the release of Pledged Bonds,
the Trustee shall apply moneys in the Non-Available Moneys Account of the Bond
Fund to the payment of principal of and interest on such Pledged Bonds, but
shall not draw on the Letter of Credit or use moneys in the Letter of Credit
Account of the Bond Fund for such purpose to any extent whatsoever; and the
Trustee shall receive for the account of the Bank the interest and principal
paid in respect of such Pledged Bonds, and immediately upon such receipt the
Trustee shall pay such interest and principal over to the Bank pursuant to
written wire transfer instructions acceptable to the Trustee; provided,
however, that if at such time the Trustee has been notified in writing by the
Bank that there shall not remain any amount due and owing to the Bank under the
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Reimbursement Agreement, such interest and principal payments shall be paid
over to the Company.
It is recognized and agreed by the Trustee that while it holds Pledged
Bonds, such Pledged Bonds are held by the Trustee for the benefit of the Bank
as a first priority secured creditor.
Notwithstanding anything herein to the contrary, so long as the Bonds
are held under the Book-Entry System, Pledged Bonds shall not be delivered to
and held by the Trustee; rather transfers of beneficial ownership of Bonds to
the persons indicated above will be effected pursuant to the rules and
procedures established by the Securities Depository.
ARTICLE IV
GENERAL PROVISIONS
Section 4.01. Payment of Principal, Premium, If Any, and Interest.
The Issuer covenants that it will duly and punctually pay or cause to be paid
the principal of, premium, if any, and interest on the Bonds issued under this
Indenture at the place, on the dates and in the manner provided herein and
therein according to the true intent and meaning hereof and thereof, but solely
from the payments, revenues and receipts specifically assigned herein for such
purposes as set forth in Section 5.02 of this Indenture.
Section 4.02. Instruments of Further Assurance. (a) The Issuer
covenants that it will, at the expense of the Company, execute and deliver such
indentures supplemental hereto and such further acts, instruments and transfers
as the Trustee or the Bank reasonably may require for the better and more
effectual assignment to the Trustee of all payments, revenues and other amounts
payable under or with respect to the Agreement, the Letter of Credit and any
other income and other moneys assigned hereby to the payment of the principal
of, premium, if any, and interest on the Bonds. The Issuer further covenants
that it will not create or, to its knowledge, suffer to be created any lien,
encumbrance or charge upon its interest in the revenues and other amounts
payable under or with respect to the Trust Estate, except the lien and charge
granted hereby.
(b) The Company shall record and file financing statements and all
supplements thereto, and such other instruments (including, but not limited to,
continuation statements) as may be required from time to time by the Issuer,
the Bank or the Company to be recorded or filed, in such manner and at such
places as from time to time may be required by law in order fully to preserve
and protect the security of the Owners of the Bonds and the Bank, and the
rights of the Trustee hereunder.
Section 4.03. Tax-Exempt Status of Bonds. The Issuer and the
Trustee each covenant to commit or suffer no act within their control that
would alter the status or character of the Bonds, or the interest to be paid on
the Bonds, for purposes of Federal income taxation. The provisions of this
Section shall apply to the Trustee only to the extent that the Trustee is
acting hereunder in its sole discretion. Toward that end, the Issuer and the
Trustee agree that they will comply with and take all actions required by the
Tax Agreement.
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Section 4.04. Books, Records and Accounts. The Trustee agrees to
keep proper books for the registration of, and transfer of ownership of, each
Bond, and proper books, records and accounts in which complete and correct
entries shall be made of all transactions relating to the receipt,
disbursement, investment, allocation and application of the proceeds received
from the sale of the Bonds, the revenues received from the Agreement, the
documents executed by the Company in connection therewith, the Letter of
Credit, the funds and accounts created pursuant to this Indenture, and all
other moneys held by the Trustee hereunder. The Trustee shall, during regular
business hours and upon reasonable prior notice, make such books, records and
accounts available for inspection by the Issuer, the Company, the Bank and the
Bond Owners.
Section 4.05. Notice to Rating Agencies. The Trustee shall
provide each Rating Agency then rating the Bonds, if the Bonds are then rated,
with prompt written notice following the effective date of (a) the appointment
of any successor Trustee, Tender Agent or Remarketing Agent, (b) any change in
the identity of any Bank, (c) any supplements or amendments to this Indenture
or the Agreement, (d) the termination, expiration, extension or amendment of
the Letter of Credit, (e) the payment in full of all of the Bonds, (f) any
mandatory tender of the Bonds (which notice shall be given at least 25 days
prior to the mandatory tender date), (g) when the Bonds are no longer to be
held in the Book-Entry System or (h) any conversion to a new Mode. Each notice
to the Rating Agencies hereunder shall be directed to the respective addresses
provided by the Rating Agencies.
ARTICLE V
REVENUES AND FUNDS; LETTER OF CREDIT
Section 5.01. Application of Original Proceeds of Bonds. The
proceeds of the sale of the Bonds shall be deposited by the Trustee on the
Closing Date in the Construction Fund.
Section 5.02. Creation of Bond Fund. There is hereby created by
the Issuer and ordered established with the Trustee a trust fund to be
designated the "Counties of ▇▇▇▇▇▇ and Washington Industrial Development Agency
(▇▇▇▇▇▇▇▇ Micro Science, Inc. Project), Series 1994 Bond Fund" (the "Bond
Fund"). Within the Bond Fund there are hereby created by the Issuer and
ordered established with the Trustee three separate and segregated trust
accounts to be designated, respectively, (a) the "Available Moneys Account,"
(b) the "Non-Available Moneys Account" and (c) the "Letter of Credit Account".
There shall be deposited into the Bond Fund when received: (a) all
payments specified in Section 4.2(a) of the Agreement or Sections 2.1(a) or (b)
of the Guaranty; (b) all moneys required to be so deposited in connection with
any redemption of Bonds; (c) all moneys drawn by the Trustee under the Letter
of Credit to pay interest, premium, if any, principal or the redemption price
of any Bonds; (d) any amounts directed to be transferred into the Bond Fund
pursuant to any provision of this Indenture; and (e) all other moneys when
received by the Trustee which are required to be deposited into the Bond Fund
or which are accompanied by directions that such moneys are to be paid into the
Bond Fund. Any amounts paid to the Trustee which do not constitute Available
Moneys shall be held in the Non-Available Moneys Account and shall not be
commingled with any other moneys held by the Trustee. At such time as
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moneys in the Non-Available Moneys Account shall constitute Available Moneys,
they shall be transferred to the Available Moneys Account. Any amounts drawn
under the Letter of Credit shall be held in the Letter of Credit Account and
shall not be commingled with any other moneys held by the Trustee. Any amounts
received for deposit in the Bond Fund which constitute Available Moneys (other
than amounts drawn under the Letter of Credit), and any amounts deposited in
the Non-Available Moneys Account which at a later date become Available Moneys,
shall be held in the Available Moneys Account and shall not be commingled with
any other moneys held by the Trustee.
Section 5.03. Letter of Credit; Alternate Credit Facility. (a)
Initial Letter of Credit. The Initial Letter of Credit shall be delivered to
the Trustee simultaneously with the original issuance and delivery of the
Bonds.
(b) Alternate Credit Facility. The Company may at any time
substitute an Alternate Credit Facility for an existing Letter of Credit,
subject to the limitations set forth in this Article V. An Alternate Credit
Facility shall be an irrevocable letter of credit, bank bond purchase
agreement, bond insurance policy, revolving credit agreement, surety bond or
other agreement or instrument under which any person or entity (other than the
Issuer or the Company) undertakes to make or provide funds to make payments of
the principal and purchase price of, and interest on, the Bonds, as and when
due, provided that the Alternate Credit Facility must be effective as of a date
on or prior to the date of expiration of the then existing Letter of Credit and
must provide coverage in an amount at least equal to the sum of (A) the
aggregate principal amount of Bonds (other than Pledged Bonds or Company Bonds)
at the time Outstanding, plus (B) Adequate Interest Coverage.
Pursuant to Section 2.04 of this Indenture, if an Alternate Credit
Facility is furnished, the Bonds shall be subject to mandatory tender unless
the Company furnishes the Trustee by the 25th day prior to the scheduled Letter
of Credit expiration or termination date written evidence from each Rating
Agency having a rating in effect for the Bonds that the Rating Agency has
reviewed the proposed Alternate Credit Facility and that its replacement of the
current Letter of Credit will not by itself result in a withdrawal or reduction
of the Rating Agency's current rating for the Bonds (a "Maintenance of
Rating"). Notwithstanding the foregoing, when the Bonds are in the Adjustable
Rate Mode or the CP Rate Mode, an existing Letter of Credit may not be replaced
prior to the expiration date of the then applicable Rate Period or all then
applicable CP Rate Periods, as the case may be, with an Alternate Credit
Facility unless either (a) the Trustee is furnished with evidence of a
Maintenance of Rating by the date described above (in which case the Bonds will
not be subject to mandatory tender as a result thereof) or (b) in the event
evidence of Maintenance of Rating is not received, the substitution occurs on a
date on or after which the Bonds may be optionally redeemed pursuant to the
Indenture and the mandatory tender price payable upon the mandatory tender of
Bonds as a result of such substitution includes a premium equal to the
redemption premium at that time payable pursuant to the optional redemption
provisions of this Indenture.
The Company shall notify the Trustee of its intention to deliver an
Alternate Credit Facility at least 25 days prior to the date of such delivery.
Upon receipt of such notice, the
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Trustee will promptly mail a notice of the anticipated delivery of the
Alternate Credit Facility by first class mail to the Issuer, the Remarketing
Agent and each Bondholder at the holder's registered address.
On or prior to the delivery of any Alternate Credit Facility to the
Trustee, the Company shall furnish to the Trustee (i) a written opinion of
counsel acceptable to the Trustee stating that delivery of such Alternate
Credit Facility to the Trustee is authorized under the Agreement and this
Indenture, and complies with the terms hereof and thereof, and (ii) an opinion
of counsel to the issuer of such Alternate Credit Facility to the effect that
the Alternate Credit Facility is a valid and binding obligation of the Bank,
enforceable in accordance with its terms, subject to usual exceptions relating
to bankruptcy and insolvency. In addition, if the Alternate Credit Facility is
issued in connection with a conversion of the interest rate Mode on the Bonds
or if the Company grants a security interest in any cash, securities or
investment type property to the issuer or provider of the Alternate Credit
Facility, the Company must furnish the Trustee an opinion of Bond Counsel
stating that such grant will not adversely affect the exclusion of interest on
the Bonds from federal gross income of the owners thereof.
(c) Release of Letter of Credit. The Company may at any time
during a Daily Rate Mode or a Weekly Rate Mode or, subject to the limitations
described below, during a CP Rate Mode or Adjustable Rate Mode, direct the
Trustee to release an existing Letter of Credit and surrender such Letter of
Credit to the Bank without substituting an Alternate Credit Facility therefor.
If the Bonds are then in the CP Rate Mode or Adjustable Rate Mode, the Company
may direct such a release only on a date on which all Bonds may be optionally
redeemed pursuant to this Indenture. Upon any such direction, subject to the
limitations set forth above, the Trustee shall release the Letter of Credit and
surrender it to the Bank. Upon such release, the Bonds shall be subject to
mandatory tender and, if the Bonds are then in the CP Rate Mode or the
Adjustable Rate Mode, the mandatory tender price payable upon the mandatory
tender of Bonds as a result of the release of the existing Letter of Credit
shall include a premium equal to the redemption premium, if any, at the time
payable pursuant to the optional redemption provisions of the Indenture.
The Company shall notify the Trustee of its intention to release the
existing Letter of Credit at least 25 days prior to the date of such release.
Upon receipt of such notice, the Trustee shall promptly mail a notice of the
anticipated release of the existing Letter of Credit by first class mail to the
Issuer and the Remarketing Agent and shall mail notice to each Bondholder.
Such notice shall specify that the Letter of Credit will not be replaced by any
Alternate Credit Facility and, as a result thereof, the Bonds will be subject
to mandatory tender on the 2nd Business Day prior to the date of such release.
(d) Surrender of Letter of Credit. If at any time there shall
have been delivered to the Trustee an Alternate Credit Facility, together with
the other documents and opinions required by this Article V, then the Trustee
shall accept such Alternate Credit Facility and promptly surrender the
previously held Letter of Credit to the issuer thereof, in accordance with the
terms thereof for cancellation. If at any time there shall cease to be any
Bonds Outstanding under this Indenture, or if the Letter of Credit expires in
accordance with its terms, the Trustee shall
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promptly surrender the Letter of Credit to the issuer thereof, in accordance
with the terms thereof, for cancellation. The Trustee shall comply with the
procedures set forth in the Letter of Credit relating to the termination
thereof.
(e) Federal Income Tax Requirements Pertaining to Substitutions of
Letters of Credit Upon Certain Mode Conversions. The CP Rate Mode, the Daily
Rate Mode, the Weekly Rate Mode and each Adjustable Rate Period of one year or
less shall be referred to as a "Short-Term Mode" and each Adjustable Rate
Period of greater than one year's duration shall be referred to as a "Long-Term
Mode." Upon any conversion or change from a Short-Term Mode to a Long-Term Mode
or from a Long-Term Mode to a Short-Term Mode, if the Company then proposes to
either (i) add a Letter of Credit where none was then in effect, (ii) terminate
a Letter of Credit then in effect without replacing it with an Alternate Credit
Facility or (iii) terminate an existing Letter of Credit and substitute an
Alternate Credit Facility issued by a different Bank, the following shall
apply:
(A) If the change or conversion is from a Long-Term Mode
to a Short-Term Mode, the Bonds shall be supported by a Letter of
Credit issued by an entity with the highest generic (i.e., without
regard to "+" or "-" symbols) short-term rating on the effective date
of such change or conversion by the Rating Agency then rating the
Bonds.
(B) If the change or conversion is from a Short-Term Mode
to an Adjustable Rate Period of greater than or equal to one but less
than five years' duration, the Bonds shall be supported by a Letter of
Credit issued by an entity with a "AA" long-term rating (or its
equivalent) on the effective date of such change or conversion by the
Rating Agency then rating the Bonds.
(C) If the change or conversion is from a Short-Term Mode
to an Adjustable Rate Period of greater than or equal to five years'
duration, the Bonds shall not be supported by any Letter of Credit for
at least the duration of the Adjustable Rate Period to which the Bonds
are being converted.
Notwithstanding any of the foregoing provisions of this Section
5.03(d), the Bonds may or may not be supported by a Letter of Credit in
contravention of such provisions if there is delivered to the Trustee prior to
the date of any such change or conversion an opinion of Bond Counsel to the
effect that the deviation from the provisions of this Section 5.03 will not
adversely affect the exclusion from federal gross income of interest on the
Bonds.
Section 5.04. Letter of Credit Draws and Bond Fund Moneys to Pay
Principal, Premium or Interest. (a) On or before each Interest Payment Date,
redemption date, and date on which principal shall be due and payable on the
Bonds, whether at maturity or upon acceleration, the Trustee shall draw under
the Letter of Credit, (if then in effect) an amount which shall be sufficient
for the purpose of paying the principal of, premium, if any (if the Letter of
Credit then covers premium) and interest due and payable on the Bonds (other
than Pledged Bonds and Company Bonds) on such payment date. Such drawing shall
be made in a timely manner under the terms of the Letter of Credit in order
that the Trustee may realize funds thereunder in sufficient time to pay
Bondholders on the payment date as provided herein (and if the Bonds are
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then held in a Book-Entry System, to pay the Securities Depository in a timely
manner as required by its rules and procedures). All amounts derived by the
Trustee with respect to the Letter of Credit shall be deposited in the Letter
of Credit Account of the Bond Fund upon receipt thereof by the Trustee, as
provided in Section 5.03. If no Letter of Credit is then in effect, by 11:00
a.m. on any Interest Payment Date, redemption date, acceleration date, or the
maturity date of the Bonds, as the case may be, the Trustee shall receive from
the Company pursuant to Section 4.2(a) of the Agreement the full amount of
principal of, premium, if any, and interest due on, the Bonds on that date.
(b) The Issuer hereby authorizes and directs the Trustee to
withdraw sufficient funds from the Letter of Credit Account of the Bond Fund to
pay the principal of, premium, if any, and interest on, the Bonds as the same
become due and payable; and, in the event of a default under the Letter of
Credit, or at such time as no Letter of Credit secures the Bonds, to use all
moneys then on deposit, first in the Available Moneys Account, and thereafter
the Non-Available Moneys Account, of the Bond Fund to pay principal of,
premium, if any, and interest on, the Bonds, which authorization and direction
the Trustee hereby accepts. On any date on which moneys are to be disbursed
from the Bond Fund pursuant to the preceding sentence, if moneys remain in the
Bond Fund after such disbursement, such remaining moneys shall be disbursed to
the Bank to the extent amounts are then owed to the Bank pursuant to the
Reimbursement Agreement. The Trustee may rely on a certificate from the Bank
which certifies the amounts owed under the Reimbursement Agreement at any time.
Section 5.05. Investment of Moneys. Subject to the restrictions
hereinafter set forth in this Section 5.05 and in the Tax Agreement, any moneys
held in the Non-Available Moneys Account of the Bond Fund and the Construction
Fund shall be invested and reinvested by the Trustee upon the written
instructions of the Company in Qualified Investments, maturing no later than
the date on which it is estimated that such moneys will be required to be paid
out hereunder. Moneys held in the Available Moneys Account of the Bond Fund
shall be invested and reinvested solely in Government Obligations, maturing no
later than the date on which such moneys will be required to be paid out
hereunder. Moneys held in the Purchase Fund and the Letter of Credit Account
and moneys held pursuant to Section 5.06 hereof shall not be invested. The
Trustee may make any and all such investments through its own investment
department, or through any of its affiliates or subsidiaries. The Trustee
shall be entitled to rely on all written investment instructions provided by
the Company hereunder, and shall have no duty to monitor the compliance thereof
with the restrictions set forth in this Section 5.05 or in the Tax Agreement.
The Trustee, when authorized by the Company, may trade with itself in the
purchase and sale of securities for such investment. The Trustee shall not be
responsible or liable for the performance of any such investments or for
keeping the moneys held by it hereunder fully invested at all times other than
in accordance with the instructions of the Company. Absent the provision of
investment instructions hereunder, the Trustee shall not make any investment of
the moneys held pursuant hereto; provided, however, that the Trustee shall
notify the Company in the event any moneys are being held uninvested pursuant
hereto. Any obligations acquired by the Trustee as a result of such investment
or reinvestment shall be held by or under the control of the Trustee and shall
be deemed to constitute a part of the Fund or Account from which the moneys
used for its purchase were taken. All investment income shall be retained in
the Fund or
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Account to which the investment is credited from which such income is derived.
Although the Issuer recognizes that it may obtain a broker confirmation or
written statement containing comparable information at no additional cost, the
Issuer hereby agrees that confirmations of investments made by the Trustee
pursuant to this Section 5.05 are not required to be issued by the Trustee for
each month in which a monthly statement is rendered. No such statement need by
rendered pursuant to the provisions hereof if no activity occurred in the fund
or account during such preceding month.
Section 5.06. Moneys to Be Held in Trust; Nonpresentment of Bonds.
(a) All moneys required to be deposited with or paid to the Trustee for the
account of any Fund or Account under any provisions of this Indenture shall be
held by the Trustee in trust, and, except for moneys deposited with or paid to
the Trustee for redemption of Bonds, notice of the redemption for which has
been duly given, shall, while held by the Trustee, constitute part of the Trust
Estate and be subject to the security interest created hereby.
(b) In the event any Bond shall not be presented for payment when
the principal thereof becomes due, either at maturity or otherwise, or at the
date fixed for redemption thereof, if Available Moneys sufficient to pay such
Bond shall have been deposited in the Bond Fund, all liability of the Issuer to
the owner thereof for the payment of such Bond shall forthwith cease, determine
and be completely discharged, and thereupon it shall be the duty of the Trustee
to hold such moneys, without liability for interest thereon, for the benefit of
the owner of such Bond who shall thereafter be restricted exclusively to such
moneys, for any claim of whatever nature on his part under this Indenture or
on, or with respect to, said Bond. Such moneys shall be held in a separate and
segregated fund and shall not be invested.
(c) Any moneys so deposited with and held by the Trustee not so
applied to the payment of Bonds for at least two years after the date on which
the same shall have become due shall then be paid by the Trustee to the Bank,
upon the written direction of the Bank that amounts are due and owing the Bank
under the Reimbursement Agreement, or in any other event, to the Company upon
the written direction of the Company. Thereafter Bondholders shall be entitled
to look only to the Company for payment, the Company shall not be liable for
any interest thereon and shall not be regarded as a trustee of such moneys, and
the Trustee shall have no further responsibilities with respect to such moneys.
(d) The obligation of the Trustee under this Section to pay any
such funds to the Company shall be subject, however, to any provisions of law
applicable to the Trustee or to such funds providing other requirements for
disposition of unclaimed property.
Section 5.07. Repayment from Indenture Funds. Any amounts
remaining in any Fund or Account created under this Indenture, after payment,
or provision for payment, in full of the Bonds in accordance with Article X
hereof, the fees, charges and expenses of the Issuer, the Trustee, the Tender
Agent, the Remarketing Agent and any co-trustee appointed hereunder, and all
other amounts required to be paid hereunder or under the Agreement, and after
and to the extent that the Company shall determine that the payment of such
remaining amounts may be made without violation of the provisions of the Tax
Agreement, shall be paid, upon the
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expiration of, or upon the sooner termination of, the terms of this Indenture,
to the Bank to the extent money shall be owed to the Bank under the
Reimbursement Agreement (as evidenced by written notice thereof given to the
Trustee by the Bank) and, thereafter, to the Company.
Section 5.08. Tax Covenants. The Issuer and the Trustee covenant
with the Owners of the Bonds that, notwithstanding any other provision of this
Indenture or any other instrument, they will not knowingly make any investment
or other use of the proceeds of the Bonds or any other moneys held under this
Indenture which would cause the Bonds to be "arbitrage bonds" under Section 148
of the Code or "federally guaranteed" obligations under Section 149(b) of the
Code, and they further covenant that they will comply with all applicable
requirements of Sections 103 and 141-150 of the Code (except that the Issuer
and the Trustee shall be deemed to have complied with these requirements as
long as they act on the written direction of the Company).
Notwithstanding any other provision herein to the contrary, the
Trustee shall be permitted to transfer moneys on deposit in any of the trust
funds established hereunder (other than moneys representing remarketing
proceeds or draws under the Letter of Credit to the extent needed to pay
principal or purchase price of, premium, if any, or interest on the Bonds) to
the Rebate Fund created under the Tax Agreement in accordance with the
provisions of the Tax Agreement.
Section 5.09. Construction Fund. There is hereby created and
established with the Trustee a trust fund in the name of the Issuer to be
designated "Counties of ▇▇▇▇▇▇ and Washington Industrial Development Agency
(▇▇▇▇▇▇▇▇ Micro Science, Inc. Project), Series 1994--Construction Fund" (the
"Construction Fund" ), which shall be expended in accordance with the
provisions of the Agreement.
Section 5.10. Payments into Construction Fund; Disbursements.
Proceeds of the issuance and delivery of the Bonds shall be deposited in the
Construction Fund as provided in Section 5.01 hereof. Moneys in the
Construction Fund shall be expended on orders signed by an Authorized Company
Representative stating with respect to each payment to be made:
(a) The requisition number;
(b) The name and address of the person, firm or
corporation to whom payment is due or has been made, which may include
the Company;
(c) The amount to be or which has been paid;
(d) That each obligation mentioned therein has been
properly incurred, is a proper charge against the Construction Fund
and has not been the basis of any previous requisition;
(e) That each item for which payment is proposed to be
made is or was a part of the Project;
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(f) That after taking into account the costs proposed to
be paid or reimbursed in said certificate, at least 95% of the costs
paid or reimbursed out of the Construction Fund are amounts which will
be chargeable to the Project's capital account or which would be so
chargeable either with a proper election by the Company under the Code
or but for a proper election by the Company to deduct such amount and
were incurred and paid, or are to be incurred and paid, subsequent to
November 22, 1993;
(g) That after taking into account the costs proposed to
be paid or reimbursed in said certificate, no more than $106,000 of
the costs paid or reimbursed out of the Construction Fund are issuance
costs within the meaning of the Code; and
(h) That no Event of Default exists under the Agreement.
The Trustee is hereby authorized and directed to make each
disbursement required by the provisions of the Agreement and to issue its
checks therefor. The Trustee shall keep and maintain adequate records
pertaining to the Construction Fund and all disbursements therefrom, and after
the Project has been completed and a certificate of payment of all costs is or
has been filed as contemplated by Section 5.11 hereof, the Trustee shall file a
statement thereof with the Issuer and the Company.
Section 5.11. Completion of Project. The completion of the Project
and payment or provision made for payment of the full Cost of the Project shall
be evidenced by the filing with the Trustee of a certificate required by the
provisions of Section 3.4 of the Agreement. Any balance remaining in the
Construction Fund on the Completion Date shall be used in accordance with said
Section.
Section 5.12. Transfer of Construction Fund. If the Company
should prepay all amounts payable under Section 4.2(a) of the Agreement, any
balance then remaining in the Construction Fund shall without further
authorization be deposited in the Bond Fund by the Trustee.
Section 5.13. Custody of Funds and Accounts. Except as otherwise
expressly provided herein, all Funds and Accounts created pursuant to this
Indenture and held by the Trustee shall be held in trust, in the name of the
Issuer, for the benefit of the Bondholders and, to the extent of amounts owed
by the Company to the Bank under the Reimbursement Agreement, the Bank.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of DeFault. Each of the following shall
constitute, and is referred to in this Indenture as, an "Event of Default":
(a) a default in the payment when due of interest on any
Bond:
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(b) a default in the payment of principal of, or
premium, if any, on any Bond when due, whether at maturity, upon
acceleration or redemption, or otherwise;
(c) a default in the payment when due of the purchase
price of any Bond required to be purchased pursuant to Section 2.03 or
Section 2.04;
(d) the Issuer fails to perform in any material respect
any of its agreements in this Indenture or the Bonds (except a failure
that results in an Event of Default under clause (a), (b) or (c)
above), and which failure continues after the giving of the notice of
default and the expiration of the grace period specified in this
Section;
(e) The Company fails to perform in any material respect
any of its agreements in the Agreement or the Guaranty (except a
failure that results in an Event of Default under clause (a), (b) or
(c) of this Section), and the failure continues after the notice and
for the period specified in this Section.
(f) The Company pursuant to or within the meaning of any
Bankruptcy Law (as defined below) (1) commences a voluntary case, (2)
consents to the entry of an order for relief against it in an
involuntary case, (3) consents to the appointment of a Custodian (as
defined below) for the Company or any substantial part of its property
or (4) makes a general assignment for the benefit of its creditors.
(g) A court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that (1) is for relief against the
Company in an involuntary case, (2) appoints a Custodian for the
Company or any substantial part of its property or (3) orders the
winding up or liquidation of the Company, and the decree or order
remains unstayed and in effect for 90 days.
(h) the Trustee receives written notice from the Bank
that a "default" or "event of default" has occurred and is continuing
under the Reimbursement Agreement and directing the Trustee to
accelerate the Bonds pursuant to Section 6.02 hereof.
(i) the Trustee receives written notice from the Bank on
or before the date or dates specified in the Letter of Credit
following a drawing on the Letter of Credit to pay interest on the
Bonds that it will not reinstate its Letter of Credit in the amount of
the said interest drawing.
"Bankruptcy Law" means Title 11 of the United States Code or any
similar Federal or state law for the relief of debtors. "Custodian" means any
receiver, trustee, assignee. liquidator, custodian or similar official under
any Bankruptcy Law.
A default under clause (d) or (e) of this Section is not an Event of
Default until the Trustee or the holders of at least a majority in principal
amount of the Bonds then outstanding give the Issuer and the Company a notice
specifying the default, demanding that it be remedied and stating that the
notice is a "Notice of Default," and the Issuer or the Company (if the default
is under clause (d)) or the Company (if the default is under clause (e)) does
not cure the default
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within 60 days after receipt of the notice, or within such longer period as to
which the Trustee shall agree. The Trustee shall not unreasonably refuse to
agree to a longer cure period if the default can be cured but cannot reasonably
be cured within 60 days after receipt of the notice and the Issuer or the
Company has demonstrated to the Trustee that it has begun within 60 days and
continued diligent efforts to cure the default. The Issuer authorizes the
Company to perform, in the name and on behalf of the Issuer and for the purpose
of preventing the occurrence of an Event of Default, any agreement of the
Issuer in this Indenture or the Bonds.
Section 6.02. Acceleration. If an Event of Default under clause
(h) or (i) of the foregoing Section occurs, the principal and accrued interest
to the date of acceleration on the Bonds shall become due and payable
immediately. If any other Event of Default occurs and is continuing, the
Trustee by notice to the Issuer and the Company, or the holders of at least a
majority in principal amount of the Bonds then Outstanding by notice to the
Issuer, the Company and the Trustee, may declare the principal of and accrued
interest on the Bonds to be due and payable immediately. If a Letter of Credit
is in effect, and (a) the Event of Default is not under clause (h) or (i) of
the foregoing Section, (b) the Event of Default is not the result of a failure
by the Bank to honor a draw on the Letter of Credit and (c) the Trustee
believes that failure to draw immediately on the Letter of Credit is not likely
to prejudice the Bondholders' interest, the Trustee will not declare the Bonds
to be due and payable without first obtaining the Bank's consent. Upon the
principal of and accrued interest on the Bonds becoming due and payable as
provided in this Section, the Trustee shall immediately draw on the Letter of
Credit, if any, to pay the principal of and accrued interest on the Bonds. The
Trustee shall immediately give notice of acceleration to the Bondholders.
Interest on the Bonds shall cease to accrue, and the principal of and accrued
and unpaid interest on the Bonds shall, without further action, become
immediately due and payable, on the date of acceleration.
The Trustee may, and upon the request of holders of a majority in
principal amount of the Bonds then outstanding shall, rescind an acceleration
and its consequences if (a) all existing Events of Default have been cured or
waived, (b) the rescission would not conflict with any judgment or decree, (c)
all payments due the Trustee and any predecessor Trustee under Section 7.06
have been made and (d) when a Letter of Credit is in effect, the Bank consents
in writing and the Trustee receives written notice from the Bank that the
Letter of Credit has been reinstated up to the full amount available under it
immediately prior to such Event of Default (which will, in all events, include
Adequate Interest Coverage).
Section 6.03. Other Remedies. (a) If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy by proceeding at
law or in equity to collect the principal of or interest on the Bonds or to
enforce the performance of any provision of the Bonds, this Indenture, the
Agreement, the Guaranty and the Letter of Credit including, without limitation,
the exercise of any remedy granted to it in the Agreement.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Bonds or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Bondholder in exercising any right or
remedy accruing upon an Event of Default shall not
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impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
(c) During any period the Bonds are secured by the Letter of
Credit and draws thereunder have been duly honored by the Bank in accordance
with the terms and provisions of the Letter of Credit, all remedies pursued by
the Trustee upon the occurrence of an Event of Default (other than draws upon
the Letter of Credit) shall be taken only with the prior consent of the Bank.
(d) No order or decree of specific performance with respect to any
of the obligations of the Issuer hereunder or under the Agreement, the Offering
Agreement or the Tax Agreement shall be sought or enforced against the Issuer
unless (1) the party seeking such order or decree shall first have requested
the Issuer in writing to take the action sought in such order or decree of
specific performance, and ten (10) days shall have elapsed from the date of
receipt of such request, and the Issuer shall have refused to comply with such
request (or if compliance therewith would reasonably be expected to take longer
than ten (10) days shall have failed to institute and diligently pursue action
to cause compliance with such request) or failed to respond within such notice
period, (2) if the Issuer refuses to comply with such request and the Issuer's
refusal to comply is based on its reasonable expectation that it will incur
fees and expenses, the party seeking such order or decree shall have placed in
an account with the Issuer an amount or undertaking sufficient to cover such
reasonable fees and expenses, and (3) if the Issuer refuses to comply with such
request and the Issuer's refusal to comply is based on its reasonable
expectation that it or any of its members, officers, agents (other than the
Company) or employees shall be subject to potential liability, the party
seeking such order or decree shall (i) agree to indemnify and hold harmless the
Issuer and its members, officers, agents (other than the Company) and employees
against any liability incurred as a result of its compliance with such demand,
and (ii) if requested by the Issuer shall furnish to the Issuer satisfactory
security to protect the Issuer and its members, officers, agents and employees
against all liability expected to be incurred as a result of compliance with
such request.
Section 6.04. Waiver of Past Defaults. The holders of a majority
in principal amount of the Bonds then outstanding, together with the Bank, by
written notice to the Trustee, may waive an existing Event of Default and its
consequences if the Letter of Credit is reinstated up to the full amount
available under it immediately prior to such Event of Default. When an Event
of Default is waived, it is cured and stops continuing, but no such waiver
shall extend to any subsequent or other Event of Default or impair any right
consequent to it.
Section 6.05. Control by Majority. The holders of a majority in
principal amount of the Bonds then Outstanding may (with the consent of the
Bank) direct in writing the time, method and place of conducting any proceeding
for any remedy available to the Trustee or of exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or, subject to Section 7.01, that the
Trustee determines is unduly prejudicial to the rights of other Bondholders, or
would involve the Trustee in personal liability or would involve an expense or
liability unless the Trustee is indemnified, it being
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understood that (subject to Section 7.01), the Trustee shall have no duty to
ascertain whether or not such actions or forbearances are unduly prejudicial to
such Holders.
Section 6.06. Limitation on Suits. A Bondholder may not pursue any
remedy with respect to this Indenture or the Bonds unless (a) the holder gives
the Trustee notice stating that an Event of Default is continuing, (b) the
holders of at least 25% in principal amount of the Bonds then outstanding make
a written request to the Trustee to pursue the remedy, (c) such holder or
holders offer to the Trustee indemnity satisfactory to the Trustee against any
loss, liability or expense and (d) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of indemnity.
A Bondholder may not use this Indenture to prejudice the rights of
another Bondholder or to obtain a preference or priority over the other
Bondholders.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any holder
to receive payment of principal of and interest on a Bond, on or after the due
dates expressed in the Bond, or the purchase price of a Bond on or after the
date for its purchase as provided in the Bond, or to bring suit for the
enforcement of any such payment on or after such dates, shall not be impaired
or affected without the consent of the holder.
Section 6.08. Collection Suit by Trustee. If an Event of Default
under Section 6.01 (a), (b) or (c) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company or the Bank for the whole amount remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim. The Trustee may
file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Bondholders
allowed in any judicial proceedings relative to the Company or the Bank, its
creditors or its property and, unless prohibited by law or applicable
regulations, may vote on behalf of the holders in any election of a trustee in
bankruptcy or other person performing similar functions.
Section 6.10. Priorities. If the Trustee collects any money
pursuant to this Article, it shall pay out the money in the following order:
FIRST: To the Trustee and the Tender Agent for amounts to which they
are entitled under Section 7.06 hereof or Section 4.3 of the Agreement, but the
Trustee may not pay itself or the Tender Agent from money drawn under. the
Letter of Credit, from the proceeds of the remarketing of any Bonds or from
amounts held by the Trustee pursuant to Article X or Section 5.06(b).
SECOND: To Bondholders for amounts due and unpaid on the Bonds for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Bonds for principal and
interest, respectively.
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THIRD: To the Bank to the extent the Bank certifies to the Trustee
that the Company is indebted to the Bank on account of draws under the Letter
of Credit or any other amounts due and payable to the Bank under the
Reimbursement Agreement.
FOURTH: To the Company.
The Trustee may fix a payment date for any payment to the Bondholders
in accordance with this Section.
ARTICLE VII
TRUSTEE, REMARKETING AGENT AND TENDER AGENT
Section 7.01. Duties of Trustee. (a) Prior to the occurrence of an
Event of Default, the Trustee shall have no liability for any action or
omission in the performance of its duties hereunder, except in the case of
negligence or willful misconduct on the part of the Trustee. During the
existence of an Event of Default, the Trustee shall exercise its rights and
powers and use the same degree of care and skill in their exercise as a prudent
person would exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except during the continuance of an Event of Default,
(i) the Trustee shall be required to perform only those
duties that are specifically set forth in this Indenture and no others
and no implied covenants or obligations should be read into this
Indenture against the Trustee, and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that
(i) this paragraph does not limit the effect of paragraph
(b) of this Section,
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by any employee of the Trustee assigned by
the Trustee to administer its corporate trust matters (a "Responsible
Officer"), unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05; and
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(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to all the paragraphs of this Section.
(e) Before taking any action under this Indenture relating to an
event of default or in connection with its duties under this Indenture other
than making payments of principal and interest on the Bonds as they become due,
drawing on the Letter of Credit or causing an acceleration of the Bonds
whenever required by the Indenture, the Trustee may require that a satisfactory
indemnity bond be furnished for the reimbursement of all expenses to which it
may be put and to protect it against all liability, including, but not limited
to, any liability arising directly or indirectly under any federal, state or
local statute, rule, law or ordinance related to the protection of the
environment or hazardous substances and except liability which is adjudicated
to have resulted from its negligence or willful default in connection with any
action so taken.
(f) The Trustee shall not be liable for interest on any cash held
by it except as the Trustee may agree in writing with the Company or the Issuer
with the consent of the Company.
(g) The Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers or
employees, and shall be entitled to advice of counsel concerning all matters or
trusts hereof and duties hereunder, and may in all cases pay such reasonable
compensation to any attorney, agent, receiver or employee retained or employed
by it in connection herewith. The Trustee may act upon the opinion or advice
of an attorney, surveyor, engineer or accountant selected by it in the exercise
of reasonable care or, if selected or retained by the Issuer, approved by the
Trustee in the exercise of such care. The Trustee shall not be responsible for
any loss or damage resulting from any action or nonaction based on its good
faith reliance upon such opinion or advice.
(h) The permissive right of the Trustee to do things enumerated in
this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful default.
(i) At any and all reasonable times, the Trustee and its duly
authorized agents, attorneys, experts, engineers, accountants and
representatives shall have the right fully to inspect any and all books, papers
and records of the Issuer pertaining to the Bonds, and to take such memoranda
from and in regard thereto as may be desired.
(j) The Trustee may (but shall be under no duty to) require of the
Issuer and the Company full information and advice as to the performance of the
covenants, conditions and agreements in the Agreement. The Trustee shall have
no obligation to perform any of the duties of the Issuer under the Agreement.
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Section 7.02. Rights of Trustee. Subject to the foregoing Section:
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require a certificate of an appropriate officer or officers of the Issuer or
the Company or an opinion of counsel; provided that it may not require such a
certificate as a condition to declaring the principal of and interest on the
Bonds to be due immediately under Section 6.02 or to drawing on the Letter of
Credit or to making any payment on the Bonds. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
certificate or opinion of counsel.
Section 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Bonds and
may otherwise deal with the Issuer or with the Company or its affiliates with
the same rights it would have if it were not trustee. Any paying agent may do
the same with like rights.
Section 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Bonds,
it shall not be accountable for the Company's use of the proceeds from the
Bonds paid to the Company, and it shall not be responsible for any statement in
the Bonds other than its certificate of authentication.
Section 7.05. Notice of Defaults. (a) If an event occurs which
with the giving of notice or lapse of time or both would be an Event of
Default, and if the event is continuing and if it is known to the Trustee, the
Trustee shall mail to each Bondholder and the Bank notice of the event within
30 days after it occurs. Except in the case of a default in payment or
purchase on any Bonds, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers (as defined in Section 7.01(c)) in good
faith determines that withholding the notice is in the interests of
Bondholders.
(b) The Trustee shall not be required to take notice or be deemed
to have notice of any default or Event of Default hereunder, or in any other
document or instrument executed in connection with the execution and delivery
of the Bonds, except an Event of Default under Section 6.01(a), (b), (c), (h)
or (i) hereof, unless the Trustee shall be specifically notified in writing of
such default or Event of Default by the Issuer, the Tender Agent, the Bank, the
Company or the Owners of at least 25% in aggregate principal amount of the
Bonds then Outstanding. All notices or other instruments required by this
Indenture to be delivered to the Trustee shall be delivered at the principal
corporate trust office of the Trustee and, in the absence of such notice so
delivered, the Trustee may conclusively assume there is no default except as
aforesaid.
Section 7.06. Compensation and Indemnity of Trustee. For acting
under this Indenture, the Trustee shall be entitled to payment of reasonable
fees for its services and reimbursement of advances, counsel fees and other
expenses reasonably and necessarily made or incurred by the Trustee in
connection with its services under this Indenture.
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To secure the payment or reimbursement to the Trustee provided for in
this Section, the Trustee shall have a senior claim, to which the Bonds are
made subordinate, on all money or property held or collected by the Trustee,
except that held under Article X or otherwise held in trust to pay principal of
and interest on particular Bonds and except amounts drawn under the Letter of
Credit or remarketing proceeds held by the Trustee or Tender Agent hereunder.
The Company has agreed in the Agreement to indemnify the Trustee for,
and to hold it harmless against, certain losses, liabilities and expenses
incurred by the Trustee.
Section 7.07. Eligibility of Trustee. The Trustee shall be a bank
or trust company organized and doing business under the laws of the United
States or any state or the District of Columbia, authorized under such laws to
exercise corporate trust powers, is subject to supervision or examination by
United States, state or District of Columbia authority. Any successor Trustee
must be an institution rated at least "Baa3" by ▇▇▇▇▇'▇ Investors Service (or
▇▇▇▇▇'▇ Investors Service shall have provided written evidence that such
successor Trustee is otherwise acceptable to ▇▇▇▇▇'▇ Investors Service) if the
Bonds are then rated by ▇▇▇▇▇'▇ Investors Service, and at least "BBB-" or "A-3"
by S&P (or S&P shall have provided written evidence that such successor Trustee
is otherwise acceptable to S&P) if the Bonds are then rated by S&P, and
authorized by law to perform all the duties imposed upon it as Trustee by this
Indenture.
Section 7.08. Replacement of Trustee. The Trustee may resign by
notifying the Issuer and the Company. The holders of a majority in principal
amount of the Bonds then Outstanding may remove the Trustee by notifying the
removed Trustee and may appoint a successor Trustee with the Issuer's, the
Bank's and the Company's prior written consent. If no Event of Default shall
have occurred and be continuing, the Company may cause the Trustee to be
removed, with the consent of the Remarketing Agent, by giving notice to the
Issuer and the Bank requesting the Issuer to remove and replace the Trustee.
In addition, the Issuer shall, at the direction of the Company, remove the
Trustee if (a) the Trustee fails to comply with Section 7.07 hereof, (b) the
Trustee is adjudged a bankrupt or an insolvent, (c) a receiver or other public
officer takes charge of the Trustee or its property or (d) the Trustee
otherwise becomes incapable of acting.
If the Trustee resigns or is removed in the office of Trustee for any
reason, the Issuer, with the prior written consent of the Bank and the Company,
shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately thereafter,
the retiring Trustee shall transfer all property (including the Letter of
Credit) held by it as Trustee to the successor Trustee, the resignation or
removal of the retiring Trustee shall then (but only then) become effective,
and the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuer, the
Company, the Bank or the holders of a majority in principal amount of the Bonds
then outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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If the Trustee fails to comply with the foregoing Section, any
Bondholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
Section 7.09. Duties of Remarketing Agent. The Remarketing Agent
will determine the interest rate on the Bonds as provided in this Indenture as
the designee of the Issuer. The Remarketing Agent will remarket Bonds as
provided in this Indenture as the designee of the Company. The Remarketing
Agent may for its own account or as broker or agent for others deal in Bonds
and may do anything any other Bondholder may do to the same extent as if the
Remarketing Agent were not serving as such.
Section 7.10. Eligibility of Remarketing Agent; Replacement. The
initial Remarketing Agent shall be The First National Bank of Chicago, Chicago
Illinois (or if a transfer is effected pursuant to Section 10 of the
Remarketing Agreement, First Chicago Capital Markets, Inc.) Any successor
Remarketing Agent must be an institution rated at least "Baa3" by ▇▇▇▇▇'▇
Investors Service (or ▇▇▇▇▇'▇ Investors Service shall have provided written
evidence that such successor Remarketing Agent is otherwise acceptable to
▇▇▇▇▇'▇ Investors Service) if the Bonds are then fated by ▇▇▇▇▇'▇ Investors
Service, and at least "BBB" or "A-3" by S&P (or S&P shall have provided written
evidence that such successor Remarketing Agent is otherwise acceptable to S&P)
if the Bonds are then rated by S&P, and authorized by law to perform all the
duties imposed upon it by this Indenture.
The Remarketing Agent may at any time resign from its duties under
this Indenture by giving at least 30 days' written notice to the Issuer, the
Company, the Bank, the Tender Agent and the Trustee. The Trustee shall mail a
copy of such notice by certified mail to each of the Bond Owners. A
Remarketing Agent may be removed at any time at the direction of the Issuer and
the Company by an instrument signed by the Issuer and the Company and filed at
least 30 days prior to such removal with the Remarketing Agent, the Bank and
the Trustee. No removal or resignation hereunder shall become effective prior
to the acceptance of appointment of a successor Remarketing Agent hereunder.
Appointment of a successor Remarketing Agent shall be subject to the written
consent of the Bank, which shall not be unreasonably withheld.
While the Bonds are in a Book-Entry System, the Remarketing Agent
shall serve as the Participant on behalf of all of the Beneficial Owners of the
Bonds.
Section 7.11. Tender Agent. (a) During any period the Bonds shall
not be in a BookEntry System, the Company shall appoint a Tender Agent for the
Bonds, who shall be satisfactory to the Trustee and the Remarketing Agent and
who, upon acceptance of its duties, will perform the obligations of the Tender
Agent set forth in this Indenture. Any Tender Agent must be an institution
rated at least "Baa3" by ▇▇▇▇▇'▇ Investors Service (or ▇▇▇▇▇'▇ Investors
Service shall have provided written evidence that such successor Tender Agent
is otherwise acceptable to ▇▇▇▇▇'▇ Investors Service) if the Bonds are then
rated by ▇▇▇▇▇'▇ Investors Service, and at least "BBB" or "A-3" by S&P (or S&P
shall have provided written evidence that such successor Tender Agent is
otherwise acceptable to S&P) if the Bonds are then rated by S&P, and authorized
by law to perform all the duties imposed upon it as Tender Agent by this
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Indenture. The initial Tender Agent and any successor Tender Agent shall
accept its duties hereunder by a written certificate or tender agent agreement
delivered to the Trustee, which certificate or agreement shall designate the
Principal Office of the Tender Agent.
(b) The Tender Agent may at any time resign by giving thirty (30)
days' notice to the Issuer, the Trustee, the Company, the Bank and the
Remarketing Agent. Promptly upon the receipt of such notice, the Trustee shall
mail copies thereof to each registered Owner of the Bonds. No such resignation
shall be effective until a successor Tender Agent has been appointed.
(c) The Tender Agent may he removed at any time by an instrument
in writing delivered to the Trustee and the Tender Agent by the Company, with
the prior written approval of the Bank. In no event, however, shall any
removal of the Tender Agent take effect until a successor Tender Agent shall
have been appointed.
(d) The Tender Agent shall have an office in the City of New York,
New York. Written notice of the appointment of a Tender Agent shall
immediately be given by the Trustee to the Issuer and to the Bondholders. If
(i) no successor to a Tender Agent has accepted appointment in the manner
provided above within 30 days after the Tender Agent has given notice of its
resignation as provided above, or (ii) no initial Tender Agent shall have been
appointed at such time as the Bonds no longer are held in the Book-Entry
System, the Trustee shall serve as Tender Agent or shall appoint an agent
located in New York, New York to act in its stead.
Section 7.12. Successor Trustee, Remarketing Agent or Tender Agent
by Merger. If the Trustee, the Tender Agent or the Remarketing Agent
consolidates with, merges or converts into, or transfers all or substantially
all its assets (or, in the case of a bank or trust corporation, its corporate
trust assets) to, another corporation, the resulting, surviving or transferee
corporation without any further act shall, if otherwise eligible to serve
hereunder, be the successor Trustee, Tender Agent or Remarketing Agent.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01. Without Consent of Bondholders. The Issuer and the
Trustee may amend or supplement this Indenture or the Bonds without notice to
or consent of any Bondholder:
(a) to cure any ambiguity, inconsistency or formal defect
or omission;
(b) to grant to the Trustee for the benefit of the
Bondholders additional rights, remedies, powers or authority;
(c) to subject to this Indenture additional collateral or
to add other agreements of the Issuer;
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(d) to modify this Indenture or the Bonds to permit
qualification under the Trust Indenture Act of 1939 or any similar
Federal statute at the time in effect, or to permit the qualification
of the Bonds for sale under the securities laws of any state of the
United States;
(e) to evidence the succession of a new Trustee or the
appointment by the Trustee or the Issuer of a co-trustee;
(f) to make any change that does not materially adversely
affect the rights of any Bondholder;
(g) to facilitate the use of the Book-Entry System;
(h) to facilitate the substitution of an Alternate Credit
Facility which is not an irrevocable letter of credit, but without
modifying the payment terms of the Bonds; or
(i) to facilitate the transfer of Bonds when the Bonds
are in the CP Rate Mode, but not in the Book-Entry System.
Section 8.02. With Consent of Bondholders. If an amendment of or
supplement to this Indenture or the Bonds without any consent of Bondholders is
not permitted by the preceding Section, the Issuer and the Trustee may enter
into such amendment or supplement with the consent of the holders of at least a
majority in principal amount of the Bonds then Outstanding. However, without
the consent of each Bondholder affected, no amendment or supplement may (a)
extend the maturity of the principal of, or the due date of interest on, any
Bond, (b) reduce the principal amount of, or rate of interest on, any Bond, (c)
effect a privilege or priority of any Bond or Bonds over any other Bond or
Bonds, (d) reduce the percentage of the principal amount the Bonds required for
consent to such amendment or supplement, (e) impair the excludability from
gross income for federal income tax purposes of interest on any Bond, (f)
eliminate the holders' rights to demand that their Bonds be purchased, or any
mandatory tender or redemption of the Bonds, (g) extend the due date for the
purchase of Bonds tendered by the holders thereof or call for mandatory tender
or redemption or reduce the purchase or redemption price of such Bonds, (h)
create a lien ranking prior to or on a parity with the lien of this Indenture
on the property described in the Granting Clause of this Indenture not
otherwise provided for herein or (i) deprive any Bondholder of the lien created
by this Indenture on such property. In addition, if moneys or Governmental
Obligations have been deposited or set aside with the Trustee pursuant to
Article X for the payment of the Bonds and the Bonds shall not have in fact
been actually paid in full, no amendment to the provisions of that Article
shall be made without the consent of the holders of each of the Bonds affected.
Section 8.03. Effect of Consents. After an amendment or supplement
becomes effective, it will bind every Bondholder unless it makes a change
described in any of the lettered clauses of the preceding Section. In that
case, the amendment or supplement will bind each Bondholder who consented to it
and each subsequent holder of a Bond or portion of a Bond evidencing the same
debt as the consenting holder's Bond.
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Section 8.04. Notation on or Exchange of Bonds. If an amendment or
supplement changes the terms of a Bond, the Trustee may require the holder to
deliver it to the Trustee. The Trustee may place an appropriate notation on
the Bond about the changed terms and return it to the holder. Alternatively,
if the Trustee, the Issuer and the Company determine, the Issuer in exchange
for the Bond will issue and the Trustee will authenticate a new Bond that
reflects the changed terms.
Section 8.05. Execution and Delivery by Trustee of Amendments and
Supplements. The Trustee shall execute and deliver any amendment or supplement
to the Indenture or the Bonds authorized by this Article if the amendment or
supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing an amendment or supplement, the Trustee will be entitled to receive
and (subject to Section 7.01) will be fully protected in relying on an opinion
of Bond Counsel stating that such amendment or supplement is authorized by this
Indenture.
Section 8.06. Company and Bank Consent Required. Any amendment or
supplement to this Indenture or the Bonds shall not become effective unless the
Company and the Bank shall deliver to the Trustee their written consents to the
amendment or supplement. The Company shall be deemed to have consented if it
shall fail to deliver a written objection to the Trustee within 30 days after
receipt by the Company of a proposed form of an amendment or supplement.
Section 8.07. Notice to Bondholders. The Trustee shall cause
notice of the execution of each supplement or amendment to this Indenture or
the Agreement to be mailed to the Bondholders. The notice shall, at the option
of the Trustee, either (a) briefly state the nature of the amendment or
supplement and that copies of it are on file with the Trustee for inspection by
Bondholders or (b) enclose a copy of such amendment or supplement.
ARTICLE IX
AMENDMENT OF AGREEMENT, GUARANTY OR LETTER OF CREDIT
Section 9.01. Without Consent of Bondholders. The Issuer may enter
into, and the Trustee may consent to, any amendment of or supplement to the
Agreement, and the Trustee may enter into any amendment of or supplement to the
Guaranty, without notice to or consent of any Bondholder, if the amendment or
supplement is (a) required or permitted by the provisions of the Agreement, the
Guaranty or this Indenture, (b) to cure any ambiguity, inconsistency or formal
defect or omission, (c) in connection with any authorized amendment of or
supplement to this Indenture, (d) to make any change that does not materially
adversely affect the rights of any Bondholder, (e) to amend the description of
the Project, provided the Trustee is provided an opinion of Bond Counsel to the
effect that such amendment will not adversely affect the excludability from
gross income of interest on the Bonds for Federal income tax purposes, or (f)
to facilitate the substitution of an Alternate Credit Facility which is not an
irrevocable letter of credit, but without modifying the payment terms of the
Bonds.
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Section 9.02. With Consent of Bondholders. If an amendment of or
supplement to the Agreement or the Guaranty without any consent of Bondholders
is not permitted by the foregoing Section, the Issuer may enter into, and the
Trustee may consent to, such amendment or supplement (or in the case of the
Guaranty, the Trustee may enter into such amendment or supplement) with the
consent of the holders of at least a majority in principal amount of the Bonds
then Outstanding. However, without the consent of each Bondholder affected, no
amendment or supplement may result in anything described in the lettered
clauses of Section 8.02.
Section 9.03. Bank Consent Required. Any amendment or supplement
to the Agreement or the Guaranty authorized by this Article shall not become
effective unless the Bank delivers to the Trustee its written consent to the
amendment or supplement.
Section 9.04. Modifications of Letter of Credit. No Letter of
Credit may be modified without the prior written consent of 100% of the holders
of the Bonds, except to (a) correct any formal defects therein, (b) effect
transfers thereof, (c) effect extensions thereof, (d) effect reductions and
reinstatements thereof in accordance with the terms of the Letter of Credit,
(e) increase the stated amount thereof, (f) effect any change which does not
have a material adverse effect upon the interests of the Bondholders, or (g)
make any amendment to be effective from and after a mandatory tender date.
Pursuant to this Indenture however, the Company has the right to obtain an
Alternate Credit Facility, subject to the requirements set forth therein
without the consent of the Bondholders.
Section 9.05. Release of Guaranty. In connection with an
assignment described in Section 8.1 of the Agreement, the Trustee shall release
the Company from its obligations under the Guaranty if so directed in writing
by the Company. In such event, the Bonds shall be subject to mandatory tender
pursuant to Section 2.04(f) hereof and the Trustee shall give the notice to
Bondholders described in said Section 2.04. No consent of the Bondholders or
the Bank and no notice to the Bondholders or the Bank other than that
referenced above or in connection with the mandatory tender of Bonds shall be
required to be obtained or given in connection with such release.
Notwithstanding the foregoing, no such release shall then be permitted if (a)
the Bonds are then in the CP Rate Mode, or (b) if the Bonds are then in an
Adjustable Rate Period of greater than one year's duration, unless the release
occurs on a date on which the Bonds may be optionally redeemed pursuant to the
Indenture and the mandatory tender price payable upon the mandatory tender of
Bonds as a result of such release includes a premium equal to the redemption
premium at that time payable pursuant to the optional redemption provisions of
the Indenture.
ARTICLE X
DISCHARGE OF INDENTURE
Section 10.01. Bonds Deemed Paid; Discharge of Indenture. Any Bond
will be deemed paid for all purposes of this Indenture when (a) payment of the
principal of and interest on the Bond to the due date of such principal and
interest (whether at maturity, upon redemption or otherwise) either (i) has
been made in accordance with the terms of the Bond or (ii) has been
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provided for by depositing with the Trustee Available Moneys sufficient to make
such payment and/or Government Obligations (purchased with Available Moneys)
maturing as to principal and interest in such amounts and at such times as
will, in the opinion of an independent certified public accountant delivered to
the Trustee, ensure the availability of sufficient moneys to make such payment,
and (b) all compensation and expenses of the Trustee pertaining to each Bond in
respect of which such deposit is made have been paid or provided for to the
Trustee's satisfaction. When a Bond is deemed paid, it will no longer be
secured by or entitled to the benefits of this Indenture or be an obligation of
the Issuer, except for payment from moneys or Government Obligations under
clause (a)(ii) above.
Notwithstanding the foregoing, no deposit under clause (a)(ii) of the
first paragraph of this Section shall be deemed a payment of a Bond until the
Company has furnished the Trustee an opinion of Bond Counsel stating that the
deposit of such cash or Government Obligations will not cause the Bonds, or any
portion thereof, to become "arbitrage bonds" within the meaning of Section 148
of the Code and (A) notice of redemption of the Bond is given in accordance
with this Indenture or, if the Bond is not to be redeemed or paid within the
next 60 days, until the Company has given the Trustee, in form satisfactory to
the Trustee irrevocable instructions (1) to notify, as soon as practicable, the
holder of the Bond, in accordance with this Indenture, that the deposit
required by clause (a)(ii) above has been made with the Trustee and that the
Bond is deemed to be paid under this Article and stating the maturity or
redemption date upon which moneys are to be available for the payment of the
principal of the Bond, and, if the Bond is to be redeemed rather than paid at
maturity, (2) to give notice of redemption as provided herein for such Bond or
(B) the maturity of the Bond. In addition, notwithstanding the foregoing, if
the Bonds are then in the Daily Rate Mode or the Weekly Rate Mode, no deposit
under clause (a)(ii) of the first paragraph of this Section shall be deemed a
payment of a Bond unless the Trustee receives written evidence from the Rating
Agency that such deposit would not result in a reduction or withdrawal of the
ratings then maintained on the Bonds.
When all outstanding Bonds are deemed paid under the foregoing
provision of this Section, the Letter of Credit has been surrendered to the
Bank for cancellation and all amounts due and payable to the Bank under the
Reimbursement Agreement have been paid in full, the Trustee will upon request
acknowledge the discharge of the lien of this Indenture as to the Bonds,
provided, however, that the obligations under Article II in respect of the
optional tender rights of the Owners of the Bonds and the transfer, exchange,
registration, discharge from registration and replacement of Bonds shall
survive the discharge of the lien of the Indenture.
The Trustee shall provide each Rating Agency then rating the Bonds
with at least 10 days prior notice of any advance defeasance of the Bonds,
together with a copy of the opinion of independent certified public accountant
described in the first paragraph of this Section and any opinion of counsel
delivered if Available Moneys described in clause (c) of the definition thereof
are used to effect the defeasance. The Trustee shall notify each Bondholder of
the advance defeasance of the Bonds, within 10 days after such defeasance.
Section 10.02. Application of Trust Money. The Trustee shall hold
in trust moneys or Governmental Obligations deposited with it pursuant to the
preceding Section and shall apply the
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deposited money and the money from the Governmental Obligations in accordance
with this Indenture only to the payment of principal of and interest on the
Bonds and to the payment of the purchase price of Bonds demanded to be
purchased by holders.
Section 10.03. Repayment to Bank and Company. At such time as no
Bonds remain unpaid within the meaning of Section 10.01, the Trustee shall
promptly pay first to the Bank (to the extent the Bank certifies to the Trustee
that the Company is indebted to it for amounts owed under the Reimbursement
Agreement) and then to the Company upon request (i) any excess money or
securities held by the Trustee at any time under this Article and (ii) any
money held by the Trustee under any provision of this Indenture for the payment
of principal or interest or for the purchase of Bonds that remains unclaimed
for two years.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Bondholders' Consent. Any consent or other
instrument required by this Indenture to be signed by Bondholders may be in any
number of counterpart documents and may be signed by a Bondholder or by the
holder's agent appointed in writing. Proof of the execution of such instrument
or of the instrument appointing an agent and of the ownership of Bonds, if made
in the following manner, shall be conclusive for any purposes of this Indenture
with regard to any action taken by the Trustee or the Tender Agent under the
instrument:
(a) The fact and date of a person's signing an instrument may be
proved by the certificate of any officer in any jurisdiction who by law has
power to take acknowledgments within that jurisdiction that the person signing
the writing acknowledged before the officer the execution of the writing, or by
an affidavit of any witness to the signing.
(b) The fact of ownership of Bonds, the amount or amounts, numbers
and other identification of such Bonds and the date of holding shall be proved
by the registration books kept pursuant to this Indenture.
In determining whether the holders of the required principal amount of
Bonds outstanding have taken any action under this Indenture (and solely for
such purposes), Bonds owned by the Company or any person controlling,
controlled by or under common control with the Company shall be disregarded and
deemed not to be outstanding, unless the Company shall be the Owner of 100% of
the Bonds. In determining whether the Trustee and the Tender Agent shall be
protected in relying on any such action, only Bonds which the Trustee knows to
be so owned shall be disregarded.
Any consent or other instrument shall be irrevocable and shall bind
any subsequent owner of such Bond or any Bond delivered in substitution
therefor.
Section 11.02. Limitation of Rights; Rights of Bank. Nothing
expressed or implied in this Indenture or the Bonds shall give any person other
than the Trustee, the Tender Agent, the Issuer,
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the Bank, the Company, the Remarketing Agent and the Bondholders any right,
remedy or claim under or with respect to this Indenture.
Notwithstanding any other provision of this Indenture to the contrary,
all rights of the Bank hereunder shall only be in effect when (a) either the
Letter of Credit is in effect or amounts are due and payable by the Company to
the Bank under the Reimbursement Agreement, and (b) the Bank is not in default
on any of its obligations to pay drawings under the Letter of Credit submitted
in conformity with the terms of the Letter of Credit.
Section 11.03. No Personal Liability of Issuer. The obligations and
agreements of the Issuer contained herein, in the Bonds and in the Agreement,
the Offering Agreement and the Tax Agreement and in any other instrument or
document executed in connection herewith or therewith, and any other instrument
or document supplemental hereto or thereto, shall be deemed the obligations and
agreements of the Issuer, and not of any member, officer, agent (other than the
Company) or employee of the Issuer in his individual capacity, and the members,
officers, agents (other than the Company) and employees of the Issuer shall not
be liable personally hereon or thereon or be subject to any personal liability
or accountability based upon or in respect hereof or thereof or of any
transaction contemplated hereby or thereby.
Section 11.04. Severability. If any provisions of this Indenture
shall be held or deemed to be or shall, in fact, be invalid, inoperative or
unenforceable, the same shall not affect any other provision or provisions
herein contained or render the same invalid, inoperative or unenforceable to
any extent whatever.
Section 11.05. Notices. Except as otherwise provided in this
Indenture, all notices, hereunder shall be sufficiently given and shall be
deemed given when personally delivered or mailed by certified mail, postage
prepaid, or when sent by tested telecopy (receipt confirmed by telephone) or
telegram, addressed as follows:
If to the Issuer:
Counties of ▇▇▇▇▇▇ and Washington
Industrial Development Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chairman
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If to the Trustee:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Group
If to the Tender Agent:
At its address specified in the certificate delivered by the
Tender Agent in which it assumes its duties hereunder.
If to the Company:
▇▇▇▇▇▇▇▇ Micro Science, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director of Finance
With a copy to:
▇▇▇▇▇▇▇▇ Laboratories, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Treasurer
If to the Bank:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: _______________________
If to the Remarketing Agent:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Public Finance Department
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With a copy to its Principal Office at:
The First National Bank of Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Municipal Bond Department/Short-Term Trading
If to the Owner of any Bond:
The address of such Owner as reflected on the registration
books maintained by the Trustee.
If to a Rating Agency, as applicable:
▇▇▇▇▇'▇ Investors Service
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance
Standard & Poor's Ratings Group
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Letter of Credit Surveillance Group/Bonds
A duplicate copy of each notice given hereunder by either party hereto shall be
given to the Bank, the Tender Agent, the Remarketing Agent and the Company.
Any person or entity listed above may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates or
other communications shall be sent.
Section 11.06. Payments or Performance Due on Other Than Business
Day. If the last day for making any payment or taking any action under this
Indenture falls on a day other than a Business Day, such payment may be made,
or such action may be taken, on the next succeeding Business Day, and, if so
made or taken, shall have the same effect as if made or taken on the date
required by this Indenture.
Section 11.07. Execution of Counterparts. This Indenture may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same instrument.
Section 11.08. Applicable Law. This Indenture shall be governed by
and construed in accordance with the laws of the State.
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IN WITNESS WHEREOF, the Issuer has caused these presents to be signed
in its name and on its behalf by its duly authorized officers, and the Trustee,
to evidence its acceptance of the trusts hereby created, has caused these
presents to be signed in its name and on its behalf by its duly authorized
officers, all as of the day and year first above written.
[SEAL] COUNTIES OF ▇▇▇▇▇▇ AND WASHINGTON
INDUSTRIAL DEVELOPMENT AGENCY
ATTEST
[illegible] By: [illegible]
--------------------------------- --------------------------------------
Secretary Vice Chairman
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as
Trustee
By: [illegible]
--------------------------------------
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Exhibit A
to Indenture of Trust
FORM OF BOND
[FACE OF BOND]
NO. R-__________ $________________
UNITED STATES OF AMERICA
STATE OF NEW YORK
COUNTIES OF ▇▇▇▇▇▇ AND WASHINGTON
INDUSTRIAL DEVELOPMENT AGENCY
INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1994
(▇▇▇▇▇▇▇▇ MICRO SCIENCE, INC. PROJECT)
DATED DATE MATURITY DATE CUSIP
Date of Issuance December 1, 2014 ______________
REGISTERED
OWNER:__________________________________________________________________________
PRINCIPAL
AMOUNT:_________________________________________________________________DOLLARS
The Counties of ▇▇▇▇▇▇ and Washington Industrial Development Agency, a
corporate governmental agency constituting a body corporate and politic and a
public benefit corporation of the State of New York (the "State"), hereby
promises to pay to the order of the Registered Owner specified above, or
registered assigns, the Principal Amount specified above on the Maturity Date
specified above (or earlier as hereinafter provided), and to pay interest on
the Principal Amount hereof from the date specified in the Indenture
(hereinafter defined) at the rates per annum and on the dates set forth herein
(but only out of the revenues of the Issuer derived from the Agreement, as
hereinafter defined, or other moneys pledged therefor) and in accordance with
the provisions of the New York State Industrial Development Agency Act, Title I
of Article 18-A of the New York State General Municipal Law, as amended, and
Chapter 862 of the Laws of 1971 of the State of New York (collectively, the
"Act").
THE BONDS SHALL NOT CONSTITUTE OR GIVE RISE TO AN OBLIGATION OF THE
STATE OF NEW YORK OR THE COUNTIES OF ▇▇▇▇▇▇ AND WASHINGTON, NEW YORK AND
NEITHER THE STATE OF NEW YORK NOR THE COUNTIES OF ▇▇▇▇▇▇ AND WASHINGTON, NEW
YORK SHALL BE LIABLE WITH RESPECT THERETO. THE BONDS SHALL NOT CONSTITUTE NOR
GIVE RISE TO A GENERAL OBLIGATION OF THE ISSUER, BUT RATHER SHALL CONSTITUTE
LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY FROM THE REVENUES OF THE
ISSUER DERIVED AND TO BE DERIVED FROM THE LEASE OF THE PROJECT PURSUANT TO THE
AGREEMENT (AS HEREINAFTER DEFINED) (EXCEPT FOR REVENUES DERIVED BY THE ISSUER
WITH RESPECT TO CERTAIN UNASSIGNED RIGHTS UNDER THE AGREEMENT) AND THE OTHER
SECURITY PLEDGED TO THE PAYMENT OF THE BONDS.
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69
The principal of, premium, if any, and interest on this Bond are
payable in lawful money of the United States of America. The principal of and
premium, if any, payable upon maturity or earlier redemption of this Bond are
payable when due upon the presentation and surrender hereof at the principal
corporate trust office of ▇▇▇▇▇▇ Trust and Savings Bank, in Chicago, Illinois,
as trustee (the "Trustee"), or any successor trustee. Each payment of interest
on this Bond shall be payable to the Registered Owner hereof as shown on the
registration books kept by the Trustee at the close of business on the Business
Day (but, during an Adjustable Rate Period of six months or more, the fifteenth
day of the calendar month) next preceding the date on which such interest
becomes due and payable (herein, a "Record Date"). Interest on this Bond shall
be payable to the Registered Owner hereof by check or draft mailed by first
class mail on the respective Interest Payment Dates (as hereinafter defined) to
the address of such Registered Owner as shown on the books kept by the Trustee
at the close of business on the relevant Record Date or such other address as
is furnished to the Trustee (in form satisfactory to the Trustee) by such owner
prior to such Record Date. Registered Owners of $1,000,000 or more in
aggregate principal amount of Bonds shall be entitled to receive interest
payments by wire transfer by providing written wire instructions to the Trustee
before the Record Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS BOND SET
FORTH ON THE REVERSE SIDE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF FULLY SET FORTH IN THE TEXT OF THIS BOND
WRITTEN ABOVE.*
This** Bond shall not be valid or become obligatory for any purpose or
be entitled to any security or benefit under the Indenture until the
Certificate of Authentication hereon shall have been signed by the Trustee or
the Tender Agent.
__________________________________
* Delete this sentence when bond is not in printed form.
** This word and all material after this word on this and the following page
is to appear on p. A-12 when bond is not in printed form.
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IN WITNESS WHEREOF, the Issuer has caused this Bond to be executed in
its name by the manual or facsimile signature of its Chairman or Vice Chairman
and attested with the manual or facsimile signature of the Secretary all as of
the date first above written.
[SEAL] COUNTIES OF ▇▇▇▇▇▇ AND WASHINGTON
INDUSTRIAL DEVELOPMENT AGENCY
ATTEST
By: By:
------------------------------- -----------------------------------
CERTIFICATE OF AUTHENTICATION
This Bond is hereby authenticated as required by the within-referenced
Indenture of Trust.
▇▇▇▇▇▇ TRUST AND SAVINGS BANK, as
Trustee
-------------------------------------
Authorized Officer of Trustee
or Tender Agent
Date of
Authentication:
-----------
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(REVERSE OF BOND)*
This Bond is authorized and issued under and pursuant to authority
conferred by the Act, certain proceedings of the Issuer and the Indenture of
Trust dated as of December 1, 1994 (the "lndenture") between the Issuer and the
Trustee. Certain terms used and not defined in this Bond are defined in the
Indenture. This Bond is one of the Issuer's duly authorized Industrial
Development Revenue Bonds, Series 1994 (▇▇▇▇▇▇▇▇ Micro Science, Inc. Project)
(the "Bonds"), which Bonds have been issued in the aggregate principal amount
of $5,300,000 to provide funds to finance the costs of the acquisition,
construction, rehabilitation and equipping of certain industrial development
facilities (the ' Project") located in the County of Washington, New York. The
Project is leased to ▇▇▇▇▇▇▇▇ Micro Science, Inc., a Delaware corporation (the
"Company") pursuant to a Lease Agreement dated as of December 1, 1994 (the
"Agreement") between the Issuer and the Company. As security for the payment
of the Bonds, the Company has caused to be delivered to the Trustee a letter of
credit (the "lnitial Letter of Credit") of The First National Bank of Chicago
(the "Bank"), against which the Trustee shall be entitled to draw, in
accordance with the terms thereof, to pay when and as due, the principal or
purchase price of, and interest on, the Bonds during the term of the Initial
Letter of Credit. The Initial Letter of Credit expires on December 29, 1997,
subject to earlier termination in certain events. Under certain conditions set
forth in the Indenture, the Company may cause to be delivered an Alternate
Credit Facility (an "Alternate Credit Facility") in substitution for the Letter
of Credit then in effect or cause the Letter of Credit to be released without
substitution of any Alternate Credit Facility. The Initial Letter of Credit,
together with any Alternate Credit Facility, is hereinafter referred to as the
"Letter of Credit". The Company has guaranteed its obligations with respect to
the Bonds pursuant to a Guaranty Agreement dated as of December 1, 1994 between
the Company and the Trustee.
The Bonds are issued under and entitled to the benefits of the
Indenture. Pursuant to the Indenture, the Issuer has pledged and assigned to
the Trustee the Trust Estate as security for its obligation to pay the
principal or purchase price of, premium, if any, and interest on the Bonds.
Reference is made to the Indenture for a description of the Trust Estate and
for the provisions thereof with respect to the nature and extent of the
security granted by the Issuer to the Trustee thereunder, the rights, duties
and obligations of the Issuer and the Trustee, the rights of the registered
owners of the Bonds, and the terms on which the Bonds are issued and secured,
to all of which provisions, and to all other provisions of the Indenture, the
Registered Owner hereof by the acceptance of this Bond assents.
I. Weekly Rate Provisions
Optional Tender. During a Weekly Rate Period, this Bond or any
portion thereof in Authorized Denominations (except during any period this Bond
is a Pledged Bond or Company Bond) shall be purchased on the demand of the
registered owner thereof on any Business Day at a price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to
---------------
* Delete when bond is not in printed form.
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72
the date of purchase, upon delivery to the tender agent duly appointed in
accordance with the provisions of the Indenture (together with any successor
tender agent, the "Tender Agent") at its Principal Office, on any Business Day,
of (a) a written irrevocable notice setting forth the information required by
the Indenture, including the date on which such Bond, or the portion thereof
being tendered for purchase, shall be so purchased, which date shall be a
Business Day not prior to the seventh day next succeeding the date of the
delivery of such notice to the Tender Agent, together with (b) this Bond, as
provided in the Indenture; provided, that if the registered owner of the
tendered Bond is an open-ended diversified management investment company
(registered under the Investment Company Act of 1940, as amended), the delivery
required under this clause (b) need not be made until the date such Bond is to
be purchased from such registered owner as provided in the Indenture.
Notwithstanding the foregoing, if the Bonds, are held in a Book-Entry System,
separate procedures for the optional tender of Bonds are set forth in the
Indenture.
Interest. During any period this Bond is in the Weekly Rate Mode,
interest on this Bond shall be paid on the first Business Day of each month
next succeeding the Closing Date (if applicable), each Weekly Rate Conversion
Date and on the Maturity Date specified above or such other date as the
outstanding principal amount of the Bonds is paid in full if the Bonds are in
the Weekly Rate Mode at such time (each, a "Weekly Rate Interest Payment
Date"), and shall be computed on the basis of a 365- or 366-day year, for the
actual number of days elapsed. Interest on the Bond for each Weekly Interest
Period shall be calculated as provided below and in the Indenture. During each
Weekly Rate Period, "Weekly Interest Period" shall mean the period from and
including the first day of the Weekly Rate Period through and including the
following Tuesday, and after the first Weekly Interest Period of each Weekly
Rate Period, from and including Wednesday of each week through and including
the following Tuesday, whether or not such days are Business Days, provided,
however, the initial Weekly Interest Period shall commence on the Closing Date
and end on the next following Tuesday.
On Tuesday (unless Tuesday is not a Business Day, then on the next
preceding Monday; unless Monday and Tuesday are not Business Days, then on the
next subsequent Wednesday, whether or not a Business Day) of each calendar week
during a Weekly Rate Period, with respect to each Weekly Interest Period, the
Remarketing Agent shall determine the Weekly Rate for the ensuing or current
(in the case of determinations made on Wednesday) Weekly Interest Period. The
determination of the Weekly Rate by the Remarketing Agent shall be conclusive
and binding.
The Weekly Rate for each Weekly Interest Period determined by the
Remarketing Agent shall be the lowest rate of interest which will, in the sole
judgment of the Remarketing Agent, having due regard for prevailing financial
market conditions, permit the Bonds to be remarketed at a price of par, plus
accrued interest, on the first day of the applicable Weekly Interest Period;
provided that in no case shall the Weekly Rate be more than the Maximum Rate.
In the event no Weekly Rate is determined by the Remarketing Agent for a Weekly
Interest Period, the Weekly Rate for such Weekly Interest Period shall be the
rate from time to time established pursuant to the Indenture.
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II. Daily Rate Provisions
Optional Tender. During a Daily Rate Period, this Bond or any portion
thereof in Authorized Denominations (except during any period this Bond is a
Pledged Bond or Company Bond) shall be purchased on the demand of the
registered owner thereof on any Business Day at a price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest thereon to the date
of purchase, upon delivery (by telecopy or otherwise) to the Tender Agent at
its Principal Office, (a) by 10:30 a.m., New York time, on such Business Day,
of a written irrevocable notice, which will be effective upon receipt, setting
forth the information required by the Indenture and (b) by 11:00 a.m., New York
time on such Business Day, this Bond, as provided in the Indenture.
Notwithstanding the foregoing, if the Bonds are held in a Book-Entry System,
separate procedures for the optional tender of Bonds are set forth in the
Indenture.
Interest. During any period this Bond is in the Daily Rate Mode,
interest on this Bond shall be paid on the first Business Day of each month
next succeeding the Closing Date (if applicable), each Daily Rate Conversion
Date, and on the Maturity Date specified above or such other date as the
outstanding principal amount of the Bonds is paid in full if the Bonds are in
the Daily Rate Mode at such time (each, a "Daily Rate Interest Payment Date"),
and shall be computed on the basis of a 365- or 366-day year, for the actual
number of days elapsed. Interest on the Bonds for each Daily Interest Period
shall be calculated as provided below and in the Indenture. During each Daily
Rate Period, "Daily Interest Period" shall mean the period from and including
the first day of the Daily Rate Period to but excluding the immediately
succeeding Business Day.
On the first day of each Daily Interest Period, the Remarketing Agent
shall determine the Daily Rate for such Daily Interest Period. The
determination of the Daily Rate by the Remarketing Agent shall be conclusive
and binding.
The Daily Rate for each Daily Interest Period determined by the
Remarketing Agent shall be the lowest rate of interest which will, in the sole
judgment of the Remarketing Agent, having due regard for prevailing financial
market conditions, permit the Bonds to be remarketed at a price of par, plus
accrued interest, on the first day of the applicable Daily Interest Period;
provided that in no case shall the Daily Rate be more than the Maximum Rate.
In the event no Daily Rate is determined by the Remarketing Agent for a Daily
Interest Period, then the Bonds shall thereupon bear interest at the last Daily
Rate previously determined pursuant to the Indenture.
III. CP Rate Provisions
From and after each CP Rate Conversion Date or a CP Rate Reset Date,
as appropriate, to the earlier of their redemption, the following Conversion
Date for all Bonds or the following CP Rate Reset Date applicable to such Bond,
the interest rate of this Bond shall be a CP Rate, determined as provided below
and in the Indenture. Different CP Rate Periods may apply to different Bonds
at any time and from time to time while the Bonds are in a CP Rate Mode. In
the case of each CP Rate Period, on the first day thereof, the Remarketing
Agent shall determine (i) the duration of such CP Rate Period and (ii) the CP
Rate which shall apply during such CP
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Rate Period. The duration of a CP Rate Period so determined shall be that
which, together with all such other CP Rate Periods for all Bonds then
outstanding, in the sole judgment of the Remarketing Agent will provide the
lowest overall interest cost with respect to the Bonds, with due regard to
prevailing financial market conditions, foreseeable changes in such conditions,
the anticipated duration of the period the Bonds may remain in the CP Rate
Mode, and such other factors which the Remarketing Agent, in its sole judgment,
shall deem relevant and economically advantageous to consider. Upon
determination of the duration of a CP Rate Period with respect to any Bonds,
the Remarketing Agent shall determine the CP Rate which shall be in effect
during such CP Rate Period, which shall be the lowest rate of interest which,
in the sole judgment of the Remarketing Agent, having due regard to prevailing
financial market conditions, will permit such Bonds to be sold at par, plus
accrued interest, on the first day of such CP Rate Period. Notwithstanding the
foregoing, the CP Rate so determined shall not be more than the Maximum Rate.
Unless and until the Company elects to effect a conversion of the Bonds from
the CP Rate Mode to another Mode, the Remarketing Agent shall continually
redetermine the duration of, and the CP Rate to be effective during each new CP
Rate Period, with respect to each Bond, which will commence, without further
action on the part of the Company on each CP Rate Reset Date. If on any CP
Rate Reset Date the Remarketing Agent shall fail to determine either the
duration of, or the CP Rate to be effective during the CP Rate Period which
commences on such date, with respect to any Bonds, such Bonds without further
action on the part of any person, shall automatically convert to the Weekly
Rate Mode upon such date, and the Weekly Rate which will be effective on such
date will be determined as described in the Indenture. Such Bonds may not
thereafter be converted from the Weekly Rate Mode until such time as all Bonds
then outstanding are in the Weekly Rate Mode. Upon such automatic conversion
of a portion of the Bonds to the Weekly Rate Mode, any Bonds then remaining in
the CP Rate Mode shall be automatically converted to the Weekly Rate Mode upon
the expiration of the CP Rate Period applicable to such Bond without further
action on the part of any person (and notwithstanding any attempted act to the
contrary on the part of any person). Each determination by the Remarketing
Agent shall be conclusive and binding. While the Bonds are in the CP Rate
Mode, interest on this Bond will be payable on the first Business Day which
follows each CP Rate Period applicable to this Bond, and shall be computed on
the basis of a 365- or 366-day year, and the actual number of days elapsed.
IV. Adjustable Rate Provisions
From and after each Adjustable Rate Conversion Date or Adjustable Rate
Reset Date, the interest rate on this Bond shall be an Adjustable Rate,
determined as provided below and in the Indenture. When the Bonds are in the
Adjustable Rate Mode, the Bonds will remain in such Mode for as long as the
Company continues to deliver timely conversion notices specifying the duration
of the next Adjustable Rate Period. The Remarketing Agent, on or prior to the
commencement of each Adjustable Rate Period, shall determine the Adjustable
Rate to be borne by the Bonds during such Adjustable Rate Period, which will be
the lowest rate which, in its sole judgment having due regard for prevailing
financial market conditions, will permit the Bonds to be sold at par on the
first day of such Adjustable Rate Period. Notwithstanding the foregoing, the
Adjustable Rate shall not be more than the Maximum Rate. In the event no
Adjustable Rate
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is determined by the Remarketing Agent for an Adjustable Rate Period, then the
Bonds shall bear interest as provided in the Indenture.
During each Adjustable Rate Period, interest on this Bond shall be
paid on each Adjustable Rate Interest Payment Date, and shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
V. Conversion Provisions
The interest rate Mode of this Bond shall be converted from one Mode
to another Mode, or from an Adjustable Rate Period of one duration to an
Adjustable Rate Period of the same or a different duration within the
Adjustable Rate Mode, if the Company shall give notice as provided in the
Indenture of its election to effect such conversion, specifying in such notice
the date on which the Conversion Date will occur (which date shall be at least
25 days after such notice is given) and, if the conversion is to an Adjustable
Rate Period, specifying the Interest Payment Date which shall be the day
following the last day of such Adjustable Rate Period. The Bonds shall be
subject to mandatory tender and purchase on the Conversion Date. In the event
any condition precedent to the conversion of the interest rate Mode of this
Bond from one Mode to another Mode, or from an Adjustable Rate Period of one
duration to an Adjustable Rate Period of the same or a different duration, is
not satisfied, this Bond shall nonetheless be subject to mandatory tender on
the Conversion Date and the Bonds shall commence bearing interest on the
Conversion Date as provided in the Indenture.
VI. Mandatory Tender
All Bonds are subject to mandatory tender in whole (except as provided
in (b) below) by the Bondholders to the Tender Agent at its Principal Office on
each date described below:
(a) On each Conversion Date (provided that, in the event
less than all of the Bonds are being converted from the CP Rate Mode
to the Weekly Rate Mode as described in the Indenture, only the Bonds
being converted shall be subject to mandatory tender);
(b) On each CP Rate Reset Date with respect to any Bond
(provided that only those Bonds whose interest rates are being reset
on such date shall be subject to mandatory tender);
(c) On the second Business Day prior to the release,
expiration or termination of the Letter of Credit, if the Trustee has
not received evidence satisfactory to it as required by the Indenture
by the 25th day preceding the scheduled release, expiration or
termination date of the Letter of Credit of either an extension of the
then existing Letter of Credit or the issuance of an Alternate Credit
Facility meeting the requirements set forth therefor in the Agreement,
including the Maintenance of Rating requirement (as defined therein);
▇-▇
▇▇
(▇) ▇▇ the date of substitution of an Alternate Credit
Facility for the then existing Letter of Credit if the Trustee has not
received evidence of a Maintenance of Rating (as defined in the
Agreement) with respect thereto by the 25th day preceding such
substitution date;
(e) On each optional redemption date pursuant to the
Indenture for which the Company has elected to purchase Bonds in lieu
of optional redemption pursuant to the Indenture; and
(f) On any date on which the Guaranty is released prior
to maturity of the Bonds as provided in the Indenture.
The purchase price of Bonds subject to mandatory tender shall be 100%
of the principal amount thereof (except in the case of a mandatory tender
described in paragraph (c), (d), (e) or (f) above, during, but prior to the
expiration date of, an Adjustable Rate Period, in which case the purchase price
shall include a premium equal to the then applicable optional redemption
premium, if any, on the Bonds, as set forth in the Indenture). Not later than
20 days prior to any mandatory tender date described in (b), (c), (d) or (f)
above, the Trustee shall mail notice to all Owners of Bonds subject to
mandatory tender on such date stating that (1) due to the occurrence of one of
the events described above (which event shall be specified), such Owner's Bonds
will be subject to mandatory tender on the mandatory tender date (which date
shall be specified); (2) that, subject to clause (4) below, all such owners who
fail to tender their Bonds for purchase on the mandatory tender date will
nonetheless be deemed to have tendered their Bonds for purchase on such date;
(3) that subject to clause (4) below, any such Bonds not delivered to the
Tender Agent on or prior to the mandatory tender date, for which there has been
irrevocably deposited in trust with the Trustee Available Moneys sufficient to
pay the purchase price of such Undelivered Bonds on the mandatory tender date,
shall be deemed to have been so purchased at the purchase price and such Bonds
shall no longer be considered to be outstanding for purposes of the Indenture
and shall no longer be entitled to the benefits of the Indenture except for the
payment of the purchase price thereof (and no interest shall accrue thereon
subsequent to the mandatory tender date) and (4) notwithstanding the foregoing,
while the Bonds are held in the Book-Entry System, Bonds need not be physically
tendered on the mandatory tender date, and transfers of beneficial ownership
interests will be effected by the Securities Depositary in accordance with its
rules and procedures. Notice of mandatory tenders described in paragraphs (a)
and (e) above shall be given as part of the notice of conversion or optional
redemption referenced above. No failure on the part of the Tender Agent to
give such notice shall affect the requirement that Bonds be purchased or
tendered for purchase on the mandatory tender or purchase date.
Any Bond subject to mandatory tender which is not tendered on or
before the mandatory tender date shall, if Available Moneys sufficient and
available for the purchase of such Bonds have been deposited with the Tender
Agent on the mandatory tender date, be deemed to have been tendered for
purchase on the mandatory tender date, and from and after such date, interest
will no longer accrue on such Bonds. Owners of such Bonds shall have no rights
or benefits under the Indenture with respect to such Bonds other than to
receive the purchase price for such Bonds upon surrender of such Bonds to the
Tender Agent.
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VII. Redemption of Bonds
The Bonds shall be subject to optional redemption only as follows:
a. Weekly Rate Mode, CP Rate Mode or Daily Rate Mode.
While the Bonds are in the Weekly Rate Mode or the Daily Rate Mode,
they are subject to optional redemption, in whole or in part on any
Business Day in Authorized Denominations, and while the Bonds are in
the CP Rate Mode, Bonds are subject to optional redemption in whole or
in part in Authorized Denominations on any Interest Payment Date for a
given Bond, at the direction of the Company, at a redemption price
equal to 100% of the principal amount of the Bond to be redeemed, plus
accrued interest thereon to the redemption date.
b. Adjustable Rate Mode. While the Bonds are in the
Adjustable Rate Mode, they are subject to optional redemption in whole
or in part on any date, at the direction of the Company, only on the
dates and at the applicable redemption prices set forth in the
Indenture.
While the Bonds are in the Adjustable Rate Mode or the CP Rate Mode,
the Bonds are subject to extraordinary optional redemption in whole on any date
at a redemption price equal to the principal amount of Bonds plus accrued
interest to the redemption date, without premium, upon the occurrence of
certain events specified in the Indenture.
The Bonds in any Mode are subject to mandatory redemption in whole on
the next date for which timely notice of redemption can be given by the Trustee
after the occurrence of a Determination of Taxability at a redemption price
equal to the aggregate principal amount of the Bonds plus accrued interest
thereon to the redemption date, without premium.
At least 30 days prior to any redemption of Bonds, the Trustee shall
cause notice of the call for redemption to be sent by first class mail, postage
prepaid, to the Owner of each Bond to be redeemed at the address of such Owner
shown on the registration books maintained by the Trustee. Neither the failure
to give any such notice nor any defect in any notice so mailed shall affect the
sufficiency or the validity of any proceedings for the redemption of the Bonds.
The Trustee shall not be required to register the transfer of or exchange any
Bond after notice calling such Bond or portion thereof for redemption has been
mailed or during the 15-day period next preceding the mailing of a notice of
redemption of any Bonds.
If Available Moneys are deposited in the Bond Fund on the date Bonds
are to be redeemed, Bonds or portions thereof redeemed shall no longer be
secured by this Indenture and shall not be deemed to be outstanding under the
provisions of this Indenture. Interest shall not continue to accrue on the
Bonds after the date fixed for redemption, so long as Available Moneys are on
deposit to pay all principal of, premium, if any, and interest accrued on the
Bonds on such date. However, if Available Moneys shall not be on deposit on
the redemption date, such Bonds or portions thereof shall continue to bear
interest until paid at the same rate as they would have borne had they not been
called for redemption.
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Any partial redemption of Bonds shall be made only in Authorized
Denominations. If fewer than all of the Bonds shall be called for redemption,
the portion of Bonds to be redeemed shall be selected by the Trustee as
provided in the Indenture.
VIII. General Provisions
Except as provided in the Indenture, the ownership of this Bond may be
transferred (in Authorized Denominations) only upon presentation and surrender
of this Bond at the principal corporate trust office of the Trustee, together
with an assignment duly executed by the Registered Owner hereof or his duly
authorized attorney-in-fact in such form as shall be satisfactory to the
Trustee.
Provisions may be made for the payment of amounts represented by the
Bonds as provided in the Indenture, in which event all liability of the Issuer
to the Owners of the applicable Bonds for the payment of such Bonds shall
forthwith cease, terminate and be completely discharged, and thereupon it shall
be the duty of the Trustee to hold such funds (but only for the period
specified and as provided in the Indenture), without liability for interest
thereon, for the benefit of the Owners of such Bonds, who shall thereafter be
restricted exclusively to such funds for any claims of whatever nature under
the Indenture or on, or with respect to, said Bonds.
It is hereby certified and covenanted that this Bond has been duly and
validly authorized, issued and delivered; that all acts, conditions and things
required or proper to be performed, exist and be done precedent to or in the
authorization, issuance and delivery of this Bond have been performed, existed
and done in accordance with law.
The Bonds are secured by the Indenture, whereunder the Trustee
undertakes to enforce the rights of the owners of the Bonds and to perform
other duties to the extent and under the conditions stated in the Indenture.
In case an Event of Default shall occur, the principal of and interest on the
Bonds then outstanding may, and, under certain circumstances, shall, be
declared to be due and payable immediately upon the conditions and in the
manner provided in the Indenture. Under the circumstances and conditions
provided in the Indenture, the Trustee may, or shall, waive any Event of
Default under the Indenture and its consequences.
The Issuer has reserved the right to amend the Indenture, with the
consent of the Bank, as provided therein. Under some (but not all)
circumstances, amendments thereto must also be approved by the owners of either
at least a majority or 100% in aggregate principal amount of the outstanding
Bonds affected by such amendment.
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