THIS TRUST INDENTURE, made and entered into as of April 29, 1998, by and between
PIERCING PAGODA, INC., a Delaware corporation (together with its successors and
assigns, the "Company") and DAUPHIN DEPOSIT BANK AND TRUST COMPANY, a state
banking corporation duly organized, existing and authorized to accept and
execute trusts of the character herein set out under and by virtue of the laws
of the Commonwealth of Pennsylvania, with its principal office located in
Harrisburg, Pennsylvania, as trustee (the "Trustee") and tender agent (the
"Tender Agent");
W I T N E S S E T H:
Certain of the terms and words used in these Recitals, and in the following
Granting Clauses, are defined in Section 1.01 of this Indenture.
WHEREAS, the Company has heretofore authorized and directed the issuance of its
$2,565,000 aggregate principal amount Taxable Variable Rate Demand/Fixed Rate
Bonds, Series of 1998 (the "Bonds") for the purpose of financing a project (the
"Project") consisting of (i) the construction of a new 70,655 square feet
building on 5.3 acres of land at the Company headquarters in Hanover Township,
Northampton County, Pennsylvania for the purpose of expanding the Company's
capabilities to distribute, assemble and warehouse their products and to provide
for office space to carry out the administrative functions of the Company's
business; and (ii) the payment of fees and expenses relating to the issuance of
the Bonds; and
WHEREAS, the Company has caused to be delivered to the Trustee an irrevocable
direct pay Letter of Credit (the "Letter of Credit") issued by CoreStates Bank,
N.A. (the "Bank") providing for the payment of the aggregate principal amount of
the Bonds, due and payable upon maturity, optional redemption, sinking fund
redemption or acceleration upon an event of default hereunder plus interest
calculated for a period up to forty-five (45) days at an interest rate of
seventeen percent (17%) per annum; and
WHEREAS, the Bank shall be entitled to reimbursement by the Company for all
amounts drawn under such Letter of Credit pursuant to a reimbursement and
security agreement between the Bank and the Company; and
WHEREAS, execution and delivery of this Indenture and the issuance of the Bonds
hereunder have been duly and validly authorized by resolution of the Company
duly adopted prior to such execution and delivery; and
WHEREAS, all acts and things necessary to make the Bonds, when authenticated by
the Trustee and issued as in this Indenture provided, the valid, binding and
legal obligations of the Company in accordance with their terms, and to
constitute this Indenture the valid and binding agreement for the security of
the Bonds, have been done and performed.
GRANTING CLAUSE 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 Company 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 of America, duly paid to the Company 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 thereto, 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 Company of all the covenants expressed or
implied herein and in the Bonds and the payment and performance of all other of
the Company's obligations, the Company does hereby grant, bargain, sell, convey,
pledge and assign, without recourse, unto the Trustee and unto its successors in
the trust forever, and grants to the Trustee and to its successors in the trust,
a security interest in all of the following:
All right, title and interest of the Company in and to all moneys and securities
from time to time held by the Trustee under the terms of this Indenture;
provided, however, that in consideration of the issuance by the Letter of Credit
Bank of the Letter of Credit, the Company hereby grants a security interest in
the Project Fund first, to the Trustee in order to secure payment of principal
of the Bonds issued hereunder and the premium (if any) and interest due or to
become due thereon and the purchase price thereto, and second, to the Letter of
Credit Bank in order to secure payment of the obligations of the Company under
the Reimbursement Agreement, the rights of the Letter of Credit Bank therein
being subject and subordinate to the rights of the Trustee so long as any amount
due in respect of the Bonds remains unpaid.
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 to
the Trustee and its successors in trust forever.
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 thereto, except as otherwise
provided in or pursuant to this Indenture, (b) for securing the observance and
performance of the Company'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 Letter of Credit Bank, on a basis subject and subordinate to the interest
granted to the Trustee to secure payment of principal of the Bonds and premium
(if any) and interest due or to become due thereon and the purchase price
thereof.
PROVIDED, HOWEVER, that if the Company, 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 thereto, 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 hereto, or shall provide, as permitted hereby, for payment thereto, in
accordance with Article XI hereto, 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 Company'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 hereto, 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 Letter of Credit Bank; provided, that if the
Trustee shall have received written evidence from the Letter of Credit Bank that
all obligations of the Company under the Reimbursement Agreement have been
satisfied and that the Reimbursement Agreement has been terminated, or if no
Letter of Credit 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 Letter of Credit 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
Letter of Credit Bank or the Company, as appropriate, of the Trust Estate
pursuant to the provisions of Article XI hereto, the Trustee shall have no
further duties, responsibilities or obligations under and pursuant to this
Indenture.
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 Company 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
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 Letter of Credit Bank.
"Administrative Expenses" means those expenses of 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 Letter of Credit Bank
and the Placement Agent; and (b) reasonable fees and expenses of 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, reasonable fees and
expenses of the Trustee's, the Bank's and the Placement Agent's counsel.
"Authorized Newspaper" shall mean a newspaper printed in English and customarily
published at least once a day, five days a week and generally circulated in the
County. When successive publications in an Authorized Newspaper are required,
they may be made in the same or different Authorized Newspaper
"Authorized Representative" means with respect to the Company, the President,
Vice President, Secretary, Assistant Secretary or Treasurer thereto, or any
other person designated as an Authorized Representative of the Company by a
Certificate of the Company signed by the President, Vice President, Secretary,
Assistant Secretary or Treasurer of 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 three hundred sixty-seven (367) days and
not commingled with any moneys so held for less than said three hundred sixty-
seven (367) day period and during and prior to which period, no petition in
bankruptcy was filed by or against the Company 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 Moody's 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, 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" shall have the meaning set forth in the Recitals.
"Bankruptcy Code" means the Federal Bankruptcy Code, 11 U.S.C.
ss.101 et seq., as amended and supplemented from time to time.
"Bond Documents" means any or all of 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" shall have the meaning set forth in the Recitals.
"Business Day" means a day which is not a Saturday, Sunday or legal holiday on
which banking institutions in the State of New York, the City of New York, the
City of Philadelphia, City of Harrisburg, or the Commonwealth of Pennsylvania
are authorized to remain closed or on which the New York Stock Exchange is
closed.
"Certificate," "Statement," "Request," "Requisition" and "Order" means with
respect to the Company, a written certificate, statement, request, requisition
or order signed by its Authorized Representative. 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 Company" means a copy of the resolution of the
Company duly adopted and in full force and effect as of the date of the
execution and delivery of the Bonds and the Letter of Credit.
"Clearing Fund" means the fund established by that name pursuant to Section 3.03
hereof.
"Closing Date" April 29, 1998, or such other date which shall be the date of the
execution and delivery of the Bond Documents and the issuance and delivery of
the Bonds.
"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.
"Cost" or "Costs," means any cost in respect of the Project Facilities permitted
under the Code.
"Counsel" means an attorney-at-law or law firm (who may be
counsel for the Company) not unsatisfactory to the Trustee.
"Demand Purchase Notice" means a notice delivered pursuant to paragraph (i) of
Section 5.05 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 5.05
hereof.
"Determination Date" means with respect to any Floating Rate Bonds, each
Wednesday or if such Wednesday is not a Business Day, on the next succeeding
Business Day.
"Event of Default" means any of the events specified in Section
8.01 of this Indenture.
"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 shall be 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 thereto, 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
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 of America.
"Holder," "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 Indenture, as originally executed or as it may from time
to time be supplemented, modified or amended by any Supplemental Indenture.
"Interest Payment Date" means, (i) prior to the Conversion Date, the first (1st)
Wednesday of each calendar month, or if such date is not a Business Day, the
next succeeding Business Day, commencing June 3, 1998; (ii) the Conversion Date;
and (iii) from and after the Conversion Date, May 1 and November 1 of each year,
commencing on May 1 or November 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 and then
proposed to be invested therein:
(i) Government Obligations;
(ii) bonds, debentures, notes or other evidences of indebtedness issued by any
agency or other governmental body of 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 in one of the three highest rating categories 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 acceptable to the Trustee in a special account separate
from the general assets of such custodian,
(v) obligations which are rated at the time of purchase in one of the two
highest rating categories 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 in one of the two highest rating categories by
Moody's;
(vii) any investment approved in writing by the Bank and with respect to which
the Rating Agency has provided a certificate to the effect that such investment
will not affect the rating on the Bonds;
(viii) 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 in any of the three highest rating categories 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; and provided further (1) the Trustee has possession of the
collateral, (2) the Trustee has a perfected first security interest in the
Collateral, (3) the Collateral is free and clear of any third-party liens and
(4) failure to maintain the requisite collateral percentage will require the
Trustee to liquidate the Collateral, and
(ix) money market mutual funds investing in Government Obligations or in
repurchase agreements backed by Government Obligations and rated in either of
the two highest rating categories by Standard & Poors or Moody's, including
mutual funds for which the Trustee or any of its affiliates provide investment
advisory, custodial, transfer agency, shareholder servicing or other services
and are separately and additionally compensated therefor, and
(x) any other security or obligation, provided that the Bank consents to the
investment of funds in such security or obligation and the Rating Agency
provides a certificate to the effect that the investment in such security or
obligation will not affect the rating on the Bonds.
"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 Bank pursuant to the provisions of the Reimbursement Agreement, or, in the
event of delivery of a Substitute Letter of Credit, such Substitute Letter of
Credit.
"Letter of Credit Bank" means the Bank, as issuer of the Letter of Credit and to
the extent applicable, the issuer of any Substitute Letter of Credit.
"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.
"Moody's" means Xxxxx'x Investors Service, 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 Company.
"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 Reimbursement Agreement have been paid in full. "Officers' Certificate"
means, with respect to the Company, a certificate duly executed by its
Authorized Representative, under the seal of the Company.
"Opinion of Counsel" means a written opinion of counsel (who may be counsel for
the Company) selected by the Company 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 a date on or after June 3, 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 Company 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.
"Permitted Encumbrances" means any liens or encumbrances permitted under the
Reimbursement Agreement or otherwise permitted by the Bank.
"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 CoreStates Securities, Corp.
"Pledge Agreement" means (i) the Pledge and Security Agreement dated as of April
29, 1998, by and between the Bank and the Company and any amendments or
supplements thereof; and (ii) the Pledge and Security Agreement made by the
Company to any Substitute Bank and any amendments or supplements thereto.
"Pledged Bonds" means any Bonds which shall, at the time of determination
thereof, beheld in pledge for the benefit of the Bank by the Pledged Bonds
Custodian pursuant to the Pledge Agreement.
"Pledged Bonds Custodian" means that banking corporation which
serves as the custodian for the Pledged Bonds under the terms and
conditions of the Reimbursement Agreement. The initial Pledged
Bonds Custodian shall be the Trustee.
"Prime Rate" shall mean the fluctuating interest rate per annum equal to the
rate of interest publicly announced from time to time by the Bank as its "prime
rate" or "prime lending rate" as a means of pricing some loans to its customers,
adjusted on and as of the announced effective date of any change in the Prime
Rate. The Prime Rate does not necessarily reflect the lowest rate of interest
actually charged to any particular class or category of customers or in
connection with extensions of credit.
"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
000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000.
"Project" shall have the meaning set forth in the Recitals.
"Project Facilities" shall mean the real property, improvements, equipment and
machinery purchased, financed or refinanced, in whole or in part, with the
proceeds of the Bonds.
"Project Fund" means the fund established by that name pursuant
to Section 6.05 hereof
"Purchase Date" means the date determined pursuant to Section
5.06(b)(i) hereof
"Purchase Price" means an amount equal to 100% of the principal amount of any
Bond tendered or deemed tendered pursuant to Sections 5.01, 5.04 or 5.05 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.
"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.
"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 day of the month next preceding any Interest Payment
Date.
"Reimbursement Agreement" means the Letter of Credit Reimbursement Agreement
dated as of April 29, 1998 by and between the Company and the Bank, 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 and supplements thereto.
"Remarketing Agent" means (singly or collectively, as the case may be) the
remarketing agent(s) appointed in writing by the Company and at the time serving
as such under the Remarketing Agreement.
"Remarketing Agreement" means the Remarketing Agreement, dated as of April 29,
1998, by and between the Company and CoreStates Securities, Corp and any other
similar agreements between the Company and the Remarketing Agent and any and all
modifications, alterations, amendments and supplements thereto.
"S&P" means Standard & Poor's Ratings Group, a division of the XxXxxx-Xxxx
Company, 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 designated by the Company.
"Substitute Bank" means a commercial bank, savings and loan association or
savings bank which has issued a Substitute Letter of Credit.
"Substitute Letter of Credit" means an irrevocable, direct pay letter of credit
delivered to the Trustee in accordance with Section 6.13 hereof (i) issued by
the Bank or a Substitute Bank, (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 fifteen (15) days after an Interest Payment Date for
the Bonds, (v) having a term of at least one year and (vi) if issued prior to
the Conversion Date, 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 forty-five
(45) days interest (computed at a maximum rate of seventeen percent (17%) per
annum on all Bonds at the time Outstanding).
"Supplemental Indenture" means any indenture hereafter duly authorized and
entered into between the Company and the Trustee, supplementing, modifying or
amending this Indenture, but only if and to the extent that such Supplemental
Indenture is specifically authorized hereunder.
"Tender Agent" means the Trustee and its successors and any corporation
resulting from or surviving any consolidation or merger to which it or its
successors may be a party and any successor Tender Agent at the time serving as
successor Tender Agent hereunder and under the Tender Agent Agreement. "Delivery
Office" and "Principal Office" of the Tender Agent means 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, or such other addresss as may be designated in
writing to the Company, the Trustee and the Remarketing Agent.
"Tender Agent Agreement" means the Tender Agent Agreement dated as of April 29,
1998, among the Company and the Trustee, and any amendments and supplements
thereto.
"Trust Estate" means all property rights and interests transferred, assigned, or
otherwise pledged first to the Trustee and second, to the Letter of Credit Bank
pursuant to the Granting Clauses hereof
"Trustee" means Dauphin Deposit Bank and Trust Company, and its successor and
any corporation 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.
"Unremarketed Bonds" means Bonds which have been purchased pursuant to Section
5.01, 5.04 or 5.05 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 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 Company) upon a certificate or opinion
of or representation by an officer of the Company, unless such counsel or
accountant knows 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 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.
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 Company.
The Bonds shall be comprised of one series of bonds designated as "Piercing
Pagoda, Inc., Taxable Variable Rate Demand/Fixed Rate Bonds, Series of 1998."
The aggregate principal amount of Bonds which may be issued and Outstanding
under this Indenture shall not exceed Two Million Five Hundred Sixty-Five
Thousand Dollars ($2,565,000). No additional Bonds may be issued under this
Indenture. This Indenture constitutes a continuing agreement by the Company 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.
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, (i)
such Bonds shall be Outstanding in denominations of $5,000 or any integral
multiple of $5,000 and (ii) 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 Company 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 of the Bonds shall be dated the Issue Date and shall bear interest,
payable (i) prior to the Conversion Date, on the first Wednesday of each
calendar month, or if such date is not a Business Day, the next succeeding
Business Day commencing June 3, 1998, (ii) on the Conversion Date; and (iii)
from and after the Conversion Date, on May 1 and November 1 of each year,
commencing on May 1 or November 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 Company shall default in
the payment of 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 May 1, 2013 as provided in Section 4.01(d) herein.
(c) (i) From the Issue Date to the Conversion Date, the Bonds shall bear
interest at the Floating Rate. The Floating Rate applicable to the Bonds 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.
(ii) The Remarketing Agent shall advise the Trustee of the Floating Rate
applicable to the Bonds by telephone (confirmed by telecopy to the Trustee) at
or before the close of business on each Determination Date. Upon written request
of any Bondholder, the Remarketing Agent shall notify such Bondholder of the
Floating Rate then borne by the Bonds.
(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 the Bonds shall be for (a) the first such
week that the applicable 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 for the Bonds established by the Remarketing Agent pursuant to
(c)(i) on the immediately preceding Determination Date and (b) on each
Determination Date thereafter, shall be a rate per annum equal to one hundred
twenty percent (120%) 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 Company, the Trustee, the Bank, 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 seventeen percent (17%) 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 such Fixed Rate to be 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 fifth (5th) 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 of America at
the Principal Corporate Trust Office of the Trustee. The Purchase Price of the
Bonds shall be payable in lawful money of the United States of America 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 to the Trustee
at least fifteen (15) days before a Record Date specifying the account address
(which shall be an account at a bank in the continental United States) 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 reregistration of the Bond.
The principal of the Bonds shall be payable in lawful money of the United States
of America at the Principal Corporate Trust Office of the Trustee. 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 Company with the manual or facsimile signature of its President,
under its seal and attested by the manual or facsimile signature of its
Secretary. The seal of the Company will be impressed or imprinted on the Bonds
by facsimile or otherwise. The Bonds shall then be delivered to the Trustee for
authentication by it. In case any of the officers who shall have signed or
attested any of the Bonds shall cease to be such officer or officers of the
Company before the Bonds so signed or attested shall have been authenticated or
delivered by the Trustee or issued by the Company, such Bonds may nevertheless
be authenticated, delivered and issued and, upon such authentication, delivery
and issue, shall be as binding upon the Company as though those who signed and
attested the same had continued to be such officers of the Company.
SECTION 2.04 Authentication (a) The Company 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 or
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 signed 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.
(c) In the event the Bond is deemed tendered to the Tender Agent as provided in
Section 5.01, 5.04 or 5.05 hereof but is not physically delivered to the Tender
Agent, the Company shall execute and the Trustee or the Tender Agent shall
authenticate a new Bond of like denomination as that deemed tendered.
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
substantially in the form set forth in Exhibit A attached hereto, 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 attached hereto, with appropriate variations, omissions and
insertions as permitted or required by this Indenture and applicable law.
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 Company shall
execute and the Trustee or the Tender Agent, as the case may be, shall
authenticate and deliver a new Bond or Bonds 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 Company or the Trustee in connection with such
transfer. No transfer of any Bond shall be valid unless made in accordance with
such requirements and similarly noted by endorsement of the Trustee on such Bond
or unless, at the expense of the registered owner of the Bond, the Company shall
execute, and the Trustee shall authenticate a new Bond or Bonds registered in
the name of the transferee.
The Trustee shall not be required to transfer any Bond during the period
beginning fifteen (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 Company or the Trustee in
connection with such exchange.
The Trustee shall not be required to exchange any Bond during the period
beginning fifteen (15) days before the mailing of notice of redemption calling
the Bonds or any portion of the Bond for redemption and ending on the redemption
date.
SECTION 2.08. Bond Registrar. The Trustee is hereby appointed the Bond
Registrar of the Company and the Tender Agent is hereby appointed the Co-Bond
Registrar of the Company. 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
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 or the Company 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 Company, 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
Company and be authenticated by the Trustee or Tender Agent, as the case may be,
upon the same conditions and in substantially the same manner as the definitive
Bonds. If the Company 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.
SECTION 2.10. Bond Mutilated, Lost, Destroyed or Stolen. If any Bond shall
become mutilated, the Company, 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 Company. If any Bond shall be lost, destroyed or stolen,
evidence of such loss, destruction or theft may be submitted to the Company and
the Trustee and, if such evidence be satisfactory to both and indemnity
satisfactory to them both shall be given, the Company, 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 Company 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 Company 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
Company 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 Company 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 acknowledgements 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 Company
or the Trustee in pursuance thereof.
SECTION 2.13 Book-Entry-Only System. (a) Notwithstanding the foregoing
provisions of this Article II, the Bonds shall initially be issued in the form
of one fully registered Bond for the aggregate principal amount of the Bonds of
each maturity, which Bonds shall be registered in the name of CEDE & Co., as
nominee of The Depository Trust Company ("DTC"). Except as provided in paragraph
(g) below, all of the Bonds shall be registered in the registration books kept
by the Trustee in the name of CEDE & Co., as nominee of DTC, provided that if
DTC shall request that the Bonds be registered in the name of a different
nominee, the Trustee shall exchange all or any portion of the Bonds for an equal
aggregate principal amount of Bonds registered in the name of such nominee or
nominees of DTC. No person other than DTC or its nominee shall be entitled to
receive from the Company or the Trustee either a Bond or any other evidence of
ownership of the Bonds, or any right to receive any payment in respect thereof
unless DTC or its nominee shall transfer record ownership of all or any portion
of the Bonds on the registration books maintained by the Trustee, in connection
with discontinuing the book entry system as provided in paragraph (g) below or
otherwise.
(b) So long as the Bonds or any portion thereof are registered in the name of
DTC or its nominee, the principal or redemption price of and interest on such
Bond shall be made to DTC or its nominee in same day funds on the dates provided
for such payments under this Indenture. Each such payment to DTC or its nominee
shall be valid and effective to discharge fully all liability of the Company or
the Trustee with respect to the principal or redemption price of or interest on
the Bonds to the extent of the sum or sums so paid. In the event of the
redemption of less than all of the Bonds Outstanding of any maturity, the
Trustee shall not require surrender by DTC or its nominee of the Bonds so
redeemed, but DTC (or its nominee) may retain such Bonds and make an appropriate
notation on the Bonds certificate as to the amount of such partial redemption;
provided that DTC shall deliver to the Trustee, in each case, a written
confirmation of such partial redemption and thereafter the records maintained by
the Trustee shall be conclusive as to the amount of the Bonds of such maturity
which have been redeemed.
(c) The Company and the Trustee shall treat DTC (or its nominee) as the sole and
exclusive Owner of the Bonds registered in its name for the purposes of payment
of the principal or redemption price of or interest on the Bonds, selecting the
Bonds or portions thereof to be redeemed, giving any notice permitted or
required to be given to Owners of Bonds under this Indenture, registering the
transfer of Bonds, obtaining any consent or other action to be taken by Owners
of Bonds and for all other purposes whatsoever; and neither the Company nor the
Trustee shall be affected by any notice to the contrary. Neither the Company nor
the Trustee shall have any responsibility or obligation to any participant in
DTC, any person claiming a beneficial ownership interest in the Bonds under or
through DTC or any such participant, or any other person which is not shown on
the registration books of the Trustee as being an owner of Bonds, with respect
to either (1) the Bonds; or (2) the accuracy of any records maintained by DTC or
any such participants; or (3) the payment by DTC or any such participant of any
amount in respect of the principal or redemption price of or interest on the
Bonds; or (4) any notice which is permitted or required to be given to Owners of
Bonds under this Indenture; or (5) the selection by DTC or any such participant
of any person to receive payment in the event of a partial redemption of the
Bonds; or (6) any consent given or other action taken by DTC as an Owner of
Bonds.
(d) So long as the Bonds or any portion thereof are registered in the name of
DTC or any nominee thereof, all notices required or permitted to be given to the
Owners of Bonds under this Indenture shall be given to DTC as provided in the
Letter of Representation, the form of which is attached hereto as Exhibit D.
(e) In connection with any notice or other communication to be provided to
Owners of Bonds pursuant to this Indenture by the Company or the Trustee with
respect to any consent or other action to be taken by Owners of Bonds, DTC shall
consider the date of receipt of notice requesting such consent or other action
as the Record Date for such consent or other action, provided that the Company
or the Trustee may establish a special Record Date for such consent or other
action. The Company or the Trustee shall give DTC notice of such special Record
Date not less than fifteen (15) calendar days in advance of such special Record
Date to the extent possible.
(f) At or prior to settlement for the Bonds, the Company and the Trustee shall
execute or signify their approval of the Letter of Representation in
substantially the form attached hereto as Exhibit D. Any successor Trustee
shall, in its written acceptance of its duties under this Indenture, agree to
take any actions necessary from time to time to comply with the requirements of
the Letter of Representation.
(g) The book-entry-only system for registration of the ownership of the Bonds
may be discontinued at any time if either; (1) after notice to the Company and
the Trustee, DTC determines to resign as securities depository for the Bonds, or
(2) after notice to DTC and the Trustee, the Company determines that
continuation of the system of book-entry-only transfers through DTC (or through
a successor securities depository) is not in the best interest of the Company.
In either of such events, unless the Company appoints a successor securities
depository, the Bonds shall be delivered in registered certificate form to such
persons, and in such maturities and principal amounts, as may be designated in
writing by DTC, but without any liability on the part of the Company or the
Trustee for the accuracy of such designation. Whenever DTC requests the Company
and the Trustee to do so, the Company and the Trustee shall cooperate with DTC
in taking appropriate action after reasonable written notice to arrange for
another securities depository to maintain custody of certificates evidencing the
Bonds.
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 Company may execute and the Trustee or the Tender Agent, as the
case may be, shall authenticate and, upon request of the Company, deliver the
Bonds in the aggregate principal amount of Two Million Five Hundred Sixty-Five
Thousand Dollars ($2,565,000).
SECTION 3.02. Validity of Bonds. The recital contained in the Bonds that the
same are issued pursuant to 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
Company shall deposit or cause to be deposited with the Trustee, immediately
upon receipt thereof, all proceeds derived from the sale of the Bonds. The
Trustee shall deposit all such amounts in a special fund which the Trustee is
hereby directed to establish, to be known as the Clearing Fund, and in the
following order, the Trustee shall:
(a) Transfer to the Company, upon receipt of a duly executed requisition in the
form attached hereto as Exhibit C, funds sufficient to reimburse the Company for
costs of the Project incurred and paid prior to the Closing Date;
(b) Transfer to the Persons identified on the Closing Statement delivered to the
Trustee on the Closing Date to pay or reserve for payment any and all costs of
issuance incurred in connection with the Bonds; and
(c) Transfer to the credit of the Project Fund the balance of the Clearing Fund
not otherwise reserved for payment of the items described in Subsection 3.03(a)
and (b) above.
ARTICLE IV
REDEMPTION AND PURCHASE OF BONDS BEFORE MATURITY
SECTION 4.01. (a) Extraordinary Redemption. The Bonds are callable for
redemption in the event the Project Facilities or any portion thereof is damaged
or destroyed or taken in a condemnation proceeding as provided in Article XII
hereof. If called for redemption at any time pursuant to this Section 4.01(a),
the Bonds shall be subject to redemption by the Company on any Interest Payment
Date, in whole or in part, at a redemption price equal to 100% of the principal
amount thereof being redeemed, plus accrued interest to the redemption date,
from the proceeds of any casualty insurance coverage or condemnation award
resulting from the damage or destruction of the Project Facilities or any
portion thereof if the Company in its discretion so elects.
(b) The Bonds will be redeemable in whole on any Interest Payment Date at 100%
of the principal amount thereof plus accrued interest to the redemption date
upon the exercise by the Company of its option to cause the Bonds to be redeemed
if any of the following events shall have occurred:
(1) the Project Facilities or any portion thereof shall have been damaged or
destroyed (A) to such extent that it cannot in the Company's judgment be
reasonably restored within a period of six (6) months to the condition thereof
immediately preceding such damage or destruction or (B) to such extent that the
Company is thereby prevented, in its judgment, from carrying on the normal
operations at the Project Facilities for a period of six (6) months or more;
(2) title to, or the temporary use for a period of six (6) months or more of,
all or substantially all of the Project Facilities, or such part thereof as
shall materially interfere, in the Company's reasonable judgment, with the
operation of the Project Facilities for the purpose for which the operation of
the Project Facilities are designed, shall have been taken under the exercise of
the power of eminent domain by any governmental body or by any person, firm or
corporation acting under governmental authority (including such a taking or
takings as results in the Company being thereby prevented from carrying on its
normal operations at the Project Facilities for a period of six (6) months or
more);
(3) changes which the Company cannot reasonably control or overcome in the
economic availability of materials, supplies, labor, equipment and other
properties and things necessary for the efficient operation of the Project
Facilities for the purpose contemplated shall have occurred, or technological or
other changes shall have occurred which in the judgment of the Company render
the continued operation of the Project Facilities uneconomical for such
purposes; or
(4) as a result of any changes in the Constitution of the Commonwealth of
Pennsylvania or the Constitution of the United States of America or of
legislative or administrative action (whether state or federal) or by final
decree, judgment or order of any court or administrative body (whether state or
federal) entered after the contest thereof by the Company in good faith,
unreasonable burdens or excessive liabilities shall have been imposed on the
Company in respect to the Project Facilities, including, without limitation,
federal, state or other ad valorem, property, income or other taxes not being
imposed on the date of the Indenture.
(c) Mandatory Redemption. The Bonds are subject to mandatory
redemption:
(i) fifteen (15) 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.
(ii) on any Interest Payment Date, in whole or in part, 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 any proceeds of the
sale of the Bonds remain on deposit in the Project Fund established hereunder
upon completion of the Project, as set forth in Section 6.08 hereof.
(d) Mandatory Sinking Fund Redemption. The Bonds are subject to mandatory
redemption on the Interest Payment Date occurring in the month of May in each of
the years set forth below commencing on the Interest Payment Date occurring on
June 3 of 1998 (each, a "Mandatory Sinking Account Payment Date"), at a
redemption price equal to 100% of the principal amount thereof plus accrued
interest as follows:
BONDS
Mandatory Sinking
Year Account Payments
1999 $125,000.00
2000 $120,000.00
2001 $125,000.00
2002 $130,000.00
2003 $140,000.00
2004 $150,000.00
2005 $155,000.00
2006 $165,000.00
2007 $175,000.00
2008 $185,000.00
2009 $195,000.00
2010 $205,000.00
2011 $220,000.00
2012 $230,000.00
*2013 $245,000.00
*Final maturity
SECTION 4.02. Optional Redemption. On or prior to the Conversion Date, the Bonds
are subject to redemption by 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.
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 at least (i) ten (10) days
prior to the date fixed for mandatory redemption pursuant to Section 4.01(c)(i)
hereof, and (ii) thirty (30) days but not more than sixty (60) days prior to the
date fixed for redemption in all other instances 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, in the case of any extraordinary or optional redemption, 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 Bank, the Company
and to the Remarketing Agent.
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 thereof.
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 at random or in such other manner as the Trustee in its
discretion shall deem fair and appropriate.
(b) Upon surrender of any Bond for redemption in part only, the Company 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 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.
(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 Bonds. If the aggregate principal amount of
Pledged Bonds at the time of selection is less than the amount available for the
partial redemption of the Bonds, 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. Notwithstanding
any provision to the contrary contained in this Indenture, the payment of the
redemption price of bonds shall be made only from funds described in clause (i)
of the definition of 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.
ARTICLE V
CONVERSION OF INTEREST RATE; DEMAND PURCHASE OPTION
SECTION 5.01.Conversion of Interest Rate on Conversion Date; Mandatory Tender of
Bonds. (a) 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 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, 2 and 6 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) a commitment from
the Bank or a Substitute Bank to issue a Substitute Letter of Credit to take
effect on the Conversion Date, together with a form of such Substitute Letter of
Credit, and (ii) a certificate from Company to the effect that each of the
Company's representations and warranties made in any 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:
1. The Conversion Date.
2. The method of computation of the Fixed Rate which will take effect on the
Conversion Date.
3. That from and after the Conversion Date the Demand Purchase Option will no
longer be available to Owners of Bonds.
4. That the existing Letter of Credit will expire two (2) Business Days after
the Conversion Date and that the Bonds are to be secured by a Substitute Letter
of Credit after the Conversion Date, and stating the identity of the issuer of
such Substitute Letter of Credit.
5. 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.
6. That in the event the Company elects not to rescind the optional conversion
of the Bonds, although firm commitments have not been received for the purchase
of all Outstanding Bonds, all Bonds which have not been remarketed on or prior
to the Conversion Date shall be subject to mandatory tender on the Conversion
Date pursuant to this Section 5.01.
7. That from and after the Conversion Date, the rating then in effect on the
Bonds may be reduced or may no longer be maintained.
(b) 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 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 OPTIONAL CONVERSION DATE) OTHER THAN THE PURCHASE PRICE FOR
SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO
THE BENEFITS OF THIS INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE
PURCHASE PRICE THEREFOR.
(c) 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 notify immediately
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 applicable to such Bonds until
any subsequent Conversion Date effected in accordance with this indenture.
(d) 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.
(e) The Bonds are subject to mandatory tender 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 the Fixed Rate
shall be redeemed or otherwise paid by the Company on or before the Conversion
Date; and (ii) no such mandatory tender shall take place in the event the
Company exercises its right to rescind the conversion.
SECTION 5.02. Delivery of Bonds After Conversion Date. Upon 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 Company and signed by an Authorized Representative of the
Company to authenticate and deliver the Bonds, as executed by the Company, 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. Condition to Conversion. As a condition to the giving of notice as
provided in Section 5.01 above, the Company shall provide the Trustee (a) a
commitment from the Bank or a Substitute Bank to issue a Substitute Letter of
Credit to take effect on the Conversion Date, together with a form of such
Substitute Letter of Credit; and (b) a certificate to the effect that each of
the representations and warranties made by the Company herein remain true and
correct in all material respects as of the proposed Conversion Date.
SECTION 5.04. Mandatory Tender Upon Provision of Substitute Letter of Credit by
Substitute Bank. The Bonds are subject to mandatory tender in whole at least two
business days prior to the effective date (the "Tender Date") of any Substitute
Letter of Credit provided by a Substitute Bank, at a purchase price equal to
100% of the principal amount thereof, plus accrued interest to the purchase
date. The Company shall notify the Trustee, the Tender Agent, the Bank and the
Remarketing Agent at least thirty-five (35) days prior to the Tender Date, 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 Tender
Date to the Owner of each Bond at the address shown on the registration books of
the Bond Registrar. Such notice shall state the Tender Date and that the Bonds
are subject to mandatory tender on such date. IN THE EVENT OF A FAILURE BY AN
OWNER OF BONDS TO DELIVER ITS BONDS IN RESPONSE TO SUCH NOTICE OF A MANDATORY
TENDER, SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING INTEREST TO
ACCRUE ON OR SUBSEQUENT TO THE TENDER DATE IN THE APPLICABLE NOTICE) OTHER THAN
THE PURCHASE PRICE FOR SUCH UNDELIVERED BONDS, AND ANY UNDELIVERED BONDS SHALL
NO LONGER BE ENTITLED TO THE BENEFITS OF THE INDENTURE, EXCEPT FOR THE PAYMENT
OF THE PURCHASE PRICE THEREFOR. 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.
SECTION 5.05. 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 Office and Delivery Office, respectively, and to the Remarketing Agent
at its Principal Office, 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 non-recourse
due-xxxx, 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.
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
paragraph (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 5.05 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 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 BENEFITS OF THE INDENTURE, EXCEPT FOR THE PAYMENT OF THE
PURCHASE PRICE THEREFOR.
Notwithstanding the foregoing provisions, in the event any Bonds 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 paragraph (iii) above, although such
Bonds 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 applicable to such Bond
as provided in Section 2.02(c) hereof.
SECTION 5.06. Funds for Purchase of Bonds. (a) On the date Bonds are to be
purchased pursuant to Sections 5.01, 5.04 or 5.05 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, and
(ii) any other 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, 5.04 or 5.05
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 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.
(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 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 transfer to the Bank an amount of the proceeds of the
remarketing of the Bonds equal to the amount of the Remarketed Bonds on such
Purchase Date and shall give telephonic notice (promptly confirmed by telecopy)
to the Tender Agent of the amount of such proceeds transferred to the Bank.
(v) The 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 5.06(b)(iv) hereof.
SECTION 5.07. 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 Reimbursement Agreement.
(c) Unremarketed Bonds purchased with moneys described in Section 5.06(a)(ii)
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 5.05 hereof.
Bonds delivered as provided in this Section shall be registered in the manner
directed by the recipient thereof.
SECTION 5.08. 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. In no
event shall the Bonds be remarketed to the Company or any affiliates of the
Company.
(b) Notwithstanding anything to the contrary herein, 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.
SECTION 5.09. 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 Section 5.01, 5.04
or 5.05 hereof, to the extent not required to reimburse the Bank under the
Reimbursement Agreement or to pay the Purchase Price to the tendering
Bondholder, shall be paid to or upon the order of the Trustee.
(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 Bond Custodian to deliver such Pledged Bonds to the Tender Agent
pursuant to the Reimbursement Agreement, such Bonds shall be delivered to the
Tender Agent and the proceeds of sale of such Bonds shall be delivered to the
Principal Corporate Trust Office of the Tender Agent and shall be paid to or
upon the order of the Bank; provided that any amounts so paid in excess of
amounts then due to 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
Reimbursement Agreement and the Letter of Credit.
SECTION 5.10. 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, 5.04 or 5.05 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
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 deliver all such
Unremarketed Bonds, the funds for the purchase of which shall have been obtained
by a drawing under the Letter of Credit, to the Pledged Bonds Custodian pursuant
to Section 5.07(b) hereof for the purpose of perfecting the Bank's security
interest therein under the Reimbursement 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 5.07 hereof.
(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 Bond 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 5.05 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 5.05, 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 5.06 and 6.12 hereof to
provide for timely payment of the Purchase Price of Bonds.
SECTION 5.11. No Purchases or Sales After Certain Defaults. Anything in this
Indenture to the contrary notwithstanding, there shall be no purchases (in the
case of (i), below) or sales (in the case of (ii), below) of Bonds pursuant to
Section 5.05 (i) 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 or (ii) if the Trustee shall have given notice of a call
for redemption pursuant to Section 4.03 hereof and such notice shall not have
been rescinded. 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." Upon receipt of
moneys pursuant to Section 6.02 hereof, the Trustee shall deposit such moneys
into the Bond Fund, which amounts shall be used to pay when due the principal
and 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) any amount in the Project Fund directed to be paid into the
Bond Fund in accordance with the provisions of Section 6.07
hereof,
(b) any amount deposited into the Bond Fund pursuant to Section
6.04 hereof,
(c) any moneys drawn under the Letter of Credit to be used for the payment of
redemption price and principal of, premium, if any, and interest on the Bonds,
which moneys shall be deposited in a separate subaccount of the Bond Fund and
shall not be commingled with any other moneys held by the Trustee, and
(d) any moneys drawn under the Letter of Credit which moneys shall be deposited
in a separate subaccount of the Bond Fund and shall not be commingled with any
other moneys held by the Trustees, and
(e) amounts, if any, held by the Trustee pursuant to Section 5.10 hereof.
SECTION 6.03. Use of Moneys in the Bond Fund. Except as provided in Section
5.06, 5.10 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 (and in connection
with all such draws the Trustee shall prepare and present to the 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 payment date),
(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 XII hereof. 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 subaccount of
the Bond Fund, and the Company shall take and cause to be taken any action
necessary to redeem on the earliest possible redemption date the amount of Bonds
so specified.
SECTION 6.05. Project Fund. There is hereby created and established with the
Trustee a trust fund to be designated "Project Fund," which shall be expended in
accordance with the provisions hereof.
SECTION 6.06. Payments into the Project Fund; Disbursements. The Project Fund
shall initially consist of those monies deposited therein pursuant to Section
3.03(c) hereof. Proceeds of the Bonds deposited in the Project Fund shall be
applied to pay a portion of the costs of the Project. The Trustee is hereby
authorized and directed to make disbursements from the Project Fund upon the
receipt of a requisition in the form of Exhibit C hereto signed by the Company
and approved by the Bank. The Trustee shall keep and maintain adequate records
pertaining to the Project Fund and all disbursements therefrom, and the Trustee
shall, upon request of the Company, furnish statements in the form customarily
prepared by the Trustee. The Trustee shall hold all moneys and investments from
time to time on deposit in the Project Fund for the Owners and for the Bank, the
rights of the Bank being subject and subordinate to the rights of the Trustee so
long as any amount due in respect of the Bonds remains unpaid.
SECTION 6.07. Use of Money in the Project Fund Upon Default. If the principal of
the Bonds shall have become due and payable pursuant to Article VIII hereof, any
balance remaining in the Project Fund shall without further authorization (i)
prior to the Obligation Termination Date, if any amounts are due and owing under
the Reimbursement Agreement, be transferred immediately to the Bank, as long as
the Bank is not in default of its obligations under the Letter of Credit, or
(ii) after the Obligation Termination Date, be transferred into the Bond Fund.
SECTION 6.08. Use of Money in the Project Fund Upon Completion of the Project.
The completion of the Project and payment or provision for payment of all Costs
of the Project shall be evidenced by the filing with the Trustee of an Officers'
Certificate requesting, as soon as practicable and in any event not more than
sixty (60) days from the date of receipt by the Trustee of the certificate
referred to in the preceding sentence, that any balance remaining in the Project
Fund (except amounts the Company shall have directed the Trustee to retain for
any Cost of the Project not then due and payable) shall, without further
authorization be transferred into a separate subaccount within the Bond Fund.
Thereafter, the Trustee shall cause a mandatory redemption of the Bonds in
accordance with the terms of Section 4.01(c)(2) hereof in an amount such that
the funds transferred to the Bond Fund pursuant to this Section 6.08 will be
sufficient to reimburse the Letter of Credit Bank for the redemption price of
the Bonds. On the date fixed for redemption, the Trustee (i) shall draw on the
Letter of Credit in an amount sufficient to pay the full redemption price of the
Bonds from the sources and in the order provided in Section 6.03 hereof and (ii)
transfer to the Letter of Credit Bank funds from the separate subaccount within
the Bond Fund created pursuant to this Section 6.08 to reimburse the Bank for
such drawing. If there are any excess funds remaining in the Bond Fund after
such mandatory redemption (except amounts that the Company shall have directed
the Trustee to retain for any cost of a project not then due and payable), such
funds shall be transferred by the Trustee on the next Interest Payment Date to
the Letter of Credit Bank to reimburse the Letter of Credit Bank for a drawing
affected pursuant to Section 6.12 hereof.
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
Company 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 an Authorized Representative of the Company, and thereafter Owners
of Bonds shall be entitled to look only to the Company for payment, and then 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 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. Repayment to the Bank and the Company from the Bond Fund or the
Project Fund. Any amounts remaining in the Bond Purchase Fund, the Bond Fund,
the Project Fund or any other fund or account created hereunder after payment in
full of the principal of, premium, if any, and interest on the Bonds, the fees,
charges and expenses of the Trustee and all other amounts required to be paid
hereunder, shall be paid as soon as possible to the Bank unless the Bank
notifies the Trustee to the contrary, in writing, in which case such amounts
shall be paid directly to Company.
SECTION 6.12. Letter of Credit. (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) to pay when due (whether by reason of maturity, redemption,
conversion, acceleration or otherwise) the principal of, and interest and, to
the extent the Letter of Credit covers same, any premium on the Bonds, and (ii)
to pay when due the Purchase Price of the Bonds.
(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 are Pledged Bonds or Borrower 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 or Borrower 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; provided,
however, that the Trustee shall not surrender the Letter of Credit to the Bank
until the third Business Day following the effective date of any Substitute
Letter of Credit or, in the event the Trustee shall not have received a
Substitute Letter of Credit which will be effective on or before the Letter of
Credit Termination Date, until the Bank has honored all draws under such
terminated Letter of Credit made in accordance with the terms thereof.
SECTION 6.13. Substitute Letter of Credit. The Company, upon at least
thirty-five (35) days prior written notice to the Trustee, the Tender Agent and
the Remarketing Agent may, at any time, at its option, provide for the delivery
on any Business Day to the Trustee of a Substitute Letter of Credit. Any
Substitute Letter of Credit shall have administrative terms and provisions
reasonably acceptable to the Trustee and shall be delivered to the Trustee not
later than the thirtieth (30th) Business Day prior to expiration of the Letter
of Credit it is being issued to replace. On or before the date of the delivery
of any Substitute Letter of Credit to the Trustee, as a condition to the
acceptance of any Substitute Letter of Credit by the Trustee, the Company shall
furnish to the Trustee and the Remarketing Agent: (a) written evidence that the
issuer of the Substitute Letter of Credit is a commercial bank organized and
doing business in the United States or a branch or agency of a foreign
commercial bank located and doing business in the United States and subject to
regulation by state or federal banking regulatory authorities; (b) an opinion of
Bond Counsel stating that delivery of such Substitute Letter of Credit is
authorized under the Indenture and complies with the terms thereof; (c) an
opinion of counsel satisfactory to the Trustee, the Company and the Remarketing
Agent to the effect that (i) the Substitute Letter of Credit is a legal, valid
and binding obligation of the issuer (or, in the case of a branch or agency of a
foreign commercial bank, the branch or agency) issuing the same, enforceable in
accordance with its terms, (ii) payments of principal or redemption price,
premium, if any (if such Substitute Letter of Credit secures the payment of
premium), or Purchase Price of and interest on the Bonds from the proceeds of a
drawing on the Substitute Letter of Credit will not constitute avoidable
preferences under the Bankruptcy Code or other applicable laws and regulations,
and (iii) it is not necessary to register the Substitute Letter of Credit under
the Securities Act of 1933, as amended, or to qualify an indenture with respect
thereto under the Trust Indenture Act of 1939, as amended. An additional opinion
of counsel, satisfactory to the Trustee, the Company and the Remarketing Agent,
shall be required regarding the legality, validity and binding effect of a
Substitute Letter of Credit issued by a branch or agency of a foreign commercial
bank. The Trustee shall accept any such Substitute Letter of Credit only in
accordance with its terms and upon the satisfaction of the foregoing conditions
and other provisions contained in the Indenture.
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 shall be 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. Absent written
investment directions from the Company, the Trustee shall invest available fund
balances in investments described in subparagraph (ix) of the definition of
Investment Securities.
To the extent the Bank has not been reimbursed under the Reimbursement 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 Bank in the amount 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.
The Trustee may act as principal or agent in the making or disposing of any
investment. The Trustee may sell at the best price obtainable, 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 Company 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.
SECTION 7.02. Extension of Payment of Bonds. The Company 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 Company 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 Company 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 will
assist the Trustee in contesting any such pledge, lien, charge or other
encumbrance which may be created.
SECTION 7.04. Power to Issue Bonds and Make Pledge and Assignment. The Company
represents and covenants that it is duly authorized pursuant to law to issue the
Bonds and to enter into this Indenture. The Bonds and the provisions of this
Indenture are and will be the legal, valid and binding obligations of the
Company in accordance with their terms, and the Company and Trustee shall at all
times, to the extent permitted by law, defend, preserve and protect all the
rights of the Bondholders under this Indenture against all claims and demands of
all Persons whomsoever.
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 and all funds established pursuant to this Indenture. Such books of record
and account shall be available for inspection by 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 thirty (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 any moneys (including
proceeds of Bonds) in any of the funds and accounts established pursuant to this
Indenture for such month.
SECTION 7.06. Waiver of Laws. The Company shall not at any time insist upon or
plead in any manner whatsoever, or claim or take the benefit or advantage of,
any stay or extension provided by law now or at any time hereafter in force that
may affect the covenants and agreements contained in this Indenture or in the
Bonds, and all benefit or advantage of any such law or laws is hereby expressly
waived by the Company to the extent permitted by law.
SECTION 7.07. Further Assurances. The Company 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 Company 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 Company by the Trustee, or to the Company and the
Trustee by the Holders of not less than twenty-five percent (25%) in aggregate
principal amount of the Bonds at the time Outstanding; provided, however, that
if such observance requires work to be done, actions to be taken or conditions
to be remedied, which by their nature cannot reasonably be done, taken or
remedied, as the case may be, within such sixty (60) day period, no Event of
Default shall be deemed to have occurred or to exist if, and so long as, the
Company shall commence such performance within such sixty (60) day period and
shall diligently and continuously proceed to completion; or
(e) if the Company makes an assignment for the benefit of creditors or a
composition agreement with all or a material part of its creditors, or a
trustee, receiver, executor, conservator, liquidator, sequestrator or other
judicial representative, similar or dissimilar, is appointed for the Company or
any of its assets or revenues, or there is commenced any proceeding in
liquidation, bankruptcy, reorganization, arrangement of debts, debtor
rehabilitation, creditor adjustment or insolvency, local, state or federal, by
or against the Company; or
(f) the Trustee's receipt of written notice from the Bank of declaration by the
Bank of an Event of Default under the provisions of the Reimbursement Agreement;
or
(g) if, at any time after a draw under the Letter of Credit, the Trustee shall
have received written 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.
Upon actual knowledge of the existence of any Event of Default, the Trustee
shall as soon as practicable notify the Bank, the Company, 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 be deemed to have occurred 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 under (d) or (e) without the prior written consent of the Bank, 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 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 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
hereinafter defined) shall thereupon become payable on the first (1st) 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) hereof, the Trustee shall, by
written notice to the Bank, and the Company declare immediately due and payable
the principal amount of 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 Company, the Bank 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.
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 Company, (ii) shall identify the
accelerated Bonds (by name, date of issue, interest rate and maturity date);
(iii) shall specify the Acceleration Date; (iv) 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 numbers either as printed on the Bonds or
as contained in any notice of acceleration and that reliance may be placed only
on the bond numbers printed on the Bonds.
Upon acceleration pursuant to this Section 8.02, the Trustee shall immediately
draw upon the Letter of Credit as provided in Section 6.12 hereof in an amount
that 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 Bank under the preceding
paragraphs of this Section 8.02 (or after receipt by the Trustee of any amounts
from the 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 any security held for the payment of the Bonds and upon payment of any
fees and expenses due and payable to the Trustee pursuant to 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 Trustee under
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 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 VII, 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.
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 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 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 Company to
carry out any 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 Company 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 Company, the Trustee, the Bondholders
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 by Trustee. 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,
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 and as long as the Bank shall not be in default under the Letter of
Credit.
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 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 Bank shall be in default of its obligations under the Letter of Credit;
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 Company 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 this 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.
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 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 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
interest over any other installment of interest;
(c) To the payment of any unreimbursed drawing under the Letter of Credit or
other obligations owing by the Company to the Bank under the Reimbursement
Agreement; and
(d) The surplus if any remaining after the application of the money as set forth
above 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. Remedies Not Exclusive. 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. Subrogation Rights of Bank. The Trustee agrees that the Bank or
other provider of a Substitute Letter of Credit shall be subrogated to all
rights, remedies and collateral of the Trustee under this Indenture or any other
document or instrument, to the extent the Bank or other provider of a Substitute
Letter of Credit has honored a draw under the Letter of Credit or Substitute
Letter of Credit, as the case may be, and has not been reimbursed or paid
therefor.
SECTION 8.13. Waiver of Default. As long as the 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.
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), 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) Any Trustee hereunder may be removed at any time by an instrument appointing
a successor to the Trustee so removed, executed by the Holders of a majority in
principal amount of the Bonds then Outstanding or the Bank (provided that the
Bank is not in default under the Letter of Credit) and filed with the Trustee,
and the Company. Such removal shall take effect only upon the appointment of a
successor trustee.
(c) The Trustee may at any time resign by giving written notice of such
resignation to 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 Bond Registrar. Upon receiving such notice of resignation, the
Company shall promptly notify the Bank, and the Company shall promptly appoint 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. 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. Any successor Trustee
appointed under this Indenture, shall signify its acceptance of such appointment
by executing and delivering to the Company 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 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 Company 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 and obligations. Upon acceptance of appointment
by a successor Trustee as provided in this subsection, such successor Trustee at
its expense shall mail a notice of its succession to the trusts hereunder to
Moody's and to the Bondholders at the addresses shown on the registration books
maintained by the Bond Registrar.
(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, 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 by
Moody's or have 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
authority 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. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this subsection (e), the Trustee
shall resign immediately in the manner and with the effect specified in this
Section.
SECTION 9.O1A. Compensation and Indemnity. The Company shall pay to the Trustee
from time to time, and the Trustee shall be entitled to, compensation for its
services as set forth in the Trustee's letter to the Placement Agent dated
January 16, 1998. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred or made
by it, including costs of collection, costs of preparing and reviewing reports,
certificates and other documents, costs of preparation and mailing of notices to
Holders and reasonable costs of counsel retained by the Trustee in addition to
the compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Trustee's agents,
counsel, accountants and experts. The Company shall indemnify and hold harmless
the Trustee against any and all losses, liability or expense (including
reasonable attorneys' fees) incurred by it in connection with the administration
of this trust and the performance of its duties hereunder, including the costs
and expenses of enforcing this Indenture (including this Section 9.O1A) and of
defending itself against any claims (whether asserted by any Holder, the Company
or otherwise). The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Trustee may have separate counsel and the Company shall
pay the fees and expenses of such counsel. The Company need not reimburse any
expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own willful misconduct or gross negligence.
To secure the Company's payment obligations in this Section 9.01A, the Trustee
shall have a lien prior to the Bonds on all money or property held or collected
by the Trustee other than money or property held in trust to pay principal of
and interest on particular Bonds in accordance with Section 8.10 and proceeds of
drawings on the Letter of Credit. The Trustee's right to receive payment of any
amounts due under this Section 9.01A shall not be subordinate to any other
liability or indebtedness of the Company.
The Company's payment obligations pursuant to this Section 9.O1A shall survive
the discharge of this Indenture. When the Trustee incurs expenses after the
occurrence of a Default specified in Section 8.01(e) with respect to the
Company, the expenses are intended to constitute expenses of administration
under any bankruptcy law.
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 Company, 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 its 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.
(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 Bank or
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 or the Bank pursuant to the provisions of
this Indenture unless such Bondholders or the Bank 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 Company, 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.
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
Company, 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 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 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, all as
provided in its bid submitted to the Remarketing Agent and the Company to
provide services under this Indenture.
SECTION 9.07. The Tender Agent. Dauphin Deposit Bank and Trust Company, 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 Bond 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 Bond Custodian pursuant to Section
5.07(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 5.07(b)); and
(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. Qualification of Tender Agent. (a) The Tender Agent shall be a
bank or trust company duly organized under the laws of the United States of
America or any state or territory thereof, having a combined capital stock,
surplus and undivided profits of at least One Hundred Million Dollars
($100,000,000) 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 notice to the Company,
the Trustee, the Remarketing Agent and the Bank; provided that such resignation
or removal shall not take effect until the appointment of a successor Tender
Agent, and in accordance with the provisions hereof. Upon the written approval
of the Bank, the Tender Agent may be removed at any time by the Company upon
written notice to 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.
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 of 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 notice to 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. If the Bonds are rated by a Rating
Agency, any successor Remarketing Agent shall be rated at least Baa3/P-3 or
otherwise be acceptable to such Rating Agency.
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. This Indenture and the rights and
obligations of the Company, 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 hereto, which the Company and the
Trustee may enter into without the consent of any Bondholders but with the prior
written consent of the Bank (as long as the Bank is not in default under the
Letter of Credit). The foregoing to the contrary notwithstanding, no such
modification or amendment shall, without the consent of the holders of all Bonds
then Outstanding, (a) extend the maturity date of any Bond, (b) reduce the
amount of principal thereof, (c) 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, (d)
extend the due date for the purchase of Bonds tendered by the Holders thereof,
or (e) 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 Company and the
Trustee of any Supplemental Indenture pursuant to this Section 10.01, 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 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 Company, 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. SECTION 10.03. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel. The Trustee is authorized to join with the
Company 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 Company 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 Company in
any of the following ways, provided that the Company also pays or causes to be
paid any other sums payable hereunder by the Company:
(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 the 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 Company shall 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
Company, then and in that case, at the election of the Company (evidenced by a
Certificate of the Company filed with the Trustee, signifying the intention of
the Company to discharge all such indebtedness and this Indenture), and
notwithstanding that any Bonds shall not have been surrendered for payment, this
Indenture and the pledge of Revenues and other assets made under this Indenture
and all covenants, agreements and other obligations of the Company under this
Indenture shall cease, terminate, become void and be completely discharged and
satisfied. In such event, upon Request of the Company, the Trustee shall cause
an accounting for such period or periods as may be requested by the Company to
be prepared and filed with the Company and shall execute and deliver to the
Company all such instruments, as prepared by or caused to be prepared by the
Company, 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 or (iii) the
payment of amounts owed to the Bank by the Company under the Reimbursement
Agreement, to the Company.
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 provision satisfactory to the Trustee shall have been
made for the giving of such notice, then all liability of the Company 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 below.
The Company may at any time surrender to the Trustee for cancellation by it any
Bonds previously issued and delivered, which the Company 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 Investment Securities described in clauses
(i) or (ii) of the definition thereof in Section 1.01 hereof, which Investment
Securities 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 Company) to apply such money to the payment of such principal
and interest with respect to such Bonds.
Whenever Investment Securities are deposited with the Trustee in accordance with
this Section 11.03, the Company shall provide to the Trustee and the Rating
Agency (a) a verification report from an Accountant, satisfactory in form and
content to the Trustee, demonstrating that the Investment Securities so
deposited and the income thereon 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,
premium, if any, and interest become due and (b) 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.
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 (5) 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 (5) 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 Bank and the Company of the moneys held for the
payment thereof.
ARTICLE XII
INSURANCE; DESTRUCTION, DAMAGE, EMINENT DOMAIN
SECTION 12.01. Insurance to be Maintained. The Company covenants to provide and
maintain continuously, unless otherwise herein provided, adequate insurance on
the Project Facilities as shall be mutually agreed upon by the Bank and the
Company. Each insurance policy with respect to the Project Facilities shall name
the Bank and the Trustee as additional insureds.
SECTION 12.02. Destruction, Damage and Eminent Domain. If the Project Facilities
shall be wholly or partially destroyed or damaged by fire or other casualty
covered by insurance, or shall be wholly or partially condemned, taken or
injured by any Person, including any Person possessing the right to exercise the
power of or a power in the nature of eminent domain or shall be transferred to
such a Person by way of a conveyance in lieu of the exercise of such a power by
such a Person, the Company covenants that it will take all actions and will do
all things which may be necessary to enable recovery to be made upon such
policies of insurance or on account of such taking, condemnation, conveyance,
damage or injury. The Company is authorized, in its own name, as trustee of an
express trust, to demand, collect, xxx, settle claims, receive and release
moneys which may be due and payable under policies of insurance covering such
damage or destruction or on account of such condemnation, damage or injury. Any
moneys recovered (i) on policies of insurance required to be maintained
hereunder or (ii) as a result of any taking, condemnation, conveyance, damage or
injury shall be deposited in the Project Fund held by the Trustee under this
Indenture and shall be applied in accordance with the provisions of Section
12.04 hereof, provided, however, that as long as the Bank is not in default
under the terms of the Letter of Credit, the applicable provisions of the
Reimbursement Agreement shall control the disposition of casualty insurance and
condemnation award proceeds.
Any appraisement or adjustment of loss or damage and any settlement or payment
therefore, shall be agreed upon by the Company, the Bank (as long as the Bank in
not in default under the Letter of Credit) and the appropriate insurer or
condemnor or Person, shall be evidenced to the Bank by the certificate and
approvals set forth in this Indenture. The Bank may rely conclusively upon such
certificates.
SECTION 12.03. Notice of Property Loss. After the occurrence of loss or damage
to, or after receipt of notice of condemnation of, the Project Facilities, the
Company shall within five (5) Business Days thereof notify the Trustee and the
Bank, in writing, of such damage.
SECTION 12.04. Disposition of Casualty Insurance and Condemnation
Award Proceeds.
(a) If the Bank is in default under the terms of the Letter of Credit, the
Company may elect, in its discretion, whether to apply the proceeds of any
casualty insurance coverage and/or condemnation awards to (i) the repair,
reconstruction or replacement of damaged, destroyed or injured property
comprising the Project Facilities or (ii) the redemption of Bonds pursuant to
the applicable provisions of this Indenture. Absent timely direction from the
Company as to the application of any casualty insurance coverage and/or
condemnation awards, the proceeds thereof shall be applied to the extraordinary
redemption of the Bonds at par plus accrued interest through the date of
redemption. For purposes of the preceding sentence, "timely direction" shall
mean thirty (30) days after the Company has agreed, in connection with any
damage to or condemnation of the Project Facilities, upon the settlement or
payment with respect to any appraisement or adjustment of loss or damage, as
appropriate.
(b) If the Bank is not in default under the terms of the Letter of Credit, the
proceeds of any casualty insurance coverage and/or condemnation awards shall be
applied in accordance with Section 7(f) of the Reimbursement Agreement.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.01. Successor is Deemed Included in All References to Predecessor.
Whenever in this Indenture either the Company 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 Company or the Trustee shall bind and inure to the benefit of
the respective successors and assigns thereof whether so expressed or not.
SECTION 13.02. 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 Company, the Trustee,
the Bank, 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
Company, the Trustee, the Bank, and the Holders of the Bonds.
SECTION 13.03. 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 13.04. 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 several 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 and never
been contained herein. The Company 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 13.05. Notices. All notices to Bondholders shall be given by certified
or registered mail, commercial overnight delivery services, 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 Holders 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, the Trustees agent, the Company, the Remarketing Agent, the
Placement Agent, the Tender Agent 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 follows:
To the Trustee:
Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
To the Company:
Piercing Pagoda, Inc.
0000 Xxxxx Xxxxx
X.X. Xxx 00000
Xxxxxx Xxxxxx, XX 00000-0000
(or such other address as may have been filed in writing by the
Company with the Trustee),
To the Remarketing Agent:
CoreStates Securities, Corp
000 Xxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
(or such other address as may have been filed in writing by the
Remarketing Agent with the Trustee),
To the Placement Agent:
CoreStates Securities, Corp
000 Xxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
To the Tender Agent:
Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(or such other address as may have been filed in writing by the
Tender Agent with the Trustee),
To the Bank:
CoreStates Bank, N.A.
000 Xxxx Xxxxxx, Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
(or such other address as may have been filed in writing by the Bank with the
Trustee).
To the Rating Agency:
Xxxxx'x Investors Service
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(or such other address as may have been filed in writing by the this Indenture
and shall be conclusive in favor of the Trustee and of the Company 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 acknowledgements 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.
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 Company in accordance therewith or in
reliance thereon.
SECTION 13.07. 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 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 Company, or any other
obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for
the purposes of this Section. 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 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 13.08. 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 13.09. 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 time 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 13.10. 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 13.11. 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 Company and the Trustee shall preserve undestroyed, shall together
constitute but one and the same instrument.
SECTION 13.12. Notices to Rating Agency. Written notice shall be provided by the
Company to each Rating Agency of (a) the appointment of any successor Trustee,
Tender Agent or Remarketing Agent, (b) any Supplemental Indenture or any
amendment to the Letter of Credit or the Reimbursement Agreement, (c) the
expiration, termination, extension or substitution of the Letter of Credit, (d)
the payment of all Outstanding Bonds,(e) the conversion of the Bonds to the
Fixed Rate, (f) redemption, (g) defeasance, (h) mandatory tender, and (i)
acceleration.
SECTION 13.13. Governing Law. This Indenture shall be governed by
and construed in accordance with the laws of the Commonwealth of
Pennsylvania (without regard to any conflict of laws provision).
IN WITNESS WHEREOF, PIERCING PAGODA, INC. has caused this Indenture to be signed
in its name by its President or other duly authorized officer and its seal to be
hereunto affixed and attested by its Secretary or Assistant Secretary, and
Dauphin Deposit Bank and Trust Company, in token 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 its corporate seal to be hereunto affixed and
attested, all as of the day and year first above written.
Witness:
PIERCING PAGODA, INC.
------------------------- -----------------------------------
[SEAL]
Attest: DAUPHIN DEPOSIT BANK AND TRUST
COMPANY
--------------------------- -----------------------------------
Assistant Secretary Vice President
EXHIBIT A
PIERCING PAGODA, INC.
TAXABLE VARIABLE RATE DEMAND/FIXED RATE BONDS
SERIES OF 1998
No. VR 1
$2,565,000
REGISTERED OWNER: CEDE & CO
Interest Rate Maturity Date Dated Date CUSIP
Variable May 1, 2013 April 30, 1998 000000XX0
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.
BY ACCEPTANCE OF THIS BOND, THE REGISTERED OWNER HEREOF AGREES THAT THIS BOND
WILL BE PURCHASED, WHETHER OR NOT SURRENDERED, (A) ON CONVERSION OF THE INTEREST
RATE MADE OF THE BONDS OR ANY EXPIRATION OF THE LETTER OF CREDIT FACILITY AS
DESCRIBED BELOW, OR (B) ON ANY PURCHASE DATE SPECIFIED BY THE REGISTERED OWNER
HEREOF IN THE EXERCISE OF THE RIGHT TO DEMAND PURCHASE OF THIS BOND AS DESCRIBED
BELOW. IN SUCH EVENT THE REGISTERED OWNER OF THE BOND SHALL NOT BE ENTITLED TO
RECEIVE ANY FURTHER INTEREST THEREON, SHALL HAVE NO FURTHER RIGHTS UNDER THIS
BOND OR THE INDENTURE EXCEPT TO PAYMENT OF THE PURCHASE PRICE HELD THEREFOR, AND
SHALL THEREAFTER HOLD THIS BOND AS AGENT FOR THE TENDER AGENT.
KNOW ALL MEN BY THESE PRESENTS that PIERCING PAGODA, INC. (the "Company"), for
value received, promises to pay to CEDE & Co. or registered assigns, on May 1,
2013, upon surrender hereof, the principal sum of Two Million Five Hundred
Sixty-Five Thousand ($2,565,000), and in like manner to pay interest on said sum
at the rate described below on the first Wednesday of each calendar month, or if
such date is not a Business Day, the next succeeding Business Day (hereinafter
defined) and on the Conversion Date (hereinafter defined), commencing, June 3,
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,
April 30, 1998 (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 (as hereinafter defined) 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 Company 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 the Trustee or at the duly designated office of any successor Trustee
under 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 Company 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. The
Purchase Price (hereinafter defined) of this Bond shall be payable by Dauphin
Deposit Bank and Trust Company (together with any successor, the "Tender Agent")
to the registered Owner hereof, upon presentation hereof, at the principal
corporate trust office of the Tender Agent. 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, the City of New York, the
Commonwealth of Pennsylvania, City of Harrisburg, or the City of Philadelphia
are authorized to remain closed or on which the New York Stock Exchange is
closed.
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, 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
CoreStates Securities, Corp, 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 Company, the Trustee, the Bank (as hereinafter
defined), 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 seventeen percent (17%) 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 fifth (5th)
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
(as hereinafter defined); the term "Letter of Credit Termination Date" means the
later of (i) that date upon which the Letter of Credit (hereinafter defined)
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 defined in the Indenture); the
term "Optional Conversion Date" means that date, 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 (as hereinafter defined); 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 (as hereinafter defined) 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 at any time after the Initial Interest Payment Date 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, Owners of the 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 BENEFITS 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 (5th) 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-xxxx, payable to bearer, for interest due on such Interest Payment Date; and
(c) delivery to the Tender Agent at its Delivery Office (as 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 BENEFITS 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.
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 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000, Attention: Corporate Trust
Department, 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 000 Xxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx, Xxxxxxx, XX 00000, 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 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, XX 00000, or the office designated for such purpose by any successor
Tender Agent (the "Delivery Office").
This Bond and the Bonds of the Series of which it is a part is comprised of a
duly authorized issue of bonds designated as "Taxable Variable Rate Demand/Fixed
Rate Bonds, Series of 1998" (the "Bonds") issued in the aggregate principal
amount of $2,565,000 and by virtue of a resolution duly adopted by the Company
on April 27, 1998 (the "Bond Resolution"), and equally and ratably secured under
a Trust Indenture dated as of April 29, 1998, by and between the Company and
Dauphin Deposit Bank and Trust Company, as Trustee, or its successor in trust
(herein called the "Trustee") as the same from time to time has been or may be
amended, modified or supplemented by supplemental indentures (being herein
collectively called the "Indenture"), for the purpose of raising funds to
finance a project (the "Project") consisting of (i) the construction of a new
70,655 square feet building on 5.3 acres of land at the Company headquarters in
Hanover Township, Northampton County, Pennsylvania for the purpose of expanding
the Company's capabilities to distribute, assemble and warehouse their products
and to provide for office space to carry out the administrative functions of the
Company's business; and (ii) the payment of fees and expenses relating to the
issuance of the Bonds.
The Bonds are all issued under and are equally and ratably secured by and
entitled to the protection of the Indenture, pursuant to which the Company is
obligated to make 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 CoreStates Bank, N.A. (in such capacity, the
"Bank") and dated the Date of Issuance of the Bonds, which will expire, unless
earlier terminated or extended, on April 29, 2003 (the "Letter of Credit
Termination Date"). 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 is
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) forty-five (45) days accrued interest (calculated at the maximum
rate of 17% per annum based on a 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 and the Letter of Credit for
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 Company, 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 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 therefor. The Company, 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 Company, 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.
Extraordinary Redemption
The Bonds are callable for redemption in the event the Project Facilities or any
portion thereof is damaged or destroyed or taken in a condemnation proceeding as
provided in Article XII of the Indenture. If called for redemption at any time
as provided in the preceding sentence, the Bonds shall be subject to redemption
by the Company 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 pursuant to Section 4.01(b) of this
Indenture.
Mandatory Redemption
The Bonds are subject to mandatory redemption, fifteen (15) 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 or in part, on any
Interest Payment Date, 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 any proceeds of the sale of the Bonds remain on deposit in
the Project Fund established under the Indenture upon completion of the Project,
under the conditions specified therein.
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 at random or in such
other manner as the Trustee in its discretion shall deem fair and appropriate.
Mandatory Sinking Fund Redemption
The Bonds are subject to mandatory redemption on the Interest Payment Date
occurring in the month of May in each of the years set forth below commencing on
the Interest Payment Date occurring in May 1999 (each, a "Mandatory Sinking
Account Payment Date"), at a
redemption price equal to 100% of the principal amount thereof plus accrued
interest as follows:
BONDS
Mandatory Sinking
Year Account Payments
1999 $125,000.00
2000 $120,000.00
2001 $125,000.00
2002 $130,000.00
2003 $140,000.00
2004 $150,000.00
2005 $155,000.00
2006 $165,000.00
2007 $175,000.00
2008 $185,000.00
2009 $195,000.00
2010 $205,000.00
2011 $220,000.00
2012 $230,000.00
*2013 $245,000.00
*Final maturity
Optional Redemption
On or prior to the Conversion Date, the Bonds are subject to redemption by the
Company, 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.
In the event of 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 (i) ten (10) days prior to the date fixed
for redemption in the event of a mandatory redemption because the Trustee shall
not have received a Substitute Letter of Credit effective on or before the
Letter of Credit Termination Date, and (ii) thirty (30) days but not more than
sixty (60) days prior to the date fixed for redemption in all other instances 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 5.05 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.
Mandatory Tender
The Bonds are subject to mandatory tender in whole on the effective date of any
Substitute Letter of Credit provided by a Substitute Bank (as such term is
defined in the Indenture), at a purchase price equal to 100% of the principal
amount thereof, plus accrued interest to the purchase date.
In the event of a mandatory tender, notice of such tender shall be given by the
Trustee by delivering or mailing by first-class mail a copy of such notice at
least twenty (20) days but not more than thirty (30) days prior to the date of
such tender to the Owner of each Bond at the address shown on the registration
books.
The Bonds are issued pursuant to and in full compliance with the Constitution
and laws of the Commonwealth of Pennsylvania, and by appropriate action duly
taken by the Company authorizing the execution and delivery of the Indenture.
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 modifications of the rights and obligations of the
Company and the rights of the owners of the Bonds at any time by the Company
with the consent of the Bank and the Holders of all Bonds at the time
Outstanding. Any such consent or any waiver by 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.
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, Piercing Pagoda, Inc. has caused this Bond to be signed in
its name and on its behalf by the manual or facsimile signature of its President
and its corporate seal to be affixed, imprinted or reproduced hereon and
attested by the manual or facsimile signature of its authorized officer, all as
of the Date of Issuance.
Attest: PIERCING PAGODA, INC.
-------------------------- -----------------------------
Authorized Officer President
[SEAL]
Abbreviations
The following abbreviations, when used in the inscription on the face of the
within Bond, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with the right of
survivorship and not as tenants in
common
UNIFORM GIFT MIN ACT - Custodian
(Cust) (Minor)
under Uniform Gifts to Minors
Act
(State)
Additional abbreviations may also be used, though not in the above list.
(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.
DAUPHIN DEPOSIT BANK AND TRUST
COMPANY
By:
Authorized Signature
Date of Authentication: April 30, 1998
(Form of 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 must be NOTICE: The signature to this guaranteed by an
approved assignment must correspond with the eligible guarantor name as it
appears upon the face of institution, an the within Bond in every particular
institution which is a without alteration or enlargement participant in a
Securities or any change whatsoever. Transfer Association recognized signature
guarantee program.
[FORM OF BOND COUNSEL OPINION]
Re: Piercing Pagoda, Inc.
$2,565,000
Taxable Variable Rate Demand/Fixed Rate Bonds,
Series of 1998 (the "Bonds")
TO THE REGISTERED OWNERS OF THE ABOVE BONDS
We have acted as Bond Counsel in connection with the issuance by Piercing
Pagoda, Inc., of the above-captioned Bonds. The proceeds of the Bonds will be
used by the Company to finance a project (the "Project") consisting of (i) the
construction of a new 70,655 square feet building on 5.3 acres of land at the
Company headquarters in Hanover Township, Northampton County, Pennsylvania for
the purpose of expanding the Company's capabilities to distribute, assemble and
warehouse their products and to provide for office space to carry out the
administrative functions of the Company's business; and (ii) the payment of fees
and expenses relating to the issuance of the Bonds. All capitalized terms used
in this opinion and not defined herein shall have the meanings assigned to them
in the Indenture unless the context clearly requires otherwise.
The Bonds issued this date mature on May 1, 2013 and bear interest and are
subject to purchase and redemption prior to maturity upon the terms and
conditions stated therein and in the Indenture. The Bonds initially are issuable
as registered bonds in denominations of $100,000 or integral multiples of $5,000
in excess thereof. After the Conversion Date the Bonds shall be in denominations
of $5,000 or integral multiples of $5,000 in excess thereof.
In connection with the issuance of the Bonds, CoreStates Bank, N.A. ("Bank"), at
the request of the Borrower, has issued a certain irrevocable, direct pay Letter
of Credit dated the date of issuance of the Bonds (the "Letter of Credit"), in
favor of the Trustee. Pursuant to the terms and conditions set forth in the
Letter of Credit and the Indenture, on each debt service payment date the
Trustee shall draw upon the Letter of Credit the amount necessary to pay the
principal of and interest payable on the Bonds on such debt service payment
date.
In connection with providing our opinion, we have examined the following:
1. Section 103 and Sections 141 through 150 of the Internal Revenue Code of
1986, as amended (the "Code");
2. Copies of the resolution of the Company authorizing, among other things, the
issuance of the Bonds (the "Resolution");
3. A copy of the executed Letter of Credit;
4. A specimen copy of one of the Bonds (we assume due execution and
authentication of each Bond);
5. Executed copies of the Indenture, the Reimbursement Agreement, the Letter of
Credit, the Remarketing Agreement, the Tender Agent Agreement, the Pledge and
Security Agreement, the Company General Certificate and the other documents,
agreements, certificates and opinions delivered at the closing held this day.
Based upon our examination of the foregoing and upon our attendance at the Bond
Closing, it is our opinion that, as of the date hereof:
A. The Indenture has been duly authorized, executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company
enforceable in accordance with its respective terms.
B. The Bonds are exempt from registration under the Securities Act of 1933 as
amended, in connection with the offering and sale of the Bonds and the Indenture
is exempt from qualification under the Trust Indenture Act of 1939, as amended.
C. The issuance and sale of the Bonds have been duly authorized by the Company
and such Bonds have been duly executed and delivered by the Company and
authenticated by the Trustee, are valid and binding obligations of the Company
and are entitled to the benefit and security of the Indenture, except as the
rights created thereunder and the enforcement thereof may be limited to
bankruptcy, insolvency or other laws or equitable principles affecting the
enforcement of creditors' rights generally.
D. Except as to the possible application of state securities laws, as to which
no opinion need be expressed, no authorization, declaration, approval, consent
or other order of any governmental authority or agency is required to be
obtained by the Company and the valid authorization, execution and delivery of
the Bond Placement Agreement and all other documents executed by the Company in
connection with the issuance of the Bonds.
E. The description and summaries under the captions entitled "The Bonds" (except
for the information extracted from information provided by DTC), and "The
Indenture" contained in the Placement Memorandum fairly summarize the applicable
provisions of the documents or portions of applicable law, as the case may be,
which are purported to be summarized therein.
F. Interest on the Bonds is not excluded from gross income for federal or state
income tax purposes.
In providing the foregoing opinions, we advise you as follows:
(a) The enforceability of the provisions of the Bonds and the Indenture (and any
other applicable document) may be limited by applicable bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally.
(b) Equitable remedies with respect to the Bonds and the Indenture (and any
other applicable document) lie in the discretion of the courts and, accordingly,
may not be available.
(c) Except as specifically set forth above, we express no opinion regarding
other federal or state income tax consequences arising with respect to the
Bonds.
(d) We have not been engaged to verify, nor have we independently verified, nor
do we express any opinion to the registered owners of the Bonds with respect to,
the accuracy, completeness or truthfulness of any statements, certifications,
information or financial statements set forth in the Placement Memorandum dated
April 23, 1998 (the "Placement Memorandum"), or with respect to any other
materials used in connection with the placement of the Bonds other than the
opinion expressed in 5(e) herein.
We express no opinion with respect to whether the Company or any other person in
connection with the placement of the Bonds or the preparation of the Placement
Memorandum, has made any untrue statement of a material fact or omitted to state
a material fact necessary in order to make any statement made, not misleading.
Further, we have not verified, and express no opinion as to the accuracy of, any
"CUSIP" identification number that may be printed on any Bond. We have also
assumed the genuineness of the signatures appearing on all the certificates,
documents and instruments executed and delivered at closing.
Very truly yours,
KING, XXXXXXXX, XXXXXX, XXXXXX & XXXXX
EXHIBIT B
FIXED RATE FORM OF BOND
PIERCING PAGODA, INC.
TAXABLE VARIABLE RATE DEMAND/FIXED RATE BONDS
SERIES OF 1998
No. FR- $2,565,000
Interest Rate Maturity Date Dated Date CUSIP
May 1, 2013 April 29, 1998 000000XX0
KNOW ALL MEN BY THESE PRESENTS that PIERCING PAGODA, INC. (the "Company"), for
value received, promises to pay to CEDE & Co., or registered assigns, on upon
surrender hereof, the principal sum of Two Million Five Hundred Sixty-Five
Thousand Dollars ($2,565,000), 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
of_____% per annum on May 1 and November 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
calendar day (as hereinafter defined) 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 Company 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
Conversion Date. The principal of this Bond is payable in lawful money of the
United States of America at the principal corporate trust office of the Trustee
or at the duly designated office of any successor Trustee under the Indenture
(as hereinafter defined). 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 Company 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. The
Purchase Price (hereinafter defined) of this Bond shall be payable by Dauphin
Deposit Bank and Trust Company (together with any successor, the "Tender Agent")
to the registered Owner hereof, upon presentation hereof, at the principal
corporate trust office of the Tender Agent. 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, the City of New York, the
Commonwealth of Pennsylvania, City of Harrisburg, or the City of Philadelphia
are authorized to remain closed or on which the New York Stock Exchange is
closed.
This Bond and the Bonds of the Series of which it is a part is comprised of a
duly authorized issue of bonds designated as "Taxable Variable Rate Demand/Fixed
Rate Bonds, Series of 1998" (the "Bonds") issued in the aggregate principal
amount of $2,565,000 and by virtue of a resolution duly adopted by the Company
on and equally and ratably secured under a Trust Indenture dated as of April 29,
1998, by and between the Company and Dauphin Deposit Bank and Trust Company, as
Trustee, or its successor in trust (herein called the "Trustee") as the same
from time to time has been or may be amended, modified or supplemented by
supplemental indentures (being herein collectively called the "Indenture"), for
the purpose of financing a project (the "Project") consisting of (i) the
construction of a new 70,655 square feet building on 5.3 acres of land at the
Company headquarters in Hanover Township, Northampton County, Pennsylvania for
the purpose of expanding the Company's capabilities to distribute, assemble and
warehouse their products and to provide for office space to carry out the
administrative functions of the Company's business; and (ii) the payment of fees
and expenses relating to the issuance of the Bonds.
The Bonds are all issued under and are equally and ratably secured by and
entitled to the protection of the Indenture, pursuant to which the Company is
obligated to make payment of the principal 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 CoreStates Bank, N.A. (in such capacity, the "Bank") and dated the Date of
Issuance of the Bonds, which will expire, unless earlier terminated or extended,
on (the "Letter of Credit Termination Date"). 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 is entitled to draw up to an amount sufficient to pay (a)
the principal of the Bonds and (b) 205 days accrued interest (calculated at the
maximum rate of____% per annum based on a 360 day year and the actual number of
days elapsed) on the Bonds.
Reference is hereby made to the Indenture and the Letter of Credit for
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 Company, 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 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 therefor. The Company and the Trustee may
deem and treat the registered Owner hereof as the absolute Owner hereof (whether
nor not this Bond shall be overdue) for all purposes, and neither the Company
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
denominations of $5,000 or any integral multiple thereof.
Extraordinary Redemption
The Bonds are callable for redemption in the event the Project Facilities or any
portion thereof is damaged or destroyed or taken in a condemnation proceeding as
provided in Article XII of the Indenture. If called for redemption at any time
as provided in the preceding sentence, the Bonds shall be subject to redemption
by the Company 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 pursuant to Section 4.01(b) of the
Indenture.
Mandatory Redemption
The Bonds are subject to mandatory redemption, fifteen (15) 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 or in part, on any
Interest Payment Date, 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 any proceeds of the sale of the Bonds remain on deposit in
the Project Fund established under the Indenture upon completion of the Project,
under the conditions specified therein.
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 at random or in such
other manner as the Trustee in its discretion shall deem fair and appropriate.
Mandatory Sinking Fund Redemption
The Bonds are subject to mandatory redemption on the Interest Payment Date
occurring in the month of May in each of the years set forth below commencing on
the Interest Payment Date occurring in June (each, a "Mandatory Sinking Account
Payment Date"), at a redemption price equal to 100% of the principal amount
thereof plus accrued interest as follows:
BONDS
Mandatory Sinking
Year Account Payments
1999 $125,000.00
2000 $120,000.00
2001 $125,000.00
2002 $130,000.00
2003 $140,000.00
2004 $150,000.00
2005 $155,000.00
2006 $165,000.00
2007 $175,000.00
2008 $185,000.00
2009 $195,000.00
2010 $205,000.00
2011 $220,000.00
2012 $230,000.00
*2013 $245,000.00
*Final maturity
In the event of 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 (i) ten (10) days prior to the date fixed
for redemption in the event of a mandatory redemption because the Trustee shall
not have received a Substitute Letter of Credit effective on or before the
Letter of Credit Termination Date, and (ii) thirty (30) days but not more than
sixty (60) days prior to the date fixed for redemption in all other instances 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.
Mandatory Tender
The Bonds are subject to mandatory tender in whole on the effective date of any
Substitute Letter of Credit provided by a Substitute Bank (as defined in the
Indenture), at a purchase price equal to 100% of the principal amount thereof,
plus accrued interest to the purchase date.
In the event of a mandatory tender, notice of such tender shall be given by the
Trustee by delivering or mailing by first-class mail a copy of such notice at
least twenty (20) days but not more than thirty (30) days prior to the date of
such tender to the Owner of each Bond at the address shown on the registration
books.
The Bonds are issued pursuant to and in full compliance with the Constitution
and laws of the Commonwealth of Pennsylvania, and by appropriate action duly
taken by the Company which authorizes the execution and delivery of the
Indenture.
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 modifications of the rights and obligations of the Company and
the rights of the Owners of the Bonds at any time by the Company with the
consent of the Bank and the Holders of all Bonds at the time Outstanding. Any
such consent or any waiver by 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.
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, Piercing Pagoda, Inc. has caused this Bond to be signed in
its name and on its behalf by the manual or facsimile signature of its President
and its corporate seal to be affixed, imprinted or reproduced hereon and
attested by the manual or facsimile signature of its Secretary, all as of the
Date of Issuance.
Attest: PIERCING PAGODA, INC.
-------------------------- -----------------------------
Secretary President
[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.
Dauphin Deposit Bank and
Trust Company, as Trustee
By:
Authorized Signature
Date of Authentication: April 29, 1998
(Form of 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 must be NOTICE: The signature to this guaranteed by an
approved assignment must correspond with the eligible guarantor name as it
appears upon the face of institution, an the within Bond in every particular
institution which is a without alteration or enlargement participant in a
Securities or any change whatsoever. Transfer Association recognized signature
guarantee program.
EXHIBIT C
PROJECT FUND REQUISITION
FORM OF
PROJECT FUND REQUISITION
April 29, 1998
Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
CoreStates Bank, N.A.
000 Xxxx Xxxxxx, Xxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
I hereby requisition pursuant to Section 6.06 of the Trust Indenture dated as of
April 29, 1998 (the "Indenture") by and between Piercing Pagoda, Inc. (the
"Company") and CoreStates Securities, Corp, as Trustee, and Section 4.04 of the
Reimbursement Agreement dated as of April 29, 1998 (the "Reimbursement
Agreement") by and between the Company and CoreStates Bank, N.A. (the "Bank"),
the sum of $ from the Project Fund to be paid as described below:
I hereby certify that (a) such obligation has been incurred by the Company in
connection with the Project, as defined in the Indenture, (b) each item is a
proper charge against the Project Fund, (c) such obligation has not been the
basis for a prior requisition which has been paid, (d) no written notice of any
lien, right to lien or attachment upon, or claim affecting the right to receive
payment of, any of the moneys payable under the requisition above has been
received, (e) no material adverse change has occurred in the condition of the
Company, financial or otherwise, since the date of the Reimbursement Agreement,
(f) the payment of such requisition will not violate any prohibitions or
requirements relating to the use of proceeds set forth in the Indenture, (g) the
Company has complied fully with all provisions of the Reimbursement Agreement
and all representations and warranties made by the Company in the Reimbursement
Agreement and the other Reimbursement Documents (as such term is defined in the
Reimbursement Agreement) are true and correct on and as of the date hereof, (h)
all conditions precedent to the issuance of the Letter of Credit (as such term
is defined in the Reimbursement Agreement) and to disbursement in Sections 4.01,
4.02, 4.03 and 4.04 of the Reimbursement Agreement have been satisfied, (i) no
Event of Default, as defined in the Indenture, or event which after notice or
lapse of time or both would constitute an Event of Default thereunder, has
occurred and not been waived or cured, and no Event of Default or Potential
Event of Default as defined in the Reimbursement Agreement, has occurred
and is continuing or shall result from the funding of the
disbursement requisitioned hereby.
The Company further certifies that the contractors listed below have delivered
certain requests for payment on AIA Forms 702 and 703 which are attached hereto
for review and approval by the Bank:
Name of Payee Amount of Request Amount of Retainage
Other Project expenses included in this Request for Disbursement are as follows:
Name of Payee Amount of Request Purpose
PIERCING PAGODA, INC.
Chief Financial Officer
NOTE: THIS REQUISITION IS NOT COMPLETE AND IS NOT TO BE PAID
UNTIL THE APPROVAL OF THE BANK IS RECEIVED.
BANK APPROVAL
CoreStates Bank, N.A., issuer of the Letter of Credit, hereby
approves the Company's Requisition No. .
CORESTATES BANK, N.A.
Vice President
Dated: April 29, 1998
LETTER OF REPRESENTATIONS
[To be completed by Issuer, Remarketing Agent,
Tender Agent, Paying Agent, and Trustee]
Piercing Pagoda, Inc.
[Name of Issuer]
CoreStates Securities, Corp
[Name of Remarketing Agent]
Dauphin Deposit Bank and Trust Company
[Name of Tender Agent]
Dauphin Deposit Bank and Trust Company
[Name of Paying Agent]
Dauphin Deposit Bank and Trust Company
[Name of Trustee]
April 29,1998
Date
Attention: Underwriting Department
The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Re: $2,565,000 Piercing Pagoda, Inc.
Taxable Variable Rate Demand/Fixed Rate Bonds
Series of 1998 000000XX0
(Issuer Description) (CUSIP)
Ladies and Gentlemen:
This letter sets forth our understanding with respect to certain matters
relating to the above-referenced issue (the "Securities"). The Securities will
be issued pursuant to a trust indenture, bond resolution, or other such document
authorizing the issuance of the Securities dated April 29, 1998 (the
"Document"). CoreStates Securities, Corp ("Underwriter") is distributing the
Securities through The Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for
deposit
at DTC, and to act in accordance with its Rules with respect to the Securities,
Issuer, Remarketing Agent, Tender Agent, Paying Agent, and Trustee make the
following representations to DTC:
1. Prior to closing on the Securities on April 29, 1998, there shall be
deposited with DTC one Security certificate registered in the name of DTC's
nominee, Cede & Co., for each stated maturity of the Securities, the total of
which represents 100% of the principal amount of such Securities. If, however,
the aggregate principal amount of any maturity exceeds $150 million, one
certificate will be issued with respect to each $150 million of principal amount
and an additional certificate will be issued with respect to any remaining
principal amount. Each Security certificate shall bear the following legend:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer 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 hereof, Cede & Co., has an interest
herein.
2. In the event of any solicitation of consents from or voting by holders of the
Securities, Trustee or Issuer shall establish a record date for such purposes
(with no provision for revocation of consents or votes by subsequent holders,
and shall, to the extent possible, send notice of such record date to DTC not
less than 15 calendar days in advance of such record date. If delivered by hand
or sent by mail or overnight delivery, such notice shall be sent to:
Supervisor; Proxy
Reorganization Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 1OOO4-2695
If sent by telecopy, such notice shall be sent to (000) 000-0000 or (212)
709-6897. Trustee or Issuer shall confirm DTC's receipt of such telecopy by
telephoning (000) 000-0000.
3. In the event of a redemption or any other similar transaction resulting in
the retirement of all Securities outstanding or a reduction in the aggregate
principal amount of Securities outstanding ("full or partial redemption",
Trustee or Issuer shall send DTC a notice of such event not less than 30 days
nor more than 60 days prior to the redemption date or, in the case of an advance
refunding of all or part of the Securities outstanding, the date that the
proceeds are deposited in escrow.
In the event of a partial redemption of the outstanding Securities, Trustee or
Issuer shall send a notice to DTC specifying: (a) the amount of the redemption;
(b) the date such notice is to be mailed to beneficial owners or published (the
"Publication Date"); and (c) whether any concurrent optional tender privilege is
available. Such notice shall be sent to DTC by a secure means (e.g. legible
telecopy, registered or certified mail, overnight delivery,) in a timely manner
designed to assure that such notice is in DTC's possession no later than the
close of business two business days before the Publication Date. Trustee or
Issuer shall forward such notice either in a separate secure transmission for
each CUSIP number or in a secure transmission for multiple CUSIP numbers if
applicable), which shall include a manifest or list of each CUSIP number
submitted in that transmission. The Publication Date shall be not less than 30
days nor more than 60 days prior to the redemption date.
Notices to DTC pursuant to Paragraph 3, if sent by mail or overnight delivery,
shall be sent to:
Supervisor; Call Notification Department
The Depository Trust Company
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
If sent by telecopy such notices shall be sent to (000) 000-0000 or (516)
227-4190. If Trustee or Issuer does not receive a telecopy receipt from DTC
confirming that the notice has been received, it should telephone (516)
000-0000.
In the event that certain Securities are not subject to a partial redemption,
DTC will exclude such Securities from its redemption procedures if such
exclusion is requested as follows. Such request shall be in writing and shall
contain: (a) certification by Trustee or Issuer that the principal amount of
such Securities is not subject to the partial redemption and certification by a
custodian/DTC Participant that the Participant's position on DTC's records
includes such Securities; and (b) certification by Trustee or Issuer that the
election to exclude such Securities from the partial redemption is authorized
under the Document. Such request shall be sent to DTC's Call Notification
Department in the manner indicated above to assure that such request is in DTC's
possession no later than the close of business two business days before the
Publication Date of the partial redemption notice.
4. For so long as the Securities have an adjustable rate of interest,
Remarketing Agent shall deliver to DTC by hand or by
telecopy, before the close of business on the final rate determination date
preceding each interest payment date?, a written notice containing the following
information:
(a) "Today's" date (the final rate determination date);
(b) Security CUSIP number;
(c) Security description;
(d) Interest record date;
(e) Interest payment date;
(f) Amount of the interest payment expressed in whole and fractional
dollars per S1,000 of Security face amount;
(g) Whether interest accrues record date to record date or payment date
to payment date; and
(h) The name, telephone number, and address of Remarketing Agent person
responsible for determining (f) and (g)
above.
The name, telephone number, telecopy number (if available), and address of
Remarketing Agent person initially responsible for determining (f) and (g) above
at the time of issuance of the securities will be:
Xxxxx X. Xxxx, Managing Director
CoreStates Securities, Corp
000 Xxxx Xxxxxx, Xxxxxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Fax: (000) 000-0000
If delivered by hand, such notice shall be sent to:
Manager; VRDO Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
------------------------------------
?The final rate determination date for each interest payment shall occur not
less than two business day prior to the interest payment date. If sent by
telecopy, such notice shall be sent to (000) 000-0000 or (000) 000-0000.
Remarketing Agent shall confirm DTC's receipt of such telecopy by telephoning
(000) 000-0000.
If the interest payment date is a moving calendar day (such as the first
Wednesday or fifth business day of each month), or if optional tenders of
Securities are made daily following same day notice, Remarketing Agent shall
send a copy of such notice to a service bureau designated by DTC, by hand or by
telecopy before the close of business on the final rate determination date
preceding each interest payment date. Such notice initially shall be sent to:
Attention: Xx. Xxxxxxxx Xxxxxx
Municipal Market Data
000 Xxxxxxx Xxxxxx; 0xx Xxxxx
Xxxxxx, XX 00000-0000
If sent by telecopy, such notice shall be sent to (000) 000-0000. Remarketing
Agent shall confirm Municipal Market Data's receipt of such telecopy by
telephoning (000) 000-0000.
In order to enable DTC to confirm independently the interest payment information
provided by Remarketing Agent, Trustee shall deliver to DTC by noon ET on the
business day next following the final rate determination date a written notice
containing the following information:
(a) "Today's" date (the business day next following the final rate determination
date);
(b) Security CUSIP number;
(c) Security description:
(d) Interest record date:
(e) Interest payment date:
(f) Amount of the interest payment expressed in whole and fractional dollars per
$1,000 of Security face amount; and
(g) The name, telephone number, telecopy number (if available), and address of
Trustee person responsible for determining (f) above.
The name, telephone number, telecopy number (if available), and address of
Trustee person initially responsible for determining (f)
above at the time of issuance of the Securities will be:
Xxxxxxx X. Xxxxx, Xx.
Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000 Fax: (000) 000-0000
Such notice shall be sent to Manager, VRDO Announcements, Dividend Department as
indicated above.
If the interest payment date is a moving calendar day (such as the first
Wednesday or fifth business day of each month), or if optional tenders of
Securities are made daily following same-day notice, Trustee shall send a copy
of such notice to a service bureau designated by DTC, by hand or by telecopy by
noon ET on the business day next following the final rate determination date.
Such notice initially shall be sent to Municipal Market Data in the manner
indicated earlier in this Paragraph.
5. Transactions in the Securities shall be eligible for same-day (Federal) funds
settlement in DTC's Same-Day Funds Settlement ("SDFS") system. For so long as
the Securities are Eligible Securities in the SDFS system ("SDFS Securities"):
A. Interest payments shall be received by Cede & Co., as nominee of DTC, or its
registered assigns in same-day funds on each payment date (or the equivalent in
accordance with existing arrangements between Paying Agent and DTC). Such
payments shall be made payable to the order of Cede & Co. Absent any other
existing arrangements, such payments shall be addressed as follows:
Manager; Cash Receipts
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
B. Principal payments shall be received by Cede & Co., as nominee of DTC, or its
registered assigns in same-day funds on each payment date in the manner set
forth in the SDFS Paying Agent Operating Procedures (a copy of which has
previously been furnished to Paying Agent). Such payments shall be sent to DTC
in time to be credited to DTC's account at the Federal Reserve Bank of New York
("FRBNY") no later than 10:00 a.m. (Paying Agent's local time) on the payment
date or as soon as possible thereafter following Paying Agent's receipt of funds
from Issuer. It is understood that unless DTC receives such
payments in its FRBNY account by 2:00 p.m. (Eastern Time), it may be unable to
distribute such payments that same day.
The name, telephone number, telecopy number (if available), and address of
Paying Agent person initially responsible for arranging such payments to DTC
will be:
Xxxxxxx X. Xxxxx, Xx.
Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000 Fax: (000) 000-0000
6. In the event that transactions in the Securities become eligible for next-day
(Clearinghouse) funds settlement in DTC's Next-Day Funds Settlement "NDFS")
system, and for so long as the Securities are Eligible Securities in the NDFS
system ("NDFS Securities"):
A. Interest payments shall be received by Cede & Co., a nominee of DTC, or its
registered assigns, in next- day funds on each payment date (or the equivalent
in accordance with existing arrangements between Paying Agent and DTC). Such
payments shall be made payable to the order of Cede & Co. Absent any other
existing arrangements, such payments shall be addressed as follows:
Manager; Cash Receipts
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
B. Principal payments shall be received by Cede & Co., as nominee of DTC, or its
registered assigns, in next-day funds on each payment date (or the equivalent in
accordance with existing arrangements between Paying Agent and DTC). Such
payments shall be made payable to the order of Cede & Co., and shall be
addressed as follows:
Collection Supervisor; Redemptions
Reorganization Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
7. It is understood that for so long as optional tenders of the Securities may
be made daily following same day or seven day
notice, such tenders will be effected by means of DTC's Deliver Order
Procedures. DTC shall have no responsibility to distribute notices regarding
such optional tenders, or to ascertain whether any such tender has been made.
Except as otherwise provided herein, and in accordance with DTC's procedures for
exercise of voting and consenting rights, the parties hereto acknowledge that so
long as Cede & Co. is the sole record owner of the Securities it shall be
entitled to all voting rights applicable to the Securities and to receive the
full amount of all distributions payable with respect to the Securities. The
parties acknowledge that DTC shall treat any DTC Participant ("Participant")
having Securities credited to its DTC accounts as entitled to the full benefits
of ownership of such Securities even if the credits of Securities to the DTC
accounts of such Participant result from failures to deliver Securities or
improper deliveries of Securities by an owner of Securities subject to tender
for purchase. Without limiting the generality of the preceding sentence, the
parties acknowledge that DTC shall treat any Participant having Securities
created to its DTC accounts as entitled to receive distributions and voting
rights, if any, with respect to the Securities and to receive certificates
evidencing Securities if such certificates are to be issued in accordance with
Paragraphs 12 or 13 hereof. (The treatment by DTC of the effects of the
crediting by it of Securities to the accounts of Participants described in the
preceding two sentences shall not affect the rights of the parties hereto
against any Participant.)
8. It is understood that for so long as optional tenders of the Securities may
be made less frequently, than daily following same day or seven day notice
(e.g., during a monthly, quarterly, semiannual, or annual tender period) and
Cede & Co., as nominee of DTC, or its registered assigns as the record owner of
Securities, is entitled to tender the Securities, such tenders will be effected
by means of DTC's Repayment Option Procedures. Under the Repayment Option
Procedures, DTC will receive during the applicable tender period instructions
from its Participants to tender Securities for purchase. The undersigned agree
that such tenders for purchase may be made by DTC by means of a book entry
credit of such Securities to the account of Tender Agent, provided that such
credit is made on or before the final day of the applicable tender period, DTC
agrees that, promptly after the recording of any such book entry credit, it will
provide to Tender Agent an Agent Put Daily Activity Report in accordance with
the Repayment Option Procedures, identifying the Securities and the aggregate
principal amount thereof as to which such tenders for purchase have been made.
Trustee or Issuer shall send a notice to DTC regarding such optional tenders of
Securities by hand or by a secure means, e.g., legible telecopy, registered or
certified mail, overnight delivery) in a timely manner designed to assure that
such notice is in DTC's possession no later than the close of business two
business days before the Publication Date. The Publication Date shall be not
less
than 15 days prior to the start of the applicable tender period. Such notice
shall state whether any partial redemption of the Securities is scheduled to
occur during the applicable optional tender period.
If delivered by hand or sent by mail or overnight delivery, such notice shall be
sent to:
Supervisor; Put Bond Unit
Reorganization Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx; 00xx Xxxxx
Xxx Xxxx, XX 1OOO4-2695
If sent by telecopy, such notice shall be sent to (000) 000-0000 or (212)
709-1094. Trustee or Issuer shall confirm DTC's receipt of such telecopy by
telephoning (000) 000-0000.
For so long as the Securities are SDFS Securities, principal payments (plus
accrued interest, if any) as the result of optional tenders for purchase
effected by means of DTC's Repayment Option Procedures shall be received by DTC
on each purchase date in same-day funds in the manner set forth in the SDFS
Paying Agent Operating Procedures. Such payments shall be sent in time to be
credited to DTC's account at the FRBNY no later than 10:00 a.m. (Paying Agent's
local time) on the purchase date or as soon as possible thereafter following
Paying Agent's receipt of funds from Issuer. It is understood that; (a) until
DTC receives such payments in its FRBNY account, the optionally tendered
Securities will remain in Tender Agent's DTC account: and (b) unless DTC
receives such payments in its FRBNY account by 2:00 p.m. (Eastern Time), it may
be unable to distribute such payments to DTC Participants nor release the
Securities to the Remarketing Agent that same day.
The name, telephone number, telecopy number (if available), and address of
Tender Agent person initially responsible for arranging such payments to DTC
will be:
Xxxxxxx X. Xxxxx, Xx.
Dauphin Deposit Bank and Trust Company
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000)000-0000 Fax: (000) 000-0000
For so long as the Securities are NDFS Securities, principal payments (plus
accrued interest, if any) as the result of optional tenders for purchase
effected by means of DTC's Repayment Option Procedures shall be received by Cede
& Co., as nominee of DTC, or its registered assigns, on each purchase date in
next-day funds or the equivalent in accordance with existing arrangements
between Tender Agent and DTC. Such payments shall be made payable to the
order of Cede & Co. and shall be addressed to Supervisor, Put
Bond Unit, Reorganization Department, as indicated above.
9. In the event of a change or proposed change in the interest rate mode of the
Securities from one variable-rate mode to any other variable-rate mode, or to a
fixed-rate mode, Trustee or Issuer shall send a notice to DTC of such event
specifying, as applicable: (a) the name and number of the DTC Participant
account to which mandatorily tendered Securities are to be delivered by DTC on
the purchase date after DTC receives payment for such Securities; and (b) the
first interest payment date under the new mode. Such notice shall be sent to DTC
by a secure means (e.g. legible telecopy, registered or certified mail,
overnight delivery) in a timely manner designed to assure that such notice is in
DTC's possession no later than the close of business two business days before
the Publication Date. The Publication Date shall be not less than 15 days prior
to the expiration date of the period provided for security owner elections to
retain Securities as discussed in paragraph 10. If delivered by hand or sent by
mail or overnight delivery, such notice shall be sent to both:
Manager; VRDO Eligibility Section Supervisor; Put Bond Unit
Underwriting Department Reorganization Department
The Depository Trust Company The Depository Trust Company
00 Xxxxx Xxxxxx, 00xx Xxxxx 0 Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000-0000 Xxx Xxxx, XX 00000-0000
If sent by telecopy, such notice shall be sent to both:
Trustee or Issuer shall confirm DTC's receipt of such telecopy by telephoning
the Underwriting Department at (000) 000-0000 and the Reorganization Department
at (000) 000-0000. All other notices regarding the interest rate on the
Securities (before and after any change in the interest rate mode) shall be
delivered to Manager, VRDO Announcements, Dividend Department, as indicated in
Paragraph 4.
10. In the event of expiration or substitution of a facility supporting the
Securities (such as a letter of credit) or non-reinstatement of the amount
available to pay interest on the Securities pursuant to such a facility Trustee
or Issuer shall send a notice to DTC of such event specifying, as applicable,
the name and number of the DTC Participant account to which mandatorily tendered
Securities are to be delivered by DTC on the purchase date
after DTC receives payment for such Securities. Such notice shall be sent to DTC
by a secure means (e.g., legible telecopy, registered or certified mail,
overnight delivery in a timely manner designed to assure that such notice is in
DTC's possession no later than the close of business two business days before
the Publication Date or, as applicable, immediately after Trustee receives
notice that the Securities are subject to acceleration. The Publication Date
shall be not less than 15 days prior to the expiration date of the period
provided for security over elections to retain Securities as discussed in
paragraph 10. Such notice shall be sent to Supervisor, Put Bond Unit,
Reorganization Department, as indicated in Paragraph 7.
11. Where the Document provides that the Securities are subject to mandatory
tender except with respect to security owner elections to retain Securities, it
is understood that DTC will use its Repayment Option Procedures to process such
elections. Under the Repayment Option Procedures, DTC will receive instructions
during the applicable election period from Participants to retain Securities.
DTC, on behalf of such Participants, will notify Tender Agent of the aggregate
principal amount of Securities that will not be tendered and will be retained.
If the mandatorily tendered Securities are to be replaced with two or more
issues of Securities the "Replacement Securities"), Tender Agent shall be
responsible for allocating specific Replacement Securities by CUSIP number to
the Participants that elected to retain Securities.
In cases in which prior to a mandatory tender, certain Securities are not
subject to such mandatory tender, if requested as follows DTC will exclude such
Securities from its mandatory tender procedures. Such request shall be in
writing and shall contain: (a) certification by Trustee or Issuer that the
principal amount of such Securities is not subject to the mandatory tender and
certification by a custodian/Participant that the Participant's position on
DTC's records includes such Securities; and (b) certification by Trustee or
Issuer that the election to exclude such Securities from the mandatory tender is
authorized under the Document. Such request shall be sent to Supervisor, Put
Bond Unit, Reorganization Department, in the manner indicated in Paragraph 7 to
assure that such request is in DTC's possession no later than the close of
business two business days before the Publication Date of the mandatory tender
notice.
For so long as the Securities are SDFS Securities, principal payments (plus
accrued interest, if any) as the result of mandatory tenders for purchase
(including mandatory tenders upon change in the interest rate mode of the
Securities, or upon expiration, substitution, or non-reinstatement of a facility
supporting the Securities) shall be received by DTC on the purchase date in same
day funds in the manner set forth in Paragraph 7.
For so long as the Securities are NDFS Securities, such principal payments shall
be received by DTC on the purchase date in next-day funds in the manner set
forth in Paragraph 7.
12. In the event of a redemption, acceleration, or any other similar transaction
e.g., tenders made and accepted in response to Trustee's or Issuer's invitation
to tender) necessitating a reduction in aggregate principal amount of Securities
outstanding or an advance refunding of part of the Securities outstanding, DTC,
in its discretion; a) may request Trustee or Issuer to issue and authenticate a
new Securities certificate; or (b) may make an appropriate notation on the
Security certificate indicating the date and amounts of such reduction in
principal except in the case of final maturity in which case the certificate
must be presented to Trustee prior to payment. In the event of an advance
refunding of part of the Securities outstanding, Trustee or Issuer shall obtain
a CUSIP number from the CUSIP Service Bureau and issue and authenticate a new
Security certificate for the refunded Securities.
13. In the event that Issuer determines that beneficial owners of Securities
shall be able to obtain certificated Securities, Trustee or Issuer shall notify
DTC of the availability of Security certificates. In such event, Issuer or
Trustee shall issue, transfer, and exchange Security certificates in appropriate
amounts, as required by DTC and others.
14. DTC may discontinue providing its services as securities depository with
respect to the Securities at any time by giving reasonable notice to Trustee or
Issuer (at which time DTC will confirm with Trustee or Issuer the aggregate
principal amount of Securities outstanding). Under such circumstances, at DTC's
request Trustee or Issuer shall cooperate fully with DTC by taking appropriate
action to make available one or more separate certificates evidencing Securities
to any Participant having Securities credited to its DTC accounts.
15. Nothing herein shall be deemed to require Paying Agent to advance funds on
behalf of Issuer.
16. All notices and payment advances sent to DTC shall contain the CUSIP number
of Securities.
17. DTC may direct Issuer, Remarketing Agent, Tender Agent, Paying Agent, or
Trustee to use any other telephone number or address as the number or address to
which notices or payments of interest or principal may be sent.
18. Issuer, Remarketing Agent, Tender Agent, Paying Agent, or Trustee sending
notices or requests to DTC shall have a method to verify subsequently the use of
the means to deliver such notices and requests to DTC, and timeliness of receipt
of them by DTC.
19. Issuer: (a) understands that DTC has no obligation to and will not,
communicate to its Participants or to any person having an interest in the
Securities any information contained in the Security certificate(s); and (b)
acknowledges that neither Participants nor any person having an interest in the
Securities shall be deemed to have notice of the provisions of the Security
certificate(s) by virtue of submission of such certificate(s) to DTC.
Note:
Schedule A contains statements that DTC believes accurately describe DTC, the
method of effecting book-entry transfers of securities distributed through DTC
and certain related matters.
Very truly yours,
Piercing Pagoda, Inc.
(Issuer)
By:
CoreStates Securities, Corp Dauphin Deposit Bank and Trust
(Remarketing Agent) Company
(Tender Agent)
By: By:
Dauphin Deposit Bank and Trust Dauphin Deposit Bank and Trust
Company
Company (Paying Agent)
(Trustee)
By: By:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:
SCHEDULE A
SAMPLE OFFERING DOCUMENT LANGUAGE
DESCRIBING BOOK-ENTRY-ONLY ISSUANCE
(Prepared by DTC--bracketed material may be applicable only
to certain Issues)
1. The Depository Trust Company ("DTC"), New York, NY, will act as securities
depository for the securities (the "Securities"). The Securities will be issued
as fully-registered securities registered in the name of Dede & Co. (DTC's
partnership nominee). One fully-registered Security certificate will be issued
for [each issue of] the Securities, [each] in the aggregate principal amount of
such issue, and will be deposited with DTC. [If, however, the aggregate
principal amount of [any] issue exceeds $150 million, one certificate will be
issued with respect to each $150 million of principal amount and an additional
certificate will be issued with respect to any remaining principal amount of
such issue.]
2. DTC is a limited-purpose trust company organized under the New York Banking
Law, a banking organization within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a clearing corporation within the meaning
of the New York Uniform Commercial Code, and a "clearing agency" registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of
1934. DTC holds securities that its participants ("Participants") deposit with
DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securitIes through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations, and certain other organizations. DTC is owned by a number
of its Direct Participants and by the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks, and trust companies that clear through or
maintain a custodial relationship with a Direct Participant, either directly or
indirectly ("Indirect Participants"). The Rules applicable to DTC and its
Participants are on file with the Securities and Exchange Commission.
3. Purchases of Securities under the DTC system must be made by or through
Direct Participants, which will receive a credit for the Securities on DTC's
records. The ownership Interest of each actual purchaser of each Security
("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants' records. Beneficial owners will not receive written confirmation
from DTC of their purchase, but Beneficial Owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership
interests in the Securities are to be accomplished by entries made on the books
of Participants acting on behalf of Beneficial Owners. Beneficial Owners will
not receive certificates representing their ownership Interests in Securities,
except in the event that use of the book-entry system for the Securities is
discontinued.
4. To facilitate subsequent transfers, all Securities deposited by Participants
with DTC are registered in the name of DTC's partnership nominee, Cede & Co. The
deposit of Securities with DTC and their registration in the name of Cede & Co.
effect no change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Securities; DTC's records reflect only the identify of
the Direct Participants to whose accounts such Securities are credited, which
may or may not be the Beneficial Owners. The Participants will remain
responsible for keeping account of their holdings on behalf of their customers.
5. Conveyance of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
6. Redemption notices shall be sent to Cede & Co. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of the interest of each Direct Participant in such issue to be
redeemed.
7. Neither DTC nor Cede & Co. will consent or vote with respect to Securities.
Under its usual procedures, DTC mails an Omnibus Proxy to the Issuer as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts the
Securities are credited on the record date (identified in a listing attached to
the Omnibus Proxy).
8. Principal and interest payments on the Securities will be made to DTC. DTC's
practice is to credit Direct Participants' accounts on payable date in
accordance with their respective holdings shown on DTC's records unless DTC has
reason to believe that it will not receive payment on payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions and
customary practices, as is the case with securities held for the accounts of
customers in bearer form or registered in Street name, and will be the
responsibility of such Participant and not of DTC, the Agent, or the issuer,
subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of principal and interest to DTC is the responsibility of
the Issuer or the Agent, disbursement of such payments to Direct Participants
shall be the responsibility of DTC, and disbursement of such payments to the
Beneficial Owners shall be the responsibility of Direct and Indirect
Participants.
9. A Beneficial Owner shall give notice to elect to have its Securities
purchased or tendered, through its Participant, to the [Tender/Remarketing]
Agent, and shall effect delivery of such Securities by causing the Direct
Participant to transfer the Participant's interest in the Securities, on DTC's
records, to the [Tender/Remarketing] Agent. The requirement for physical
delivery of Securities in connection with a demand for purchase or a mandatory
purchase will be deemed satisfied when the ownership rights in the Securities
are transferred by Direct Participants on DTC's records.
10. DTC may discontinue providing its services as securities depository with
respect to the Securities at any time by giving reasonable notice to the Issuer
or the Agent. Under such circumstances, in the event that a successor securities
depository is not obtained, Security certificates are required to be printed and
delivered.
11. The Issuer may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Security certificates will be printed and delivered.
12. The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuer believes to be reliable, but the
Issuer takes no responsibility for the accuracy thereof.
Principal and Income Payments Rider
1. This Rider supersedes any contradictory language set forth in the Letter of
Representations to which it is appended.
2. With respect to payments in the Securities:
A. Issuer or Agent shall provide notice to a standard interest and dividend
announcement service subscribed to by DTC. In the event that no such service
exists, Issuer or Agent shall provide such notice directly to DTC
electronically, as previously arranged by Issuer or Agent and DTC. If electronic
transmission has not been arranged, absent any other arrangements between Issuer
or Agent and DTC, such notice shall be sent by telecopy to DTC's Dividend
Department at (000) 000-0000 or (000) 000-0000, and receipt of such notices
shall be confirmed by telephoning (000) 000-0000. Notices to DTC pursuant to the
above by mail or any other means shall be sent to:
Manager, Announcements
Dividend Department
The Depository Trust Company
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
B. Issuer or Agent shall provide DTC, no later than noon (Eastern Time) on each
periodic interest, principal or dividend payment date, a written notice of
payment information containing the Security CUSIP numbers for which payment will
be sent, as well as the dollar amount of payment.
C. Dividends, interest payments, and principal payments that are part of
periodic principal-and-interest payments shall be received by Cede & Co., as
nominee of DTC, or its registered assigns, in same-day funds no later than 2:30
p.m. (Eastern Time) on each payment date. Absent any other arrangements between
Issuer or Agent and DTC, such funds shall be wired as follows:
The Chase Manhattan Bank ABA # 021 000 021 For credit to a/c Cede & Co.
c/o The Depository Trust Company
Dividend Deposit Account # 066-026776
D. Maturity and redemption payments with CUSIP-level detail shall be received by
Cede & Co., as nominee of DTC, or its registered assigns, in same-day funds by
2:30 p.m. (Eastern Time) on the payable date. Absent any other
arrangements between Issuer or Agent and DTC, such funds shall be wired as
follows:
The Chase Manhattan Bank ABA # 021 000 021 For credit to a/c Cede & Co.
c/o The Depository Trust Company
Redemption Deposit Account # 066-027306
E. Principal payments (plus accrued interest, if any) as the result of optional
tenders for purchase effected by means of DTC's Repayment Option Procedures
shall be received by Cede & Co., as nominee of DTC, or its registered assigns,
in same-day funds by 2:30 p.m. (Eastern Time) on the first payable date. Absent
any other arrangements between Issuer or Agent and DTC, such funds shall be
wired as follows:
The Chase Manhattan Bank ABA # 021 000 021 For credit to a/c Cede & Co.
c/o The Depository Trust Company
Reorganization Deposit Account # 066-027608
See # 1, Vol II,
Exhibits A & B
