EXHIBIT 10(y)
------------------------------------
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE
and
FIRST UNION NATIONAL BANK
as Trustee
--------------
TRUST INDENTURE
--------------
Dated as of October 1, 1998
--------------
$7,500,000
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE
TAX-EXEMPT VARIABLE RATE DEMAND/FIXED RATE
REFUNDING REVENUE BONDS
(CENTRAL CPVC CORPORATION PROJECT)
SERIES OF 1998
-------------------------------------------
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS; CONTENT OF CERTIFICATES AND OPINIONS
Section 1.01. Definitions..............................................4
Section 1.02. Content of Certificates and Opinions....................17
Section 1.03. Interpretation..........................................18
ARTICLE II
THE BONDS
Section 2.01. Authorization of Bonds..................................18
Section 2.02. Terms of Bonds: Interest on the Bonds...................19
Section 2.03. Execution of Bonds......................................21
Section 2.04. Authentication..........................................21
Section 2.05. Form of Bonds...........................................22
Section 2.06. Transfer of Bonds ......................................23
Section 2.07. Exchange of Bonds.......................................23
Section 2.08. Bond Register...........................................23
Section 2.09. Temporary Bonds.........................................23
Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen..............24
Section 2.11. Cancellation and Destruction of Surrendered Bonds.......24
Section 2.12. Acts of Bondholders; Evidence of Ownership..............24
Section 2.13. Book-Entry Bonds; Securities Depository.................25
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
Section 3.01. Issuance of the Bonds.........................................26
Section 3.02. Validity of Bonds.............................................26
Section 3.03. Disposition of Proceeds of the Bonds and Other Amounts........26
*This Table of Contents is for convenience only, does not constitute a part of
this Indenture and shall not be considered as having any bearing upon any
interpretation of this Indenture.
i
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.01. Extraordinary and Mandatory Redemption...................27
Section 4.02. Optional Redemption......................................29
Section 4.03. Notice of Redemption.....................................29
Section 4.04. Interest on Bonds Called for Redemption..................30
Section 4.05. Cancellation.............................................30
Section 4.06. Partial Redemption of Bonds..............................30
Section 4.07. Payment of Redemption Price with
Available Moneys; Consent of Letter of Credit Bank
to Optional Redemption...................................31
ARTICLE V
CONVERSION OF INTEREST RATE; DEMAND PURCHASE OPTION
Section 5.01. Conversion of Interest Rate on Conversion Date...........31
Section 5.02. Delivery of Bonds After Conversion Date .................33
Section 5.03. Mandatory Purchase Upon Substitution of Letter of Credit.33
Section 5.04. Demand Purchase Option...................................34
Section 5.05. Funds for Purchase of Bonds..............................35
Section 5.06. Delivery of Purchased Bonds..............................37
Section 5.07. Sale of Bonds by Remarketing Agent.......................37
Section 5.08. Delivery of Proceeds of Sale of
Purchased Bonds..........................................38
Section 5.09. Duties of Trustee and Tender Agent with
Respect to Purchase of Bonds.............................38
Section 5.10. No Purchases or Sales After Certain Defaults.............39
ARTICLE VI
REVENUES AND FUNDS
Section 6.01. Creation of the Bond Fund................................39
Section 6.02. Payments into the Bond Fund..............................39
Section 6.03. Use of Moneys in the Bond Fund...........................40
Section 6.04. Custody of Separate Trust Fund...........................40
Section 6.05. [Reserved]...............................................40
Section 6.06. [Reserved]...............................................41
Section 6.07. [Reserved]...............................................41
ii
Section 6.08. [Reserved]...............................................41
Section 6.09. Nonpresentment of Bonds..................................41
Section 6.10. Moneys to be Held in Trust...............................42
Section 6.11. Repayment to the Bank and the Company
from the Bond Fund.......................................42
Section 6.12. Letter of Credit.........................................42
Section 6.13. [Reserved]...............................................43
Section 6.14. Investment of Moneys in Funds............................45
ARTICLE VII
PARTICULAR COVENANTS
Section 7.01. Punctual Payment.........................................45
Section 7.02. Extension of Payment of Bonds............................46
Section 7.03. Against Encumbrances.....................................46
Section 7.04. Power to Issue Bonds and Make Pledge and Assignment......46
Section 7.05. Accounting Records and Financial Statements..............46
Section 7.06. Reserved.................................................47
Section 7.07. Other Covenants..........................................47
Section 7.08. Reserved.................................................47
Section 7.09. Further Assurances.......................................47
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
Section 8.01. Events of Default........................................48
Section 8.02. Acceleration.............................................49
Section 8.03. Other Remedies...........................................50
Section 8.04. Legal Proceedings by Trustee.............................51
Section 8.05. Discontinuance of Proceedings by Trustee.................51
Section 8.06. Bondholders May Direct Proceedings.......................51
Section 8.07. Limitations on Actions by Bondholders....................52
Section 8.08. Trustee May Enforce Rights Without
Possession of Bonds......................................52
Section 8.09. Delays and Omissions Not to Impair Rights................52
Section 8.10. Application of Moneys in Event of Default................52
Section 8.11. Trustee and Bondholders Entitled to All
Remedies Under Act: Remedies Not Exclusive...............53
Section 8.12. Trustee's Right to Receiver..............................53
iii
Section 8.13. Subrogation Rights of Bank...............................53
Section 8.14. Waiver of Default........................................54
ARTICLE IX
THE TRUSTEE; THE TENDER AGENT
AND THE REMARKETING AGENT
Section 9.01. Duties, Immunities and Liabilities of Trustee............54
Section 9.02. Merger or Consolidation..................................55
Section 9.03. Liability of Trustee.....................................56
Section 9.04. Right of Trustee to Rely on Documents....................56
Section 9.05. Preservation and Inspection of Documents.................57
Section 9.06. Compensation.............................................57
Section 9.07. The Tender Agent.........................................57
Section 9.08. Qualifications of Tender Agent...........................58
Section 9.09. Qualifications of Remarketing Agent;
Resignation; Removal.....................................58
Section 9.10. Construction of Ambiguous Provisions.....................59
ARTICLE X
MODIFICATION OR AMENDMENT OF THE INDENTURE
Section 10.01. Amendments Permitted.....................................59
Section 10.02. Effect of Supplemental Indenture.........................59
Section 10.03. Trustee Authorized to Join in Amendments
and Supplements; Reliance on Counsel.....................60
ARTICLE XI
DEFEASANCE
Section 11.01. Discharge of Indenture...................................60
Section 11.02. Discharge of Liability on Bonds..........................61
Section 11.03. Deposit of Money or Securities with Trustee..............61
Section 11.04. Payment of Bonds After Discharge of Indenture............62
iv
ARTICLE XII
MISCELLANEOUS
Section 12.01. Liability of Board Limited to Revenues..................62
Section 12.02. Limitation of Liability of Directors,
Etc. of Board..........................................63
Section 12.03. Covenant Not to ▇▇▇.....................................63
Section 12.04. Successor Is Deemed Included in All
References to Predecessor...............................63
Section 12.05. Limitation of Rights to Parties, Bank,
Company and Bondholders.................................63
Section 12.06. Waiver of Notice........................................64
Section 12.07. Severability of Invalid Provisions......................64
Section 12.08. Notices.................................................64
Section 12.09. Evidence of Rights of Bondholders.......................65
Section 12.10. Disqualified Bonds......................................66
Section 12.11. Money Held for Particular Bonds.........................66
Section 12.12. Funds...................................................66
Section 12.13. Payments Due on Days other than Business Days...........67
Section 12.14. Execution in Several Counterparts.......................67
Section 12.15. Notices to Rating Agency................................67
Section 12.16. Continuing Disclosure...................................67
Exhibit "A" - Floating Rate Form of Bond...................................A-1
Exhibit "B" - Fixed Rate Form of Bond......................................B-1
v
This TRUST INDENTURE, made and entered into as of October 1, 1998, by
and between THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE, a public
corporation organized under the laws of the State (the "Board") and FIRST UNION
NATIONAL BANK, a national banking association, as trustee (the "Trustee") and
tender agent (the "Tender Agent");
W I T N E S S E T H:
(Capitalized terms not otherwise defined shall have the meanings
ascribed to them in Section 1.01 of this Indenture.)
WHEREAS, proceeds of the Bonds are being issued to refund the
outstanding principal amount of the Board's Industrial Development Revenue Bonds
(Central CPVC Corporation Project) Series 1997 Bonds dated December 1, 1997 (the
"Series 1997 Bonds"). The Series 1997 Bonds were issued in the principal amount
of $7,500,000 and are now outstanding in the same amount. The Series 1997 Bonds
were issued to finance the costs of acquiring, constructing and equipping a
certain manufacturing facility (the "Project") that was leased to Central CPVC
Corporation (the "Company") by the Board pursuant to a Lease Agreement dated as
of December 1, 1997 (the "1997 Lease Agreement"); and
WHEREAS, when the Bonds are issued, the Series 1997 Bonds will be
immediately paid and retired and the 1997 Lease Agreement will be amended and
restated. The Board continues to own the Project and will lease the Project to
the Company pursuant to an Amended and Restated Lease Agreement dated as of
October 1, 1998, which amends and restates the 1997 Lease Agreement; and
WHEREAS, pursuant to the Amended and Restated Lease Agreement dated as
of October 1, 1998 (the "Agreement") the Company will agree to make lease
payments to the Trustee on behalf of the Board at times and in amounts
sufficient to pay debt service on the Bonds and to pay the purchase price of
Bonds tendered for purchase pursuant to the optional or mandatory tender
provisions of this Indenture; and
WHEREAS, the Board has determined to assign, transfer and pledge unto
the Trustee; as trustee under this Indenture, all right, title and interest of
the Board (except for certain reserved rights described herein) in and to the
Agreement and sums payable thereunder; and
WHEREAS, the Company will cause Congress Financial Corporation (the
"Bank") to arrange for First Union National Bank (the "Letter of Credit Bank")
to issue an irrevocable letter of credit in favor of the Trustee to provide for
payment of debt service on the Bonds and to pay the purchase price of Bonds
tendered for purchase pursuant to the optional or mandatory tender provisions of
the Indenture. The initial letter of credit to be delivered to the Trustee and
any substitute letter of credit delivered pursuant to the Indenture are referred
to as the "Letter of Credit"; and
6
WHEREAS, the Bank has agreed to guarantee to the Letter of Credit Bank
the performance by the Company of its obligations to the Letter of Credit Bank;
and
WHEREAS, the Bank will arrange for the initial Letter of Credit
pursuant to the Loan and Security Agreement by and among Congress Financial
Corporation, as Lender, and Central Sprinkler Company, Central Castings
Corporation, Central CPVC Corporation, as Borrowers, and Central Sprinkler
Corporation and Central Sprinkler Export Corporation, as Guarantors, dated
September 18, 1998 (the "Loan Agreement") between the Bank and the Company
whereby the Company has agreed to, among other things, reimburse the Bank for
any payments to the Letter of Credit Bank to reimburse the Letter of Credit Bank
for draws made by the Trustee on the Letter of Credit and for other costs,
expenses and charges, as specified in the Loan Agreement; and
WHEREAS, as security for the Company's obligations under the Loan
Agreement, the Company has executed a Fee and Leasehold Mortgage with Security
Agreement and Assignment of Leases and Rents dated September 18, 1998 (together
with all amendments, modifications and restatements thereof, the "Bank
Mortgage") in favor of the Bank, whereby the Bank has a mortgage on and security
interest in the Project, the leasehold interest of the Company, and certain
other collateral; and
WHEREAS, the Bonds will be further secured by the unconditional
guaranty of payment of principal of and interest on the Bonds by Central CPVC
Corporation, an Alabama corporation; and
WHEREAS, the Bonds are the limited obligations of the Lessor payable
solely out of (a) payments made pursuant to the Lease Agreement and the Bond
Guaranty, and (b) money received from a draw on the Letter of Credit. The
Trustee will not have a mortgage on or security interest in the Project. The
Bank Mortgage is for the sole benefit of the Bank; and
WHEREAS, the Bonds never shall constitute the debt or indebtedness of
the City of Huntsville (the "City") or the State of Alabama (the "State"),
within the meaning of any provision or limitation of the constitution or
statutes of Alabama, and shall not constitute or give rise to a pecuniary
liability of the Lessor, its members or the City or the State or a charge
against its or their general credit or the taxing powers of the City or the
State; and
WHEREAS, execution and delivery of this Indenture and the issuance of
the Bonds hereunder and under the Act have been duly and validly authorized by
resolution of the Board of the Board duly adopted prior to such execution and
delivery,
NOW, THEREFORE, in consideration of the premises and of the covenants
hereinafter set forth, the parties hereto do hereby covenant, agree and bind
themselves as follows, to-wit:
7
GRANTING CLAUSES AND AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the acceptance by
the Trustee of the trusts hereby created and of the purchase and acceptance of
the Bonds issued and sold by the Board under this Indenture by those who shall
own the same from time to time, and of the sum of one dollar, lawful money of
the United States, duly paid to the Board by the Trustee at or before the
execution and delivery of this Indenture, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
for the purpose of fixing and declaring the terms and conditions upon which the
Bonds are to be executed, authenticated, issued, delivered and accepted by all
persons who shall from time to time be or become owners thereof; and in order to
secure the payment of the principal of and premium (if any) and interest on, and
purchase price of, the Bonds according to their tenor and effect and the
performance and observance by the Board of all the covenants expressed or
implied herein and in the Bonds and the payment and performance of all other of
the Board's obligations, the Board does hereby grant, bargain, sell, convey,
pledge and assign, without recourse, unto the Trustee and unto its successors in
the trust forever (and to the extent provided in Section 8.13 hereof, the Bank
as is hereinafter defined), and grants to the Trustee and to its successors in
the trust (and to the extent provided in Section 8.13 hereof, the Bank as is
hereinafter defined), a security interest in all of the following:
GRANTING CLAUSE FIRST
All right, title and interest of the Board in and to the Agreement and
the security granted thereunder and under the Collateral Documents and the other
Bond Documents, including, but not limited to: (i) the obligation of the Company
under Article III of the Agreement to make payments at such times and in such
amounts as are necessary to pay the principal of, interest and redemption
premium, if any, on the Bonds; (ii) the present and continuing right to make
claim for, collect, receive and receipt for any of the sums, amounts, income,
revenues, issues and profits and any other sums of money payable or receivable
under the Agreement, the Collateral Documents and the other Bond Documents;
(iii) the right to bring actions and proceedings thereunder or for the
enforcement thereof; and (iv) the right to do any and all things which the Board
is or may become entitled to do under the Agreement, the Collateral Documents
and the other Bond Documents.
GRANTING CLAUSE SECOND
All right, title and interest of the Board in and to all moneys and
securities from time to time held by the Trustee under the terms of this
Indenture.
8
GRANTING CLAUSE THIRD
Any and all other property rights and interests of every kind and
nature from time to time hereafter by delivery or by writing of any kind
granted, bargained, sold, alienated, demised, released, conveyed, assigned,
transferred, mortgaged, pledged, hypothecated or otherwise subjected hereto, as
and for additional security herewith, by the Company or any other person on its
behalf or with its written consent or by the Board or any other person on its
behalf or with its written consent, and the Trustee is hereby authorized to
receive any and all such property at any and all times and to hold and apply the
same subject to the terms hereof.
EXPRESSLY RESERVING, however, to the Board:
(a) any rights to release and indemnification of the Board contained in
the Agreement or any other agreement or instrument delivered by any party in
connection with the issuance and sale of the Bonds;
(b) the right to exercise its rights provided for in Sections 3.10,
4.03(c), 4.04, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.17, 4.18, 8.02,
8.05, 8.07 and 8.08 of the Agreement; and
(c) the concurrent right to receive any and all reports, surveys,
certificates and evidences of performance which the Company may be required to
furnish pursuant to the terms of the Agreement and the right to exercise any
rights of inspection granted to it pursuant to the terms of the Agreement.
TO HAVE AND TO HOLD all and singular the Trust Estate with all
privileges and appurtenances hereby conveyed and assigned, or agreed or intended
so to be (i) to the Trustee and its successors in trust forever, and (ii) to the
Bank, to the extent provided in Section 8.13 hereof.
IN TRUST NEVERTHELESS, under and subject to the terms and conditions
hereinafter set forth: (a) for the equal benefit, protection and security of the
Owners of any and all of the Bonds, all of which regardless of the time or times
of their issuance or maturity shall be of equal rank, without preference,
priority or distinction of any of the Bonds over any other thereof, except as
otherwise provided in or pursuant to this Indenture; (b) for securing the
observance and performance of the Board's obligations and of all others of the
conditions, promises, stipulations, agreements and terms and provisions of this
Indenture and the uses and purposes herein expressed and declared; and (c) for
the benefit of the Bank.
PROVIDED, HOWEVER, that if the Board, its successors or assigns, well
and truly pays, or causes to be paid, the principal of the Bonds issued
hereunder and the premium (if any) and interest due or to become due thereon,
and the purchase price thereof, at the times and in the manner mentioned in the
Bonds and as provided herein, according to the true intent and meaning thereof,
and shall cause the payments to be made into the Bond Fund as required under
Article VI hereof, or shall provide, as permitted hereby, for payment thereof in
accordance with Article XI hereof, and shall well and truly keep, perform and
observe all of the covenants and conditions pursuant to the terms of this
Indenture and all other of the Board's obligations 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,
then upon such final payments or deposits as provided in Article XI hereof, and
upon the termination of the Agreement, the right, title and interest of the
Trustee in and to the Trust Estate shall cease, terminate and be void, and the
Trustee shall thereupon assign, transfer, and turn over the Trust Estate to the
Bank; provided, that if the Trustee shall have received written evidence from
the Bank that all obligations of the Company under the Loan Agreement have been
satisfied and that the Loan Agreement has been terminated, or if no Bank shall
then exist, the Trust Estate shall be assigned, transferred and turned over to
the Company; and the Trustee shall execute and deliver to the Board, the Bank
and the Company; as appropriate, such instruments in writing as shall be
requisite to evidence such transfer of the Trust Estate. Upon the Trustee's
assignment, transfer and turning over to the Bank or the Company, as
appropriate, of the Trust Estate pursuant to the provisions of this Indenture,
the Trustee shall have no further duties, responsibilities or obligations under
and pursuant to this Indenture.
9
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 hereby pledged 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 Board has agreed and covenanted
and intending to be legally bound 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; CONTENT OF CERTIFICATES AND OPINIONS
Section 1.01. Definitions. Unless the context otherwise requires, the
terms and phrases defined in this Section shall, for all purposes of the
recitals hereto, this Indenture and of any indenture supplemental hereto and of
any certificate, opinion or other document herein mentioned, have the meanings
herein specified, to be equally applicable to both the singular and plural forms
of any of the terms herein defined. Unless otherwise defined in this Indenture,
all terms used herein shall have the meanings assigned to such terms in the Act.
"Accountant" means any firm of independent certified public accountants
(not an individual) selected by the Company and acceptable to the Bank.
"Act" means Act No. 648 adopted at the 1949 Regular Session of the
Legislature of the State of Alabama, approved September 19, 1949, as amended
(said Act being codified as Section 11-54-80, et seq., Code of Alabama, 1975).
"Additional Payments" means any payments required to be made by the
Company pursuant to the Agreement which are not required to be: (i) applied to
the payment of scheduled debt service on the Bonds; or (ii) reimbursed to the
Letter of Credit Bank or the Bank for monies drawn on the Letter of Credit to
pay debt service on the Bonds.
"Administrative Expenses" means those expenses of the Board and the
Bank which are properly chargeable to the Company on account of the Bonds and
the Bond Documents as administrative expenses under Generally Accepted
Accounting Principles and include, without limiting the generality of the
foregoing, the following: (a) fees and expenses of the Trustee, the Tender
Agent, the Board, the Letter of Credit Bank, the Bank and the Placement Agent;
and (b) fees and expenses of the Board's, the Letter of Credit Bank's, the
Bank's, the Trustee's, the Tender Agent's and the Placement Agent's professional
advisors reasonably necessary and fairly attributable to the Project Facilities,
including without limiting the generality of the foregoing, fees and reasonable
expenses of the Board's, the Trustee's, the Bank's and the Placement Agent's
counsel.
10
"Agreement" means the Amended and Restated Lease Agreement, dated as of
October 1, 1998, between the Board and the Company, together with all
supplements thereto.
"Authorized Representative" means with respect to the Company, any
person designated as an Authorized Representative of the Company by a
Certificate of the Company executed by the Company and filed with the Trustee.
"Available Moneys" means: (i) moneys derived from drawings under the
Letter of Credit; (ii) moneys held by the Trustee in funds and accounts
established under this Indenture for a period of at least one hundred
twenty-four (124) days and not commingled with any moneys so held for less than
said one hundred twenty-four (124) day period and during and prior to which
period, no petition in bankruptcy was filed by or against the Company, any
partner of the Company, or the Board under the Bankruptcy Code or any applicable
state bankruptcy or insolvency law, unless such petition was dismissed and all
applicable appeal periods have expired without an appeal having been filed;
(iii) investment income derived from the investment of moneys described in
clauses (i) or (ii) above; or (iv) any other moneys, if the Trustee and the
Letter of Credit Bank have received an opinion of nationally recognized counsel
acceptable to ▇▇▇▇▇'▇ experienced in bankruptcy matters to the effect that
payment of the principal or purchase price of or interest on the Bonds with such
moneys would not, in the event of bankruptcy of the Company, the Board, any
affiliate of the Company or other payor, constitute a voidable preference under
the Bankruptcy Code or any applicable state bankruptcy or insolvency law.
"Bank" means Congress Financial Corporation, whose principal office is
located in the City of New York, New York County, New York, and its successors
and/or assigns; provided, however, that if the Loan Agreement is no longer in
place, "Bank" and "Letter of Credit Bank" shall mean the provider of the Letter
of Credit or of the Substitute Letter of Credit.
"Bankruptcy Code" means the federal Bankruptcy Code, 11 U.S.C. ss.101
et seq., as amended and supplemented from time to time.
11
"Board" means The Industrial Development Board of the City of
Huntsville created pursuant to, and as defined in, the Act, and its successors.
"Bond Documents" means any or all of the Agreement, this Indenture, the
Tender Agent Agreement, the Remarketing Agreement and all documents,
certificates and instruments executed in connection therewith.
"Bond Fund" means the fund created in Section 6.01 hereof.
"Bond Registrar" means any bank, national banking association or trust
company designated as registrar for the Bonds, and its successor appointed under
the Indenture.
"Bonds" means the $7,500,000 original aggregate principal amount of the
Board's Tax-Exempt Variable Rate Demand/Fixed Rate Refunding Revenue Bonds
(Central CPVC Corporation Project) Series of 1998 authorized to be issued under
this Indenture.
"Bond Year" means each one year period (or shorter period from date of
issue) that ends at the close of business on a day in the calendar year selected
by the Company.
"Business Day" means any day other than: (i) a Saturday or Sunday; (ii)
a legal holiday or any day on which banking institutions in the State of New
York, the State, the City of New York, or the city in which the principal office
of the Trustee, the Tender Agent or the Letter of Credit Bank are authorized to
remain closed; or (iii) a day on which the New York Stock Exchange is closed.
"Cede & Co." means Cede & Co., as nominee of The Depository Trust
Company, New York, New York.
"Certificate," "Statement," "Request," and "Order" means: (a) with
respect to the Board, a written certificate, statement, request or order
executed in the name of the Board by its Chairman or Vice Chairman or such other
person as may be designated and authorized to sign for the Board; or (b) with
respect to the Company a written certificate, statement, request, or order
executed by an Authorized Representative of the Company. Any such instrument and
supporting opinions or representations, if any, may, but need not, be combined
in a single instrument with any other instrument, opinion or representation, and
the two or more so combined shall be read and construed as a single instrument.
If and to the extent required by Section 1.02 hereof, each such instrument shall
include the statements provided for in such Section 1.02.
"Certified Resolution of the Board" means a copy of a resolution of the
Board of Directors of the Board certified by the Secretary or an Assistant
Secretary of the Board, or other officer serving in a similar capacity, under
its corporate seal, to have been duly adopted by the Board of Directors of the
Board and to be in full force and effect on the date of such certification.
"Clearing Fund" means the fund created pursuant to Section 3.03 hereof.
12
"Closing Date" means October 29, 1998 or such other date which shall be
the date of the execution and delivery of the Agreement and the other Bond
Documents and the issuance and delivery of the Bonds.
"Code" means the Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder.
"Collateral" means all of the rights and assets of the Company or any
other Person in which the Board or the Trustee is now or hereafter granted a
lien or security interest in order to secure the performance of (i) the
Company's obligations under the Agreement or any of the Collateral Documents or
(ii) the obligations of the Board hereunder or under the Bonds.
"Collateral Documents" means all documents executed and delivered or to
be executed and delivered and under which the Board or the Trustee is granted a
lien or security interest in any of the rights and assets of the Company or any
other Person in order to secure the performance of the Company's obligations
under the Agreement or any other Bond Documents or the obligations of the Board
hereunder or under the Bonds.
"Company" means Central CPVC Corporation, a State corporation.
"Conversion Date" means the Optional Conversion Date.
"Conversion Option" means the option granted to the Company in Section
5.01 hereof pursuant to which the interest rate on the Bonds is converted from
the Floating Rate to the Fixed Rate as of the Optional Conversion Date.
"Counsel" means an attorney-at-law or law firm (who may be counsel for
the Company or for the Board) satisfactory to the Trustee.
"Debt Service Requirements," with reference to a specified period
means, with respect to Bonds:
(a) amounts required to be paid into any mandatory sinking
fund account during the period; and
(b) amounts needed to pay the principal of such indebtedness
maturing during the period and not to be redeemed prior to maturity from amounts
on deposit in any sinking fund or redemption, retirement or similar fund or
account; and
(c) interest payable on the subject indebtedness during the
period, excluding capitalized interest and amounts on deposit with the Trustee
which are available under the Indenture to pay interest with respect to such
indebtedness.
13
"Demand Purchase Notice" means a notice delivered pursuant to paragraph
(i) of Section 5.04 hereof.
"Demand Purchase Option" means the option granted to Owners of Bonds to
require that Bonds be purchased prior to the Conversion Date pursuant to Section
5.04 hereof.
"Determination Date" means with respect to any Floating Rate Bonds,
each Wednesday or if such Wednesday is not a Business Day, the next succeeding
Business Day.
"Determination of Taxability" means, with respect to any Bond, the
first to occur of the following events: (i) the date on which the Company
determines that an Event of Taxability has occurred by filing with the Trustee a
statement to that effect supported by one or more tax schedules, returns or
documents that disclose that such an Event of Taxability has occurred; (ii) the
date on which the Company or the Trustee is advised by private ruling, technical
advice or any other written communication from any authorized official of the
Internal Revenue Service that, based upon any filings of the Company or any
other person or entity, or upon any review or audit of the Company or any other
person or entity, or upon any other grounds whatsoever, an Event of Taxability
has occurred; (iii) the date on which the Trustee or the Company is advised that
a court of competent jurisdiction has issued an order, declaration, ruling or
judgment to the effect that an Event of Taxability has occurred; (iv) the date
the Trustee shall have received written notice from any owner of the Bonds that
such owner has received a written assertion or claim by any authorized official
of the Internal Revenue Service that an Event of Taxability has occurred; or (v)
the date the Trustee is notified that the Internal Revenue Service has issued
any private ruling, technical advice or any other written communication, with or
to the effect that an Event of Taxability has occurred; provided, however, that
(x) no Determination of Taxability described above shall be deemed to have
occurred unless the Trustee shall have received a written opinion of nationally
recognized bond counsel satisfactory to the Bank and the Company and not
unsatisfactory to the Trustee, and in form and substance satisfactory to the
Bank and the Company and not unsatisfactory to the Trustee, to the effect that
an Event of Taxability has occurred; and (y) no Determination of Taxability
described above shall be deemed to have occurred until 180 days shall have
elapsed from the dates described in clauses (i), (ii), (iii), (iv) or (v) above
without such Determination of Taxability having been rescinded or canceled.
"Event of Default" means any of the events specified in Section 8.01 of
this Indenture.
"Event of Taxability" means, with respect to any Bond, a change of law
or regulations, or the interpretation thereof, or the occurrence of any other
event or the existence of any other circumstances (including without limitation
the fact that any representations or warranties of the Company or the Board made
in connection with the issuance of any Bond is or was untrue or that a covenant
of the Company has been breached) that has the effect of causing interest
payable on any Bond to be includable in gross income for federal income tax
purposes under Section 103 of the Code other than by reason that such interest:
(i) is includable in the gross income of an owner or former owner of any Bond
while such owner or former owner is or was a "substantial user" or a "related
person" to a "substantial user" of the Project Facilities (as such terms are
used in Section 147(a)(1) of the Code); or (ii) is deemed an item of tax
preference, including without limitation an item subject to any alternative
minimum tax.
14
"Fiscal Year" means the period of twelve (12) consecutive months
beginning January 1 of each year, or such other period of twelve consecutive
months established by the Company as its new Fiscal Year.
"Fixed Rate" means the interest rate in effect on any Bonds from and
after the Conversion Date, as said rate is determined in accordance with Section
2.02(D) hereof.
"Fixed Rate Bonds" means any Bonds which are converted to a Fixed Rate
in accordance with the provisions of this Indenture.
"Fixed Rate Period" means, with respect to any Bonds, a period during
which interest on such Bonds accrues at a Fixed Rate.
"Floating Rate" means a variable rate of interest equal to the minimum
rate of interest necessary, in the sole judgment of the Remarketing Agent, to
sell the Bonds at a price equal to the principal amount thereof, exclusive of
accrued interest, if any, thereon; said interest rate to be in effect on the
Bonds from the date of issuance of the Bonds until (but not including) the
Conversion Date, as said rate is determined in accordance with Section 2.02(C)
hereof.
"Floating Rate Bonds" means any Bonds which bear interest at the
Floating Rate.
"Generally Accepted Accounting Principles" means those accounting
principles applicable in the preparation of financial statements of business
institutions or industrial development authorities, as appropriate, as
promulgated by the Financial Accounting Standards Board or such other body
recognized as authoritative by the American Institute of Certified Public
Accountants or any successor body.
"Government Obligations" means direct obligations of (including
obligations issued or held in book entry form) or obligations the principal of
and interest on which are unconditionally guaranteed as to full and timely
payment by the United States.
"Holder," "Owner", "Registered Owner" or "Bondholders" whenever used
herein with respect to a Bond, means the person in whose name such Bond is
registered on the registration books maintained by the Trustee.
"Indenture" means this Trust Indenture, dated as of October 1, 1998,
between the Board and the Trustee, as originally executed or as it may, from
time to time, be supplemented, modified or amended by any Supplemental
Indenture.
"Interest Payment Date" means prior to the Conversion Date, the first
day of each calendar month, or if such date is not a Business Day, the next
succeeding Business Day, commencing December 1, 1998 and from and after the
Conversion Date, July 1 and January 1 of each year, commencing on the July 1 or
January 1 next following the Conversion Date.
"Investment Securities" means any of the following which at the time
are legal investments under the laws of the State for moneys held hereunder:
15
(i) Government Obligations;
(ii) bonds, debentures, notes or other evidences of
indebtedness issued by any agency or other governmental or government-sponsored
agencies which may be hereafter created by the United States, provided, however,
that the full and timely payment of the securities issued by each such agency or
government-sponsored agency is secured by the full faith and credit of the
United States;
(iii) certificates of deposit of, or time deposits in, any
bank (including the Trustee) or savings and loan association having securities
rated, at the time of purchase or acquisition, in one of the three highest
Rating Categories (without regard to modifiers) of Moody's or S&P;
(iv) certificates which evidence ownership of the right to
the payment of the principal of and interest on obligations described in clauses
(i) and (ii) of this definition, provided that such obligations are held in the
custody of a bank or trust company in a special account separate from the
general assets of such custodian;
(v) obligations which, at the time of purchase or
acquisition, are rated in one of the two highest Rating Categories (without
regard to modifiers) of Moody's and the interest on which is not includable in
gross income for federal income tax purposes and the timely payment of the
principal of and interest on which is fully provided for by the deposit in trust
or escrow of cash or obligations described in clauses (i) or (ii) of this
definition;
(vi) guaranteed investment contracts or other similar
financial instruments with a commercial bank, insurance company or other
financial institution whose long term debt obligations are rated, at the time of
purchase or acquisition, in one of the two highest Rating Categories (without
regard to modifiers) by Moody's;
(vii) mutual funds invested primarily in obligations
described in clauses (i) and (ii) of this definition, and rated, at the time of
purchase, in one of the two highest rating categories (without regard to
modifiers) by Moody's, including, if such fund meets the criteria described in
this clause (vii), mutual funds managed by the Trustee or an affiliate thereof;
(viii) any investment approved in writing by the Bank;
16
(ix) repurchase agreements issued by financial institutions:
(i) insured by the Federal Deposit Insurance Corporation; or (ii) whose senior
debt obligations at the time of purchase are rated, at the time of purchase or
acquisition, in any of the three highest Rating Categories (without regard to
modifiers) by Moody's; provided, such repurchase agreements are subject to
perfected security interests in the Investment Securities of the kind specified
in paragraphs (i) or (ii) above, which have a fair market value, exclusive of
accrued interest, at least equal to the amount invested in the repurchase
agreement; and provided further: (1) the Trustee has possession of the
securities; (2) the Trustee has a perfected first security interest in the
securities; (3) the securities are free and clear of any third-party liens; and
(4) failure to maintain the requisite securities percentage will require the
Trustee to liquidate the securities in accordance with the terms of the
repurchase agreement; and
(x) any other security or obligation constituting a
permitted investment under the Act, provided that the Bank consents to the
investment of funds in such security or obligation.
"Issue Date" means the date on which the Trustee authenticates the
Bonds and on which the Bonds are delivered to the purchasers thereof upon
original issuance.
"Letter of Credit" means the Irrevocable Direct Pay Letter of Credit
issued by the Letter of Credit Bank which was arranged by the Bank pursuant to
the provisions of the Loan Agreement, or, in the event of delivery of a
Substitute Letter of Credit, such Substitute Letter of Credit.
"Letter of Credit Bank" means First Union National Bank, as issuer of
the Letter of Credit, and its lawful successors and assigns, and to the extent
applicable, the issuer of any Substitute Letter of Credit. (The Company caused
the Bank to arrange for First Union National Bank to issue an irrevocable letter
of credit in favor of the Trustee to provide for payment of debt service on the
Bonds and to pay the purchase price of Bonds tendered for purchase pursuant to
the optional or mandatory tender provisions of the Indenture.)
"Letter of Credit Termination Date" means the later of: (i) that date
upon which the Letter of Credit shall expire or terminate pursuant to its terms;
or (ii) that date to which the expiration or termination of the Letter of Credit
may be extended, from time to time, either by extension or renewal of the
existing Letter of Credit or the issuance of a Substitute Letter of Credit.
"Loan Agreement" means the Loan and Security Agreement by and among
Congress Financial Corporation, as Lender, and Central Sprinkler Company,
Central Castings Corporation, Central CPVC Corporation, as Borrowers, and
Central Sprinkler Corporation and Central Sprinkler Export Corporation, as
Guarantors, dated September 18, 1998, and any other similar agreement entered
into in connection with the issuance of any Substitute Letter of Credit and any
and all modifications, alterations, amendments, supplements thereto, and
restatements thereof.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., a corporation
organized and existing under the laws of the State of Delaware, its successors
and their assigns, or, if such corporation shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, any other
nationally recognized securities rating agency designated by the Board, with the
approval of the Company.
17
"Net Proceeds," when used with respect to any insurance proceeds or any
condemnation award, means the amount remaining after deducting all expenses
(including attorneys' fees and disbursements) incurred in the collection of such
proceeds or award from the gross proceeds thereof.
"Obligation Termination Date" means the date on which the Bank delivers
to the Trustee a certificate to the effect that all obligations owing to the
Bank under the Loan Agreement have been paid in full.
"Officers' Certificate" means with respect to the Board, a certificate,
duly executed by the Chairman or Vice Chairman, Secretary or Assistant
Secretary, Treasurer or Assistant Treasurer of the Board, under the corporate
seal of the Board; or with respect to the Company, a certificate duly executed
by an Authorized Representative.
"Opinion of Counsel" means a written opinion of counsel (who may be
counsel for the Board) selected by the Board and acceptable to the Trustee. If
and to the extent required by the provisions of Section 1.02 hereof, each
Opinion of Counsel shall include in substance the statements provided for in
such Section 1.02.
"Optional Conversion Date" means that date on or after December 1,
1998, which shall be a Business Day, from and after which the interest rate on
the Bonds is converted from the Floating Rate to the Fixed Rate as a result of
the exercise by the Company of the Conversion Option in accordance with the
terms of this Indenture.
"Outstanding," when used as of any particular time with reference to
Bonds, means (subject to the provisions of Section 12.10) all Bonds theretofore,
or thereupon being, authenticated and delivered by the Trustee under this
Indenture, except: (1) Bonds theretofore canceled by the Trustee or surrendered
to the Trustee for cancellation; (2) Bonds with respect to which all liability
of the Board shall have been discharged in accordance with Section 11.02,
including Bonds (or portions of Bonds) referred to in Section 12.10; and (3)
Bonds for the transfer or exchange of or in lieu of or in substitution for which
other Bonds shall have been authenticated and delivered by the Trustee pursuant
to this Indenture.
"Participants" means those financial institutions for whom the
Securities Depository effects book-entry transfers and pledges of securities
deposited with the Securities Depository, as such listing of Participants exists
at the time of such reference.
"Permitted Encumbrances" means any liens or encumbrances permitted
under the Loan Agreement or otherwise permitted by the Bank.
18
"Person" means an individual, corporation, firm, association,
partnership, trust, or other legal entity or group of entities, including a
governmental entity or any agency or political subdivision thereof.
"Placement Agent" means First Union Capital Markets, a Division of
Wheat First Securities, Inc.
"Pledge Agreement" means: (i) the Pledge and Security Agreement, dated
as of October 1, 1998, between the Company and the Bank, and any amendments or
supplements thereto; and (ii) any pledge and security agreement made by the
Company and the Substitute Bank for the benefit of any Substitute Bank, and any
amendments or supplements thereto.
"Pledged Bonds" means any Bonds which shall, at the time of
determination thereof, be held in pledge for the benefit of the Bank by the
Pledged Bonds Custodian pursuant to the Pledge Agreement.
"Pledged Bonds Custodian" means that banking entity which serves as the
custodian for the Pledged Bonds under the terms and conditions of the Pledge
Agreement. The initial Pledged Bonds Custodian shall be the Tender Agent.
"Premises" shall mean that certain parcel of real property located at
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Principal Corporate Trust Office" means the principal corporate trust
office of the Trustee, which at the date of the execution of the Indenture is
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporation Trust Administration.
"Project" means the building, the machinery and equipment to be used in
the manufacturing of CPVC pipe and fittings for the fire protection industry to
be located at the Premises.
"Project Facilities" shall mean all of the Company's right, title and
interest in and to the Premises, together with all the right, title and interest
of the Company in and to all buildings, improvements, and appurtenant facilities
located on the Premises.
"Purchase Price" means an amount equal to 100% of the principal amount
of any Bond tendered or deemed tendered pursuant to Sections 5.01, 5.03 or 5.04
hereof, plus accrued and unpaid interest thereon to the date of purchase.
"Rating Agency" means Moody's when the Bonds are rated by Moody's and
S&P when the Bonds are rated by S&P. The Bonds will not be rated as of the date
of issuance and there are no plans to have the Bonds rated.
"Rating Category" means one of the general rating categories of Moody's
or S&P, without regard to any refinement or gradation of such rating category by
a numerical modifier or otherwise.
19
"Record Date" means, prior to the Conversion Date, that day which is
the seventh calendar day next preceding any Interest Payment Date and
thereafter, that date which is the fifteenth calendar day next preceding any
Interest Payment Date.
"Remarketing Agent" means (singly or collectively, as the case may be)
the remarketing agent(s) appointed by the Company and accepted and consented to
in writing by the Board and the Trustee and at the time serving as such under
the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement, dated October
29, 1998, by and between the Company and First Union Capital Markets, a division
of Wheat First Securities, Inc., as the remarketing agent, and accepted and
consented in writing to by the Board and the Trustee.
"Replacement Bonds" means Bonds issued to the beneficial owners of the
Bonds in accordance with Section 2.13 hereof.
"Revenues" means all amounts received by the Board or the Trustee for
the account of the Board pursuant or with respect to the Agreement or the Letter
of Credit, including, without limiting the generality of the foregoing, payments
under the Agreement (including both timely and delinquent payments and any late
charges, and whether paid from any source), prepayments, insurance proceeds,
condemnation proceeds, and all interest, profits or other income derived from
the investment of amounts in any fund or account established pursuant to this
Indenture.
"Securities Depository" means The Depository Trust Company and its
successors and assigns or if: (i) the then-Securities Depository resigns from
its functions as depository of the Bonds; or (ii) the Board discontinues use of
the then-Securities Depository pursuant to Section 2.13, any other securities
depository which agrees to follow the procedures required to be followed by a
securities depository in connection with the Bonds and which is selected by the
Board with the consent of the Company.
"Securities Depository Nominee" means, as to any Securities Depository,
such Securities Depository or the nominee of such Securities Depository in whose
name there shall be registered on the registration books maintained by the
Trustee the Bond certificates to be delivered to and immobilized at such
Securities Depository during the continuation with such Securities Depository of
participation in its book-entry system.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"S&P" means Standard & Poor's Rating Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., a corporation organized and existing under the laws
of the State of Delaware, its successors and their assigns, or, if such
corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, any other nationally recognized
securities rating agency designated by the Board, with the approval of the
Company.
20
"State" means the State of Alabama.
"Substitute Bank" means a commercial bank, savings and loan association
or savings bank or other financial institution which has issued a Substitute
Letter of Credit.
"Substitute Letter of Credit" means a letter of credit delivered to the
Trustee in accordance with Section 4.07 of the Agreement: (i) issued by the
Letter of Credit Bank or a Substitute Bank, the short term unsecured debt of
which shall then have been assigned a rating by Moody's of "P-1" or the
equivalent rating assigned by S&P, or the long term senior subordinated debt of
which shall then have been assigned a rating of "Aa3" or higher by Moody's or
the equivalent rating assigned by S&P; (ii) replacing any existing Letter of
Credit; (iii) dated no later than the date of the expiration or replacement date
of the Letter of Credit for which the same is to be substituted; (iv) which
shall expire on a date which is 15 days after an Interest Payment Date for the
Bonds; (v) having a term of at least one year; and (vi) issued on substantially
identical terms and conditions as the then existing Letter of Credit, except
that the stated amount of the Substitute Letter of Credit shall equal the sum
of: (A) the aggregate principal amount of Bonds at the time Outstanding, plus
(B) an amount equal to (i) prior to the Conversion Date, forty-six (46) days'
interest or such other number of days as shall be required by the Rating Agency
(computed at a rate of 15% per annum) on all Bonds at the time Outstanding and
(ii) from and after the Conversion Date, two hundred (200) days' interest or
such other number of days as shall be required by the Rating Agency (computed at
the fixed rate on all Bonds at the time outstanding).
"Substitution Date" shall mean the date the Company delivers a
Substitute Letter of Credit to the Trustee in accordance with the terms and
conditions of Section 4.3 of the Agreement.
"Supplemental Indenture" means any indenture hereafter duly authorized
and entered into between the Board and the Trustee, supplementing, modifying or
amending this Indenture, but only if and to the extent that such Supplemental
Indenture is specifically authorized hereunder.
21
"Tender Agent" means First Union National Bank, a national banking
association, and its successors and any corporation resulting from or surviving
any consolidation or merger to which it or its successors may be a party or
Tender Agent hereunder and under the Tender Agent Agreement. "Delivery Office"
and "Principal Office" of the Tender Agent means 3C3 ▇▇▇▇ ▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Corporate Trust Operations or such
other address as may be designated in writing to the Board, the Trustee, the
Remarketing Agent and the Company.
"Tender Agent Agreement" means the Tender Agent Agreement, dated as of
October 1, 1998, between the Company, the Trustee and the Tender Agent and any
amendments and supplements thereto.
"Trust Estate" means all property rights and interests transferred,
assigned, or otherwise pledged to the Trustee and the Bank pursuant to the
Granting Clauses hereof.
"Trustee" means First Union National Bank, a national banking
association and its successor and any entity resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor trustee at the time serving as successor trustee hereunder.
"United States" means the United States of America.
"Unremarketed Bonds" means Bonds which have been purchased pursuant to
Sections 5.01, 5.03 or 5.04 hereof but which have not been remarketed.
"Weekly Period" shall mean, while the Bonds bear interest at the
Floating Rate, the weekly period that begins on and includes Wednesday of each
calendar week and ends at the close of business on Tuesday of the next
succeeding week.
Section 1.02. Content of Certificates and Opinions. The Trustee may,
but shall not be obligated to, require that every certificate or opinion
provided for in this Indenture with respect to compliance with any provision
hereof shall include: (1) a statement to the effect that the Person making or
giving such certificate or opinion has read such provision and the definitions
herein relating thereto; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the certificate or opinion is based; (3)
a statement to the effect that in the opinion of such person, he has made or
caused to be made such examination or investigation as is necessary to enable
him to express an informed opinion with respect to the subject matter referred
to in the instrument to which his signature is affixed; (4) a statement of the
assumptions upon which such certificate or opinion is based, and that such
assumptions are reasonable; and (5) a statement as to whether, in the opinion of
such person, such provision has been complied with.
Any such certificate or opinion made or given by an officer of the
Board or the Company may be based, insofar as it relates to legal or accounting
matters, upon a certificate or opinion of or representation by counsel or an
accountant, unless such officer knows, or in the exercise of reasonable care
should have known, that the certificate, opinion or representation with respect
to the matters upon which such certificate or statement may be based, as
aforesaid, is erroneous. Any such certificate or opinion made or given by
counsel or an accountant may be based, insofar as it relates to factual matters
(with respect to which information is in the possession of the Board or the
Company, as the case may be) upon a certificate or opinion of or representation
by an officer of the Board or the Company, unless such counsel or accountant
knows, or in the exercise of reasonable care should have known, that the
certificate or opinion or representation with respect to the matters upon which
such person's certificate or opinion or representation may be based, as
aforesaid, is erroneous. The same officer of the Board or the Company, or the
same counsel or accountant, as the case may be, need not certify to all of the
matters required to be certified under any provision of this Indenture, but
different officers, counsel or accountants may certify to different matters,
respectively.
22
Section 1.03. Interpretation.
(a) Unless the context otherwise indicates, words expressed
in the singular shall include the plural and vice versa and the use of the
neuter, masculine, or feminine gender is for convenience only and shall be
deemed to mean and include the neuter, masculine or feminine gender, as
appropriate.
(b) Headings of articles and sections herein and the table
of contents hereof are solely for convenience of reference, do not constitute a
part hereof and shall not affect the meaning, construction or effect hereof.
(c) All references herein to "Articles," "Sections" and
other subdivisions are to the corresponding Articles, Sections or subdivisions
of this Indenture; the words "herein," "hereof," "hereby," "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or subdivision hereof.
(d) Whenever in this Indenture it is required that notice be
provided to the Bank or that consent of the Bank be obtained, such provisions
shall be effective only when: (i) the Letter of Credit is in effect; or (ii) the
Bank, in its capacity as provider of the Letter of Credit, is the Holder of any
Bonds.
ARTICLE II
THE BONDS
Section 2.01. Authorization of Bonds. The Bonds shall be issued
hereunder in order to obtain moneys to finance the Project for the benefit of
the Board and the Company. The Bonds are designated as "$7,500,000 The
Industrial Development Board of the City of Huntsville Tax-Exempt Variable Rate
Demand/Fixed Rate Refunding Revenue Bonds (Central CPVC Corporation Project),
Series of 1998." The aggregate principal amount of Bonds which may be issued and
Outstanding under this Indenture shall not exceed Seven Million Five Hundred
Thousand Dollars ($7,500,000). No additional bonds may be issued under this
Indenture. This Indenture constitutes a continuing agreement by the Board for
the benefit of the Holders from time to time of the Bonds to secure the full
payment of the principal of and interest on all such Bonds subject to the
covenants, provisions and conditions herein contained.
23
Section 2.02. Terms of Bonds; Interest on the Bonds.
(A) The Bonds shall be issued in fully registered form.
Prior to the Conversion Date: (i) such Bonds shall be Outstanding in
denominations of $100,000 or any integral multiple of $5,000 in excess thereof;
and (ii) such Bonds may not be issued, exchanged or transferred except in the
authorized denominations of $100,000 or any integral multiple of $5,000 in
excess thereof. From and after the Conversion Date: (x) such Bonds shall be
Outstanding in denominations of $5,000 or any integral multiple of $5,000; and
(y) such Bonds may not be issued, exchanged or transferred except in the
authorized denominations of $5,000 or any integral multiple of $5,000 in excess
thereof. The Bonds shall be dated as of the date of delivery and shall mature,
subject to prior redemption, as provided herein. Unless the Board shall
otherwise direct, prior to the Conversion Date the Bonds shall be lettered "VR"
and shall be numbered consecutively from 1 upward, and after the Conversion Date
the Bonds shall be lettered "FR" and shall be numbered consecutively from 1
upward.
(B) Each Bond shall be dated the Issue Date and shall bear
interest, payable: (i) prior to the Conversion Date, on the first day of each
calendar month, or if such date is not a Business Day, the next succeeding
Business Day commencing December 1, 1998; (ii) on the Conversion Date; and (iii)
from and after the Conversion Date, on July 1 and January 1 of each year,
commencing on the July 1 or January 1 next following the Conversion Date, in
each case from the Interest Payment Date next preceding the date of
authentication thereof to which interest has been paid or duly provided for,
unless the date of authentication thereof is an Interest Payment Date to which
interest has been paid or duly provided for, in which case from the date of
authentication thereof, or unless no interest has been paid or duly provided for
on the Bonds, in which case from the Issue Date, until payment of the principal
thereof has been made or duly provided for. Notwithstanding the foregoing, any
Bond authenticated after any Record Date and before the following Interest
Payment Date shall bear interest from such Interest Payment Date, provided,
however, that if the Board shall default in the payment of interest due on such
Interest Payment Date, then such Bond shall bear interest from the next
preceding Interest Payment Date to which interest has been paid or duly provided
for, or, if no interest has been paid or duly provided for on the Bonds, from
the Issue Date.
The Bonds shall mature on January 1, 2013.
(C) (i) From the Issue Date to the Conversion Date, the
Bonds shall bear interest at the Floating Rate. The Floating Rate shall be
determined by the Remarketing Agent by 9:30 a.m. on each Determination Date and
shall be effective on such Determination Date for the immediately following
Weekly Period. If the Determination Date is, for example, a Thursday, the Weekly
Period starts the preceding Wednesday.
(ii) The Remarketing Agent shall advise the
Company and the Trustee of the Floating Rate by telephone
(confirmed by telecopy to the Trustee) at or before the close of business on
each Determination Date. Upon request of any Bondholder, the Remarketing Agent
shall notify such Bondholder of the Floating Rate then borne by the Bonds.
24
(iii) If for any reason the interest rate on a
Bond for any Weekly Period is not determined by the Remarketing Agent pursuant
to (C)(i) above, or a court holds that the Floating Rate set as provided
pursuant to (C)(i) above is invalid or unenforceable, the Floating Rate for such
Bonds shall be for the first such Weekly Period that a Floating Rate is not
determined by the Remarketing Agent or has been determined invalid or
unenforceable, a rate per annum equal to the Floating Rate established by the
Remarketing Agent pursuant to (C)(i) on the immediately preceding Determination
Date and on each Determination Date thereafter, shall be a rate per annum equal
to 85% of the interest rate per annum for 30 day commercial paper having a
rating of A-2/P-2 as reported in The Wall Street Journal on each Determination
Date.
(iv) The determination of the Floating Rate by the
Remarketing Agent shall be conclusive and binding upon the Board, the Trustee,
the Letter of Credit Bank, the Letter of Credit Bank, the Bank, the Company, the
Remarketing Agent, the Tender Agent and the Owners of the Bonds.
Anything herein to the contrary notwithstanding, the
Floating Rate shall in no event exceed 15% per annum.
(D) The Bonds shall bear interest at the Fixed Rate from and
after the Conversion Date until the maturity of the Bonds. The Fixed Rate shall
be a fixed annual interest rate on the Bonds established by the Remarketing
Agent as the rate of interest for which the Remarketing Agent has received
commitments from purchasers on or prior to the 5th Business Day preceding the
Conversion Date to purchase all the Outstanding Bonds on the Conversion Date at
a price of par.
(E) Prior to the Conversion Date, interest on the Bonds
shall be computed on the basis of a 365/366-day year, for the actual number of
days elapsed. On and after the Conversion Date, interest on the Bonds shall be
computed on the basis of a 360-day year of twelve 30-day months. The principal
of and premium, if any, on the Bonds shall be payable in lawful money of the
United States at the Principal Corporate Trust Office of the Trustee, or of its
successor in trust. The Purchase Price of the Bonds shall be payable in lawful
money of the United States by the Tender Agent to the Owner of Bonds entitled to
receive such Purchase Price.
Interest on the Bonds shall be payable on each Interest
Payment Date to the persons in whose name the Bonds are registered at the close
of business on the Record Date for the respective Interest Payment Date.
Interest shall be paid by check mailed to each Owner at the addresses shown on
the registration books maintained by the Trustee, provided that such interest
shall be paid by wire transfer to: (i) the Bank; and (ii) any Holder of at least
$1,000,000 in aggregate principal amount of Bonds, if the Holder makes a written
request of the Trustee at least 15 days before a Record Date specifying the
account address and wiring instructions. Such a request may provide that it will
remain in effect for subsequent interest payments until changed or revoked by
written notice to the Trustee or upon the transfer or re-registration of the
Bond.
25
The principal of the Bonds shall be payable in lawful money
of the United States at the Principal Corporate Trust Office of the Trustee;
provided, however that payment of Bonds tendered pursuant to Sections 5.01, 5.03
and 5.04 hereof shall be paid at the Delivery Office of the Tender Agent. Except
as provided for in Section 2.13 hereof, no payment of principal shall be made on
any Bond until such Bond is surrendered to the Trustee at its Principal
Corporate Trust Office.
Section 2.03. Execution of Bonds. The Bonds shall be executed in the
name and on behalf of the Board with the manual or facsimile signature of its
Chairman or Vice Chairman, under its seal attested by the manual or facsimile
signature of its Secretary or Assistant Secretary. Such seal may be in the form
of a facsimile of the Board's seal and may be reproduced, imprinted or impressed
on the Bonds. The Bonds shall then be delivered to the Trustee for
authentication by it. In case any of the officers who shall have executed or
attested any of the Bonds shall cease to be such officer or officers of the
Board before the Bonds so executed or attested shall have been authenticated or
delivered by the Trustee or issued by the Board, such Bonds may nevertheless be
authenticated, delivered and issued and, upon such authentication, delivery and
issue, shall be as binding upon the Board as though those who executed and
attested the same had continued to be such officers of the Board, and also any
Bond may be signed and attested on behalf of the Board by such persons as at the
actual date of execution of such Bond shall be the proper officers of the Board
although at the nominal date of such Bond any such person shall not have been
such officer of the Board.
Only such of the Bonds as shall bear thereon a certificate of
authentication substantially in the form set forth on the form of Bond, manually
executed by the Trustee, shall be valid or obligatory for any purpose or
entitled to the benefits of this Indenture, and such certificate of the Trustee
shall be conclusive evidence that the Bonds so authenticated have been duly
executed, authenticated and delivered hereunder and are entitled to the benefits
of this Indenture.
Section 2.04. Authentication.
(a) The Board hereby appoints the Tender Agent as a
co-authenticating agent for the Bonds.
(b) No Bond shall be valid or obligatory for any purpose or
entitled to any security or benefit under this Indenture unless and until a
certificate of authentication on such Bond, substantially in the form set forth
in Exhibit "A" and Exhibit "B" attached hereto, shall have been duly executed by
the Trustee or by the Tender Agent and such executed certificate of
authentication 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 the Trustee
or the Tender Agent if executed by an authorized signatory of the Trustee or the
Tender Agent, as the case may be, but it shall not be necessary that the same
signatory execute the certificate of authentication on all of the Bonds.
26
(c) In the event any Bond is deemed tendered to the Tender
Agent as provided in Section 5.01 or 5.04 hereof but is not physically delivered
to the Tender Agent, the Board shall execute and the Trustee or the Tender Agent
shall authenticate a new Bond of like denomination as that deemed tendered.
(d) Upon issuance of the Bonds, the Trustee shall
authenticate and deliver the Bonds to the initial purchaser thereof against
receipt of the purchase price for the Bonds, but only upon receipt of the
following:
(i) executed counterpart originals of this
Indenture, the Agreement, the Tender Agent Agreement and the Loan Agreement;
(ii) a written order of the Board directing the
authentication and delivery of the Bonds and the
application of the proceeds received from the sale of the Bonds;
(iii) the original Letter of Credit; and
(iv) the opinions of Bond Counsel, counsel to the
Company and counsel to the Letter of Credit Bank in form and substance
satisfactory to the Trustee.
Section 2.05. Form of Bonds. The Floating Rate Bonds and the
certificate of authentication to be endorsed thereon prior to the Conversion
Date are to be in substantially the form set forth in Exhibit "A" which is
attached hereto and hereby made a part hereof as though fully set forth herein,
with appropriate variations, omissions and insertions as permitted or required
by this Indenture and applicable law. The Fixed Rate Bonds and the certificate
of authentication to be endorsed thereon are to be in substantially the form set
forth in Exhibit "B" which is attached hereto and hereby made a part hereof as
though fully set forth herein, with appropriate variations, omissions and
insertions as permitted or required by this Indenture.
Section 2.06. Transfer of Bonds. Any Bond may be transferred in
accordance with its terms upon the books required to be kept pursuant to the
provisions of Section 2.08 hereof. Such transfer shall be made, in accordance
with the requirements of Section 2.02 hereof, by the person in whose name it is
registered, in person or by his duly authorized attorney, upon surrender of such
registered Bond for cancellation, accompanied by delivery of a written
instrument of transfer, duly executed in a form approved by the Trustee.
Whenever any Bond or Bonds shall be surrendered for transfer, the Board
shall execute and the Trustee or the Tender Agent, as the case may be, shall
authenticate and deliver a new Bond or Bonds of the same Series for a like
aggregate principal amount. The Trustee shall require the Bondholder requesting
such transfer to pay any tax or other governmental charge required to be paid
with respect to such transfer, and may in addition require the payment of a
reasonable sum to cover expenses incurred by the Board or the Trustee in
connection with such transfer.
27
During the Fixed Rate Period, the Trustee shall not be required to
transfer any Bond during the period beginning 15 days before the mailing of
notice of redemption calling the Bond or any portion of the Bond for redemption
and ending on the redemption date.
Section 2.07. Exchange of Bonds. Bonds may be exchanged at the
Principal Corporate Trust Office of the Trustee for a like aggregate principal
amount of Bonds of other authorized denominations in accordance with the
requirements of Section 2.02 hereof. The Trustee shall require the Bondholder
requesting such exchange to pay any tax or other governmental charge required to
be paid with respect to such exchange, and may in addition require the payment
of a reasonable sum to cover expenses incurred by the Board or the Trustee in
connection with such exchange.
During the Fixed Rate Period, the Trustee shall not be required to
exchange any Bond during the period beginning 15 days before the mailing of
notice of redemption calling the Bond or any portion of the Bond for redemption
and ending on the redemption date.
Section 2.08. Bond Register. The Trustee is hereby appointed the Bond
Registrar of the Board and the Tender Agent is hereby appointed the Co-Bond
Registrar of the Board. The Trustee or the Tender Agent, as the case may be,
will keep or cause to be kept sufficient books for the registration and transfer
of the Bonds, which shall at all times be open to inspection during regular
business hours by any Bondholder or his agent duly authorized in writing, the
Board, the Company, the Bank and the Remarketing Agent; and upon presentation
for such purpose, the Trustee or the Tender Agent, as the case may be, shall,
under such reasonable regulations as they may prescribe, register or transfer or
cause to be registered or transferred, on such books, Bonds as hereinbefore
provided.
Section 2.09. Temporary Bonds. The Bonds may be issued in temporary
form exchangeable for definitive Bonds when ready for delivery. Any temporary
Bond may be printed, lithographed or typewritten, shall be of such denomination
as may be determined by the Board, shall be in fully registered form without
coupons and may contain such reference to any of the provisions of this
Indenture as may be appropriate. Every temporary Bond shall be executed by the
Board and be authenticated by the Trustee or the Tender Agent, as the case may
be, upon the same conditions and in substantially the same manner as the
definitive Bonds. If the Board issues temporary Bonds it will execute and
deliver definitive Bonds as promptly thereafter as practicable, and thereupon
the temporary Bonds may be surrendered, for cancellation, in exchange therefor
at the Principal Corporate Trust Office of the Trustee and the Trustee or the
Tender Agent, as the case may be, shall authenticate and deliver in exchange for
such temporary Bonds an equal aggregate principal amount of definitive Bonds of
authorized denominations. Until so exchanged, the temporary Bonds shall be
entitled to the same benefits under this Indenture as definitive Bonds
authenticated and delivered hereunder.
28
Section 2.10. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond
shall become mutilated, the Board, at the expense of the Holder of said Bond,
shall execute, and the Trustee shall thereupon authenticate and deliver, a new
Bond of like tenor and number in exchange and substitution for the Bond so
mutilated, but only upon surrender to the Trustee of the Bond so mutilated.
Every mutilated Bond so surrendered to the Trustee shall be canceled by it and
delivered to, or upon the order of, the Board. If any Bond shall be lost,
destroyed or stolen, evidence of such loss, destruction or theft may be
submitted to the Board and the Trustee and, if such evidence be satisfactory to
both and indemnity satisfactory to them both shall be given, the Board, at the
expense of the Holder, shall execute, and the Trustee shall thereupon
authenticate and deliver, a new Bond of like tenor and number in lieu of and in
substitution for the Bond so lost, destroyed or stolen (or if any such Bond
shall have matured or shall be about to mature, instead of issuing a substitute
Bond, the Trustee may pay the same without surrender thereof). The Board may
require payment by the Holder of a sum not exceeding the actual cost of
preparing each new Bond issued under this Section and of the expenses which may
be incurred by the Board and the Trustee in connection therewith. Any Bond
issued under the provisions of this Section in lieu of any Bond alleged to be
lost, destroyed or stolen shall constitute an original additional contractual
obligation on the part of the Board whether or not the Bond so alleged to be
lost, destroyed or stolen be at any time enforceable by anyone, and shall be
entitled to the benefits of this Indenture with all other Bonds secured by this
Indenture.
Section 2.11. Cancellation and Destruction of Surrendered Bonds. All
Bonds surrendered for payment or redemption and all Bonds purchased with moneys
available for that purpose in any funds established under this Indenture, shall,
at the time of such payment or redemption, be canceled and destroyed by the
Trustee. The Trustee shall deliver to the Board certificates of destruction with
respect to all Bonds destroyed in accordance with this Section.
Section 2.12. Acts of Bondholders; Evidence of Ownership. Any action to
be taken by Bondholders may be evidenced by one or more concurrent written
instruments of similar tenor signed or executed by such Bondholders in person or
by agents appointed in writing. The fact and date of the execution by any person
of any such instrument may be proved by acknowledgment before a notary public or
other officer empowered to take acknowledgments or by an affidavit of a witness
to such execution. Any action by the holder of any Bond shall bind all future
holders of the same Bond in respect of any thing done or suffered by the Board
or the Trustee in pursuance thereof.
Section 2.13. Book-Entry Bonds; Securities Depository.
(a) The Bonds shall initially be registered to Cede & Co.,
the nominee for the Securities Depository, and no beneficial owner will receive
certificates representing their respective interests in the Bonds, except in the
event the Trustee issues Replacement Bonds as provided in subsection (b) hereof.
It is anticipated that during the term of the Bonds, the Securities Depository
will make book-entry transfers among its Participants and receive and transmit
payment of principal of, premium, if any, and interest on, the Bonds to the
Participants until and unless the Trustee authenticates and delivers Replacement
Bonds to the beneficial owners as described in subsection (b).
29
(b) If the Company determines: (1) that the Securities
Depository is unable to properly discharge its responsibilities; or (2) that the
Securities Depository is no longer qualified to act as a securities depository
and registered clearing agency under the Securities Exchange Act; or (3) that
the continuation of a book-entry system to the exclusion of any Bonds being
issued to any Bondowner other than Cede & Co. is no longer in the best interests
of the beneficial owners of the Bonds, then the Trustee shall notify the
Bondowners of such determination or such notice and of the availability of
certificates of Owners requesting the same, and the Trustee shall register in
the name of and authenticate and deliver Replacement Bonds to the beneficial
owners or their nominees in principal amounts representing the interest of each,
making such adjustments as it may find necessary or appropriate as to accrued
interest and previous calls for redemption; provided, that in the case of a
determination under (1) or (2) of this subsection (b), the Company, with the
consent of the Trustee, may select a successor Securities Depository in
accordance with subsection (c) hereof to effect book-entry transfers. In such
event, all references to the Securities Depository herein shall relate to the
period of time when the Securities Depository has possession of at least one
Bond. Upon the issuance of Replacement Bonds, all references herein to
obligations imposed upon or to be performed by the Securities Depository shall
be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Replacement Bonds. If the Securities Depository
resigns and the Company, the Trustee or Bondowners are unable to locate a
qualified successor of the Securities Depository in accordance with subsection
(c) hereof, then the Trustee shall authenticate and cause delivery of
Replacement Bonds to Bondowners, as provided herein. The Trustee may rely on
information from the Securities Depository as to the names of the beneficial
owners of the Bonds. The cost of printing Replacement Bonds shall be paid for by
the Company.
(c) In the event the Securities Depository resigns, is
unable to properly discharge its responsibilities, or is no longer qualified to
act as a securities depository and registered clearing agency under the
Securities Exchange Act, the Company may appoint a successor Securities
Depository provided the Trustee receives written evidence satisfactory to the
Trustee with respect to the ability of the successor Securities Depository to
discharge its responsibilities. Any such successor Securities Depository shall
be a securities depository which is a registered clearing agency under the
Securities Exchange Act, or other applicable statute or regulation that operates
a securities depository upon reasonable and customary terms. The Trustee upon
its receipt of a Bond or Bonds for cancellation shall cause the delivery of
Bonds to the successor Securities Depository in appropriate denominations and
form as provided herein.
(d) Notwithstanding any provision herein to the contrary, so
long as the Bonds are subject to a system of book-entry transfers pursuant to
this Section 2.13, any requirement for the delivery of Bonds to the Tender Agent
or the Trustee in connection with a tender pursuant to Section 5.01, 5.03 or
5.04 or a partial redemption pursuant to Section 4.01 shall be deemed satisfied
upon the transfer, on the registration books of the Securities Depository, of
the beneficial ownership interests in such Bonds tendered for purchase to the
account of the Tender Agent, or a Participant acting on behalf of or at the
discretion of such Tender Agent, or on the books of the Trustee.
30
ARTICLE III
ISSUANCE OF BONDS; APPLICATION OF PROCEEDS
Section 3.01. Issuance of the Bonds. At any time after the execution of
this Indenture, the Board may execute and the Trustee or the Tender Agent, as
the case may be, shall authenticate and, upon request of the Board, deliver the
Bonds in the aggregate principal amount of Seven Million Five Hundred Thousand
Dollars ($7,500,000).
Section 3.02. Validity of Bonds. The validity of the authorization and
issuance of the Bonds is not dependent on and shall not be affected in any way
by any proceedings taken by the Board or the Trustee with respect to or in
connection with the Agreement. The recital contained in the Bonds that the same
are issued pursuant to the Act and the Constitution and laws of the State shall
be conclusive evidence of their validity and of compliance with all provisions
of law in their issuance.
Section 3.03. Disposition of Proceeds of the Bonds and Other Amounts.
The Board shall deposit or cause to be deposited with the Trustee, immediately
upon receipt thereof, all proceeds derived from the sale of the Bonds, together
with any monies deposited by the Company as an equity contribution; provided,
however, that the Trustee shall segregate bond proceeds from equity contribution
monies. The Trustee shall deposit all such amounts in a special fund, which the
Trustee is hereby directed to establish and create, to be known as the "Clearing
Fund", and in the following order, the Trustee shall:
(a) Transfer to the persons identified in writing by the
Board and the Company in payment, or reservation for payment, the costs of
issuance incurred in connection with the Bonds; and
(b) Transfer to the holder of the Series 1997 Bonds the
purchase price of the said Bonds..
ARTICLE IV
REDEMPTION OF BONDS BEFORE MATURITY
Section 4.01. Extraordinary and Mandatory Redemption.
(a) Extraordinary Redemption. During any time the Bonds are
in a fixed rate mode, they are callable for redemption in, whole or in part, in
the event: (1) the Project Facilities or any portion thereof are damaged or
destroyed or taken in a condemnation proceeding as provided in Section 6.4 of
the Agreement; or (2) the Company shall exercise its option to cause the Bonds
to be redeemed as provided in Section 9.4 of the Agreement. If called for
redemption at any time pursuant to this Section 4.01(a), the Bonds shall be
subject to redemption by the Board on any Interest Payment Date, in whole or in
part, at a redemption price equal to 100% of the principal amount thereof being
redeemed, which such amount shall be limited to the amount of insurance or
condemnation proceeds, plus accrued interest to the redemption date.
31
(b) Mandatory Redemption. The Bonds are subject to mandatory
redemption:
(1) at any time, in whole, within one hundred
eighty (180) days after the Trustee receives notice of the occurrence of a
Determination of Taxability, at a redemption price equal to one hundred
percent (100%) of the aggregate principal amount of Bonds Outstanding plus
accrued interest to the redemption date; or
(2) five (5) Business Days prior to the Letter of
Credit Termination Date, in whole, at a redemption price equal to one
hundred percent (100%) of the principal amount thereof being redeemed plus
accrued interest to the redemption date if, on the 30th Business Day prior
to the Letter of Credit Termination Date, the Trustee shall not have
received a Substitute Letter of Credit which will be effective on or before
the Letter of Credit Termination Date.
(c) Mandatory Sinking Fund Redemption. The Bonds
are subject to mandatory sinking fund redemption on the Interest Payment
Date occurring in the month of January in each of the years set forth below
commencing on the Interest Payment Date occurring in January of 2000 (each,
a "Mandatory Sinking Fund Payment Date"), at a redemption price equal to
100% of the principal amount thereof plus accrued interest as follows:
Mandatory Sinking
Year Fund Payments
---- -----------------
2000 $560,000
2001 $560,000
2002 $560,000
2003 $560,000
2004 $560,000
2005 $560,000
2006 $560,000
2007 $560,000
2008 $560,000
2009 $575,000
2010 $580,000
2011 $580,000
2012 $580,000
2013 $145,000*
*Final maturity of the Bonds is January 1, 2013
32
(d) [Reserved]
(e) Mandatory Redemption upon Determination of Taxability.
The Bonds will be subject to redemption by the Board in whole within one hundred
eighty (180) days after the occurrence of a "Determination of Taxability" (as
hereinafter defined), at a redemption price equal to one hundred percent (100%)
of the aggregate principal amount of Bonds outstanding plus accrued interest to
the redemption date.
A "Determination of Taxability " with respect to any Bond
shall be deemed to have been made upon the first to occur of the following
events:
(i) the date on which the Company determines that an
Event of Taxability (11ereinafter defined) has occurred by filing with
the Trustee a statement to that effect supported by one or more tax
schedules, returns or documents which disclose that such an Event of
Taxability has occurred;
(ii) the date on which the Company or the Trustee is
advised by private ruling, technical advice or any other written
communication from any authorized official of the Internal Revenue
Service that, based upon any filing of the Company or any other person
or entity, or upon any review or audit of the Company or any other
person or entity, or upon any other grounds whatsoever, an Event of
Taxability has occurred;
(iii) the date on which the Trustee or the Company is
advised that a court of competent jurisdiction has issued an order,
declaration, ruling or judgment to the effect that an Event of
Taxability has occurred;
(iv) the date the Trustee shall have received written
notice from any holder of Bonds that such owner has received a written
assertion or claim by any authorized official of the Internal Revenue
Service that an Event of Taxability has occurred; or
(v) the date the Trustee is notified that the
Internal Revenue Service has issued any private ruling, technical
advice or any other written communication, with or to the effect that
an Event of Taxability has occurred;
provided that (A) no Determination of Taxability described in clauses (i) or (v)
shall be deemed to have occurred unless the Trustee shall have received a
written opinion of nationally-recognized bond counsel satisfactory to the Lender
and the Company and not unsatisfactory to the Trustee, and in form and substance
satisfactory to the Lender and the Company and not unsatisfactory to the
Trustee, to the effect that an Event of Taxability has occurred; and (B) no
Determination of Taxability described in clauses (i), (ii), (iii), (iv) or (v)
above shall be deemed to have occurred until 180 days shall have elapsed from
the dates described in clauses (i), (ii), (iii), (iv) or (v) above without such
Determination of Taxability having been rescinded or cancelled.
33
As used herein the phrase "Event of Taxability" with respect
to any Bond shall mean a change of law or regulations, or the interpretation
thereof, or the occurrence of any other event or the existence of any other
circumstance (including, without limitation, the fact that any representations
or warranties of the Company or the Board made in connection with the issuance
of the Bonds is or was untrue or that a covenant of the Company has been
breached) which has the effect of causing interest payable on any Bond to be
includable in gross income for federal income tax purposes under Section 103 of
the Internal Revenue Code of 1986, as amended, and the applicable regulations
thereunder (the "Code") other than by reason that such interest (i) is
includable in the gross income of an owner or former owner of a Bond while such
owner or former owner is or was a "substantial user" or a "related person" to a
"substantial user" of the Project Facility (as such terms are used in Section
147(a)(1) of the Code) or is deemed an item of tax preference, including,
without limitation, an item subject to any alternative minimum tax.
Section 4.02. Optional Redemption. On or prior to the Conversion Date,
the Bonds are subject to redemption by the Board, at the option of the Company,
at any time, subject to provisions of Section 4.03 hereof, in whole or in part,
at the redemption price of 100% of the principal amount thereof being redeemed
plus accrued interest to the redemption date.
After the Conversion Date, if the length of time from the Conversion
Date to the final maturity date of the Bonds is seven (7) years or more, the
Bonds are subject to redemption by the Board, at the option of the Company, on
or after the fifth anniversary of the Conversion Date, in whole at any time or
in part on any Interest Payment Date, at the redemption price of 100% of the
principal amount thereof being redeemed plus accrued interest to the redemption
date.
If, pursuant to a conversion from the Floating Rate to the Fixed Rate
in accordance with Section 5.01 hereof, the Remarketing Agent certifies to the
Trustee and the Company in writing that the foregoing call restriction is not
consistent with the then prevailing market conditions, the foregoing call
restriction may be revised in accordance with the best professional judgment of
the Remarketing Agent to reflect the then prevailing market conditions;
provided, however that the Company shall have consented to such revision and
shall have furnished the Trustee with an opinion addressed to the Trustee, the
Board, the Company, the Paying Agent, the Bank and the Remarketing Agent, if any
at such time, of Bond Counsel (as defined in the Lease Agreement) acceptable to
the Company and the Trustee, stating that such revision will not adversely
affect the excludability from federal income taxation of interest on the Bonds.
Notwithstanding the foregoing, no such optional redemption shall occur
after the Conversion Date unless there shall be available in the Bond Fund
sufficient Available Moneys to pay all amounts due with respect to such a
redemption.
34
Section 4.03. Notice of Redemption. Notice of the call for redemption,
identifying the Bonds or portions thereof to be redeemed and the redemption
price (including the premium, if any), shall be given by the Trustee by mailing
a copy of the redemption notice by first-class mail, postage prepaid, at least
thirty (30) days but not more than sixty (60) days prior to the date fixed for
redemption to the Owner of each Bond to be redeemed in whole or in part at the
address shown on the registration books. Such notice shall contain such matters
specified in the Bonds for the redemption thereof and shall state that such
redemption is conditional upon the receipt of monies by the Trustee for such
purpose on or prior to the redemption date. Any notice mailed as provided in
this Section shall be conclusively presumed to have been duly given, whether or
not the Owner receives the notice. The Trustee shall deliver a copy of any such
redemption notice to the Tender Agent, the Company and to the Remarketing Agent.
The Trustee shall notify the Board promptly in writing of the maturity
or redemption in whole of the Bonds.
Section 4.04. Interest on Bonds Called for Redemption. Upon the giving
of notice and the deposit of Available Moneys for redemption at the required
times on or prior to the date fixed for redemption, as provided in this Article,
interest on the Bonds or portions thereof thus called shall no longer accrue
after the date fixed for redemption.
Section 4.05. Cancellation. All Bonds which have been redeemed shall
not be reissued but shall be canceled and destroyed by the Trustee in accordance
with Section 2.11 hereof.
Section 4.06. Partial Redemption of Bonds.
(a) If less than all the Bonds are to be redeemed, the
particular Bonds or portions thereof to be redeemed shall be selected by the
Trustee by lot.
(b) Upon surrender of any Bond for redemption in part only,
the Board shall execute and the Trustee shall authenticate and deliver to the
Owner thereof a new Bond or Bonds of authorized denominations, in an aggregate
principal amount equal to the unredeemed portion of the Bond surrendered. If all
or a portion of Bonds tendered for purchase pursuant to Section 5.04 hereof have
been selected by the Trustee for redemption, the Tender Agent, upon receipt of
such tendered Bonds, shall authenticate and redeliver only such portion of
tendered Bonds not subject to redemption. The Tender Agent shall deliver to the
tendering Bondholder a copy of the notice of redemption, indicating the portion
of the Bonds subject thereto, and upon receipt of funds as provided herein, an
amount representing the principal of and interest on the Bonds not called for
redemption. The principal of and interest accrued on the Bonds called for
redemption shall be paid to such bondholder on the redemption date. The Tender
Agent shall cancel the Bond or such portion thereof tendered for purchase and
subject to redemption, and shall deliver a certificate evidencing such
cancellation and the canceled Bond to the Trustee.
(c) (i) Prior to the Conversion Date, in case a Bond is of a
denomination larger than $100,000, a portion of such Bond ($100,000 or any
integral multiple of $5,000 in excess thereof) may be redeemed, but Bonds shall
be redeemed only if the remaining unredeemed portion of such Bond is in the
principal amount of $100,000 or any integral multiple of $5,000 in excess of
$100,000.
35
(ii) After the Conversion Date, in case a Bond is
of a denomination larger than $5,000, a portion of such Bond ($5,000 or any
integral multiple thereof) may be redeemed, but Bonds shall be redeemed only if
the remaining unredeemed portion of such Bond is in the principal amount of
$5,000 or any integral multiple of $5,000.
(d) Notwithstanding anything to the contrary contained in
this Indenture, whenever the Bonds are to be redeemed in part, Bonds which are
Pledged Bonds at the time of selection of Bonds for redemption shall be selected
for redemption prior to the selection of any other Bond. If the aggregate
principal amount of Bonds to be redeemed exceeds the aggregate principal amount
of Pledged Bonds at the time of selection, the Trustee may select for redemption
Bonds in an aggregate principal amount equal to such excess in such manner as
the Trustee in its discretion shall deem fair and appropriate.
Section 4.07. Payment of Redemption Price with Available Moneys;
Consent of Bank to Optional Redemption. Notwithstanding any provision to the
contrary contained in this Indenture, the payment of the redemption price of
Bonds shall be made only from Available Moneys. On each date that the Bonds are
subject to redemption, the Trustee shall draw on the Letter of Credit in an
amount sufficient to pay the full redemption price of the Bonds then subject to
redemption from the sources and in the order provided in Section 6.03 hereof. As
long as the Letter of Credit Bank is not in default under the Letter of Credit,
the Trustee shall not call Bonds for Optional Redemption unless it has received
the prior written consent to such Optional Redemption from the Bank.
ARTICLE V
CONVERSION OF INTEREST RATE; DEMAND PURCHASE OPTION
Section 5.01. Conversion of Interest Rate on Conversion Date. The
interest rate on the Bonds shall be converted from the Floating Rate to the
Fixed Rate upon the exercise by the Company of the Conversion Option, and the
Bonds shall be subject to mandatory tender for purchase by the Owners thereof on
the Conversion Date. To exercise the Conversion Option, the Company shall notify
the Trustee, the Tender Agent, the Bank, the Board and the Remarketing Agent at
least thirty-five (35) days prior to the Conversion Date of such exercise, cause
the Remarketing Agent to furnish to the Trustee the information set forth in
paragraphs 1 and 4 below and, thereafter cause the Trustee to deliver or mail by
first class mail a notice at least twenty (20) days but not more than thirty
(30) days prior to the Conversion Date to the Owner of each Bond at the address
shown on the registration books of the Bond Registrar. No such notice may be
given unless the Trustee first receives: (i) an opinion of nationally recognized
bond counsel to the effect that the proposed conversion of the interest rate on
the Bonds will not cause the interest on the Bonds to be includable in gross
income of the Bondholders for federal income tax purposes; (ii) a commitment
from the Bank or a Substitute Bank to issue or arrange for the issuance of a
Substitute Letter of Credit to take effect on the Conversion Date, together with
a proposed form of such Substitute Letter of Credit; and (iii) a Company
certificate to the effect that each of the Company's representations and
warranties made in the Agreement and in any other agreements or certificates
given by the Company in connection with the issuance of the Bonds remain true
and correct in all material respects as of the proposed Conversion Date. Any
notice given as provided in this section shall be conclusively presumed to have
been duly given, whether or not the Owner receives the notice. Said notice shall
state in substance the following:
36
1. the Conversion Date;
2. that the existing Letter of Credit will expire five (5)
Business Days after the Conversion Date;
3. that unless firm commitments for the purchase of all
Outstanding Bonds have been received on or prior to the fifth (5th)
Business Day prior to the proposed Conversion Date, the Company has the
option to rescind an optional conversion of the Bonds; and
4. that in the event the Company elects not to rescind the
optional conversion of the Bonds, all Bonds shall be subject to
mandatory purchase on the Conversion Date pursuant to this Section
5.01.
On or prior to the Conversion Date, Owners of Bonds shall be required to deliver
their Bonds to the Tender Agent for purchase at the Purchase Price, and any such
Bonds not delivered to the Tender Agent on or prior to the Conversion Date
("Undelivered Bonds"), for which there has been irrevocably deposited in trust
with the Trustee or the Tender Agent an amount of Available Money sufficient to
pay the Purchase Price of the Undelivered Bonds, shall be deemed to have been
purchased pursuant to this Section 5.01 and are deemed to be no longer
Outstanding with respect to such prior Owners. IN THE EVENT OF A FAILURE BY AN
OWNER OF BONDS TO DELIVER ITS BONDS ON OR PRIOR TO THE CONVERSION DATE, SAID
OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON
OR SUBSEQUENT TO THE CONVERSION DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH
UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE
BENEFIT OF THIS INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE
PRICE THEREFOR.
Notwithstanding the foregoing provisions, to the extent that at the
close of the fifth Business Day prior to the proposed Conversion Date, the
Remarketing Agent has not presented to the Company firm commitments for the
purchase of all of the Bonds, the Company, at its option, may rescind an
optional conversion of the Bonds. Any such election to rescind must be made by
the close of the fourth Business Day prior to the proposed Conversion Date and
the Company shall give written notice to the Trustee, the Tender Agent and the
Bank of its decision to rescind by such time. The Company shall cause the
Trustee to immediately notify the Owners of such rescission and thereafter the
Bonds shall bear interest at the Floating Rate in effect for the current Weekly
Period and thereafter the Bonds shall bear interest at the Floating Rate until
any subsequent Conversion Date effected in accordance with this Indenture.
37
In the event the Company rescinds the proposed optional conversion in
accordance with the terms of the foregoing paragraph, the Letter of Credit then
in effect will remain in effect in accordance with its terms.
The Bonds are subject to mandatory purchase in whole on the Conversion
Date, at a purchase price equal to 100% of the principal amount thereof being
purchased, plus accrued interest to the purchase date; provided, however, that:
(i) all Pledged Bonds for which a commitment to purchase has not been received
in connection with a conversion of the Bonds to a Fixed Rate, shall be redeemed
or otherwise paid by the Company on or before the Conversion Date; and (ii) no
such mandatory purchase shall take place in the event the Company exercises its
right to rescind the conversion.
Section 5.02. Delivery of Bonds After Conversion Date. At any time
prior to the Record Date preceding the first Interest Payment Date following the
Conversion Date, the Trustee or the Tender Agent, as the case may be, shall
deliver Bonds in the form of Exhibit "B" hereto. Prior to the delivery by the
Trustee of such Bonds, there shall be filed with the Trustee a request and
authorization to the Trustee on behalf of the Board, which shall be executed by
the Chairman or Vice Chairman, Secretary, Assistant Secretary or any authorized
officer of the Board to authenticate and deliver the Bonds, as executed by the
Board, to the purchasers thereof. Such delivery shall be made by the Trustee or
the Tender Agent, as the case may be, without making any charge therefor to the
Owner of such Bonds.
Section 5.03. Mandatory Purchase upon Substitution of Letter of Credit.
Prior to the Conversion Date, the Bonds are subject to mandatory purchase in
whole on the Substitution Date, at a purchase price equal to 100% of the
principal amount thereof being purchased, plus accrued interest to the purchase
date. The Trustee shall deliver or mail by first class mail a notice at least
twenty (20) days but not more than thirty (30) days prior to the Substitution
Date to the Owner of each Bond at the address shown on the registration books of
the Bond Registrar notifying such Owner that their Bonds are subject to
mandatory purchase. No such notice may be given unless the Company shall have
satisfied the provisions of Section 4.3 of the Agreement. Any notice given as
provided in this Section 5.03 shall be conclusively presumed to have been given,
whether or not the Owner receives the notice. Said notice shall state in
substance the following:
(1) the Substitution Date;
(2) that the existing Letter of Credit securing such Bonds
will expire five (5) Business Days after the Substitution Date; and
38
(3) that if the Company satisfies the conditions precedent
to delivery of the Substitute Letter of Credit, all Bonds shall be subject to
mandatory purchase on the Substitution Date pursuant to this Section 5.03.
On or prior to the Substitution Date, Owners of Bonds shall be required to
deliver their Bonds to the Tender Agent for purchase at the Purchase Price, and
any such Bonds not delivered to the Tender Agent on or prior to the Substitution
Date ("Undelivered Bonds"), for which there has been irrevocably deposited in
trust with the Trustee or the Tender Agent an amount of money sufficient to pay
the Purchase Price of the Undelivered Bonds, shall be deemed to have been
purchased pursuant to this Section 5.03 and are deemed to be no longer
Outstanding with respect to such prior Owners. IN THE EVENT OF A FAILURE BY AN
OWNER OF BONDS TO DELIVER ITS BONDS ON OR PRIOR TO THE SUBSTITUTION DATE, SAID
OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON
OR SUBSEQUENT TO THE SUBSTITUTION DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH
UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE
BENEFIT OF THIS INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE
PRICE THEREFOR.
Notwithstanding the foregoing provisions, to the extent that at the
close of the fifth Business Day prior to the proposed Substitution Date, the
Company has not delivered to the Board, the Trustee and the Remarketing Agent
the items set forth in Section 4.3(i) through (iv) of the Agreement, the
mandatory purchase of Bonds shall be rescinded and the Trustee shall notify the
Owners of such rescission immediately and thereafter the Bonds shall continue to
be secured by the existing Letter of Credit until its termination date.
Section 5.04. Demand Purchase Option. Prior to the Conversion Date,
any Bond shall be purchased at the Purchase Price from the Owner thereof upon:
(i) delivery by such Owner to the Trustee and the Tender
Agent at their Principal Corporate Trust Office and Delivery Office,
respectively, and to the Remarketing Agent at its principal office set forth in
Section 12.08 hereof, of a notice (the "Demand Purchase Notice") (said notice to
be irrevocable and effective upon receipt) which states: (1) the aggregate
principal amount and bond numbers of the Bonds to be purchased; and (2) the date
on which such Bonds are to be purchased, which date shall be a Business Day not
prior to the seventh (7th) day next succeeding the date of delivery of such
notice and which date shall be prior to the Conversion Date;
(ii) if such Bonds are to be purchased prior to an Interest
Payment Date and after the Record Date in respect thereof, delivery to the
Tender Agent together with the Demand Purchase Notice described in (i) above, of
a nonrecourse due-▇▇▇▇, payable to bearer, for interest due on such interest
payment date; and
(iii) delivery to the Tender Agent at its Delivery Office at
or prior to 10:00 a.m., New York City time, on the date designated for purchase
in the applicable Demand Purchase Notice of such Bonds to be purchased, with an
appropriate endorsement for transfer or accompanied by a bond power endorsed in
blank.
39
Any Bond as to which a Demand Purchase Notice has been delivered
pursuant to paragraph (i) above, must be delivered to the Tender Agent, as
provided in (iii) above, and any such Bond not so delivered ("Undelivered
Bonds"), for which there has been irrevocably deposited in trust with the
Trustee or the Tender Agent an amount of money sufficient to pay the Purchase
Price thereof, shall be deemed to have been purchased at the Purchase Price
pursuant to this Section 5.04 and are deemed to be no longer Outstanding with
respect to such tendering Owner. IN THE EVENT OF A FAILURE BY AN OWNER OF BONDS
TO DELIVER ITS BONDS AS SPECIFIED ABOVE, SAID OWNER SHALL NOT BE ENTITLED TO ANY
PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON OR SUBSEQUENT TO THE DATE
DESIGNATED FOR PURCHASE IN THE APPLICABLE DEMAND PURCHASE NOTICE) OTHER THAN THE
PURCHASE PRICE FOR SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO
LONGER BE ENTITLED TO THE BENEFIT OF THE INDENTURE, EXCEPT FOR THE PAYMENT OF
THE PURCHASE PRICE THEREFOR.
Notwithstanding the foregoing provisions, in the event any Bond as to
which the Owner thereof has exercised the Demand Purchase Option is remarketed
to such Owner pursuant to the Remarketing Agreement, such Owner need not deliver
such Bond to the Tender Agent as provided in (iii) above, although such Bond
shall be deemed to have been delivered to the Tender Agent, redelivered to such
Owner, and remarketed for purposes of this Indenture, including, without
limitation, for purposes of adjusting the Floating Rate as provided in Section
2.02(C) hereof.
Notwithstanding anything contained herein to the contrary, an Owner of
a Bond shall not be entitled to exercise the Demand Purchase Option described
herein if there shall have occurred any Event of Default in respect of which the
principal of all Bonds Outstanding shall have been declared immediately due and
payable under the Indenture and such declaration shall not have been annulled.
Section 5.05. Funds for Purchase of Bonds.
(a) On the date Bonds are to be purchased pursuant to
Section 5.01, Section 5.03 or Section 5.04 hereof, such Bonds shall be purchased
at the Purchase Price only from the funds listed below. Subject to the
provisions of Section 6.12(b), funds for the payment of the Purchase Price shall
be derived from the following sources in the order of priority indicated:
(i) moneys drawn by the Trustee under the Letter
of Credit (in the event of a drawing on the Letter of Credit to fund payment of
the Purchase Price of Bonds tendered pursuant to Section 5.03 hereof, the
Trustee shall draw on the existing Letter of Credit and not the Substitute
Letter of Credit to fund such payment);
40
(ii) proceeds of the remarketing of the Bonds; and
(iii) any other Available Moneys furnished to the
Trustee or the Tender Agent and available for such purpose.
(b) Payment for the Bonds purchased pursuant to Sections
5.01, 5.03 or 5.04 shall be made as follows:
(i) On the date on which such Bonds are to be
purchased (the "Purchase Date"), the Trustee shall make a drawing pursuant to
the Letter of Credit in respect of the Purchase Price of such Bonds. In
connection therewith, the Trustee shall prepare and present to the Letter of
Credit Bank the appropriate certificates required under the Letter of Credit by
12:00 noon, New York City time on the Business Day immediately preceding the
Purchase Date.
(ii) By not later than 10:00 a.m., New York City
time, on the Purchase Date, the Remarketing Agent shall give telephonic notice,
promptly confirmed in writing, to the Bank, the Trustee and the Tender Agent,
specifying:
(1) the total principal amount of Bonds, if
any, remarketed by it; and
(2) the names of the persons to whom such
Bonds were sold and are to be registered, each such person's address and social
security number or taxpayer identification number, the denominations in which
replacement Bonds are to be prepared, and any other appropriate registration and
transfer instructions.
(iii) There is hereby established with the Tender
Agent a special fund to be designated the "Bond Purchase Fund" and therein two
separate and segregated accounts to be designated the "Remarketing Account" and
the "Bank Account." An amount equal to the proceeds received by the Trustee
pursuant to a draw under the Letter of Credit and all other amounts, if any,
certified by the Bank, as due it, but unpaid, under the Loan Agreement, shall be
transferred by the Trustee in immediately available funds to the Tender Agent
for deposit in the Bank Account no later than 12:30 p.m., New York City time on
the applicable Purchase Date.
(iv) No later than 1:00 p.m., New York City time,
on each Purchase Date, the Tender Agent shall give telephonic notice (promptly
confirmed by telecopy) to the Remarketing Agent of the amount deposited in the
Bank Account on such date. No later than 2:00 p.m., New York City time, on each
Purchase Date the Remarketing Agent shall: (x) transfer to the Letter of Credit
Bank an amount of the proceeds of the remarketing of the Bonds equal to the
amount deposited in the Bank Account on such Purchase Date unless the Bank
notifies the Trustee in writing to the contrary; (y) transfer the remainder of
the proceeds of the remarketing of the Bonds to the Tender Agent for deposit in
the Remarketing Account and shall give telephonic notice (promptly confirmed by
telecopy) to the Tender Agent of the amount of such proceeds transferred to the
Bank; and (z) give telephonic notice, promptly confirmed in writing, to the
Company of the total principal amount of Unremarketed Bonds, if any.
41
(v) The Tender Agent shall pay the Purchase Price
to the tendering Bondholders from the amounts on deposit in the Bank Account to
the extent available. If amounts on deposit in the Bank Account are insufficient
to pay the Purchase Price to the tendering Bondholders, the Tender Agent shall
make up any such deficiency from amounts on deposit in the Remarketing Account.
(vi) The Letter of Credit Bank shall give
telephonic confirmation to the Tender Agent and the Trustee by 4:00 p.m., New
York City time on the applicable Purchase Date of its receipt of the remarketing
proceeds described in Section 5.05(b)(iv) hereof.
Section 5.06. Delivery of Purchased Bonds.
(a) Remarketed Bonds shall be delivered by the Tender Agent,
at its Delivery Office, to or upon the order of the purchasers thereof.
(b) Unremarketed Bonds purchased with funds drawn under the
Letter of Credit shall be delivered by the Tender Agent to the Pledged Bonds
Custodian or otherwise upon the order of the Bank pursuant to the Pledge
Agreement.
(c) Unremarketed Bonds purchased with moneys described in
Section 5.05(a)(iii) hereof shall, at the direction of the Company, be: (i)
delivered as instructed by the Company; or (ii) delivered to the Trustee for
cancellation; provided, however, that any Bonds so purchased after the selection
thereof by the Trustee for redemption shall be delivered to the Trustee for
cancellation.
(d) The Tender Agent shall deliver to the person to whom the
Tender Agent is to deliver such Bonds, the nonrecourse due-bills, if any,
delivered to the Tender Agent with respect to such Bonds in accordance with
Section 5.04 hereof.
Bonds delivered as provided in this Section shall be registered in the
manner directed by the recipient thereof.
Section 5.07. Sale of Bonds by Remarketing Agent.
(a) On each Purchase Date, the Remarketing Agent shall offer
for sale and use its best efforts to sell, as agent of the Company, all Bonds
tendered or deemed tendered for purchase on such Purchase Date at the Purchase
Price thereof and, if such Bonds are not sold on such date, the Remarketing
Agent shall continue, for a period not in excess of thirty (30) days thereafter,
to use its best efforts to sell such Bonds.
42
(b) Notwithstanding anything to the contrary herein:(i) the
Remarketing Agent shall use its best efforts to remarket any Bonds tendered or
deemed tendered for purchase in such a manner that, immediately following the
remarketing of any Bonds, at least one (1) Holder will own at least $200,000 in
aggregate principal amount of Bonds; and (ii) the Remarketing Agent shall not
remarket any Bonds to the Board, the Company or any affiliate thereof.
Section 5.08. Delivery of Proceeds of Sale of Purchased Bonds.
(a) Except in the case of the sale of any Pledged Bonds, the
proceeds of the sale of any Bonds delivered or deemed delivered to the Tender
Agent pursuant to Sections 5.01, 5.03 or 5.04 hereof, to the extent not required
to pay the Purchase Price to tendering Bondholders and not required to reimburse
the Letter of Credit Bank or the Bank under the Letter of Credit or the Loan
Agreement, shall be paid to or upon the order of the Company.
(b) In the event the Remarketing Agent shall have remarketed
any Pledged Bonds and the Company or the Remarketing Agent shall have directed
the Bank to cause the Pledged Bonds Custodian to deliver such Pledged Bonds to
the Tender Agent pursuant to the Pledge Agreement, such Bonds shall be delivered
to the Tender Agent and the proceeds of sale of such Bonds shall be delivered to
the Delivery Office of the Tender Agent, and shall be paid to the Letter of
Credit Bank or the Bank upon the order of the Bank; provided that any amounts so
paid in excess of amounts then due to the Letter of Credit Bank or the Bank in
respect of drawings under the Letter of Credit shall be delivered by the Bank to
or upon the order of the Company; provided further that Pledged Bonds shall not
be delivered to the Tender Agent until the Letter of Credit has been reinstated
in accordance with the terms of the Pledge Agreement and the Letter of Credit.
Section 5.09. Duties of Trustee and Tender Agent with Respect to
Purchase of Bonds.
(a) The Tender Agent shall hold all Bonds delivered to it
pursuant to Sections 5.01, 5.03 or 5.04 hereof in trust for the benefit of the
respective Owners of Bonds which shall have so delivered such Bonds until moneys
representing the Purchase Price of such Bonds shall have been delivered to or
for the account of or to the order of such Owners of Bonds. Upon delivery of
monies representing the Purchase Price of such Bonds to or for the account of or
to the order of such Owners of Bonds, the Tender Agent shall deliver all such
Unremarketed Bonds, the funds for which have been obtained by a drawing under
the Letter of Credit, to the Pledged Bonds Custodian pursuant to Section 5.06(b)
hereof for the purpose of perfecting the Bank's security interest therein under
the Pledge Agreement unless the Bank shall direct the Tender Agent to deliver
such Bonds to or upon the order of the Bank in accordance with Section 5.06
hereof.
43
(b) The Trustee and the Tender Agent shall hold all moneys
delivered to them pursuant to this Indenture for the purchase of Bonds in a
separate account, in trust for the benefit of the Bank or, in the case of
remarketed Bonds, the purchasers of such Bonds, until the Bonds purchased with
such moneys shall have been delivered to or for the account of the Pledged Bonds
Custodian, the Bank or to such other purchaser, as appropriate.
(c) The Trustee shall deliver to the Company and the Bank a
copy of each notice delivered to it in accordance with Section 5.04 within two
(2) days of the receipt thereof.
(d) As soon as possible, but not later than the close of
business on any date designated for purchase of Bonds in accordance with Section
5.04; the Tender Agent shall give telephonic or telegraphic notice to the
Remarketing Agent and the Trustee specifying the principal amount of Bonds
delivered or deemed delivered for purchase on such date.
(e) The Trustee shall draw moneys under the Letter of Credit
in accordance with the terms thereof to the extent required by Sections 5.05 and
6.12 hereof to provide for timely payment of the Purchase Price of Bonds.
Section 5.10. No Purchases or Sales After Certain Defaults. Anything in
this Indenture to the contrary notwithstanding, there shall be no purchases or
sales of Bonds pursuant to Section 5.04 if there shall have occurred any Event
of Default in respect of which the principal of all Bonds Outstanding shall have
been declared immediately due and payable pursuant to Section 8.02 and such
declaration shall not have been annulled. If the Trustee shall have given a
notice of a call for redemption pursuant to Section 4.03 hereof and such notice
shall not have been rescinded, the Remarketing Agent shall provide a notice of
such redemption to any prospective purchaser of such Bonds upon the remarketing
of any Bonds tendered pursuant to Section 5.04 hereof. Nothing in this Section
is intended to limit secondary trading or transfer of the Bonds.
ARTICLE VI
REVENUES AND FUNDS
Section 6.01. Creation of the Bond Fund. There is hereby created and
established with the Trustee a trust fund to be designated "Bond Fund" which
shall be used to pay when due the principal and Purchase Price of, premium, if
any, and interest on the Bonds.
Section 6.02. Payments into the Bond Fund. There shall be deposited
into the Bond Fund from time to time the following:
(a) [Reserved]
(b) any amount deposited into the Bond Fund pursuant to
Section 6.04 hereof;
(c) all payments specified in Sections 5.3 and 5.4 of the
Agreement (other than amounts paid for the Trustee's or the Board's own
account);
44
(d) any moneys received pursuant to the Collateral
Documents;
(e) any moneys drawn under the Letter of Credit which moneys
shall be deposited or credited (in the case of a draw to pay the Purchase Price)
in a separate subaccount of the Bond Fund and shall not be commingled with any
other moneys held by the Trustee;
(f) amounts, if any, held by the Trustee pursuant to Section
5.09 hereof; and
(g) all other moneys received by the Trustee under and
pursuant to any of the provisions of the Agreement which are required to be or
which are accompanied by directions that such moneys are to be paid into the
Bond Fund.
Section 6.03. Use of Moneys in the Bond Fund. Except as provided in
Sections 5.05, 5.09 and 6.11 hereof, moneys in the Bond Fund shall be used
solely for the payment of the principal of, premium, if any, and interest on the
Bonds, for the redemption of the Bonds prior to maturity and for payment of the
Acceleration Price as defined in Section 8.02 hereof. Subject to the provisions
of Section 6.12(b) hereof, funds for such payments of redemption price and
principal of and premium, if any, and interest on the Bonds shall be derived
from the following sources in the order of priority indicated:
(i) moneys drawn by the Trustee under the Letter of Credit;
(ii) amounts deposited into the Bond Fund which constitute
Available Moneys (other than moneys drawn by the Trustee under the Letter of
Credit); and
(iii) any other moneys furnished to the Trustee and
available for such purpose.
Section 6.04. Custody of Separate Trust Fund. The Trustee is authorized
and directed to hold all Net Proceeds from any insurance proceeds or
condemnation award and disburse such proceeds in accordance with Article VII of
the Agreement. If the Company directs that any portion of such Net Proceeds be
applied to redeem Bonds, the Trustee shall deposit such Net Proceeds in a
separate sub-account of the Bond Fund, and the Board covenants and agrees to
take and cause to be taken any action requested of the Board to redeem on the
earliest possible redemption date the amount of Bonds so specified by the
Company.
Section 6.05. [Reserved]
Section 6.06. [Reserved]
Section 6.07. [Reserved]
Section 6.08. [Reserved]
45
Section 6.09. Nonpresentment of Bonds. In the event any Bond shall not
be presented for payment when the principal thereof becomes due, either at
maturity, or at the date fixed for redemption thereof, or otherwise, if
Available Moneys sufficient to pay any such Bond shall have been made available
to the Trustee for the benefit of the Owner thereof, all liability of the Board
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 funds uninvested, without liability for interest
thereon, for the benefit of the Owner of such Bond who shall thereafter be
restricted exclusively to such funds for any claim of whatever nature on his
part under this Indenture with respect to such Bond.
Any moneys so deposited with and held by the Trustee not so applied to
the payment of Bonds within five (5) years after the date on which the same
shall have become due shall be repaid by the Trustee to the Company upon written
direction of a Company Representative, and thereafter Owners of Bonds shall be
entitled to look only to the Company for payment, and then only to the extent of
the amount so repaid, and all liability of the Trustee with respect to such
money shall thereupon cease, and the Company shall not be liable for any
interest thereon and shall not be regarded as a trustee of such money.
Section 6.10. Moneys to be Held in Trust. All moneys required to be
deposited with or paid to the Trustee for the account of any fund or account
referred to in any provision of this Indenture or the Agreement shall be held by
the Trustee in trust, and shall, while held by the Trustee, constitute part of
the Trust Estate and be subject to the lien and security interest created
hereby.
Section 6.11. [Reserved]
Section 6.12. Letter of Credit and Repayment to the Letter of Credit
Bank or the Bank from the Bond Fund.
(a) During the term of the Letter of Credit, the Trustee
shall draw moneys under the Letter of Credit in accordance with the terms
thereof: (i) in an amount sufficient to pay when due the principal of (whether
by reason of maturity, redemption, conversion, acceleration or otherwise) , and
interest and, to the extent the Letter of Credit covers same, any premium on the
Bonds; and (ii) in an amount sufficient to pay when due the Purchase Price of
Bonds. Within two (2) Business Days after the last Determination Date of each
month, the Trustee shall give written notice (which notice may be transmitted
via facsimile) to the Company, the Letter of Credit Bank and the Bank of the
amount that the Trustee will draw under the Letter of Credit on the next
Interest Payment Date. After the Trustee draws moneys under the Letter of Credit
to pay the items set forth above, any amounts paid by the Company under the
Agreement into the Bond Fund or any other fund or account created hereunder
shall be paid as soon as possible to the Letter of Credit Bank, unless the Bank
notifies the Trustee in writing to the contrary, to reimburse the Letter of
Credit Bank or the Bank for the monies so drawn under the Letter of Credit as
set forth above and for all other amounts, if any, certified by the Bank as due
it but unpaid under the terms of the Loan Agreement.
46
(b) Notwithstanding any provision to the contrary which may
be contained in this Indenture, including, without limitation, Section 6.12(a):
(i) in computing the amount to be drawn under the Letter of Credit on account of
the payment of the principal or Purchase Price of, interest or, to the extent
the Letter of Credit covers same, any premium, on the Bonds, the Trustee shall
exclude any such amounts in respect of any Bonds which it is advised by the
Tender Agent (pursuant to Section 5.09(d) hereof) are Pledged Bonds prior to the
date such payment is due; and (ii) amounts drawn by the Trustee under the Letter
of Credit shall not be applied to the payment of the Purchase Price of any Bonds
which are Pledged Bonds prior to the date such payment is due.
(c) The Letter of Credit shall terminate in accordance with
its terms on the Letter of Credit Termination Date. Upon such termination, the
Trustee shall deliver the terminated Letter of Credit to the Bank, together with
such certificates as may be required by the terms of the Letter of Credit.
Section 6.13. [Reserved]
Section 6.14. Investment of Moneys in Funds. All moneys in any of the
funds established pursuant to this Indenture (except moneys obtained from a draw
on the Letter of Credit, which moneys shall be held uninvested) shall be
invested by the Trustee, as directed in writing by the Company, solely in
Investment Securities except with respect to Available Moneys held by the
Trustee for the payment of Undelivered Bonds, which Available Moneys the Trustee
shall not invest. Investment Securities may be purchased at such prices as the
Trustee may in its discretion determine or as may be directed by the Company.
All Investment Securities shall be acquired subject to the limitations as to
maturities hereinafter in this Section set forth and such additional limitations
or requirements consistent with the foregoing as may be established by request
of the Company.
To the extent the Bank has not been reimbursed under the Loan Agreement
and has notified the Trustee of same in writing, all interest, profits and other
income received from the investment of moneys in any fund established pursuant
to this Indenture shall be transferred to the Letter of Credit Bank or the Bank
as specified by the Bank. Otherwise, such amounts shall be deposited to the
appropriate fund or account in which such investments were made. Notwithstanding
anything to the contrary contained in this paragraph, an amount of interest
received with respect to any Investment Security equal to the amount of accrued
interest, or premium paid, if any, paid as part of the purchase price of such
Investment Security shall be credited to the fund from which such accrued
interest was paid.
Investment Securities acquired as an investment of moneys in any fund
established under this Indenture shall be credited to such fund. For the purpose
of determining the amount in any fund, all Investment Securities credited to
such fund shall be valued at the lesser of cost or par value plus, prior to the
first payment of interest following purchase, the amount of accrued interest, if
any, paid as a part of the purchase price.
47
The Trustee may act as principal or agent in the making or disposing of
any investment. The Trustee may sell or present for redemption, any Investment
Securities so purchased whenever it shall be necessary to provide moneys to meet
any required payment, transfer, withdrawal or disbursement from the fund to
which such Investment Security is credited, and the Trustee shall not be liable
or responsible for any loss resulting from such investment.
ARTICLE VII
PARTICULAR COVENANTS
Section 7.01. Punctual Payment. The Board shall punctually pay or cause
to be paid the principal, premium, if any, and interest to become due in respect
of all the Bonds, in strict conformity with the terms of the Bonds and of this
Indenture, according to the true intent and meaning thereof, but only out of
Revenues and other assets pledged for such payment as provided in this
Indenture. The Board shall be deemed to have discharged its obligations under
this Section by including a covenant to such effect by the Company in the
Agreement.
Section 7.02. Extension of Payment of Bonds. The Board shall not
directly or indirectly extend or assent to the extension of the maturity of any
of the Bonds or the time of payment of any claims for interest by the purchase
or funding of such Bonds or claims for interest or by any other arrangement and
in case the maturity of any of the Bonds or the time of payment of any such
claims for interest shall be extended, such Bonds or claims for interest shall
not be entitled, in case of any default hereunder, to the benefits of this
Indenture, except subject to the prior payment in full of the principal of all
of the Bonds then outstanding and of all claims for interest thereon which shall
not have been so extended. Nothing in this Section shall be deemed to limit the
right of the Board to issue Bonds for the purpose of refunding any Outstanding
Bonds, and such issuance shall not be deemed to constitute an extension of
maturity of Bonds.
Section 7.03. Against Encumbrances. The Board shall not create, or
permit the creation of, any pledge, lien, charge or other encumbrance upon the
Revenues and other assets pledged or assigned under this Indenture while any of
the Bonds are Outstanding, except the pledge and assignment created by this
Indenture and the lien created by the Bank Mortgage and will assist the Trustee
in contesting any such pledge, lien, charge or other encumbrance which may be
created. Subject to this limitation, the Board expressly reserves the right to
enter into one or more other indentures for any of its corporate purposes,
including other programs under the Act, and reserves the right to issue other
obligations for such purposes.
Section 7.04. Power to Issue Bonds and Make Pledge and Assignment. The
Board represents and covenants that it is duly authorized pursuant to law to
issue the Bonds and to enter into this Indenture and to pledge and assign the
Revenues and other assets pledged and assigned, respectively, under this
Indenture in the manner and to the extent provided in this Indenture. The Bonds
and the provisions of this Indenture are and will be the legal, valid and
binding limited obligations of the Board in accordance with their terms, and the
Board and Trustee shall at all times, to the extent permitted by law, defend,
preserve and protect said pledge and assignment of Revenues and other assets and
all the rights of the Bondholders under this Indenture against all claims and
demands of all Persons whomsoever.
48
Section 7.05. Accounting Records and Financial Statements. (A) The
Trustee shall at all times keep, or cause to be kept, proper books of record and
account as shall be consistent with prudent industry practice, in which complete
and accurate entries shall be made of all transactions relating to the proceeds
of Bonds, the Revenues, the Agreement and all funds established pursuant to this
Indenture. Such books of record and account shall be available for inspection by
the Board, the Company, the Bank and any bondholder, or his agent or
representative duly authorized in writing, at reasonable hours and under
reasonable circumstances.
(B) The Trustee shall within 30 days after the end of each
month furnish to the Company a monthly statement (which need not be audited)
covering receipts, disbursements, allocation and application of Revenues and any
other moneys (including proceeds of Bonds) in any of the funds and accounts
established pursuant to this Indenture for such month.
Section 7.06. Reserved.
Section 7.07. Other Covenants. (A) The Trustee shall promptly collect
all amounts due from the Company pursuant to the Agreement, and upon an Event of
Default (as defined in the Agreement) shall perform all duties imposed upon it
pursuant to the Agreement and shall diligently enforce, and take all steps,
actions and proceedings reasonably necessary for the enforcement of all of the
rights of the Board and all of the obligations of the Company.
(B) The Board shall not amend, modify or terminate any of
the terms of the Agreement, or consent to any such amendment, modification or
termination, without the written consent of the Trustee. The Trustee shall give
such written consent only if (1) notification of such amendment, modification or
termination has been given to each rating agency then rating the Bonds and to
the Holders, (2) the Trustee receives the written consent of the Bank, (3)(i)
such amendment, modification or termination will not materially adversely affect
the interests of the Bondholders or result in any material impairment of the
security hereby given for the payment of the Bonds or (ii) the Trustee first
obtains the written consent of the Bank and the Holders of a majority in
principal amount of the Bonds then Outstanding to such amendment, modification
or termination and provides notice of such amendment, modification or
termination and of such written consent to the Holders, provided that no such
amendment, modification or termination shall reduce the amount of the lease
payments to be made to the Board or the Trustee by the Company pursuant to the
Agreement, or extend the time for making such payments, without the written
consent of all of the Holders of the Bonds then Outstanding, and (4) the Board
shall have delivered to the Trustee an opinion of Counsel satisfactory to the
Trustee that all of the provisions and conditions set forth in this Section
7.07(B) have been satisfied.
49
Section 7.08. Reserved.
Section 7.09. Further Assurances. The Board and the Trustee will make,
execute and deliver any and all such further indentures, instruments and
assurances as may be reasonably necessary or proper to carry out the intention
or to facilitate the performance of this Indenture and for the better assuring
and confirming unto the Holders of the Bonds of the rights and benefits provided
in this Indenture.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES OF BONDHOLDERS
Section 8.01. Events of Default. The following events shall be Events
of Default:
(a) default in the due and punctual payment of the principal
of any Bond when and as the same shall become due and payable, whether at
maturity as therein expressed, by proceedings for redemption, by acceleration,
or otherwise; or
(b) default in the due and punctual payment of any
installment of interest on any Bond when and as the same shall become due and
payable; or
(c) failure to pay the Purchase Price on any Bond tendered
pursuant to Article V when such payment is due; or
(d) default by the Board in the observance of any of the
other covenants, agreements or conditions on its part in this Indenture or in
the Bonds, if such default shall have continued for a period of sixty (60) days
after written notice thereof, specifying such default and requiring the same to
be remedied, shall have been given to the Board by the Trustee, or to the Board
and the Trustee by the Holders of not less than twenty-five per cent (25%) in
aggregate principal amount of the Bonds at the time Outstanding; or
(e) if there occurs an Event of Default as defined in the
Agreement; or
(f) the Trustee's receipt of written notice from the Bank
that the Bank has declared an Event of Default under the provisions of the Loan
Agreement and instructing the Trustee to declare the principal amount of the
Outstanding Bonds to be immediately due and payable; or
(g) if, after a draw under the Letter of Credit and in
accordance with the terms thereof, the Trustee shall have received notice from
the Bank that the amount of such draw corresponding to the payment of interest
on the Bonds shall not be reinstated in the amount and in the manner set forth
in the Letter of Credit.
50
Upon actual knowledge of the existence of any Event of Default or of
any breach of any covenant or any fact or circumstance which, except for any
grace period permitted by this Indenture or the Agreement, would result in any
breach of a covenant or Event of Default by the Company hereunder or thereunder,
the Trustee shall, as soon as practicable, notify the Bank, the Company, the
Board, the Tender Agent and the Remarketing Agent. Anything contained in this
Indenture to the contrary notwithstanding: (i) no Event of Default under
subsections (d) or (e) above shall occur without the prior written consent of
the Bank so long as the Bank is not in default under the terms of the Letter of
Credit; and (ii) the Trustee shall not notify bondholders of the existence of
any Event of Default without the prior written consent of the Bank (except upon
the occurrence of an Event of Default under subsections 8.01(f) or (g) hereof),
as long as the Bank is not in default under the terms of the Letter of Credit.
Section 8.02. Acceleration. If any Event of Default under Section 8.01
hereof occurs, the Trustee (with the written consent of the Bank provided the
Letter of Credit Bank is not in default of its obligations under the Letter of
Credit) may, and upon request of the Owners of 25% in principal amount of the
Bonds then Outstanding shall, by written notice to the Board, the Bank and the
Company, declare the principal amount of all Bonds then Outstanding and the
interest accrued thereon to such date (the "Acceleration Date") to be due and
the Acceleration Price (as such phrase is hereinafter defined) shall thereupon
become payable on the first (lst) Business Day following the Acceleration Date
(the "Payment Date"). Thereupon, the Trustee, among other things, shall draw
immediately upon the Letter of Credit as set forth in Section 6.12 hereof.
Interest on the accelerated Bonds shall cease to accrue on the Acceleration
Date. Accelerated Bonds shall be payable at a price equal to 100% of the
aggregate principal amount thereof plus interest accrued to the Acceleration
Date (the "Acceleration Price"). Notwithstanding anything contained herein to
the contrary, upon the occurrence of an Event of Default described in Section
8.01(f) or (g), the Trustee shall, by written notice to the Bank, the Company
and the Board declare immediately due and payable the principal amount of, and
interest accrued on, the Outstanding Bonds.
Any such declaration is subject to the condition that if, at any time
after such declaration and before any judgment or decree for the payment of the
moneys due shall have been obtained or entered, the Letter of Credit shall have
been reinstated in full as to principal and interest and the reasonable charges
and expenses of the Trustee, and any and all other defaults known to the Trustee
(other than in the payment of principal of and interest on the Bonds due and
payable solely by reason of such declaration) shall have been made good or cured
to the satisfaction of the Trustee or provision deemed by the Trustee to be
adequate shall have been made therefor, then, and in every such case, the
Holders of not less than 25% in aggregate principal amount of the Bonds then
Outstanding, by written notice to the Board, the Bank, the Company and the
Trustee, or the Trustee if such declaration was made by the Trustee, may, on
behalf of the Holders of all of the Bonds, rescind and annul such declaration
and its consequences and waive such default; but such rescission and annulment
shall not extend to or affect any subsequent default, and shall not impair or
exhaust any right or power in consequence thereof. The foregoing to the contrary
notwithstanding, Owners of 25% in principal amount of the Bonds then outstanding
shall have no right to request the Trustee to accelerate the Bonds under this
Section 8.02 and the Trustee shall not be obligated to give any Bondholder
notice of a default under the Indenture (except upon the occurrence of an Event
of Default under Section 8.01(f) or (g) hereof), the Agreement or any other
documents executed and delivered in connection with the Bonds without the prior
written consent of the Bank, unless the Letter of Credit Bank shall be in
default of its obligations under the Letter of Credit or a voluntary or
involuntary case has been commenced by the filing of a petition under the
Bankruptcy Code or any other law relating to bankruptcy, insolvency,
reorganization, winding-up or composition debts by or against the Bank.
51
Upon any declaration of acceleration hereunder, the Trustee shall as
soon as possible give written notice of the acceleration to the Bondholders as
set forth below. In addition, notice of such acceleration shall be mailed, by
registered or certified mail or overnight mail, to the rating agency then rating
the Bonds, if any, but failure to mail any such notice or any defect in the
mailing thereof shall not affect the validity of such acceleration. Such notice
of acceleration: (i) shall be given in the name of the Board; (ii) shall
identify the accelerated Bonds (by name, date of issue, interest rate and
maturity date); (iii) shall specify the Acceleration Date; (iv) shall specify
the Payment Date and the Acceleration Price; (v) shall state that the interest
on the accelerated Bonds ceased to accrue on the Acceleration Date; (vi) shall
state the reason for the acceleration; and (vii) shall state that on the Payment
Date the Acceleration Price will be payable at the principal corporate trust
office of the Trustee. The Trustee shall use "CUSIP" numbers on such notices as
a convenience to Bondholders and such notice shall state that no representation
is made as to the correctness of such "CUSIP" numbers either as printed on the
Bonds or as contained in any notice of acceleration and that reliance may be
placed on the registration and description printed on the Bonds.
Upon acceleration pursuant to this Section 8.02, the Trustee shall
immediately exercise such rights as it may have under the Agreement to declare
all payments thereunder to be immediately due and payable and shall immediately
draw upon the Letter of Credit as provided in Section 6.12 hereof in an amount
that, together with any Available Moneys on deposit in the Bond Fund (excluding
Available Moneys held by the Trustee for the Owner of any Bond not presented for
payment as provided in Section 6.09 hereof) and irrevocably committed to the
payment of principal of and interest on the Bonds, is sufficient to pay the
Acceleration Price due on the Outstanding Bonds on the Payment Date.
Upon receipt by the Trustee of any amount from the Letter of Credit
Bank under the preceding paragraphs of this Section 8.02 (or after receipt by
the Trustee of any amounts from the Letter of Credit Bank under any other
provision of this Indenture), the Bank shall be subrogated to the right, title
and interest of the Trustee and the Bondholders in and to this Indenture, the
Agreement, and any other security held for the payment of the Bonds (other than
said funds), all of which, upon payment of any fees and expenses due and payable
to the Trustee pursuant to the Agreement or this Indenture, shall be assigned by
the Trustee to the Bank.
Section 8.03. Other Remedies. If any Event of Default occurs and is
continuing, the Trustee, before or after declaring the principal of the Bonds
immediately due and payable, may enforce each and every right granted to the
Board or the Trustee under the Indenture, the Agreement, the Letter of Credit or
any other security instrument, or under any supplements or amendments thereto,
and shall, at all times complying with the provisions of Section 8.02 hereof,
apply any Revenues or Available Moneys in the Bond Fund held by the Trustee to
the payment of principal of or interest on the Bonds. In exercising such rights
and the rights given the Trustee under this Article VIII, the Trustee shall take
such action, as in the judgment of the Trustee, applying the standards described
in Section 9.01 hereof, would best serve the interests of the Bondholders.
52
Section 8.04. Legal Proceedings by Trustee. If any Event of Default has
occurred and is continuing, the Trustee in its discretion may and, upon the
written request of the Bank or the Owners of 25% in principal amount of the
Bonds then Outstanding (subject to the consent of the Bank, as long as the
Letter of Credit Bank is not in default of its obligations under the Letter of
Credit or a voluntary or involuntary case has not been commenced by the filing
of a petition under the Bankruptcy Code or any other law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of debts by
or against the Letter of Credit Bank) and receipt of indemnity to its
satisfaction shall, in its own name:
(A) by mandamus, other suit, action or proceeding at law or
in equity, enforce all rights of the Bondholders, including the right to require
the Board to collect the amounts payable under the Agreement and to require the
Board to carry out any other provisions of this Indenture for the benefit of the
Bondholders and to perform its duties under the Act;
(B) bring suit upon the Bonds;
(C) by action or suit in equity require the Board to account
as if it were the trustee of an express trust for the Bondholders; and
(D) by action or suit in equity enjoin any acts or things
that may be unlawful or in violation of the rights of the Bondholders.
Section 8.05. Discontinuance of Proceedings by Trustee. If any
proceeding taken by the Trustee on account of any Event of Default is
discontinued or is determined adversely to the Trustee, the Board, the Trustee,
the Bondholders, the Letter of Credit Bank and the Bank shall be restored to
their former positions and rights hereunder as though no such proceeding had
been taken, but subject to the limitations of any such adverse determination.
Section 8.06. Bondholders May Direct Proceedings. The Holders of a
majority in principal amount of the Bonds Outstanding hereunder shall have the
right to direct the method and place of conducting all remedial proceedings by
the Trustee hereunder, provided that such direction shall not be otherwise than
in accordance with law or the provisions of this Indenture, and that the Trustee
shall not be required to comply with any such direction which it deems to be
unlawful or unjustly prejudicial to Bondholders not parties to such direction.
The foregoing provisions of this Section 8.06 to the contrary notwithstanding,
as long as the Letter of Credit Bank shall not be in default under the Letter of
Credit, the Bank shall have the right to direct the method and the place of
conducting all remedial proceedings by the Trustee hereunder provided that such
direction shall not be otherwise than in accordance with law or the provisions
of this Indenture.
53
Section 8.07. Limitations on Actions by Bondholders. Anything in this
Indenture to the contrary notwithstanding, no bondholder shall have any right to
pursue any remedy hereunder or under the Agreement unless:
(a) the Trustee shall have been given written notice of an
Event of Default;
(b) the holders of at least 25% in aggregate principal
amount of the Bonds Outstanding shall have requested the Trustee, in writing, to
exercise the powers hereinabove granted or to pursue such remedy in its or their
name or names;
(c) the Trustee shall have been offered indemnity
satisfactory to it against costs, expenses and liabilities;
(d) the Trustee shall have failed to comply with such
request within a reasonable time; and
(e) the Letter of Credit Bank shall be in default of its
obligations under the Letter of Credit or a voluntary or involuntary case has
been commenced by the filing of a petition under the Bankruptcy Code or any
other law relating to bankruptcy, insolvency, reorganization, winding-up or
composition or adjustment of debts by or against the Letter of Credit Bank;
provided, however, that nothing herein shall affect or impair the right of any
Owner of any Bond to enforce payment of the principal thereof and interest
thereon at and after the maturity thereof, or the obligation of the Board to pay
such principal and interest to the respective Owners of the Bonds at the time
and place, from the source and in the manner expressed herein and in the Bonds,
provided further that such action shall not disturb or prejudice the lien of
this Indenture.
Section 8.08. Trustee May Enforce Rights Without Possession of Bonds.
All rights under the Indenture and the Bonds may be enforced by the Trustee
without the possession of any Bonds or the production thereof at the trial or
other proceedings relative thereto, and any proceedings instituted by the
Trustee shall be brought in its name for the ratable benefit of the Owners of
the Bonds.
Section 8.09. Delays and Omissions Not to Impair Rights. No delay or
omission in respect of exercising any right or power accruing upon any Event of
Default shall impair such right or power or be a waiver of such Event of Default
and every remedy given by this Article VIII may be exercised, from time to time,
and as often as may be deemed expedient.
54
Section 8.10. Application of Moneys in Event of Default. Any money
received by the Trustee under this Article VIII shall be applied in the order
listed below (provided that any money received by the Trustee upon a drawing
under the Letter of Credit together with Available Moneys on deposit in the Bond
Fund and available for payment of principal and interest on all Outstanding
Bonds, any money held by the Trustee upon the nonpresentment of Bonds and any
money held by the Trustee for the defeasance of Bonds pursuant to Article XI
shall be applied only as provided in clause (B) below and only to pay
outstanding principal and accrued interest, as provided in the Letter of Credit,
with respect to the Bonds):
(A) To the payment of the fees and expenses of the Trustee
and the Board including reasonable counsel fees and expenses, and any
disbursements of the Trustee with interest thereon and its reasonable
compensation;
(B) To the payment of principal and interest then owing on
the Bonds, including any interest on overdue interest, and in case such money
shall be insufficient to pay the same in full, then to the payment of principal
and interest ratably, without preference or priority of one over another or of
any installment of principal or interest over any other installment of principal
or interest; and
The surplus, if any, remaining after the application of the money as
set forth above shall to the extent of any unreimbursed drawing under the Letter
of Credit, or other obligations owing by the Company to the Bank under the Loan
Agreement, be paid to the Letter of Credit Bank or the Bank as the Bank shall
direct. Any remaining money shall be paid to the Company or the person lawfully
entitled to receive the same as a court of competent jurisdiction may direct.
Section 8.11. Trustee and Bondholders Entitled to All Remedies Under
Act; Remedies Not Exclusive. It is the purpose of this Article VIII to provide
to the Trustee and the Bondholders all rights and remedies as may be lawfully
granted under the provisions of the Act; but should any remedy herein granted be
held unlawful, the Trustee and the Bondholders shall nevertheless be entitled to
every remedy permitted by the Act. It is further intended that, insofar as
lawfully possible, the provisions of this Article VIII shall apply to and be
binding upon any trustee or receiver appointed under the Act.
No remedy herein conferred is intended to be exclusive of any other
remedy or remedies, and each remedy is in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
Section 8.12. Trustee's Right to Receiver. As provided by the Act, the
Trustee shall be entitled as of right to the appointment of a receiver; and the
Trustee, the Bondholders and any receiver so appointed shall have such rights
and powers and be subject to such limitations and restrictions as may be
contained in or permitted by the Act.
Section 8.13. Subrogation Rights of Bank. The Bank shall be subrogated
to all rights theretofore possessed under the Indenture by the Bondholders if
the principal of the Bonds or the interest thereon or the purchase price thereof
due with respect to any mandatory purchase hereunder shall have been paid with
funds provided by the Letter of Credit Bank pursuant to the Letter of Credit,
but only to the extent that the Company has not theretofore repaid such funds.
As limited by the provisions hereof, the subrogation rights of the Bank arising
from the payments made pursuant to the Letter of Credit to provide for the
payment of the principal of or interest on or the purchase price of any of the
Bonds shall be on a parity with the rights of all other Bondholders.
55
If the principal of or the interest on any Bond or the purchase price
thereof due with respect to any mandatory purchase hereunder is paid with funds
provided by the Letter of Credit Bank pursuant to the Letter of Credit, and if
the Company has not theretofore repaid such funds, then, insofar as the
subrogation rights of the Bank are concerned, such Bond shall, at the option of
the Bank, be deemed to be in default with respect to the said principal,
interest or purchase price until all amounts paid in respect thereof under the
Letter of Credit shall have been repaid, and the Bank may exercise all rights
which it would have had under the Indenture as the Bondholder of the said Bond
then in default as to the payment of such principal, interest or purchase price.
Anything contained herein to the contrary notwithstanding, the payment
of all amounts due the Bank in respect of its subrogation rights under the
Indenture shall be secured by the Indenture on a parity with the principal of
and interest on all Bonds which are then deemed to be outstanding for reasons
other than the extent to which they evidence subrogation rights of the Bank, and
the Bank shall, to the extent of the amount due in respect of its subrogation
rights, be entitled to share all moneys derived from the Trust Estate with the
Bondholders to whom such principal and interest shall be due ratably and in
proportion to the amounts respectively due to the Bank and to each of such
Bondholders
The Bank may exercise all its subrogation rights under the Indenture in
respect of any Bonds without the necessity of possessing any of the Bonds or
producing the same in any judicial or other proceeding related to the
enforcement of its rights in respect thereof. Nevertheless, in order to evidence
the subrogation rights acquired in respect of any Bonds paid or purchased with
funds provided pursuant to the Letter of Credit, the Bank may require the
Trustee to transfer to it all Bonds surrendered for payment or purchase with
funds provided pursuant to the Letter of Credit or to issue to it new Bonds of
like tenor with those so surrendered. The subrogation rights granted to the Bank
in this Indenture are not intended to be exclusive of any other remedy or
remedies available to the Bank, and such subrogation rights shall be cumulative
and shall be in addition to (i) every other remedy given hereunder or under the
Loan Agreement or any other instrument or agreement with respect to the
reimbursement of moneys paid pursuant to the Letter of Credit and (ii) every
other remedy now or hereafter existing at law or in equity or by statute.
Section 8.14. Waiver of Default. As long as the Letter of Credit Bank
is not in default of its obligations under the Letter of Credit and the Letter
of Credit is in full force and effect, the Bank may waive an Event of Default
and if the Bank does so, the Trustee must also waive such Event of Default. The
Trustee may not waive an Event of Default under this Indenture if the Letter of
Credit has not been reinstated to cover principal and interest on the Bonds in
accordance with the terms of the Letter of Credit.
56
ARTICLE IX
THE TRUSTEE, THE TENDER AGENT
AND THE REMARKETING AGENT
Section 9.01. Duties, Immunities and Liabilities of Trustee. (A) The
Trustee shall, prior to an Event of Default, and after the curing of all Events
of Default which may have occurred, perform such duties and only such duties as
are specifically set forth in this Indenture. The Trustee shall, during the
existence of any Event of Default (which has not been cured or waived), exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
(B) The Board hereby directs and authorizes the Company to
remove the Trustee if at any time requested to do so by an instrument or
concurrent instruments in writing executed by the Holders of not less than a
majority in aggregate principal amount of the Bonds then Outstanding (or their
attorneys duly authorized in writing) or if at any time the Trustee shall cease
to be eligible to act in such capacity, or shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or its
property shall be appointed, or any public officer shall take control or charge
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, in each case by giving written notice of such
removal to the Trustee, and thereupon the Company shall appoint, with the
consent of the Bank, a successor Trustee by an instrument in writing.
(C) The Trustee may at any time resign by giving written
notice of such resignation to the Board, the Company and the Bank and by giving
the Bondholders notice of such resignation by mail at the addresses shown on the
registration books maintained by the Trustee. Upon receiving such notice of
resignation, the Company shall promptly appoint, with the consent of the Bank, a
successor Trustee by an instrument in writing.
(D) Any removal or resignation of the Trustee and
appointment of a successor Trustee shall become effective upon acceptance of
appointment by the successor Trustee and the transfer of the Letter of Credit to
the successor Trustee. If no successor Trustee shall have been appointed and
have accepted appointment within forty-five (45) days of giving notice of
removal or notice of resignation as aforesaid, the resigning Trustee or any
Bondholder (on behalf of himself and all other Bondholders) may petition any
court of competent jurisdiction for the appointment of a successor Trustee, and
such court may thereupon, after such notice (if any) as it may deem proper,
appoint such successor Trustee. Any successor Trustee appointed under this
Indenture, shall signify its acceptance of such appointment by executing and
delivering to the Company and the Board and to its predecessor Trustee a written
acceptance thereof, and thereupon such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the moneys, estates,
properties, rights, powers, trusts, duties and obligations of such predecessor
Trustee, with like effect as if originally named Trustee herein; but,
nevertheless at the request of the Company or the Board or the request of the
successor Trustee, such predecessor Trustee shall execute and deliver any and
all instruments of conveyance or further assurance and do such other things as
may reasonably be required for more fully and certainly vesting in and
confirming to such successor Trustee all the right, title and interest of such
predecessor Trustee in and to any property held by it under this Indenture and
shall pay over, transfer, assign and deliver to the successor Trustee any money
or other property subject to the trusts and conditions herein set forth. Upon
request of the successor Trustee, the Board shall execute and deliver any and
all instruments as may be reasonably required for more fully and certainly
vesting in and confirming to such successor Trustee all such moneys, estates,
properties, rights, powers, trusts, duties granted to the Trustee hereunder.
Upon the acceptance of the appointment by a successor Trustee as provided in
this subsection, the successor Trustee shall mail a notice of the succession of
such Trustee to the trusts hereunder to the Rating Agency and to the Bondholders
at the addresses shown on the registration books maintained by the Trustee.
57
(E) Any Trustee appointed under the provisions of this
Section in succession to the Trustee shall be a trust company or bank having the
powers of a trust company, having a corporate trust office in the State or the
Commonwealth of Pennsylvania, having a combined capital and surplus of at least
One Hundred Million Dollars ($100,000,000), subject to supervision or
examination by federal or state authorities and shall be rated at least Baa3/P-3
by Moody's if the Bonds are then rated by Moody's or has received written
evidence from Moody's that the use of such Trustee would not result in a
reduction or withdrawal of the rating on the Bonds. If such bank or trust
company publishes a report of condition at least annually, pursuant to law or to
the requirements of any supervising or examining Board above referred to, then
for the purpose of this subsection the combined capital and surplus of such bank
or trust company shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
Section 9.02. Merger or Consolidation. Any company into which the
Trustee may be merged or converted or with which it may be consolidated or any
company resulting from any merger, conversion or consolidation to which it shall
be a party or any company to which the Trustee may sell or transfer all or
substantially all of its corporate trust business, provided such company shall
be eligible under subsection (E) of Section 9.01, shall be the successor to such
Trustee without the execution or filing of any paper or any further act,
anything herein to the contrary notwithstanding.
Section 9.03. Liability of Trustee. (A) The recitals of facts herein
and in the Bonds contained shall be taken as statements of the Board, and the
Trustee shall assume no responsibility for the correctness of the same, or make
any representations as to the validity or sufficiency of this Indenture or of
the Bonds or shall incur any responsibility in respect thereof, other than in
connection with the duties or obligations herein or in the Bonds assigned to or
imposed upon it. The Trustee shall, however, be responsible for its
representations contained in its certificate of authentication on the Bonds. The
Trustee shall not be liable in connection with the performance of its duties
hereunder, except for its own gross negligence or willful misconduct. The
Trustee may become the owner of Bonds with the same rights it would have if it
were not Trustee and, to the extent permitted by law, may act as depositary for
and permit any of their officers or directors to act as a member of, or in any
other capacity with respect to, any committee formed to protect the rights of
Bondholders, whether or not such committee shall represent the Holders of a
majority in principal amount of the Bonds then Outstanding.
58
(B) The Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer, unless it shall be proved
that the Trustee was grossly negligent in ascertaining the pertinent facts.
(C) The Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in aggregate principal
amount of the Bonds at the time Outstanding relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee under this Indenture.
(D) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture (other than the making of
a draw under the Letter of Credit in accordance with its terms and the terms
hereof, declaring the principal of the Bonds to be immediately due and payable
when required hereunder or making payments on the Bonds when due) at the
request, order or direction of any of the Bondholders pursuant to the provisions
of this Indenture unless such Bondholders shall have offered to the Trustee
indemnification to its satisfaction for indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby.
(E) The Trustee shall not be liable for any action taken by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture.
Section 9.04. Right of Trustee to Rely on Documents. The Trustee may
conclusively rely, and shall be protected in acting upon any notice, resolution,
request, consent, order, certificate, report, opinion, bond or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Trustee may consult with counsel, who may be
counsel of or to the Board, with regard to legal questions, and the opinion of
such counsel shall be full and complete authorization and protection in respect
of any action taken or suffered by it hereunder in good faith and in accordance
therewith.
59
The Trustee shall not be bound to recognize any person as the Holder of
a Bond unless and until such Bond is submitted for inspection, if required, and
his title thereto is satisfactorily established, if disputed.
Whenever in the administration of the trusts imposed upon it by this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and established by a
Certificate of the Board, and such Certificate shall be full warrant to the
Trustee for any action taken or suffered in good faith under the provisions of
this Indenture in reliance upon such Certificate, but in its discretion the
Trustee may, in lieu thereof, accept other evidence of such matter or may
require such additional evidence as it may deem reasonable.
Section 9.05. Preservation and Inspection of Documents.
(A) All documents received by the Trustee under the
provisions of this Indenture shall be retained in its possession and shall be
subject during normal business hours of the Trustee to the inspection of the
Board, the Bank, the Company and any Bondholder, and their agents and
representatives duly authorized in writing, at reasonable hours and under
reasonable conditions.
(B) The Trustee covenants and agrees that it shall maintain
a current list of the names and addresses of all the Bondholders.
Section 9.06. Compensation. The Trustee shall be paid by the Company
(solely from Additional Payments) from time to time reasonable compensation for
all services rendered under this Indenture, and also all reasonable expenses,
charges, legal and consulting fees and other disbursements and those of its
attorneys, agents and employees, incurred in and about the performance of its
powers and duties under this Indenture. The Board shall have no responsibility
for the payment of such fees and expenses.
Section 9.07. The Tender Agent. First Union National Bank, the initial
Tender Agent appointed by the Company, and each successor tender agent appointed
in accordance herewith, shall designate its office and signify its acceptance of
the duties and obligations imposed upon it as described herein by a written
instrument of acceptance delivered to the Trustee and the Company under which
the Tender Agent shall, among other things:
(a) hold all Bonds delivered to it hereunder in trust for
the benefit of the respective Owners of Bonds which shall have so delivered such
Bonds until moneys representing the Purchase Price of such Bonds shall have been
delivered to or for the account of or to the order of such Owners of Bonds. Upon
delivery of moneys representing the Purchase Price of such Bonds to or for the
account of or to the order of such Owners of Bonds, the Tender Agent shall hold
all such Bonds which are required to be delivered to the Pledged Bonds Custodian
pursuant to Section 5.06(b) hereof, as the agent of the Bank for the purpose of
perfecting the Bank's security interest therein under the Pledge Agreement
(which agency shall terminate upon delivery of such Bonds by the Tender Agent to
or upon the order of the Bank in accordance with such Section 5.06(b); and
60
(b) hold all moneys delivered to it hereunder and under the
Tender Agent Agreement for the purchase of such Bonds in a separate account in
trust for the benefit of the person or entity which shall have so delivered such
moneys until required to transfer such funds as provided herein.
Section 9.08. Qualifications of Tender Agent.
(a) The Tender Agent shall be a bank with trust powers or
trust company duly organized under the laws of the United States or any state or
territory thereof, having a combined capital stock, surplus and undivided
profits of at least Fifty Million Dollars ($50,000,000) or that is a
wholly-owned subsidiary of such a bank or trust company, and authorized by law
to perform all duties imposed upon it by this Indenture and shall be rated at
least Baa3/P-3 by Moody's if the Bonds are then rated by Moody's, or has
received written evidence from Moody's that the use of such Tender Agent would
not result in a reduction or withdrawal of the rating on the Bonds. The Tender
Agent may at any time resign and be discharged of its duties and obligations by
giving at least sixty (60) days' written notice to the Board, the Trustee, the
Remarketing Agent, the Bank, and the Company; provided that such resignation
shall not take effect until a successor Tender Agent is appointed and accepts
such appointment. Upon the written approval of the Bank, the Tender Agent may be
removed at any time by the Company upon written notice to the Board, the Trustee
and the Remarketing Agent. Successor Tender Agents may be appointed from time to
time by the Company, with the prior written consent of the Bank.
(b) Upon the resignation or removal of the Tender Agent, the
Tender Agent shall deliver any Bonds and moneys held by it in such capacity to
its successor.
(c) The Tender Agent shall have the same rights and
immunities granted to the Trustee hereunder.
Section 9.09. Qualifications of Remarketing Agent; Resignation;
Removal. The Remarketing Agent shall be a financial institution or registered
broker/dealer authorized by law to perform all the duties imposed upon it by
this Indenture. The Remarketing Agent may at any time resign and be discharged
of its duties and obligations created by this Indenture giving at least thirty
(30) days' written notice to the Board, the Bank, the Company and the Trustee.
The Remarketing Agent may be removed at any time, upon not less than thirty (30)
days' written notice from the Company filed with the Trustee. Upon the
resignation or removal of the Remarketing Agent, the Company shall appoint a
successor Remarketing Agent and shall provide written notice thereof to the
Trustee. The resignation or removal of the Remarketing Agent shall not become
effective until a successor Remarketing Agent is appointed and accepts such
appointment.
61
Section 9.10. Construction of Ambiguous Provisions. The Trustee may
construe any provision hereof insofar as such may appear to be ambiguous or
inconsistent with any other provision hereof; and any construction of any such
provision by the Trustee, in good faith shall be binding upon the Owners of the
Bonds.
ARTICLE X
MODIFICATION OR AMENDMENT OF THE INDENTURE
Section 10.01. Amendments Permitted. The Indenture and the rights and
obligations of the Board, of the Trustee and of the Holders of the Bonds may be
modified or amended from time to time and at any time for any lawful purpose, by
an indenture or indentures supplemental thereto, which the Board and the Trustee
may enter into without the consent of any Bondholders but with the prior written
consent of the Company and the Bank (as long as the Letter of Credit Bank is not
in default under the Letter of Credit), provided that the Trustee determines
that such modification or amendment will not materially adversely affect the
interests of the Bondholders or result in any material impairment of the
security given under the Indenture. Any other modification or amendment must be
approved by a majority in aggregate principal amount of the Bonds then
Outstanding, provided that such consent of the Bondholders shall not be required
if such modification or amendment is consented to in writing by the Bank
provided that (a) the Letter of Credit Bank is not then in default of its
obligations under the Letter of Credit and (1)) no voluntary or involuntary case
has been commenced by the filing of a petition under the United States
Bankruptcy Code or any other law relating to bankruptcy, insolvency,
reorganization, winding-up or composition or adjustment of debts by or against
the Letter of Credit Bank. The foregoing to the contrary notwithstanding, no
such modification or amendment shall, without the consent of the Company and the
Holders of all Bonds then Outstanding, (i) extend the maturity date of any Bond,
(ii) reduce the amount of principal thereof, (iii) extend the time of payment or
change the method of computing the rate of interest thereon, without the consent
of the Holder of each Bond so affected, or eliminate the Holders' rights to
tender the Bonds, (iv) extend the due date for the purchase of Bonds tendered by
the Holders thereof, or (v) reduce the purchase price of such Bonds. It shall
not be necessary for the consent of the Bondholders to approve the particular
form of any Supplemental Indenture, but it shall be sufficient if such consent
shall approve the substance thereof. Promptly after the execution by the Board
and the Trustee of any Supplemental Indenture, the Trustee shall mail a notice,
setting forth in general terms the substance of such Supplemental Indenture, to
each rating agency then rating the Bonds, if any, and the Holders of the Bonds
at the address shown on the registration books of the Trustee. Any failure to
give such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such Supplemental Indenture.
Section 10.02. Effect of Supplemental Indenture. Upon the execution of
any Supplemental Indenture pursuant to this Article, this Indenture shall be
deemed to be modified and amended in accordance therewith, and the respective
rights, duties and obligations under this Indenture of the Board, the Trustee
and all Holders of Bonds Outstanding shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modification and
amendment, and all the terms and conditions of any such Supplemental Indenture
shall be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
62
Section 10.03. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to join with the
Board in the execution and delivery of any supplemental indenture or amendment
permitted by this Article X and in so doing shall be fully protected by an
opinion of Counsel that such supplemental indenture or amendment is so permitted
and has been duly authorized by the Board and that all things necessary to make
it a valid and binding agreement have been done.
ARTICLE XI
DEFEASANCE
Section 11.01. Discharge of Indenture. The Bonds may be paid by the
Board in any of the following ways, provided that the Board also pays or causes
to be paid any other sums payable hereunder by the Board:
(a) by paying or causing to be paid the principal of and
interest on the Bonds, as and when the same become due and payable;
(b) with respect to Bonds which bear interest at a Fixed
Rate, by depositing with the Trustee, in trust, Available Moneys or securities
purchased with Available Moneys in the necessary amount (as provided in Section
11.03) to pay or redeem all Bonds then Outstanding; or
(c) by delivering to the Trustee, for cancellation by it,
the Bonds then Outstanding.
If the Board shall also pay or cause to be paid all Bonds then
Outstanding and shall also pay or cause to be paid all other sums payable
hereunder by the Board and the Letter of Credit shall have terminated and all
amounts drawn thereunder, together with interest thereon and other costs and
expenses payable under the Loan Agreement shall have been reimbursed to the
Letter of Credit Bank or the Bank, as the Bank shall direct, then and in that
case, at the election of the Board (evidenced by a Certificate of the Board
filed with the Trustee, signifying the intention of the Board to discharge all
such indebtedness and this Indenture), and notwithstanding that any Bonds shall
not have been surrendered for payment, this Indenture, the assignment of the
Agreement and the pledge of Revenues and other assets made under this Indenture
and all covenants, agreements and other obligations of the Board under this
Indenture shall cease, terminate, become void and be completely discharged and
satisfied. In such event, upon request of the Board, the Trustee shall cause an
accounting for such period or periods as may be requested by the Board to be
prepared and filed with the Board and shall execute and deliver to the Board all
such instruments, as prepared by or caused to be prepared by the Board, that may
be necessary or desirable to evidence such discharge and satisfaction, and the
Trustee shall pay over, transfer, assign or deliver all moneys or securities or
other property held by it pursuant to this Indenture, which are not required
for: (i) the payment of all the charges and reasonable expenses of the Trustee
under this Indenture; (ii) the payment or redemption of Bonds not theretofore
surrendered for such payment or redemption; (iii) the payment of amounts owed to
the Bank by the Company under the Loan Agreement, to the Company; or (iv) the
payment of any and all sums due to the United States pursuant to Section 6.13
hereof.
63
Section 11.02. Discharge of Liability on Bonds. During the Fixed Rate
Period, upon the deposit with the Trustee, in trust, at or before maturity, of
money or securities in the necessary amount (as provided in Section 11.03) to
pay or redeem any Outstanding Bond (whether upon or prior to the end of the
Fixed Rate Period or the redemption date of such Bond), provided that, if such
Bond is to be redeemed prior to maturity, notice of such redemption shall have
been given as in Article IV provided or provision satisfactory to the Trustee
shall have been made for the giving of such notice, then all liability of the
Board in respect of such Bond shall cease, terminate and be completely
discharged, and the Holder thereof shall thereafter be entitled only to payment
out of such money or securities deposited with the Trustee as aforesaid for
their payment, subject, however, to the provisions of Section 11.04.
The Board may at any time surrender to the Trustee for cancellation by
it any Bonds previously issued and delivered, which the Board may have acquired
in any manner whatsoever, and such Bonds, upon such surrender and cancellation,
shall be deemed to be paid and retired.
Section 11.03. Deposit of Money or Securities with Trustee. During the
Fixed Rate Period, whenever in this Indenture it is provided or permitted that
there be deposited with or held in trust by the Trustee money or securities in
the necessary amount to pay or redeem any Bonds, the money or securities so to
be deposited or held shall be cash or Government Obligations, which Government
Obligations shall be noncallable and not subject to prepayment, the principal of
and interest on which when due will provide money sufficient to pay the
principal of, premium, if any, and all unpaid interest to maturity, or to the
redemption date, as the case may be, on the Bonds to be paid or redeemed, as
such principal, premium, if any, and interest become due, provided that, in the
case of Bonds which are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been given as provided in Article IV or provision
satisfactory to the Trustee shall have been made for the giving of such notice;
provided, in each case, that the Trustee shall have been irrevocably instructed
(by Request of the Board) to apply such money to the payment of such principal
and interest with respect to such Bonds.
Whenever Government Obligations are deposited with the Trustee in
accordance with Section 11.03 hereof, the Company shall provide to the Trustee
and the Rating Agency: (i) a verification report from an independent public
accountant, satisfactory in form and content to the Trustee, demonstrating that
the Government Obligations so deposited and the income therefore shall be
sufficient to pay the principal of, premium, if any, and all unpaid interest to
maturity, or to the redemption date, as the case may be, on the Bonds to be paid
or redeemed, as such principal or premium, if any, and interest become due; and
(ii) an opinion acceptable to the Rating Agency, of nationally recognized
bankruptcy counsel, to the effect that the provision for payment of the Bonds
contemplated to be made pursuant to this Section 11.03 will not constitute or
result in such payments constituting voidable preferences under Section 547 of
the Bankruptcy Code.
64
Section 11.04. Payment of Bonds After Discharge of Indenture.
Notwithstanding any provisions of this Indenture, any moneys held by the Trustee
in trust for the payment of the principal of, premium, if any, or interest on,
any Bonds and remaining unclaimed for five years after the principal of all of
the Bonds has become due and payable (whether at maturity or upon call for
redemption or by acceleration as provided in this Indenture), if such moneys
were so held at such date, or five years after the date of deposit of such
moneys if deposited after said date when all of the Bonds became due and
payable, shall be repaid to the Company, upon its written request, free from the
trusts created by this Indenture and all liability of the Trustee with respect
to such moneys shall thereupon cease; provided, however, that before the
repayment of such moneys to the Company as aforesaid, the Trustee may (at the
cost and request of the Company) first mail to the Holders of Bonds which have
not been paid, at the addresses last shown on the registration books maintained
by the Trustee, a notice, in such form as may be deemed appropriate by the
Trustee with respect to the Bonds so payable and not presented and with respect
to the provisions relating to the repayment to the Company of the moneys held
for the payment thereof.
ARTICLE XII
MISCELLANEOUS
Section 12.01. Liability of Board Limited to Revenues. Notwithstanding
anything to the contrary contained in this Indenture or in the Bonds, the Board
shall not be required to advance any moneys derived from any source other than
the Revenues and other assets pledged under this Indenture for any of the
purposes in this Indenture mentioned, whether for the payment of the principal
of or interest on the Bonds or for any other purpose of this Indenture.
Notwithstanding any provisions of this Indenture to the contrary, no recourse
under or upon any obligation, covenant or agreement contained herein or in any
Bond shall be had against the Board, it being expressly agreed and understood
that the obligations of the Board hereunder, and under the Bonds and elsewhere,
are solely special, limited obligations of the Board and shall be enforceable
only out of the Board's interest in this Indenture and the Agreement (except for
the Board's rights to payment of certain costs, fees and expenses as set forth
in this Indenture, the Agreement and elsewhere) and there shall be no other
recourse against the Board or any property now or hereafter owned by it and
after entry of judgment against the Board by virtue of the power herein
contained, the Board shall ▇▇▇▇ the judgment index to the effect that the
judgment is limited as aforesaid.
65
Section 12.02. Limitation of Liability of Directors, Etc., of Board. No
covenant, agreement, provision or obligation contained herein shall be deemed to
be a covenant, agreement or obligation of any present or future director,
commissioner, officer, employee, member or agent of the Board in his individual
capacity, and neither the members of the Board nor any officer thereof shall be
liable personally on this Indenture or any of the Bonds or be subject to any
personal liability or accountability by reason of the issuance thereof or this
Indenture. No director, commissioner, officer, employee, member or agent of the
Board shall incur any personal liability with respect to any other action taken
by him pursuant to this Indenture or the Act. Notwithstanding anything contained
herein to the contrary, the liability of the Board, including its officers,
members, and employees, under any and all of the documentation executed in
connection with the issuance of the Bonds shall not constitute its general
obligation and recourse against the Board on the documentation executed in
connection with the issuance of the Bonds shall be had only against the property
specifically pledged as security therefor and any rents, issues or profits
thereof. It is expressly understood that the Board shall not otherwise be
obligated and that none of its members, officers, or employees shall be in any
way obligated for any costs, expenses, fees or other obligations or liabilities
incurred or imposed in connection with the issuance of the Bonds, whether
incurred prior to or after closing, and that recourse against the Board and its
members, officers, or employees, shall be limited as set forth herein.
Section 12.03. Covenant Not to ▇▇▇. The forms of Bonds provide that the
owners of the Bonds agree not to ▇▇▇ the Board or any of its board members,
officers, agents or employees, past, present or future except as provided herein
and in the Agreement as a condition of, and in consideration for, the issuance
of the Bonds; accordingly, except as provided herein and in the Agreement, the
Trustee shall not be permitted to ▇▇▇ the Board, on behalf of the owners of the
Bonds.
Section 12.04. Successor Is Deemed Included in All References to
Predecessor. Whenever in this Indenture either the Board or the Trustee is named
or referred to, such reference shall be deemed to include the successors or
assigns thereof, and all the covenants and agreements in this Indenture
contained by or on behalf of the Board or the Trustee shall bind and inure to
the benefit of the respective successors and assigns thereof whether so
expressed or not.
Section 12.05. Limitation of Rights to Parties, Bank, Company and
Bondholders. Nothing in this Indenture or in the Bonds expressed or implied is
intended or shall be construed to give to any person other than the Board, the
Trustee, the Bank, the Company and the Holders of the Bonds, any legal or
equitable right, remedy or claim under or in respect of this Indenture or any
covenant, condition or provision therein or herein contained; and all such
covenants, conditions and provisions are and shall be held to be for the sole
and exclusive benefit of the Board, the Trustee, the Bank, the Company and the
Holders of the Bonds.
66
Section 12.06. Waiver of Notice. Whenever in this Indenture the giving
of notice by mail or otherwise is required, the giving of such notice may be
waived in writing by the person entitled to receive such notice and in any such
case the giving or receipt of such notice shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
Section 12.07. Severability of Invalid Provisions. If any one or more
of the provisions contained in this Indenture or in the Bonds shall for any
reason be held to be invalid, illegal or unenforceable in any respect, then such
provision or provisions shall be deemed severable from the remaining provisions
contained in this Indenture and such invalidity, illegality or unenforceability
shall not affect any other provision of this Indenture, and this Indenture shall
be construed as if such invalid or illegal or unenforceable provision had never
been contained herein. The Board hereby declares that it would have entered into
this Indenture and each and every other Section, paragraph, sentence, clause or
phrase hereof and authorized the issuance of the Bonds pursuant thereto
irrespective of the fact that any one or more Sections, paragraphs, sentences,
clauses or phrases of this Indenture may be held illegal, invalid or
unenforceable.
Section 12.08. Notices. All notices to Bondholders shall be given by
telex, telegram, telecopier or other telecommunication device unless otherwise
provided herein and confirmed in writing as soon as practicable. All such
notices shall also be sent to the Holder and any person designated by any Holder
to receive copies of such notices. Any notice to or demand upon the Trustee may
be served or presented, and such demand may be made, at the Principal Corporate
Trust Office of the Trustee, or at such other address as may have been filed in
writing by the Trustee with the Board. Any notice to or demand upon the Trustee,
the Board, the Company, the Remarketing Agent, the Tender Agent, the Letter of
Credit Bank or the Bank shall be deemed to have been sufficiently given or
served for all purposes by being delivered or sent by telex or by being
deposited, postage prepaid, in a post office letter box, addressed, as the case
may be,
To the Trustee: First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporation Trust Administration
To the Board: The Industrial Development
Board of the City of Huntsville
P. O. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(or such other address as may have been filed in writing by the Board with the
Trustee),
To the Company: Central CPVC Corporation
c/o Central Sprinkler Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(or such other address as may have been filed in writing by the Company with the
Trustee),
To the Remarketing Agent: First Union Capital Markets
Second Floor South
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Sales and Underwriting Department
(or such other address as may have been filed in writing by the Remarketing
Agent with the Trustee),
67
To the Tender Agent: First Union National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Sales and Underwriting
(or such other address as may have been filed in writing by the Tender Agent
with the Trustee),
To the Letter of Credit Bank: First Union National Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
(or such other address as may have been filed in writing by the Letter of Credit
Bank with the Trustee).
To the Bank: Congress Financial Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(or such other address as may have been filed in writing by the Bank with the
Trustee).
Section 12.09. Evidence of Rights of Bondholders. Any request, consent
or other instrument required or permitted by this Indenture to be executed by
Bondholders may be in any number of concurrent instruments of substantially
similar tenor and shall be signed or executed by such Bondholders in person or
by an agent or agents duly appointed in writing. Proof of the execution of any
such request, consent or other instrument or of a writing appointing any such
agent, or of the holding by any person of Bonds transferable by delivery, shall
be sufficient for any purpose of this Indenture and shall be conclusive in favor
of the Trustee and of the Board if made in the manner provided in this Section.
The fact and date of the execution by any person of any such request,
consent or other instrument or writing may be proved by the certificate of any
notary public or other officer of any jurisdiction, authorized by the laws
thereof to take acknowledgments of deeds, certifying that the person signing
such request, consent or other instrument acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution duly sworn to before
such notary public or other officer.
68
The ownership of Bonds shall be proved by the bond registration books
held by the Trustee.
Any request, consent, or other instrument or writing of the Holder of
any Bond shall bind every future Holder of the same Bond and the Holder of every
Bond issued in exchange therefor or in lieu thereof, in respect of anything done
or suffered to be done by the Trustee or the Board in accordance therewith or in
reliance thereon.
Section 12.10. Disqualified Bonds. In determining whether the Holders
of the requisite aggregate principal amount of Bonds have concurred in any
demand, request, direction, consent or waiver under this Indenture, Bonds which
are owned or held by or for the account of the Board or the Company, or by any
other obligor on the Bonds, or by any person directly or indirectly controlling
or controlled by, or under direct or indirect common control with, the Board,
the Company, or any other obligor on the Bonds, shall be disregarded and deemed
not to be Outstanding for the purpose of any such determination. Bonds so owned
which have been pledged in good faith may be regarded as Outstanding for the
purposes of this Section if the pledgee shall establish to the satisfaction of
the Trustee the pledgee's right to vote such Bonds and that the pledgee is not a
person directly or indirectly controlling or controlled by, or under direct or
indirect common control with, the Board or the Company, or any other obligor on
the Bonds. In case of a dispute as to such right, any decision by the Trustee
taken upon the advice of counsel shall be full protection to the Trustee.
Section 12.11. Money Held for Particular Bonds. The money held by the
Trustee for the payment of the interest, principal or premium due on any date
with respect to particular Bonds (or portions of Bonds in the case of registered
Bonds redeemed in part only) shall, on and after such date and pending such
payment, be set aside on its books and held uninvested in trust by it for the
Holders of the Bonds entitled thereto, subject, however, to the provisions of
Section 11.04 hereof.
Section 12.12. Funds. Any fund required by this Indenture to be
established and maintained by the Trustee may be established and maintained in
the accounting records of the Trustee, either as a fund or an account, and may,
for the purposes of such records, any audits thereof and any reports or
statements with respect thereto, be treated either as a fund or as an account;
but all such records with respect to all such funds shall at all times be
maintained in accordance with current industry standards, to the extent
practicable, and with due regard for the requirements of Section 7.05 hereof and
for the protection of the security of the Bonds and the rights of every holder
thereof.
Section 12.13. Payments Due on Days other than Business Days. If a
payment day is not a Business Day at the place of payment, then payment may be
made at that place on the next Business Day and no interest shall accrue for the
intervening period.
Section 12.14. Execution in Several Counterparts. This Indenture may be
executed in any number of counterparts and each of such counterparts shall for
all purposes be deemed to be an original; and all such counterparts, or as many
of them as the Board and the Trustee shall preserve undestroyed, shall together
constitute but one and the same instrument.
69
Section 12.15. [Reserved]
Section 12.16. Continuing Disclosure. Pursuant to Section 2.3 of the
Agreement, the Company has undertaken all responsibility for compliance with,
and the Board shall have no liability to the holders of the Bonds or any other
person with respect to, any reports, notices or disclosures required by or
provided pursuant to the continuing disclosure agreement authorized by said
Section 4.19. The Trustee hereby covenants and agrees with the holders from time
to time of the Bonds that it will, for their benefit, comply with and carry out
all of the provisions of the continuing disclosure agreement and Section 4.19 of
the Agreement. Notwithstanding any other provision of the Indenture, failure of
the Company or the Trustee to perform in accordance with the continuing
disclosure agreement shall not constitute a Default, and the rights and remedies
provided by the Indenture upon the occurrence of a default or an Event of
Default shall not apply to any such failure, but the continuing disclosure
agreement may be enforced only as provided therein.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF
HUNTSVILLE has caused this Indenture to be executed in its name by its Chairman
and attested by its Secretary, and FIRST UNION NATIONAL BANK, as evidence of its
acceptance of the trusts created hereunder, has caused this Indenture to be
signed in its corporate name by its duly authorized officer and attested, all as
of the day and year first above written.
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF HUNTSVILLE
By /s/ ▇.▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------
Vice Chairman
[SEAL]
Attest:
-------------------------
Assistant Secretary
FIRST UNION NATIONAL BANK, as Trustee and
Tender Agent
By
-----------------------------
Authorized Officer
[SEAL]
Attest:
------------------------
Authorized Officer
EXHIBIT "A"
(FLOATING RATE FORM OF BOND)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Board or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner (the
"Registered Owner") hereof, Cede & Co., has an interest herein.
NEITHER THE CITY OF HUNTSVILLE NOR THE STATE OF ALABAMA IS
OBLIGATED TO PAY, AND NEITHER THE FAITH AND CREDIT NOR
TAXING POWER OF THE CITY OF HUNTSVILLE OR THE STATE OF
ALABAMA IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL OR
PREMIUM, IF ANY, OF OR INTEREST ON THIS BOND. THIS BOND IS A
SPECIAL, LIMITED OBLIGATION OF THE BOARD, PAYABLE SOLELY OUT
OF THE REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE
BOARD PLEDGED UNDER THE INDENTURE AND FROM ANY AMOUNTS
OTHERWISE AVAILABLE UNDER THE INDENTURE FOR THE PAYMENT OF
THE BONDS. THIS BOND DOES NOT NOW AND SHALL NEVER CONSTITUTE
A CHARGE AGAINST THE GENERAL CREDIT OF THE BOARD. THE BOARD
HAS NO TAXING POWER.
No. VR- $7,500,000
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE
TAX-EXEMPT VARIABLE RATE DEMAND/FIXED RATE
REFUNDING REVENUE BOND
(CENTRAL CPVC CORPORATION PROJECT)
SERIES OF 1998
MATURITY DATE: January 1, 2013 CUSIP
DATE OF ISSUANCE: October 29, 1998
THIS BOND IS SUBJECT TO MANDATORY TENDER FOR PURCHASE AT THE TIME AND
IN THE MANNER HEREINAFTER DESCRIBED, AND MUST BE SO TENDERED OR WILL BE DEEMED
TO HAVE BEEN SO TENDERED UNDER CERTAIN CIRCUMSTANCES DESCRIBED HEREIN.
KNOW ALL MEN BY THESE PRESENTS that the THE INDUSTRIAL
DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE (the "Board"), for value received,
promises to pay from the source and as hereinafter provided, to CEDE & CO. or
registered assigns, on the maturity date hereof (or upon prior redemption as
hereinafter provided), upon surrender hereof, the principal sum of Seven Million
Five Hundred Thousand Dollars ($7,500,000), and in like manner to pay interest
on said sum at the rate described below on the first day of each calendar month,
or if such date is not a Business Day, the next succeeding Business Day and on
the Conversion Date (hereinafter defined), commencing December 1, 1998 (each an
"Interest Payment Date"), from the Interest Payment Date next preceding the date
of authentication hereof to which interest has been paid or duly provided for,
unless the date of authentication hereof is an Interest Payment Date to which
interest has been paid or duly provided for, in which case from the date of
authentication hereof, or unless no interest has been paid or duly provided for
on the Bonds (as hereinafter defined), in which case from the date of issuance
set forth above (the "Date of Issuance"), until payment of the principal hereof
has been made or duly provided for. Notwithstanding the foregoing, if this Bond
is authenticated after any date which is the seventh calendar day next preceding
any Interest Payment Date (a "Record Date") and before the following Interest
Payment Date, this Bond shall bear interest from such Interest Payment Date;
provided, however, that if the Board shall default in the payment of interest
due on such Interest Payment Date, then this Bond shall bear interest from the
next preceding Interest Payment Date to which interest has been paid or duly
provided for, or, if no interest has been paid or duly provided for on the
Bonds, from the Date of Issuance. The principal of this Bond is payable in
lawful money of the United States of America at the principal corporate trust
office of First Union National Bank (together with its successors in trust, the
"Trustee") or at the duly designated office of any successor Trustee under the
Trust Indenture, dated as of October 1, 1998, between the Board and the Trustee
(which, as from time to time amended and supplemented, is hereinafter referred
to as the "Indenture"). Payment of interest on this Bond shall be made on each
Interest Payment Date to the registered Owner hereof as of the applicable Record
Date and shall be paid by check mailed by the Trustee to such registered Owner
at his address as it appears on the registration books of the Board or at such
other address as is furnished to the Trustee in writing by such registered
Owner, or in such other manner as may be permitted by the Indenture; provided,
that such interest shall be paid by wire transfer to: (i) the Bank; and (ii) any
Holder of at least $1,000,000 in aggregate principal amount of Bonds, if the
Holder makes a written request of the Trustee at least 15 days before a Record
Date specifying the account address and wiring instructions. Such a request may
provide that it will remain in effect for subsequent interest payments until
changed or revoked by written notice to the Trustee or upon the transfer or
re-registration of the Bond.
The purchase price (the amount equal to 100% of the principal amount
of any Bond tendered or deemed tendered pursuant to the terms of the Indenture
plus accrued and unpaid interest thereon to the date of purchase (the "Purchase
Price") of this Bond shall be payable by First Union National Bank (together
with any successor Tender Agent, the "Tender Agent") to the registered Owner
hereof at the principal corporate trust office of the Tender Agent. As used
herein, the term "Business Day" means any day other than: (i) a Saturday or
Sunday; (ii) a legal holiday or any day on which banking institutions in the
State of New York, the State of Alabama, the City of New York, or the city in
which the principal office of the Trustee, the Tender Agent or the Bank are
authorized to remain closed; or (iii) a day on which the New York Stock Exchange
is closed.
This Bond is one of the duly authorized bonds designated as the
Tax-Exempt Variable Rate Demand/Fixed Rate Refunding Revenue Bonds (Central CPVC
Corporation Project) Series of 1998 of the Board issued in the aggregate
principal amount of $7,500,000 (herein referred to as the "Bonds") under and by
virtue of Act No. 648 adopted at the 1949 Regular Session of the Legislature of
the State of Alabama, approved September 19, 1949, as amended (said Act being
codified as Section 11-54-80, et seq., Code of Alabama, 1975) (the "Act"), and
by virtue of a resolution duly adopted by the Board of Directors of the Board
(the "Bond Resolution"), and equally and ratably secured under the Indenture,
for the purpose of raising funds to refund a bond which was issued to finance a
portion of the costs of a project consisting of (i) the acquisition,
construction, and equipping a manufacturing facility for the manufacture of CPVC
pipe and fittings for the fire protection industry to be located at the
Premises; and (ii) the payment of a portion of the costs of issuance of the
Bonds (the "Project"). Pursuant to an Amended and Restated Lease Agreement,
dated as of October 1, 1998 (the "Agreement") by and between the Board and
Central CPVC Corporation, an Alabama corporation (the "Company"), lease payments
sufficient for the prompt payment when due of the principal and Purchase Price
of, premium, if any, and interest on the Bonds are to be paid to the Trustee for
the account of the Board and deposited in the Bond Fund established by the
Indenture and have been duly pledged for that purpose, all to the extent and in
the manner provided in the Indenture.
The Bonds are all issued under and are equally and ratably secured by
and entitled to the protection of the Indenture, pursuant to which all payments
due from the Company to the Board under the Agreement (other than certain
indemnification payments and the payment of certain expenses of the Board) are
assigned to the Trustee to secure the payment of the principal and Purchase
Price of, and premium, if any, and interest on the Bonds and certain costs, fees
and expenses of the Trustee. The Company has caused to be delivered to the
Trustee an irrevocable direct pay letter of credit (together with any Substitute
Letter of Credit, the "Letter of Credit") issued by First Union National Bank
(in such capacity, the "Bank") and dated the Date of Issuance of the Bonds,
which will expire, unless earlier terminated or extended, on March 31, 2001.
Subject to certain conditions, the Letter of Credit may be replaced by a
Substitute Letter of Credit of another commercial bank, savings and loan
association or savings bank. Under the Letter of Credit, the Trustee will be
entitled to draw up to an amount sufficient to pay: (a) the principal of the
Bonds or the portion of the Purchase Price corresponding to the principal of the
Bonds; and (b) accrued interest (at the maximum rate of 15% per annum based on
365/366 day year and the actual number of days elapsed) on the Bonds or the
portion of the Purchase Price of the Bonds corresponding to accrued interest
thereon.
Reference is hereby made to the Indenture, the Agreement and the Letter
of Credit for a description of the property pledged and assigned, the
provisions, among others, with respect to the nature and extent of the security,
the rights, duties and obligations of the Board, the Trustee and the Owners of
the Bonds and the terms upon which the Bonds are issued and secured; and the
Owner of this Bond, by acceptance hereof, hereby consents to the terms and
provisions of all of the foregoing as a material portion of the consideration
for the issuance of this Bond.
This Bond shall bear interest as follows:
(A) From the Date of Issuance of this Bond to the Conversion
Date, this Bond shall bear interest at the "Floating Rate." The "Floating Rate"
shall be a variable rate of interest equal to the minimum rate of interest
necessary, in the sole judgment of the Remarketing Agent (hereinafter defined),
to sell the Bonds on any Business Day at a price equal to the principal amount
thereof, exclusive of accrued interest, if any, thereon. The Floating Rate shall
be determined weekly by First Union Capital Markets, a Division of Wheat First
Securities, Inc., Reading, Pennsylvania (the "Remarketing Agent") by 9:30 a.m.
on each Wednesday (or if such Wednesday is not a Business Day, on the next
succeeding Business Day) and shall be effective on such Wednesday for the
immediately following Weekly Period (as hereinafter defined), all as more fully
set forth in the Indenture. The determination of the Floating Rate shall be
conclusive and binding upon the Board, the Trustee, the Letter of Credit Bank,
the Bank, the Company, the Remarketing Agent, the Tender Agent and the Owners of
this Bond.
Anything herein to the contrary notwithstanding, the
Floating Rate shall in no event exceed 15% per annum.
(B) The Bonds shall bear interest at the "Fixed Rate" from
and after the Conversion Date. In such event, the Fixed Rate shall be applicable
until the maturity of the Bonds. The "Fixed Rate" shall be a fixed annual
interest rate on the Bonds established by the Remarketing Agent as the rate of
interest for which the Remarketing Agent has received commitments on or prior to
the 5th Business Day preceding the Conversion Date, at a price of par without
discount or premium.
Prior to the Conversion Date, interest on the Bonds shall be computed
on the basis of a 365/366-day year, actual number of days elapsed. On and after
the Conversion Date, interest on the Bonds shall be computed on the basis of a
360-day year of twelve 30-day months.
As used herein, the term "Conversion Date" means the Optional
Conversion Date; the term "Letter of Credit Termination Date" means the later
of: (i) that date upon which the Letter of Credit shall expire or terminate
pursuant to its terms; or (ii) that date to which the expiration or termination
of the Letter of Credit may be extended, from time to time, either by extension
or renewal of the existing Letter of Credit or the issuance of a Substitute
Letter of Credit (as such phrase is defined in the Indenture); the term
"Optional Conversion Date" means that date on or after December 1, 1998 which
shall be a Business Day, from and after which the interest rate on the Bonds is
converted from the Floating Rate to the Fixed Rate as a result of the exercise
by the Company of the Conversion Option; the term "Conversion Option" means the
option granted to the Company in the Indenture pursuant to which the interest
rate on the Bonds is converted from the Floating Rate to the Fixed Rate as of
the Optional Conversion Date; the term "Purchase Price" means an amount equal to
100% of the principal amount of any Bond tendered or deemed tendered for
purchase pursuant to the Indenture or with respect to which the Demand Purchase
Option has been exercised, plus accrued and unpaid interest thereon to the date
of purchase.
The interest rate on the Bonds may be converted from the Floating Rate
to the Fixed Rate upon satisfaction of certain conditions and notice given by
the Trustee at the direction of the Company to the Owners of the Bonds at least
twenty (20) days but not more than thirty (30) days prior to the Conversion Date
in accordance with the requirements of the Indenture, and the Bonds shall be
subject to mandatory tender by the Owners thereof on the Conversion Date. On and
after the Conversion Date, the Demand Purchase Option will not be available to
the Owners of the Bonds. On or prior to the Conversion Date, an Owner of Bonds,
shall be required to deliver their Bonds to the Tender Agent for purchase at the
Purchase Price. Accrued interest on the Bonds will be payable on the Conversion
Date to the Owners of Bonds as of the Conversion Date. Any Bonds not delivered
to the Tender Agent on or prior to the Conversion Date ("Undelivered Bonds"),
for which there has been irrevocably deposited in trust with the Trustee or the
Tender Agent an amount of money sufficient to pay the Purchase Price of the
Undelivered Bonds, shall be deemed to have been purchased at the Purchase Price
and are deemed to be no longer outstanding with respect to such prior Owners. IN
THE EVENT OF A FAILURE BY AN OWNER OF BONDS TO DELIVER ITS BONDS ON OR PRIOR TO
THE CONVERSION DATE, SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING
ANY INTEREST TO ACCRUE ON OR SUBSEQUENT TO THE CONVERSION DATE) OTHER THAN THE
PURCHASE PRICE FOR SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO
LONGER BE ENTITLED TO THE BENEFIT OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF
PAYMENT OF THE PURCHASE PRICE THEREFOR.
Notwithstanding the foregoing provisions, to the extent that at the
close of the fifth Business Day prior to the proposed Optional Conversion Date,
the Remarketing Agent has not presented to the Company firm commitments for the
purchase of all of the Bonds, the Company, at its option, may rescind an
optional conversion of the Bonds. Any such election to rescind must be made by
the close of the fourth Business Day prior to the proposed Conversion Date and
the Company shall give written notice to the Trustee, the Tender Agent and the
Bank of its decision to rescind the optional conversion by such time. The
Company shall cause the Trustee to immediately notify the Owners of such
rescission and thereafter the Bonds shall bear interest at the Floating Rate in
effect for the then current Weekly Period and thereafter the Bonds shall bear
interest at the Floating Rate until any subsequent Conversion Date effected in
accordance with the Indenture. As used herein, "Weekly Period" means, while this
Bond bears interest at the Floating Rate, the weekly period that begins on and
includes Wednesday of each calendar week and ends at the close of business on
Tuesday of the next succeeding week.
At any time prior to the Record Date preceding the first Interest
Payment Date following the Conversion Date, the Trustee or the Tender Agent, as
the case may be, shall deliver a replacement Bond evidencing interest payable at
the Fixed Rate.
Prior to the Conversion Date, this Bond shall be purchased, at the
option of the Owner hereof ("Demand Purchase Option") at the Purchase Price,
upon:
(a) delivery by such Owner to the Trustee and the Tender
Agent at their principal corporate trust office and Delivery Office (hereinafter
defined) respectively, and to the Remarketing Agent at its principal office of a
notice (a "Demand Purchase Notice") (said notice to be irrevocable and effective
upon receipt) which states: (i) the aggregate principal amount and the bond
numbers of Bonds to be purchased; and (ii) the date on which such Bonds are to
be purchased, which date shall be a Business Day not prior to the seventh (7th)
day next succeeding the date of delivery of such notice and which date shall be
prior to the Conversion Date;
(b) if such Bonds are to be purchased prior to an Interest
Payment Date and after the Record Date in respect thereof, delivery to the
Tender Agent together with the Demand Purchase Notice described in (a) above, of
a non-recourse due-▇▇▇▇, payable to bearer, for interest due on such Interest
Payment Date; and
(c) delivery to the Tender Agent at its Delivery Office
(hereinafter defined) at or prior to 10:00 a.m., New York City time, on the date
designated for purchase in the applicable Demand Purchase Notice of such Bonds
to be purchased with an appropriate endorsement for transfer or accompanied by a
bond power endorsed in blank.
Any Bond as to which a Demand Purchase Notice has been delivered
pursuant to (a) above, must be delivered to the Tender Agent as provided in (c)
above, and any such Bonds not so delivered ("Undelivered Bonds"), for which
there has been irrevocably deposited in trust with the Trustee or the Tender
Agent an amount of money sufficient to pay the Purchase Price thereof, shall be
deemed to have been purchased at the Purchase Price and are deemed to be no
longer outstanding with respect to such tendering Owner. IN THE EVENT OF A
FAILURE BY AN OWNER OF BONDS TO DELIVER ITS BONDS AS SPECIFIED ABOVE, SAID OWNER
SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON OR
SUBSEQUENT TO THE DATE DESIGNATED FOR PURCHASE IN THE APPLICABLE DEMAND PURCHASE
NOTICE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNDELIVERED BONDS, AND ANY
UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFIT OF THE INDENTURE,
EXCEPT FOR THE PAYMENT OF THE PURCHASE PRICE THEREFOR.
Notwithstanding the foregoing provisions, in the event any Bond as to
which the Owner thereof has exercised the Demand Purchase Option is remarketed
to such Owner pursuant to the Remarketing Agreement, such Owner need not deliver
such Bond to the Tender Agent as provided in (c) above, although such Bond shall
be deemed to have been delivered to the Tender Agent, redelivered to such Owner,
and remarketed for purposes of the Indenture.
The Agreement provides that the Company, upon satisfaction of certain
conditions precedent, may, at any time, at its option, provide for the delivery
to the Trustee of a Substitute Letter of Credit. The Bonds shall be subject to
mandatory tender by the Owners thereof on the date of delivery of the Substitute
Letter of Credit (the "Substitution Date"). On or prior to the Substitution
Date, Owners of Bonds shall be required to deliver their Bonds to the Tender
Agent for purchase at the Purchase Price. Accrued interest on the Bonds will be
payable on the Substitution Date to the Owners of Bonds as of the Substitution
Date. Any Bonds not delivered to the Tender Agent on or prior to the
Substitution Date ("Undelivered Bonds"), for which there has been irrevocably
deposited in trust with the Trustee or the Tender Agent an amount of money
sufficient to pay the Purchase Price of the Undelivered Bonds, shall be deemed
to have been purchased at the Purchase Price and are deemed to be no longer
outstanding with respect to such Owners. IN THE EVENT OF A FAILURE BY AN OWNER
OF BONDS TO DELIVER ITS BONDS ON OR PRIOR TO THE SUBSTITUTION DATE, SAID OWNER
SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE ON OR
SUBSEQUENT TO THE SUBSTITUTION DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH
UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE
BENEFIT OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE
PRICE THEREFOR.
Any delivery of a notice required to be made to the Trustee at its
principal corporate trust office pursuant to (a) above shall be delivered to the
Trustee at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporation Trust Administration or to the office designated for such purpose by
any successor Trustee; any delivery of a notice required to be made to the
Remarketing Agent at its principal office pursuant to (a) above shall be
delivered to the Remarketing Agent at Second Floor South, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: First Union Capital Markets, Sales and
Underwriting Department, or to the office designated for such purpose by any
successor Remarketing Agent; and any delivery of Bonds required to be made to
the Tender Agent pursuant to (b) above shall be delivered to the Tender Agent at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporation
Trust Administration or to the office designated for such purpose by any
successor Tender Agent (the "Delivery Office").
Notwithstanding any provision herein to the contrary, so long as this
Bond is subject to a system of book-entry transfers, any requirement for the
delivery of Bonds to the Tender Agent in connection with an optional or
mandatory tender shall be deemed satisfied upon the transfer, on the
registration books of DTC, of the beneficial ownership interests in the Bonds
tendered for purchase to the account of the Tender Agent, or a Participant (as
such term is defined in the Indenture) acting on behalf of or at the discretion
of such Tender Agent.
Pursuant to the Act, neither the members of the Board nor any person
executing bonds for the Board shall be liable personally on said bonds by reason
of the issuance thereof.
The Bonds Outstanding from time to time are limited and special
obligations of the Board, the principal of, premium, if any, and interest on
which are payable solely from the amounts to be paid under the Agreement and
otherwise as provided in the Indenture and in the Agreement, which amounts are
hereby specifically pledged to the payment thereof in the manner and to the
extent herein specified, and shall not be deemed to constitute a general
obligation or liability of the Board, its officers of employees. NEITHER THE
CITY OF HUNTSVILLE NOR THE STATE OF ALABAMA IS OBLIGATED TO PAY, AND NEITHER THE
FAITH AND CREDIT NOR TAXING POWER OF THE CITY OF HUNTSVILLE NOR THE STATE OF
ALABAMA IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL OR REDEMPTION PRICE, IF ANY,
OF OR INTEREST ON THIS BOND. THIS BOND IS NOT AND SHALL NOT BE IN ANY WAY A DEBT
OR LIABILITY OF THE CITY OF HUNTSVILLE, THE STATE OF ALABAMA OR OF ANY POLITICAL
SUBDIVISION THEREOF AND DOES NOT AND SHALL NOT CREATE OR CONSTITUTE ANY
INDEBTEDNESS, LIABILITY OR OBLIGATION OF THE CITY OF HUNTSVILLE, STATE OF
ALABAMA OR OF ANY POLITICAL SUBDIVISION THEREOF WHETHER LEGAL, MORAL OR
OTHERWISE. THIS BOND IS A SPECIAL, LIMITED OBLIGATION OF THE BOARD, PAYABLE
SOLELY OUT OF THE REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE BOARD
PLEDGED UNDER THE INDENTURE AND FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE
INDENTURE FOR THE PAYMENT OF THE BONDS. THE BOND DOES NOT NOW AND SHALL NEVER
CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE BOARD. THE BOARD HAS NO
TAXING POWER.
This Bond is transferable by the Registered Owner hereof in person or
by his attorney duly authorized in writing, at the principal corporate trust
office of the Trustee or at the Delivery Office of the Tender Agent or that of
any successor Tender Agent, but only in the manner, subject to the limitations
and upon payment of the charges provided in the Indenture, and upon surrender
and cancellation of this Bond. Upon such transfer a new registered Bond or Bonds
of authorized denomination or denominations for the same aggregate principal
amount will be issued to the transferee in exchange herefor. The Board, the
Tender Agent and the Trustee may deem and treat the registered Owner hereof as
the absolute Owner hereof (whether or not this Bond shall be overdue) for all
purposes, and neither the Board, the Tender Agent nor the Trustee shall be bound
by any notice or knowledge to the contrary.
Prior to the Conversion Date: (i) the Bonds are issuable as fully
registered bonds without coupons in the denominations of $100,000 or any
integral multiple of $5,000 in excess thereof; and (ii) the Bonds may not be
issued, exchanged or transferred except in authorized denominations of $100,000
or any integral multiple of $5,000 in excess thereof. From and after the
Conversion Date, the Bonds shall be issuable as fully registered bonds without
coupons in the denominations of $5,000 or any integral multiple thereof.
Mandatory Redemption
The Bonds are subject to mandatory redemption, five (5) Business Days
prior to the Letter of Credit Termination Date, in whole, at a redemption price
equal to one hundred percent (100%) of the principal amount thereof being
redeemed plus accrued interest to the redemption date if, on the thirtieth
(30th) Business Day prior to the Letter of Credit Termination Date, the Trustee
shall not have received a Substitute Letter of Credit which will be effective on
or before the Letter of Credit Termination Date.
The Bonds are also subject to mandatory redemption, in whole, at any
time, within one hundred eighty (180) days after the Trustee receives notice of
the occurrence of a "Determination of Taxability" (as such phrase is hereinafter
defined), at a redemption price equal to one hundred percent (100%) of the
aggregate principal amount of Bonds Outstanding plus accrued interest to the
redemption date.
"Event of Taxability" with respect to any Bond means a change of law or
regulations, or the interpretation thereof, or the occurrence of any other event
or the existence of any other circumstance (including without limitation the
fact that any representations or warranties of the Company or the Board made in
connection with the issuance of any Bond is or was untrue or that a covenant of
the Company has been breached) that has the effect of causing interest payable
on any Bond to be includable in gross income for federal income tax purposes
under Section 103 of the Internal Revenue Code of 1986, as amended, and the
applicable regulations thereunder (the "Code") other than by reason that such
interest: (i) is includable in the gross income of an Owner or former Owner of
any Bond while such Owner or former Owner is or was a "substantial user" or a
"related person" to a "substantial user" of the Project Facilities (as such
terms are used in Section 147(a)(1) of the Code); or (ii) is deemed an item of
tax preference including, without limitation, an item subject to any alternative
minimum tax.
"Determination of Taxability" with respect to any Bond shall be deemed
to have been made upon the first to occur of the following events:
(i) the date on which the Company determines that an Event
of Taxability has occurred by filing with the Trustee a statement to that effect
supported by one or more tax schedules, returns or documents which disclose that
such an Event of Taxability has occurred;
(ii) the date on which the Company or the Trustee is advised
by private ruling, technical advice or any other written communication from any
authorized official of the Internal Revenue Service that, based upon any filings
of the Company or any other person or entity, or upon any review or audit of the
Company or any other person or entity, or upon any other grounds whatsoever, an
Event of Taxability has occurred;
(iii) the date on which the Trustee or the Company is
advised that a court of competent jurisdiction has issued an order, declaration,
ruling or judgment to the effect that an Event of Taxability has occurred;
(iv) the date the Trustee shall have received written notice
from any owner of the Bonds that such owner has received a written assertion or
claim by any authorized official of the Internal Revenue Service that an Event
of Taxability has occurred; or
(v) the date the Trustee is notified that the Internal
Revenue Service has issued any private ruling, technical advice or any other
written communication, with or to the effect that an Event of Taxability has
occurred;
provided, however, that (x) no Determination of Taxability described in each of
clause (i), (ii), (iii), (iv) or (v) above shall be deemed to have occurred
unless the Trustee shall have received a written opinion of nationally
recognized bond counsel satisfactory to the Trustee, in form and substance
satisfactory to the Bank and the Company and not unsatisfactory to the Trustee,
to the effect that an Event of Taxability has occurred; and (y) no Determination
of Taxability described in each of clauses (i), (ii), (iii), (iv) or (v) above
shall be deemed to have occurred until 180 days shall have elapsed from the
dates described in clauses (i), (ii), (iii), (iv) or (v) above without such
Determination of Taxability having been rescinded or canceled.
Mandatory Sinking Fund Redemption
The Bonds are subject to mandatory sinking fund redemption on the
Interest Payment Date occurring in the month of September in each of the years
set forth below commencing on the Interest Payment Date occurring in September
of 1998 (each, a "Mandatory Sinking Account Fund Date"), at a redemption price
equal to 100% of the principal amount thereof plus accrued interest as follows:
Mandatory Sinking
Year Fund Payments
---- -------------
2000 $560,000
2001 $560,000
2002 $560,000
2003 $560,000
2004 $560,000
2005 $560,000
2006 $560,000
2007 $560,000
2008 $560,000
2009 $575,000
2010 $580,000
2011 $580,000
2012 $580,000
2013 $145,000*
*Final maturity of the Bonds is January 1, 2013
Optional Redemption
On or prior to the Conversion Date, the Bonds are subject to redemption
by the Board, at the option of the Company, at any time, subject to the notice
provisions described below, in whole or in part, at the redemption price of 100%
of the principal amount thereof being redeemed plus accrued interest to the
redemption date.
No such optional redemption shall occur unless there shall be available
in the Bond Fund established under the Indenture sufficient Available Moneys (as
defined in the Indenture) to pay all amounts due with respect to such a
redemption.
In the event any of the Bonds or portions thereof are called for
redemption as aforesaid, notice of the call for redemption, identifying the
Bonds or portions thereof to be redeemed and the redemption price (including the
premium, if any), shall be given by the Trustee by mailing a copy of the
redemption notice by first-class mail at least thirty (30) days but not more
than sixty (60) days prior to the date fixed for redemption to the Owner of each
Bond to be redeemed in whole or in part at the address shown on the registration
books. Any notice mailed as provided above shall be conclusively presumed to
have been duly given, whether or not the Owner receives the notice. No further
interest shall accrue on the principal of any Bond called for redemption after
the redemption date if Available Moneys (as defined in the Indenture) sufficient
for such redemption have been deposited with the Trustee. Notwithstanding the
foregoing, the notice requirements contained in the first sentence of this
paragraph may be deemed satisfied with respect to a transferee of a Bond which
has been purchased pursuant to the Demand Purchase Option under certain
circumstances provided in Section 4.06 of the Indenture, after such Bond has
previously been called for redemption, notwithstanding the failure to satisfy
the notice requirements of the first sentence of this paragraph with respect to
such transferee.
If less than all the Bonds are to be redeemed, the particular Bonds or
portions thereof to be redeemed shall be selected by the Trustee by lot. Prior
to the Conversion Date, in case a Bond is of a denomination larger than
$100,000, a portion of such Bond ($100,000 or any integral multiple of $5,000 in
excess thereof) may be redeemed, but Bonds shall be redeemed only if the
remaining unredeemed portion of such Bond is in the principal amount of $100,000
or any integral multiple in excess of $100,000.
The Bonds are issued pursuant to and in full compliance with the
Constitution and laws of the State, particularly the Act, and by appropriate
action duly taken by the Board which authorizes the execution and delivery of
the Agreement and the Indenture. The Bonds have been issued under the provisions
of the Act.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Agreement, or in any other instrument or document executed by or
on behalf of the Board in connection herewith, no stipulation, covenant,
agreement or obligation contained herein or therein shall be deemed or construed
to be a stipulation, covenant, agreement or obligation of any present or future
member, commissioner, director, trustee, officer, employee or agent of the
Board, or of any successor to the Board, in any such person's individual
capacity, and no such person, in his individual capacity, shall be liable
personally for any breach or nonobservance of or for any failure to perform,
fulfill or comply with any such stipulations, covenants, agreements or the
principal of or premium, if any, or interest on any of the Bonds or for any
claim based thereon or on any such stipulation, covenant, agreement or
obligation, against any such person, in his individual capacity, either directly
or through the Board or any successor to the Board, under any rule of law or
equity, statute or constitution or by the enforcement of any assessment or
penalty or otherwise, and all such liability of any such person, in his
individual capacity, is hereby expressly waived and released.
The Owner of this Bond shall have no right to enforce the provisions of
the Indenture or to institute action to enforce the covenants therein, or to
take any action with respect to any default under the Indenture, or to
institute, appear in or defend any suit or other proceedings with respect
thereto, unless certain circumstances described in the Indenture shall have
occurred. In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of all the Bonds issued under
the Indenture and then outstanding may become or may be declared due and payable
before the stated maturity thereof, together with interest accrued thereon.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Board and the rights of the Owners of the Bonds at any time by the Board with
the consent of the Company, the Bank and the holders of all Bonds at the time
outstanding. Any such consent or any waiver by the Company, the Bank and the
holders of all Bonds at the time outstanding shall be conclusive and binding
upon the Owner and upon all future Owners of this Bond and of any Bond issued in
replacement hereof whether or not notation of such consent or waiver is made
upon this Bond. The Indenture also contains provisions which, subject to certain
conditions, permit or require the Trustee to waive certain past defaults under
the Indenture and their consequences.
It is hereby certified, recited and declared that all acts, conditions
and things required to exist, happen and be performed precedent to and in
connection with the execution and delivery of the Indenture and the issuance of
this Bond do exist, have happened and have been performed in due time, form and
manner as required by law; and that the issuance of this Bond and the issue of
which it forms a part, together with all other obligations of the Board, does
not exceed or violate any constitutional or statutory limitation.
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,
as authenticating agent.
IN WITNESS WHEREOF, The Industrial Development Board of the City of
Huntsville has caused this Bond to be signed in its name and on its behalf by
the manual or facsimile signature of its Chairman or Vice Chairman, and its
corporate seal to be affixed, imprinted or reproduced hereon and attested by the
manual or facsimile signature of its Secretary or Assistant Secretary all as of
the date first above written.
THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF HUNTSVILLE
Attest: By
(SEAL)
(Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the
within-mentioned Trust Indenture.
FIRST UNION NATIONAL BANK,
as Trustee and Tender Agent
By:
Authorized Representative
Date of Authentication:
(Form for Transfer)
FOR VALUE RECEIVED, _________________, the undersigned, hereby sells,
assigns and transfers unto (Tax Identification or Social Security
No._______________) the within Bond and all rights thereunder, and hereby
irrevocably constitutes and appoints attorney to transfer the within Bond on the
books kept for registration thereof, with full power of substitution in the
premises.
Dated
NOTICE: Signature(s) must be
guaranteed by an approved eligible
guarantor institution, an institution
which is participant in a Securities
Transfer Association recognized
signature guarantee program.
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within Bond
in every particular, without alteration or
enlargement or any change whatever.
EXHIBIT "B"
(FIXED RATE FORM OF BOND)
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC") to the Board or its
agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner (the
"Registered Owner") hereof, Cede & Co., has an interest herein.
NEITHER THE CITY OF HUNTSVILLE NOR THE STATE OF ALABAMA IS
OBLIGATED TO PAY, AND NEITHER THE FAITH AND CREDIT NOR
TAXING POWER OF THE CITY OF HUNTSVILLE OR THE STATE OF
ALABAMA IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL OR
PREMIUM, IF ANY, OF OR INTEREST ON THIS BOND. THIS BOND IS A
SPECIAL, LIMITED OBLIGATION OF THE BOARD, PAYABLE SOLELY OUT
OF THE REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE
BOARD PLEDGED UNDER THE INDENTURE AND FROM ANY AMOUNTS
OTHERWISE AVAILABLE UNDER THE INDENTURE FOR THE PAYMENT OF
THE BONDS. THIS BOND DOES NOT NOW AND SHALL NEVER CONSTITUTE
A CHARGE AGAINST THE GENERAL CREDIT OF THE BOARD. THE BOARD
HAS NO TAXING POWER.
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF HUNTSVILLE
TAX-EXEMPT VARIABLE RATE DEMAND/FIXED RATE
REFUNDING REVENUE BOND
(CENTRAL CPVC CORPORATION PROJECT)
SERIES OF 1998
No. FR- $
Interest Rate: CUSIP
KNOW ALL MEN BY THESE PRESENTS that THE INDUSTRIAL DEVELOPMENT
BOARD OF THE CITY OF HUNTSVILLE (the "Board"), for value received, promises to
pay from the source and as hereinafter provided, to CEDE & CO. or registered
assigns, on ____________________, upon surrender hereof, the principal sum of
Dollars, and in like manner to pay interest (calculated on the basis of a
360-day year of twelve 30 day months) on said sum at the rate per annum set
forth above on July 1 and January 1 of each year, commencing , (each an
"Interest Payment Date") from the Interest Payment Date next preceding the date
of authentication hereof to which interest has been paid or duly provided for,
unless the date of authentication hereof is an Interest Payment Date to which
interest has been paid or duly provided for, in which case from the date of
authentication hereof or unless no interest has been paid or duly provided for
on the Bonds (as hereinafter defined), in which case from the Conversion Date
(as defined in the Indenture, as hereinafter defined), until payment of the
principal hereof has been made or duly provided for. Notwithstanding the
foregoing, if this Bond is authenticated after any date which is the fifteenth
day next preceding any Interest Payment Date (a "Record Date") and before the
following Interest Payment Date, this Bond shall bear interest from such
Interest Payment Date; provided, however, that if the Board shall default in the
payment of interest due on such Interest Payment Date, then this Bond shall bear
interest from the next preceding interest payment date to which interest has
been paid or duly provided for, or, if no interest has been paid or duly
provided for on the Bonds, from the Date of Issuance. The principal of this Bond
is payable in lawful money of the United States of America at the principal
corporate trust office of First Union National Bank, as trustee (together with
its successors in trust, the "Trustee") or at the duly designated office of any
successor Trustee under the Trust Indenture, dated as of October 1, 1998 between
the Board and the Trustee (which Indenture, as from time to time amended and
supplemented, is hereinafter referred to as the "Indenture"). Payment of
interest on this Bond shall be made on each Interest Payment Date to the
registered Owner hereof as of the applicable Record Date and shall be paid by
check mailed by the Trustee to such address as it appears on the registration
books of the Board or at such other address as is furnished to the Trustee in
writing by such registered Owner, or in such other manner as may be permitted by
the Indenture; provided, that such interest shall be paid by wire transfer to:
(i) the Bank; and (ii) any Holder of at least $1,000,000 in aggregate principal
amount of Bonds, if the Holder makes a written request of the Trustee at least
15 days before a Record Date specifying the account address and wiring
instructions. Such a request may provide that it will remain in effect for
subsequent interest payments until changed or revoked by written notice to the
Trustee or upon the transfer or re-registration of the Bond.
As used herein, the term "Business Day" means a day which is not a
Saturday, Sunday or legal holiday on which banking institutions in the State of
New York, State of Alabama, the City of New York, or the city in which the
principal office of the Trustee, the Tender Agent or the Bank are authorized to
remain closed or on which the New York Stock Exchange is closed.
This Bond is one of the duly authorized bonds designated as the
Tax-Exempt Variable Rate Demand/Fixed Rate Refunding Revenue Bonds (Central CPVC
Corporation Project) Series of 1998 of the Board issued in the original
aggregate principal amount of $7,500,000 (herein referred to as the "Bonds")
under and by virtue of Act No. 648 adopted at the 1949 Regular Session of the
Legislature of the State of Alabama, approved September 19, 1949, as amended
(said Act being codified as Section 11-54-80, et seq., Code of Alabama, 1975)
(the "Act"), and by virtue of a resolution duly adopted by the Board (the "Bond
Resolution"), and equally and ratably secured under the Indenture, for the
purpose of raising funds to refund a bond issued to finance a portion of the
costs of a project consisting of (i) the acquisition, construction, and
equipping a manufacturing facility for the manufacture of CPVC pipe and fittings
for the fire protection industry to be located at the Premises; and (ii) the
payment of a portion of the costs of issuance of the Bonds (the "Project").
Pursuant to an Amended and Restated Lease Agreement, dated as of October 1, 1998
(the "Agreement") by and between the Board and Central CPVC Corporation, an
Alabama corporation (the "Company"), lease payments sufficient for the prompt
payment when due of the principal and Purchase Price of, premium, if any, and
interest on the Bonds are to be paid to the Trustee for the account of the Board
and deposited in the Bond Fund established by the Indenture and have been duly
pledged for that purpose, all to the extent and in the manner provided in the
Indenture.
The Bonds are ratably secured by and entitled to the protection of the
Indenture, pursuant to which all payments due from the Company to the Board
under the Agreement (other than certain indemnification payments and the payment
of certain expenses of the Board) are assigned to the Trustee to secure the
payment of the principal of and premium, if any, and interest on the Bonds.
Reference is hereby made to the Indenture and the Agreement for a
description of the property pledged and assigned, the provisions, among others,
with respect to the nature and extent of the security, the rights, duties and
obligations of the Board, the Trustee and the Owners of the Bonds, and the terms
upon which the Bonds are issued and secured; and the Owner of this Bond, by
acceptance hereof, hereby consents to the terms and provisions of all of the
foregoing as a material portion of the consideration for the issuance of this
Bond.
Pursuant to the Act, neither the members of the Board nor any person
executing bonds for the Board shall be liable personally on said bonds by reason
of the issuance thereof.
The Bonds Outstanding from time to time are limited and special
obligations of the Board, the principal of, premium, if any, and interest on
which are payable solely from the amounts to be paid under the Agreement and
otherwise as provided in the Indenture and in the Agreement, which amounts are
hereby specifically pledged to the payment thereof in the manner and to the
extent herein specified, and shall not be deemed to constitute a general
obligation or liability of the Board, its officers of employees. NEITHER THE
CITY OF HUNTSVILLE NOR THE STATE OF ALABAMA IS OBLIGATED TO PAY, AND NEITHER THE
FAITH AND CREDIT NOR TAXING POWER OF THE CITY OF HUNTSVILLE OR THE STATE OF
ALABAMA IS PLEDGED TO THE PAYMENT OF, THE PRINCIPAL OR REDEMPTION PRICE, IF ANY,
OF OR INTEREST ON THIS BOND. THIS BOND IS NOT AND SHALL NOT BE IN ANY WAY A DEBT
OR LIABILITY OF THE CITY OF HUNTSVILLE OR THE STATE OF ALABAMA OR OF ANY
POLITICAL SUBDIVISION THEREOF AND DOES NOT AND SHALL NOT CREATE OR CONSTITUTE
ANY INDEBTEDNESS, LIABILITY OR OBLIGATION OF THE CITY OF HUNTSVILLE OR THE STATE
OF ALABAMA OR OF ANY POLITICAL SUBDIVISION THEREOF WHETHER LEGAL, MORAL OR
OTHERWISE. THIS BOND IS A SPECIAL, LIMITED OBLIGATION OF THE BOARD, PAYABLE
SOLELY OUT OF THE REVENUES OR OTHER RECEIPTS, FUNDS OR MONEYS OF THE BOARD
PLEDGED UNDER THE INDENTURE AND FROM ANY AMOUNTS OTHERWISE AVAILABLE UNDER THE
INDENTURE FOR THE PAYMENT OF THE BONDS. THE BOND DOES NOT NOW AND SHALL NEVER
CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE BOARD. THE BOARD HAS NO
TAXING POWER.
This Bond is transferable by the Registered Owner hereof in person or
by his attorney duly authorized in writing, at the principal corporate trust
office of the Trustee but only in the manner, subject to the limitations and
upon payment of the charges provided in the Indenture, and upon surrender and
cancellation of this Bond. Upon such transfer a new registered Bond or Bonds of
authorized denomination or denominations for the same aggregate principal amount
will be issued to the transferee in exchange herefor. The Board and the Trustee
may deem and treat the registered Owner hereof as the absolute Owner hereof
(whether or not this Bond shall be overdue) for all purposes, and neither the
Board nor the Trustee shall be bound by any notice or knowledge to the contrary.
The Bonds shall be issuable as fully registered Bonds without coupons
in the denomination of $5,000 or any integral multiple thereof.
Extraordinary Redemption
The Bonds are callable for redemption in the event: (1) the Project
Facilities or any portion thereof is damaged or destroyed or taken in a
condemnation proceeding as provided in Section 6.4 of the Agreement; or (2) the
Company shall exercise its option to cause the Bonds to be redeemed as provided
in Section 9.4 of the Agreement. If called for redemption at any time pursuant
to (1) or (2) above, the Bonds shall be subject to redemption by the Board on
any interest payment date, in whole or in part, at a redemption price of one
hundred percent (100%) of the principal amount thereof plus accrued interest to
the redemption date.
Mandatory Redemption
The Bonds are subject to mandatory redemption, five (5) Business Days
prior to the Letter of Credit Termination Date, in whole, at a redemption price
equal to one hundred percent (100% of the principal amount thereof being
redeemed plus accrued interest to the redemption date if, on the thirtieth
(30th) Business Day prior to the Letter of Credit Termination Date, the Trustee
shall not have received a Substitute Letter of Credit which will be effective on
or before the Letter of Credit Termination Date.
The Bonds are also subject to mandatory redemption, in whole, at any
time, within one hundred eighty (180) days after the Trustee receives notice of
the occurrence of a "Determination of Taxability" (as hereinafter defined), at a
redemption price equal to one hundred percent (100%) of the aggregate principal
amount of Bonds Outstanding plus accrued interest to the redemption date.
"Event of Taxability" with respect to any Bond means a change of law or
regulations, or the interpretation thereof, or the occurrence of any other event
or the existence of any other circumstance (including without limitation the
fact that any representations or warranties of the Company or the Board made in
connection with the issuance of any Bond is or was untrue or that a covenant of
the Company has been breached) that has the effect of causing interest payable
on any Bond to be includable in gross income for federal income tax purposes
under Section 103 of the Internal Revenue Code of 1986, as amended, and the
applicable regulations thereunder (the "Code") other than by reason that such
interest: (i) is includable in the gross income of an Owner or former Owner of
any Bond while such Owner or former Owner is or was a "substantial user" or a
"related person" to a "substantial user" of the Project Facilities (as such
terms are used in Section 147(a)(1) of the Code); or (ii) is deemed an item of
tax preference including, without limitation, an item subject to any alternative
minimum tax.
"Event of Taxability" means, with respect to any Bond shall be deemed
to have been made upon the first to occur of the following events:
(i) the date on which the Company determines that an Event
of Taxability has occurred by filing with the Trustee a statement to that effect
supported by one or more tax schedules, returns or documents which disclose that
such an Event of Taxability has occurred;
(ii) the date on which the Company or the Trustee is advised
by private ruling, technical advice or any other written communication from any
authorized official of the Internal Revenue Service that, based upon any filings
of the Company or any other person or entity, or upon any review or audit of the
Company or any other person or entity, or upon any other grounds whatsoever, an
Event of Taxability has occurred;
(iii) the date on which the Trustee or the Company is
advised that a court of competent jurisdiction has issued an order, declaration,
ruling or judgment to the effect that an Event of Taxability has occurred;
(iv) the date the Trustee shall have received written notice
from any owner of the Bonds that such owner has received a written assertion or
claim by any authorized official of the Internal Revenue Service that an Event
of Taxability has occurred; or
(v) the date the Trustee is notified that the Internal
Revenue Service has issued any private ruling, technical advice or any other
written communication, with or to the effect that an Event of Taxability has
occurred;
provided, however, that (x) no Determination of Taxability described in each of
clauses (i), (ii), (iii), (iv) or (v) above shall be deemed to have occurred
unless the Trustee shall have received a written opinion of other nationally
recognized bond counsel satisfactory to the Bank and the Company and not
unsatisfactory to the Trustee, and in form and substance satisfactory to the
Bank and the Company and not unsatisfactory to the Trustee, to the effect that
an Event of Taxability has occurred; and (y) no Determination of Taxability
described above shall be deemed to have occurred until 180 days shall have
elapsed from the dates described in clauses (i), (ii), (iii), (iv) or (v) above
without such Determination of Taxability having been rescinded or canceled.
Mandatory Sinking Fund Redemption
The Bonds are subject to mandatory redemption on the Interest Payment
Date occurring in the month of September in each of the years set forth below
commencing on the Interest Payment Date occurring in September of 1998 (each, a
"Mandatory Sinking Fund Payment Date"), at a redemption price equal to 100% of
the principal amount thereof plus accrued interest as follows:
Mandatory Sinking
Year Fund Payments
---- -------------
2000 $560,000
2001 $560,000
2002 $560,000
2003 $560,000
2004 $560,000
2005 $560,000
2006 $560,000
2007 $560,000
2008 $560,000
2009 $575,000
2010 $580,000
2011 $580,000
2012 $580,000
2013 $145,000*
*Final maturity of the Bonds is January 1, 2013
Optional Redemption
If the length of time from the Conversion Date to the final maturity
date of the Bonds is seven (7) years or more, the Bonds are subject to
redemption by the Board, at the option of the Company, on or after the fifth
(5th) anniversary of the Conversion Date, in whole at any time or in part on any
Interest Payment Date, at the redemption price of 100% of the principal amount
thereof being redeemed plus accrued interest to the redemption date.
In the event any of the Bonds or portions thereof are called for
redemption as aforesaid, notice of the call for redemption, identifying the
Bonds or portions thereof to be redeemed and the redemption price, shall be
given by the Trustee by mailing a copy of the redemption notice by first-class
mail at least thirty (30) days but not more than sixty (60) days prior to the
date fixed for redemption to the Owner of each Bond to be redeemed in whole or
in part at the address shown on the registration books. Any notice mailed as
provided above shall be conclusively presumed to have been duly given, whether
or not the Owner receives the notice. No further interest shall accrue on the
principal of any Bond called for redemption after the redemption date if moneys
sufficient for such redemption have been deposited with the Trustee.
If less than all the Bonds are to be redeemed, the particular Bonds or
portions thereof to be redeemed shall be selected by the Trustee by lot.
The Bonds are issued pursuant to and in full compliance with the
Constitution and laws of the State, particularly the Act, and by appropriate
action duly taken by the Board which authorizes the execution and delivery of
the Agreement and the Indenture. The Bonds have been issued under the provisions
of the Act.
Notwithstanding anything to the contrary contained herein or in the
Indenture, the Agreement, or in any other instrument or document executed by or
on behalf of the Board in connection herewith, no stipulation, covenant,
agreement or obligation contained herein or therein shall be deemed or construed
to be a stipulation, covenant, agreement or obligation of any present or future
member, commissioner, director, trustee, officer, employee or agent of the
Board, or of any successor to the Board, in any such person's individual
capacity, and no such person, in his individual capacity, shall be liable
personally for any breach or nonobservance of or for any failure to perform,
fulfill or comply with any such stipulations, covenants, agreements or
obligations, nor shall any recourse be had for the payment of the principal of
or premium, if any, or interest on any of the Bonds or for any claim based
thereon or on any such stipulation, covenant, agreement or obligation, against
any such person, in his individual capacity, either directly or through the
Board or any successor to the Board, under any rule of law or equity, statute or
constitution or by the enforcement of any assessment or penalty or otherwise,
and all such liability of any such person, in his individual capacity, is hereby
expressly waived and released.
The Owner of this Bond shall have no right to enforce the provisions of
the Indenture or to institute action to enforce the covenants therein, or to
take any action with respect to any default under the Indenture, or to
institute, appear in or defend any suit or other proceedings with respect
thereto, unless certain circumstances described in the Indenture shall have
occurred. In certain events, on the conditions, in the manner and with the
effect set forth in the Indenture, the principal of all the Bonds issued under
the Indenture and then outstanding may become or may be declared due and payable
before the stated maturity thereof, together with interest accrued thereon.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Board and the rights of the Owners of the Bonds at any time by the Board with
the consent of the Company, the Bank and the holders of all Bonds at the time
outstanding. Any such consent or any waiver by the Company, the Bank and the
holders of all Bonds shall be conclusive and binding upon the Owner and upon all
future Owners of this Bond and of any Bond issued in replacement hereof whether
or not notation of such consent or waiver is made upon this Bond. The Indenture
also contains provisions which, subject to certain conditions, permit or require
the Trustee to waive certain past defaults under the Indenture and their
consequences.
It is hereby certified, recited and declared that all acts, conditions
and things required to exist, happen and be performed precedent to and in
connection with the execution and delivery of the Indenture and the issuance of
this Bond do exist, have happened and have been performed in due time, form and
manner as required by law; and that the issuance of this Bond and the issue of
which it forms a part, together with all other obligations of the Board does not
exceed or violate any constitutional or statutory limitation.
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 a duly appointed
authenticating agent pursuant to the Indenture.
IN WITNESS WHEREOF, The Industrial Development Board of the City of
Huntsville has caused this Bond to be signed in its name and on its behalf by
the manual or facsimile signature of its Chairman or Vice Chairman and its
corporate seal to be affixed, imprinted or reproduced hereon and attested by the
manual or facsimile signature of its Secretary or Assistant Secretary, all as of
the Date of Issuance.
THE INDUSTRIAL DEVELOPMENT BOARD
OF THE CITY OF HUNTSVILLE
Attest: By:
(SEAL)
(Form of Certificate of Authentication)
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the issue described in the
within-mentioned Trust Indenture.
FIRST UNION NATIONAL BANK, as Trustee
By
Authorized Representative
Date of Authentication:
(Form for Transfer)
FOR VALUE RECEIVED, , the undersigned, hereby sells, assigns and
transfers unto (Tax Identification or Social Security No. ) the within Bond and
all rights thereunder, and hereby irrevocably constitutes and appoints attorney
to transfer the within Bond on the books kept for registration thereof with full
power of substitution in the premises.
Dated:
NOTICE: Signature(s) must be guaranteed
by an approved eligible guarantor
institution, an institution which is
participant in a Securities Transfer
Association recognized signature
guarantee program.
NOTICE: The signature to this assignment
must correspond with the name as it
appears upon the face of the within Bond
in every particular, without alteration
or enlargement or any change whatever.
