AFTER THE ENDORSEMENT AS HEREON PROVIDED AND PLEDGE OF THIS NOTE, THIS NOTE MAY NOT BE ASSIGNED, PLEDGED, ENDORSED OR OTHERWISE TRANSFERRED EXCEPT TO AN ASSIGNEE OR SUCCESSOR OF THE TRUSTEE IN ACCORDANCE WITH THE INDENTURE, BOTH OF WHICH ARE REFERRED TO HEREIN.
FOR VALUE RECEIVED, ALBEE RETAIL DEVELOPMENT LLC, a limited liability company organized and existing under the laws of the State of Delaware (the “Borrower”), by this promissory note hereby promises to pay to the order of NEW YORK CITY CAPITAL RESOURCE CORPORATION (the “Issuer”) and THE BANK OF NEW YORK MELLON, as Trustee (the “Trustee”) the principal sum of Twenty Million Dollars ($20,000,000), together with interest on the unpaid principal amount hereof, from the date of the issuance and delivery of the Initial Bonds (as such term is hereinafter defined) until paid in full, at a rate per annum equal to the respective rates of interest borne from time to time by the Initial Bonds, together with all Sinking Fund Installments, Redemption Price and Purchase Price payments as and when due. A ll capitalized terms used but not defined in this Promissory Note shall have the respective meanings assigned such terms by the Indenture (as hereinafter defined) or by the Loan Agreement (as hereinafter defined). All such payments shall be made in funds which shall be immediately available on the due date of such payments and in lawful money of the United States of America and shall be paid at the designated corporate trust office of the Trustee or its successor under the Indenture.
The principal amount, interest, Sinking Fund Installments, Redemption Price, and Purchase Price shall be payable on the dates and in the amounts that principal of, interest, Sinking Fund Installments, Redemption Price and Purchase Price on the Initial Bonds are payable under the Loan Agreement (as defined below), subject to prepayments and credits to the extent provided in the Indenture and the Loan Agreement.
This promissory note is the “Promissory Note” referred to in the Loan Agreement, dated as of July 1, 2010 (the “Loan Agreement”), between the Borrower and the Issuer, the terms, conditions and provisions of which are hereby incorporated by reference.
This Promissory Note and the payments required to be made hereunder are irrevocably assigned, without recourse, representation or warranty, and pledged to the Trustee under the Indenture of Trust, dated as of July 1, 2010 (the “Indenture”), by and between the Issuer and the Trustee, and such payments will be made directly to the Trustee for the account of the Issuer pursuant to such assignment. Such assignment is made as security for the payment of the Issuer’s $20,000,000 in aggregate principal amount of Recovery Zone Facility Revenue Bonds (Albee Retail Development LLC Project), Series 2010 (the “Initial Bonds”) issued by the Issuer pursuant to the Indenture. All the terms, conditions and provisions of the Indenture, the Loan Agreement and the Initial Bonds are hereby incorpor ated as a part of this Promissory Note.
The Borrower may at its option, and may under certain circumstances be required to, prepay together with accrued interest, all or any part of the amounts due under this Promissory Note, as provided in the Loan Agreement and the Indenture.
Presentation, demand, protest and notice of dishonor are hereby expressly waived by the Borrower.
The Borrower hereby promises to pay costs of collection and attorneys’ fees in case of default on this Promissory Note.
This Promissory Note shall be governed by, and construed in accordance with, the laws of the State of New York without regard to conflicts of law principles thereof.
Pay to the order of The Bank of New York Mellon, without recourse, as Trustee under the Indenture referred to in the within mentioned Loan Agreement, as security for the Initial Bonds issued under such Indenture. This endorsement is given without any warranty as to the authority or genuineness of the signature of the maker of the Promissory Note.
NEW YORK CITY CAPITAL RESOURCE CORPORATION,
a local development corporation created pursuant to the Not-for-Profit
Corporation Law of the State of New York at the direction of the Mayor of
The City of New York, having its principal office at 110 William Street,
New York, New York 10038,
as “Issuer”
TO
THE BANK OF NEW YORK MELLON,
a banking corporation organized and existing under the laws of the State of
New York, having a corporate trust office at 101 Barclay Street, Floor 7W,
New York, New York 10286, together with any successor trustee at the time
serving as such under this Indenture of Trust,
as “Trustee”
INDENTURE OF TRUST
Dated as of July 1, 2010
$20,000,000
New York City Capital Resource Corporation
Recovery Zone Facility Revenue Bonds
(Albee Retail Development LLC Project), Series 2010
THIS INDENTURE OF TRUST dated as of July 1, 2010, by and between the NEW YORK CITY CAPITAL RESOURCE CORPORATION, a local development corporation created pursuant to the Not-for-Profit Corporation Law of the State of New York at the direction of the Mayor of The City of New York, having its principal office at 110 William Street, New York, New York 10038, party of the first part, to THE BANK OF NEW YORK MELLON, a New York banking corporation together with any successor trustee at the time serving as such under this Indenture of Trust, having a corporate trust office at 101 Barclay Street, Floor 7W, New York, New York 10286, party of the second part (capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in Section 1.01),
WITNESSETH:
WHEREAS, the Issuer is authorized pursuant to Section 1411(a) of the Not-for-Profit Corporation Law of the State of New York, as amended, and its Certificate of Incorporation, to promote community and economic development and the creation of jobs for the citizens of the City by developing and providing programs for manufacturing and industrial businesses and other entities to access low interest cost tax-exempt and non-tax-exempt financing for their eligible projects, and to issue and sell one or more series or classes of bonds, notes and other obligations through public letting, private placement, or negotiated underwriting to finance such activities above, on a secured or unsecured basis; and
WHEREAS, the Company entered into negotiations with officials of the Issuer for the construction, renovation, equipping and furnishing of the Improvements as part of the Facility; and
WHEREAS, pursuant to the American Recovery and Reinvestment Act of 2009, as amended, on June 9, 2009, as amended on February 9, 2010, the Board of Directors of the Issuer established a program for the issuance of recovery zone facility bonds including program requirements (“Program Requirements”), threshold requirements (“Threshold Requirements”) and selection criteria (“Selection Criteria”), and designated certain areas within the City as “Recovery Zones”; and
WHEREAS, on July 17, 2009, the Mayor of the City ratified the designations made by the Issuer of the “Recovery Zones”; and
WHEREAS, on September 15, 2009, the Issuer adopted a resolution approving the eligibility of the Project to receive a $20,000,000 allocation for the issuance of recovery zone facility bonds and determined, among other things, that the Project is located in a designated “Recovery Zone”, and that, in applying the Threshold Requirements and the Selection Criteria, the Project qualifies for the issuance of recovery zone facility bonds; and
WHEREAS, the Issuer has determined that the providing of financial assistance to the Company for the Project will promote and is authorized by and will be in furtherance of the Program Requirements and the corporate purposes of the Issuer; and
WHEREAS, the site for the Facility, including the improvements to be constructed thereon, will be subject to the Ground Lease; and
WHEREAS, to facilitate the Project and the issuance by the Issuer of its recovery zone facility revenue bonds to finance a portion of the costs of the Project, the Issuer and the Company have entered into negotiations pursuant to which (i) the Issuer will make the Loan of the proceeds of the Initial Bonds, in the original principal amount of the Initial Bonds, to the Company pursuant to the Loan Agreement, and (ii) the Company will execute the Promissory Note in favor of the Issuer and the Trustee to evidence the Company’s obligation under the Loan Agreement to repay the Loan; and
WHEREAS, to provide funds for a portion of the costs of the Project and for incidental and related costs and to provide funds to pay the costs and expenses of the issuance of the Initial Bonds, the Issuer has authorized the issuance of the Initial Bonds in the Authorized Principal Amount pursuant to the Bond Resolution and this Indenture; and
WHEREAS, concurrently with the execution hereof, in order to further secure the Initial Bonds, (i) the payment of the principal of, Sinking Fund Installments for, Purchase Price, redemption premium, if any, and interest on the Initial Bonds, and the payments, obligations, covenants and agreements of the Company under the Loan Agreement and under the Promissory Note, will be guaranteed by the Guarantors pursuant to the Bond Guaranty Agreement in favor of the Trustee; (ii) the completion of the Project will be guaranteed by the Guarantors pursuant to the Project Completion Guaranty Agreement in favor of the Trustee; (iii) the Company will grant a lien in Facility Revenues and the remainder of the Pledged Collateral pursuant to the Pledge and Security Agreement in fav or of the Trustee, subject only to the lien of the Mortgage; and (iv) the Company will grant mortgage liens on and security interests in its leasehold interest in the Facility under the Ground Lease, and an assignment of leases and rents, to the Trustee pursuant to the Mortgage; and
WHEREAS, additional moneys may be necessary to finance the cost of completing the Project, providing funds in excess of Net Proceeds to repair, relocate, replace, rebuild or restore the Facility in the event of damage, destruction or taking by eminent domain, or providing extensions, additions or improvements to the Facility or refunding outstanding Bonds and provision should therefore be made for the issuance from time to time of additional bonds; and
WHEREAS, the Initial Bonds and the Trustee’s Certificate to be endorsed thereon are all to be in substantially the form set forth in Exhibit C, with necessary and appropriate variations, omissions and insertions as permitted or required by this Indenture; and
WHEREAS, all things necessary to make the Bonds when authenticated by the Trustee and issued as in this Indenture provided, the valid, binding and legal special limited revenue obligations of the Issuer according to the import thereof, and to constitute this Indenture a valid pledge and assignment of the loan payments, revenues and receipts herein made to the payment of the principal of, Sinking Fund Installments for, Purchase Price, redemption premium, if any, and interest on the Bonds, have been done and performed, and the creation, execution and delivery of this Indenture, and the creation, execution and issuance of the Bonds, subject to the terms hereof, have in all respects been duly authorized;
NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS, THIS INDENTURE WITNESSETH:
That the Issuer in consideration of the premises and of the acceptance by the Trustee of the trusts hereby created and of the purchase and acceptance of the Bonds by the Holders and owners thereof, and of the sum of One Dollar, lawful money of the United States of America, to it duly paid by the Trustee at or before the execution and delivery of these presents, and for other good and valuable consideration, the receipt of which is hereby acknowledged, and in order to secure the payment of the principal of, Purchase Price, and Sinking Fund Installments for, the Bonds and the indebtedness represented thereby and the redemption premium, if any, and interest on the Bonds according to their tenor and effect and the performance and observance by the Issuer of all the covenants expressed or implied herein and in the Bonds, does hereby grant, bargain, convey, transfer, grant a security interest in, pledge and assign unto the Trustee, and unto its respective successors in trust, and to their respective assigns, forever for the securing of the performance of the obligations of the Issuer hereinafter set forth, the following:
GRANTING CLAUSES
I
All right, title and interest of the Issuer in and to the Loan Agreement, including all loan payments, revenues and receipts payable or receivable thereunder, excluding, however, the Issuer’s Reserved Rights, which Issuer’s Reserved Rights may be enforced by the Issuer and the Trustee, jointly or severally.
II
All right, title and interest of the Issuer in and to the Promissory Note.
III
All moneys and securities from time to time held by the Trustee under the terms of this Indenture including amounts set apart and transferred to the Earnings Fund, the Project Fund, the Purchase Fund, the Renewal Fund, the Bond Fund, the Advance Interest Deposit Fund or any special fund, and all investment earnings of any of the foregoing, subject to disbursements from the Earnings Fund, the Project Fund, the Renewal Fund, the Advance Interest Deposit Fund or any such special fund in accordance with the provisions of the Loan Agreement and this Indenture; provided, however, (i) there is hereby expressly excluded from any assignment, pledge, lien or security interest any amounts set apart and transferred to the Rebate Fund, and (ii) amounts held in the Purchase Fund shall be held in trust in favor of only those Persons entitled to amounts therein as provided in this Indenture.
IV
Any and all other property of every kind and nature from time to time which was heretofore or hereafter is by delivery or by writing of any kind conveyed, mortgaged, pledged, assigned or transferred, as and for additional security hereunder, by the Issuer or by any other Person with or without the consent of the Issuer, to the Trustee which is hereby authorized to receive any and all such property at any time and at all times to hold and apply the same subject to the terms hereof.
TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby conveyed and assigned, or agreed or intended so to be, to the Trustee and its successors in said Trust and to them and their assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal and proportionate benefit, security and protection of all Holders and owners of the Bonds issued under and secured by this Indenture, without privilege, priority or distinction as to lien or otherwise of any of the Bonds over any of the others of the Bonds, except as otherwise expressly provided in this Indenture, provided, however, that if the Issuer, its successors or assigns, shall well and truly pay, or cause to be paid, the principal and any applicable redemption premium, of the Bonds and the interest due or to become due thereon, at the times and in the manner provided in the Bonds according to the true intent and meaning thereof and shall make the payments into the Bond Fund as required under t his Indenture or shall provide, as permitted hereby, for the payment thereof by depositing or causing to be deposited with the Trustee sufficient amounts, and shall well and truly keep, perform and observe all the covenants and conditions pursuant to the terms of this Indenture to be kept, performed and observed by it, and shall pay to the Trustee all sums of money due or to become due to it in accordance with the terms and provisions hereof, then upon such final payments this Indenture and the rights hereby granted shall cease, determine and be void; otherwise, this Indenture to be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared that, all the Bonds issued and secured hereunder are to be issued, authenticated and delivered and all said loan payments, revenues and receipts hereby pledged are to be dealt with and disposed of under, upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes as hereinafter expressed, and the Issuer has agreed and covenanted, and does hereby agree and covenant with the Trustee and with the respective Holders and owners, from time to time of the Bonds or any part thereof, as follows, that is to say:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms shall have the respective meanings in this Indenture, except as the context otherwise requires:
Additional Bonds shall mean one or more Series of additional bonds issued, executed, authenticated and delivered under the Indenture.
Adjustable Fixed Interest Rate shall mean the interest rate on the Initial Bonds as determined in accordance with Section 2.02, from and including the Closing Date through the Final Maturity Date of the Initial Bonds.
Adjustable Fixed Interest Rate Commencement Date shall mean the original date of issuance of the Initial Bonds.
Adjustable Fixed Interest Rate Term shall mean (i) the Initial Adjustable Fixed Interest Rate Term, and (ii) each period of years thereafter commencing on an Adjustment Date and continuing to but excluding the next succeeding Adjustment Date, with the final Adjustable Fixed Interest Rate Term to continue through but not including the Final Maturity Date.
Adjustment Date shall mean (i) the Initial Adjustment Date, (ii) the first day of each Adjustable Fixed Interest Rate Term (other than the Initial Adjustable Fixed Interest Rate Term) as shall constitute a November 1, provided that if any such date shall not be a Business Day, the Adjustment Date shall be the next succeeding Business Day.
Advance Interest Deposit Fund shall mean the special trust fund so designated, established pursuant to Section 5.01.
An Affiliate of a Person shall mean a Person that directly or indirectly through one or more intermediaries Controls, or is under common Control with, or is Controlled by, such Person.
Approved Facility shall mean the Facility as occupied, used and operated by the Company and all Facility Tenants substantially for the Approved Project Operations, including such other activities as may be substantially related to or substantially in support of such operations, all to be effected in accordance with the Loan Agreement and the Ground Lease.
Approved Project Operations shall mean, subject to the Loan Agreement, those uses and operations permitted under the Ground Lease, excluding, however, any Tax Prohibited Use or any use by a not-for-profit corporation.
Authorized Denomination shall mean, in the case of the Initial Bonds, $100,000 or any integral multiple of $5,000 in excess thereof.
Authorized Principal Amount shall mean, in the case of the Initial Bonds, $20,000,000.
Authorized Representative shall mean:
(i) in the case of the Issuer, the Chairperson, Vice Chairperson, Treasurer, Assistant Treasurer, Secretary, Assistant Secretary, Executive Director, Deputy Executive Director, General Counsel or Vice President for Legal Affairs, or any other officer or employee of the Issuer who is authorized to perform specific acts or to discharge specific duties;
(ii) in the case of the Company, a person named in Exhibit B — “Authorized Representative” to the Loan Agreement, or any other officer or employee of the Company who is authorized to perform specific duties hereunder or under any other Project Document and of whom another Authorized Representative of the Company has given written notice from time to time to the Issuer and the Trustee; and
(iii) in the case of the Parent, a person named in Exhibit B — “Authorized Representative” to the Loan Agreement, or any other officer or employee of the Parent who is authorized to perform specific duties hereunder or under any other Project Document and of whom another Authorized Representative of the Parent has given written notice from time to time to the Issuer and the Trustee;
provided, however, that in each case for which a certification or other statement of fact or condition is required to be submitted by an Authorized Representative to any Person pursuant to the terms of this Indenture or any other Project Document, such certificate or statement shall be executed only by an Authorized Representative in a position to know or to obtain knowledge of the facts or conditions that are the subject of such certificate or statement.
Beneficial Owner shall mean, whenever used with respect to an Initial Bond, the Person in whose name such Initial Bond is recorded as the Beneficial Owner of such Initial Bond by the respective systems of DTC and each of the Participants of DTC. If at any time the Initial Bonds are not held in the Book-Entry System, Beneficial Owner shall mean “Holder” for purposes of the Security Documents.
Bond Fund shall mean the special trust fund so designated, established pursuant to Section 5.01.
Bond Guaranty Agreement shall mean the Bond Guaranty Agreement, dated as of even date herewith, from the Guarantors to the Trustee, and shall include any and all amendments thereof and supplements thereto hereafter made in conformity therewith and herewith.
Bondholder, Holder of Bonds, Holder or holder shall mean any Person who shall be the registered owner of any Bond or Bonds.
Bond Payment Date shall mean, with respect to a Series of Bonds, each date upon which interest, principal and/or Sinking Fund Installments shall be scheduled to be paid under such Series of Bonds.
Bond Placement Agreement shall mean the Bond Placement Agreement, dated July 1, 2010, with respect to the placement of the Initial Bonds, among the Issuer, the Company and the Placement Agent.
Bond Registrar shall mean the Trustee acting as registrar as provided in Section 3.10.
Bond Resolution shall mean the resolution of the Issuer adopted on February 9, 2010, as amended on April 13, 2010, authorizing the issuance of the Initial Bonds.
Bonds shall mean the Initial Bonds and any Additional Bonds.
Building Loan Agreement shall mean the Building Loan Agreement, dated as of even date herewith, among the Issuer, the Company and the Trustee, and shall include any and all amendments thereof and supplements thereto hereafter made in conformity therewith and herewith.
Business Day shall mean any day other than:
(i) a Saturday or Sunday or a legal holiday;
(ii) a day on which the Trustee, the Tender Agent, the Paying Agent or the Remarketing Agent is required or authorized by law or executive order to be closed;
(iii) a day on which banking institutions in the City are authorized by law or executive order to remain closed; or
(iv) a day on which The New York Stock Exchange or DTC is closed.
Capitalized Interest Account shall mean the special trust account of the Project Fund so designated, established pursuant to Section 5.01.
Capitalized Interest Period shall have the meaning assigned to such term in Section 5.02(b).
City shall mean The City of New York, New York.
Closing Date shall mean July 1, 2010, the date of the initial issuance and delivery of the Initial Bonds.
Code shall mean the Internal Revenue Code of 1986, as amended, including the regulations thereunder. All references to Sections of the Code or regulations thereunder shall be deemed to include any such Sections or regulations as they may hereafter be renumbered in any subsequent amendments to the Code or such regulations.
Commencement Date shall mean July 1, 2010, on which date the Loan Agreement was executed and delivered.
Company shall mean Albee Retail Development LLC, a limited liability company organized and existing under the laws of the State of Delaware, and its successors and assigns; provided, however, that nothing contained in this definition shall be deemed to limit or modify the obligations of the Company under Section 7.8 or 7.19 of the Loan Agreement.
Company’s Property shall have the meaning specified in Section 3.4(c) of the Loan Agreement.
Company Purchase Account shall mean the special trust account of the Purchase Fund so designated, established pursuant to Section 5.01.
Computation Date shall have the meaning assigned to that term in the Tax Regulatory Agreement.
Computation Period shall have the meaning assigned to that term in the Tax Regulatory Agreement.
Conduct Representation shall mean any representation by the Company under Section 2.2(u) of the Loan Agreement, by the Parent under Section 2.1(h) of the Issuer Indemnification Agreement, or by any other Person in any Required Disclosure Statement delivered to the Issuer.
Construction Account shall mean the special trust account of the Project Fund so designated, established pursuant to Section 5.01.
Control or Controls, including the related terms “controlled by” and “under common control with”, shall mean the power to direct the management and policies of a Person (x) through the ownership, directly or indirectly, of not less than a majority of its voting securities, (y) through the right to designate or elect not less than a majority of the members of its board of directors or trustees or other Governing Body, or (z) by contract or otherwise.
Costs of Issuance shall mean issuance costs with respect to the Initial Bonds described in Section 147(g) of the Code and any regulations thereunder, including but not limited to the following: fees of the Placement Agent; counsel fees (including bond counsel to the Issuer, counsel to the Placement Agent, Trustee’s counsel, Issuer’s counsel, Company’s counsel, as well as any other specialized counsel fees incurred in connection with the borrowing); financial advisor fees of any financial advisor to the Issuer or the Company incurred in connection with the issuance of the Initial Bonds; engineering and feasibility study costs; guarantee fees (other than Qualified Guarantee Fees, as defined in the Tax Regulatory Agreement); Rating Agency fees; Trustee, Paying Agent and Tender Agent fees; accountant fees and other expenses related to issuance of the Initial Bonds; printing costs (for the Initial Bonds and of the preliminary and final Private Placement Memorandum relating to the Initial Bonds); printing costs for the Initial Bonds and offering documents; public approval and process costs; fees and expenses of the Issuer incurred in connection with the issuance of the Initial Bonds; and Blue Sky fees and expenses; and similar costs.
Default Rate shall mean fifteen percent (15%) per annum.
Defaulted Interest shall have the meaning specified in Section 2.02(f).
Defeasance Obligations shall mean Government Obligations that are not subject to redemption prior to maturity.
Determination Date shall mean, for any Adjustable Fixed Interest Rate Term other than the Initial Adjustable Fixed Interest Rate Term, the seventh (7th) Business Day immediately preceding the Adjustment Date for such Adjustable Fixed Interest Rate Term.
Determination of Taxability shall mean;
(i) the adoption, promulgation or enactment of any federal statute or regulation, or any determination, decision, decree or ruling made by the Commissioner or any District Director of the Internal Revenue Service;
(ii) the issuance of a public or private ruling or a technical advice memorandum by the Internal Revenue Service in which the Company has participated or has been given the opportunity to participate, and which ruling or memorandum the Company, in its discretion, does not contest or from which no further right of judicial review or appeal exists; or
(iii) a determination from which no further right of appeal exists of any court of competent jurisdiction in the United States in a proceeding in which the Company has participated or has been a party, or has been given the opportunity to participate or be a party;
in any case, to the effect that the interest payable on the Bonds of a Holder or a former Holder thereof (other than a Holder of any Bond who is a “substantial user” of the Facility or a “related person”, within the meaning and for the purpose of Section 147(a) of the Code and the applicable regulations thereunder) is includable in gross income for federal income tax purposes; provided, however, that no such Determination of Taxability described in clauses (ii) or (iii) hereof shall be considered to exist unless (1) the Holder or former Holder of the Bond involved in such proceeding (A) gives the Company and the Trustee prompt notice of the commencement thereof and (B) (if the Company agrees to pay all expenses in connection therewith) offers the Company the opportunity to control the defense thereof and (2) either (A) the Company does not agree within thirty (30) days of receipt of such offer to pay such expenses and to control such defense or (B) the Company shall exhaust or choose not to exhaust all available proceedings for the contest, review, appeal or rehearing of such decree, judgment or action which the Company determines to be appropriate. No Determination of Taxability described above will result from the inclusion of interest on any Bond in the computation of minimum or indirect taxes.
DTC shall mean The Depository Trust Company, a limited purpose trust company organized under the laws of the State, and its successors and assigns.
Earnings Fund shall mean the special trust fund so designated, established pursuant to Section 5.01.
Electronic Means shall mean telecopy, facsimile transmission, e-mail transmission or other similar electronic means of communication providing evidence of transmission, including a telephonic communication confirmed by any other method set forth in this definition.
Entity shall mean any of a corporation, general partnership, limited liability company, limited liability partnership, joint stock company, trust, estate, unincorporated organization, business association, tribe, firm, joint venture, governmental authority or governmental instrumentality, but shall not include an individual.
Event of Default shall have the meaning specified in Section 8.01(a).
Event of Taxability shall mean the date specified in a Determination of Taxability as the date interest paid or payable on any Bond becomes includable for federal income tax purposes in the gross income of any Holder thereof (other than a Holder of any Bond who is a “substantial user” of the Facility or a “related person”, within the meaning and for the purpose of Section 147(a) of the Code and the applicable regulations thereunder) as a consequence of any act, omission or event whatsoever, including any change of law, and regardless of whether the same was within or beyond the control of the Company.
Facility shall mean, collectively, the Land and the Improvements.
Facility Lease Payments shall have the meaning specified in Section 4.1 of the Mortgage.
Facility Leases shall mean, collectively, all leases or other occupancy or use agreements, other than the Ground Lease, entered into with any Person for the use, possession or occupancy of the Facility or any portion thereof.
Facility Revenues shall mean all revenues, income, fees, receipts, charges, income and other money received in any period by or on behalf of the Company, derived from the leasing or operation of the Facility, including proceeds derived from insurance (including environmental insurance) and/or condemnation proceeds with respect to the Facility and business interruption insurance and extra expense insurance, in each case whether existing as of the Closing Date or hereafter coming into existence.
Facility Tenants shall mean all Persons as shall use, possess or occupy all or any portion of the Facility pursuant to a Facility Lease.
Favorable Opinion of Bond Counsel shall mean, with respect to any action the occurrence of which requires such an opinion, an unqualified Opinion of Counsel, which shall be a Nationally Recognized Bond Counsel, to the effect that such action is permitted under the Indenture and will not adversely affect the exclusion of interest on a Series of Bonds from gross income for purposes of Federal income taxation (subject to the inclusion of any exceptions contained in the opinion delivered upon original issuance of such Series of Bonds).
Final Maturity Date shall mean, in the case of the Initial Bonds, November 1, 2042.
First Optional Redemption Date shall have the meaning assigned to that term by Section 2.04(a)(ii).
Fitch shall mean Fitch, Inc., a Delaware corporation, its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, “Fitch” shall be deemed to refer to any other nationally recognized securities rating agency designated by the Trustee, by notice to the other Notice Parties.
GAAP shall mean those generally accepted accounting principles and practices that are recognized as such by the American Institute of Certified Public Accountants or by the Financial Accounting Standards Board or through other appropriate boards or committees thereof, and that are consistently applied for all periods, after the Commencement Date, so as to properly reflect the financial position of the Company, except that any accounting principle or practice required to be changed by the Financial Accounting Standards Board (or other appropriate board or committee of the said Board) in order to continue as a generally accepted accounting principle or practice may be so changed.
Governing Body shall mean, when used with respect to any Person, its board of directors, board of trustees or individual or group of individuals by, or under the authority of which, the powers of such Person are exercised.
Government Obligations shall mean the following:
(i) direct and general obligations of, or obligations unconditionally guaranteed by, the United States of America;
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation of the United States of America for the timely payment thereof; or
(iii) securities or receipts evidencing ownership interests in obligations or specified portions (such as principal or interest) of obligations described in clauses (i) or (ii) above.
Ground Lease shall mean that certain Severance Lease (Site 1A), dated June 30, 2010, between the City, as landlord, and Albee Development, LLC, a Delaware limited liability company (“Albee Development”), as assigned on July 1, 2010 by Albee Development to, and assumed by, the Company, as tenant, and shall include any and all amendments thereof and supplements thereto hereafter made in conformity therewith and with the Loan Agreement and the Mortgage.
Guarantors shall mean, collectively, the Company and the Parent, and their respective successors and assigns.
Improvements shall mean:
(i) all buildings, structures, foundations, related facilities, fixtures and other improvements existing on the Commencement Date and erected or situated on the Land;
(ii) any other buildings, structures, foundations, related facilities, fixtures and other improvements constructed or erected on the Land throughout the term of the Loan Agreement (including any improvements or demolitions made as part of the Project Work pursuant to Section 3.2 of the Loan Agreement); and
(iii) all replacements, improvements, additions, extensions, substitutions, restorations and repairs to any of the foregoing.
Indenture shall mean this Indenture of Trust, dated as of April 1, 2010, between the Issuer and the Trustee, as from time to time amended or supplemented by Supplemental Indentures in accordance with Article XI.
Independent Engineer shall mean a Person (not an employee of any of the Issuer, the Company, the Parent or any Affiliate of any thereof) registered and qualified to practice engineering or architecture under the laws of the State, selected by the Company, and approved in writing by the Trustee (which approval shall not be unreasonably withheld and shall be at the written direction of the Majority Holders).
Initial Adjustable Fixed Interest Rate Term shall mean the period commencing on the original date of issuance of the Initial Bonds and continuing to but excluding the Initial Adjustment Date (or, if such day is not a Business Day, the next succeeding Business Day).
Initial Adjustment Date shall mean November 1, 2014 (or, if such day shall not be a Business Day, the next succeeding Business Day).
Initial Bonds shall mean the Issuer’s $20,000,000 Recovery Zone Facility Revenue Bonds (Albee Retail Development LLC Project), Series 2010 authorized, issued, executed, authenticated and delivered on the Closing Date under the Indenture.
Initial Purchase Date shall mean November 1, 2014 (or, if such day shall not be a Business Day, the next succeeding Business Day).
Interest Account shall mean the special trust account of the Bond Fund so designated, established pursuant to Section 5.01.
Interest Payment Date shall mean, with respect to the Initial Bonds, February 1, May 1, August 1 and November 1 of each year, commencing August 1, 2010, and with respect to any Series of Additional Bonds, the dates set forth therefor in the Supplemental Indenture pursuant to which such Series of Additional Bonds are issued.
Interest Rate Change shall mean the establishment of an Adjustable Fixed Interest Rate for an Adjustable Fixed Interest Rate Term (other than the Initial Adjustable Fixed Interest Rate Term).
Issuer shall mean New York City Capital Resource Corporation, a local development corporation created pursuant to the Not-for-Profit Corporation Law of the State at the direction of the Mayor of the City, and its successors and assigns.
Issuer Indemnification Agreement shall mean the Issuer Indemnification Agreement, dated as of even date herewith, from the Parent to the Issuer, and shall include any and all amendments thereof and supplements thereto hereafter made.
Issuer’s Reserved Rights shall mean, collectively,
(i) the right of the Issuer in its own behalf to receive all Opinions of Counsel, reports, financial statements, certificates, insurance policies, binders or certificates, or other notices or communications required to be delivered to the Issuer under the Loan Agreement;
(ii) the right of the Issuer to grant or withhold any consents or approvals required of the Issuer under the Loan Agreement;
(iii) the right of the Issuer to enforce in its own behalf the obligation of the Company under the Loan Agreement to complete the Project;
(iv) the right of the Issuer in its own behalf (or on behalf of the appropriate taxing authorities) to enforce, receive amounts payable under or otherwise exercise its rights under Sections 2.2, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 4.4, 4.5, 4.6, 4.7, 4.8, 5.1, 5.2, 5.3, 5.4, 6.1, 6.3, 6.4, 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, 7.14, 7.15, 7.16, 7.17, 7.18, 7.19, 7.21, 7.22, 7.23, 7.26, 7.28, 7.29, 7.30, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 9.1, 9.2, 9.3, 10.1, 10.3, 10.6, 11.1, 11.3, 11.4, 11.5, 11.6, 11.11, 11.13, 11.14 and 11.15 of the Loan Agreement; and
(v) the right of the Issuer in its own behalf to declare a default with respect to any of the Issuer’s Reserved Rights and exercise the remedies set forth in Section 8.2(b) of the Loan Agreement.
Land shall mean that certain lot, piece or parcel of land in the Borough of Brooklyn (County of Kings), Block 149 and Lot 103, generally known by the street address 1 DeKalb Avenue, Brooklyn, New York, all as more particularly described in Exhibit A - “Description of the Land”, together with all easements, rights and interests now or hereafter appurtenant or beneficial thereto; but excluding, however, any real property or interest therein released pursuant to Section 7.9(c) of the Loan Agreement.
Liens shall have the meaning specified in Section 7.10(a) of the Loan Agreement.
Loan shall mean the loan made by the Issuer to the Company pursuant to the Loan Agreement as described in Section 4.1 of the Loan Agreement.
Loan Agreement shall mean the Loan Agreement, dated as of even date herewith, between the Issuer and the Company, and shall include any and all amendments thereof and supplements thereto hereafter made in conformity therewith and with the Indenture.
Loan Payment Date shall mean the fifth (5th) Business Day immediately preceding each Bond Payment Date.
Loss Event shall have the meaning specified in Section 5.1 of the Loan Agreement.
Majority Holders shall mean the Beneficial Owners of at least a majority in aggregate principal amount of the Bonds Outstanding, or, if the Bonds shall cease to be in book-entry form, the Holders of at least a majority in aggregate principal amount of the Bonds Outstanding.
Maximum Interest Rate shall mean, with respect to the Initial Bonds, a rate of interest equal to the lesser of (i) twelve percent (12%) per annum, or (ii) the maximum rate permitted by, or enforceable under, applicable law.
Moody’s shall mean Moody’s Investors Service Inc., a Delaware corporation, its successors and assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally recognized securities rating agency designated by the Trustee, by notice to the other Notice Parties.
Mortgage shall mean, collectively, the Mortgage and Security Agreement and Assignment of Leases and Rents (Acquisition Loan), the Mortgage and Security Agreement and Assignment of Leases and Rents (Building Loan) and the Mortgage and Security Agreement and Assignment of Leases and Rents (Indirect Loan) relating to the Facility, each dated as of even date herewith, and each from the Company to the Trustee, and shall include any and all amendments thereof and supplements thereto hereafter made in conformity therewith and herewith.
Nationally Recognized Bond Counsel shall mean counsel acceptable to the Issuer and the Trustee and experienced in matters relating to tax exemption of interest on bonds issued by states and their political subdivisions.
Net Proceeds shall mean, when used with respect to any insurance proceeds or condemnation award, compensation or damages, the gross amount of any such proceeds, award, compensation or damages less all expenses (including reasonable attorneys’ fees and any extraordinary expenses of the Issuer or the Trustee) incurred in the collection thereof.
Notice Parties shall mean the Issuer, the Company, the Parent, the Bond Registrar, the Paying Agents, the Trustee, the Tender Agent and the Remarketing Agent.
Opinion of Counsel shall mean a written opinion of counsel for the Company, the Parent or any other Person (which counsel shall be reasonably acceptable to the Issuer and the Trustee) with respect to such matters as required under any Project Document or as the Issuer or the Trustee may otherwise reasonably require, and which shall be in form and substance reasonably acceptable to the Issuer and the Trustee.
Organizational Documents shall mean, (i) in the case of an Entity constituting a limited liability company, the articles of organization or certificate of formation, and the operating agreement of such Entity, (ii) in the case of an Entity constituting a corporation, the articles of incorporation or certificate of incorporation, and the by-laws of such Entity, and (iii) in the case of an Entity constituting a general or limited partnership, the partnership agreement of such Entity.
Outstanding, when used with reference to a Bond or Bonds, as of any particular date, shall mean all Bonds which have been issued, executed, authenticated and delivered under the Indenture, except:
(i) Bonds cancelled by the Trustee because of payment or redemption prior to maturity or surrendered to the Trustee under the Indenture for cancellation;
(ii) any Bond (or portion of a Bond) for the payment or redemption of which, in accordance with Article X, there has been separately set aside and held in the Redemption Account of the Bond Fund either:
(A) moneys, and/or
(B) Defeasance Obligations in such principal amounts, of such maturities, bearing such interest and otherwise having such terms and qualifications as shall be necessary to provide moneys,
in an amount sufficient to effect payment of the principal or applicable Redemption Price of such Bond, together with accrued interest on such Bond to the payment or redemption date, which payment or redemption date shall be specified in irrevocable instructions given to the Trustee to apply such moneys and/or Defeasance Obligations to such payment on the date so specified, provided, that, if such Bond or portion thereof is to be redeemed, notice of such redemption shall have been given as provided in the Indenture or provision satisfactory to the Trustee shall have been made for the giving of such notice; and
(iii) Bonds in exchange for or in lieu of which other Bonds shall have been authenticated and delivered under Article III,
provided, however, that in determining whether the Holders of the requisite principal amount of Bonds Outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder or under any other Security Document, Bonds owned by the Company, the Parent or any Affiliate of the Company or of the Parent shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Bonds which the Trustee knows to be so owned shall be so disregarded. Bonds which have been pledged in good faith may be regarded as Outstanding for such purposes if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to su ch Bonds and that the pledgee is not the Company, the Parent or any Affiliate of the Company or of the Parent.
Parent shall mean Acadia Strategic Opportunity Fund II LLC, a limited liability company organized and existing under the laws of the State of Delaware, and its successors and assigns; provided, however, that nothing contained in this definition shall be deemed to limit or modify the obligations of the Parent under Section 3.6 of the Bond Guaranty Agreement or Section 3.4 of the Issuer Indemnification Agreement.
Participants shall mean those financial institutions for whom the Securities Depository effects book entry transfers and pledges of securities deposited with the Securities Depository, as such listing of Participants exists at the time of such reference.
Paying Agent shall mean any paying agent for the Bonds appointed pursuant to the Indenture (and may include the Trustee) and its successor or successors and any other corporation which may at any time be substituted in its place pursuant to the Indenture.
Permitted Encumbrances shall mean:
(i) the Ground Lease, the Mortgage, the Pledge and Security Agreement, the Building Loan Agreement, all Facility Leases and any other Project Document;
(ii) liens for real estate taxes, if any, payments in lieu of real estate taxes, assessments, levies and other governmental charges, the payment of which is not yet due and payable;
(iii) any mechanic’s, workmen’s, repairmen’s, materialmen’s, contractors’, warehousemen’s, carriers’, suppliers’ or vendors’ lien, security interest, encumbrance or charge or right in respect thereof, placed on or with respect to the Facility or any part thereof, if payment is not yet due and payable, or if such payment is being disputed pursuant to Section 7.10(b) of the Loan Agreement;
(iv) utility, access and other easements and rights of way, restrictions and exceptions that an Authorized Representative of the Company certifies to the Issuer and the Trustee will not materially interfere with or impair the use and enjoyment of the Facility by the Company and the Facility Tenants as provided in the Loan Agreement;
(v) such minor defects, irregularities, encumbrances, easements, rights of way and clouds on title as normally exist with respect to property similar in character to the Facility as do not, as set forth in a certificate of an Authorized Representative of the Company delivered to the Issuer and the Trustee, either singly or in the aggregate, render title to the Facility unmarketable or materially impair the property affected thereby for the purpose for which it was acquired or purport to impose liabilities or obligations on the Issuer;
(vi) those exceptions to title to the Facility enumerated in the title insurance policy delivered pursuant to Section 3.7 of the Loan Agreement insuring the Trustee’s mortgagee interest under the Mortgage in the Facility, a copy of which is on file at the offices of the Issuer and at the designated corporate trust office of the Trustee;
(vii) liens arising by reason of good faith deposits with the Company in connection with the tenders, leases of real estate, bids or contracts (other than contracts for the payment of money), deposits by the Company to secure public or statutory obligations, or to secure, or in lieu of, surety, stay or appeal bonds, and deposits as security for the payment of taxes or assessments or other similar charges;
(viii) any lien arising by reason of deposits with, or the giving of any form of security to, any governmental entity or any body created or approved by law or governmental regulation for any purpose at any time as required by law or governmental regulation as a condition to the transaction of any business or the exercise of any privilege or license, or to enable the Company to maintain self-insurance or to participate in any funds established to cover any insurance risks or in connection with workmen’s compensation, unemployment insurance, old age pensions or other social security, or to share in the privileges or benefits required for companies participating in such arrangements;
(ix) any judgment lien against the Company, so long as the finality of such judgment is being contested in good faith and execution thereon is stayed;
(x) any purchase money security interest in movable personal property, including equipment leases and financing;
(xi) liens on property due to rights of governmental entities or third party payors for recoupment of excess reimbursement paid;
(xii) a lien, restrictive declaration or performance mortgage with respect to the operation of the Facility arising by reason of a grant or other funding received by the Company from the City, the State or any governmental entity;
(xiii) a subordinate mortgage granted by the Company to the Parent, as subordinate mortgagee, in an amount not to exceed $5.3 million, together with an intercreditor agreement among the Trustee, the Company and the subordinate mortgagee in form and substance acceptable to the Trustee; and
(xiv) any lien, security interest, encumbrances or charge which exists in favor of the Trustee or to which the Trustee shall consent in writing.
Person shall mean an individual or any Entity.
Placement Agent shall mean, in the case of the Initial Bonds, Roosevelt & Cross, Incorporated, New York, New York.
Plans and Specifications shall mean the plans and specifications prepared for the Project by or on behalf of the Company, as amended from time to time by or on behalf of the Company to reflect any remodeling or relocating of the Project or substitutions, additions, modifications and improvements to the Project made by the Company in compliance with the Loan Agreement, said plans and specifications being duly certified by an Authorized Representative of the Company and filed in the designated corporate trust office of the Trustee and available to the Issuer.
Pledge and Security Agreement shall mean the Pledge and Security Agreement, dated as of even date herewith, from the Company to the Trustee, and shall include any and all amendments thereof and supplements thereto hereafter made in conformity therewith and herewith.
Pledged Collateral shall have the meaning specified in Section 3.1 of the Pledge and Security Agreement.
Preliminary Resolution shall mean the resolution of the Issuer adopted on September 15, 2009 approving the eligibility of the Project to receive an allocation for the issuance of up to $20,000,000 of recovery zone facility bonds to finance the Project.
Principal Account shall mean the special trust account of the Bond Fund so designated, established pursuant to Section 5.01.
Principal Office of the Remarketing Agent shall mean the office designated by the Remarketing Agent in a written notice delivered to the other Notice Parties.
Principal Office of the Tender Agent shall mean The Bank of New York Mellon, 101 Barclay Street, Floor 7W, New York, New York 10286, Attention: Corporate Trust Administration, or such other office to which the Tender Agent shall have delivered written notice to the other Notice Parties.
Private Placement Memorandum shall mean, in the case of the Initial Bonds, the Private Placement Memorandum, dated July 1, 2010, distributed by the Placement Agent and the Company in connection with the private placement of the Initial Bonds.
Project shall mean the construction, renovation, equipping and furnishing of an approximately 50,000 square foot facility to be leased to retail commercial tenants.
Project Completion Guaranty Agreement shall mean the Project Completion Guaranty Agreement, dated as of even date herewith, from the Guarantors to the Trustee, and shall include any and all amendments thereof and supplements thereto hereafter made in conformity therewith and herewith.
Project Costs shall mean:
(i) all costs of engineering and architectural services with respect to the Project, including the cost of test borings, surveys, estimates, permits, Plans and Specifications and for supervising demolition, construction and renovation, as well as for the performance of all other duties required by or consequent upon the proper construction of, and the making of alterations, renovations, additions and improvements in connection with, the completion of the Project;
(ii) all costs paid or incurred for labor, materials, services, supplies, machinery, equipment and other expenses and to contractors, suppliers, builders and materialmen in connection with the completion of the Project;
(iii) the interest on the Bonds during the construction and renovation of the Project until the completion of the Project;
(iv) payments pursuant to the Ground Lease during the construction and renovation of the Project until the completion of the Project;
(v) all costs of contract bonds and of insurance that may be required or necessary during the period of Project construction and renovation;
(vi) all costs of title insurance as provided in Section 3.7 of the Loan Agreement;
(vii) that portion of the mortgage recording tax payable upon the recording of the Mortgage as specified in the Tax Regulatory Agreement as eligible to be financed from the proceeds of the Bonds;
(viii) the payment of the Costs of Issuance with respect to the Initial Bonds;
(ix) the payment of the fees and expenses of the Trustee during the period of construction and renovation of the Project;
(x) all costs which the Company shall be required to pay, under the terms of any contract or contracts, for the completion of the Project, including any amounts required to reimburse the Company for advances made for any item otherwise constituting a Project Cost or for any other costs incurred and for work done which are properly chargeable to the Project; and
(xi) all other costs and expenses relating to the completion of the Project or the issuance of a Series of Additional Bonds.
“Project Costs” shall not include (i) fees or commissions of real estate brokers; (ii) moving expenses; (iii) amounts payable as rent under the Ground Lease; or (iv) operational costs.
Project Documents shall mean, collectively, the Ground Lease, the Issuer Indemnification Agreement, the Remarketing Agreement, the Bond Placement Agreement, the Facility Leases and the Security Documents.
Project Fund shall mean the special trust fund so designated, established pursuant to Section 5.01.
Project Work shall mean the design and construction of the Improvements in accordance with the Plans and Specifications.
Promissory Note shall mean, with respect to the Initial Bonds, that certain Promissory Note in substantially the form of Exhibit G to the Loan Agreement, and, with respect to any Series of Additional Bonds, that certain Promissory Note in substantially the form of any related Exhibit to an amendment to the Loan Agreement, and shall include in each case any and all amendments thereof and supplements thereto made in conformity with the Loan Agreement and herewith.
Purchase Date shall mean each Adjustment Date, commencing on the Initial Purchase Date, on which the Initial Bonds are required to be mandatorily tendered for purchase at the Purchase Price pursuant to this Indenture.
Purchase Fund shall mean the special trust fund so designated, established pursuant to Section 5.01.
Purchase Price shall mean an amount equal to the principal amount of any Initial Bond purchased on any Purchase Date, plus accrued interest to the Purchase Date (unless the Purchase Date is an Interest Payment Date, in which case the Purchase Price shall not include accrued interest, which shall be paid in the normal course).
Qualified Investments shall mean, to the extent permitted by applicable law, the following: (i) obligations of the State or the United States of America, (ii) obligations, the principal and interest of which are guaranteed by the State or the United States of America, (iii) obligations of any agency of the United States of America which may from time to time be legally purchased by savings banks within the State as an investment of funds belonging to them or under their control, (iv) bankers’ acceptances of, or certificates of deposit issued by, or demand, trust or time deposits with, any bank, trust company or national banking association (including the Trustee and any of its affiliates) having undivided capital and surplus aggregating at least $25,000,000, (v) repurchase agreements or other contracts for the purchase and sale of and secured by obligations of the type specified in (i) through (iii) above, (vi) commercial paper of any Person other than the Company or any Affiliate of the Company which has been classified for rating purposes by Moody’s as Prime-1 or by S&P’s as A-1, (vii) money market mutual funds investing in the obligations described in (i), (ii), (iii) or (v) described above, including, without limitation, the JPMorgan Money Market Mutual Funds or any other fund for which the Trustee or an affiliate of the Trustee serves as investment manager, administrator, shareholder servicing agent, and/or custodian or subcustodian, notwithstanding that (x) the Trustee or an affiliate of the Trustee receives fees from such funds for services rendered, (y) the Trustee charges and collects fees for services rendered pursuant to this Indenture, which fees are separate from the fees received from such funds, and (z) services performed for such funds and pursuant to the Indenture may at times duplicate those provided to such funds by the Trustee or its affiliates, or (viii) investment agreements or repurchase agreements with any bank, trust company, national banking association (which may include the Trustee or any of its affiliates) or any other financial institution or insurance company or guaranteed thereby, provided that the institution providing such investment agreements or repurchase agreements shall be rated “A” (or its equivalent) or better by a Rating Agency, or the principal amount of such investment agreements or repurchase agreements then outstanding shall be fully secured and collateralized by the pledge and deposit of securities (including wireable securities) described in (i) above or obligations of the Federal National Mortgage Association with a market value equal to one hundred two and one-half percent (102 1/2%) of such principal amount, that the Trustee has a perfected first security interest in the collateral, tha t the Trustee or any agent has possession of the collateral, and that such obligations are free and clear of claims by third parties. The investment agreements or repurchase agreements described in (viii) above shall be only of institutions whose capital surplus (or in the case of financial institutions other than banks, net worth) is in excess of $50,000,000.
Rating Agency shall mean any of S&P, Moody’s or Fitch and such other nationally recognized securities rating agency as shall have awarded a rating to the Initial Bonds.
Rating Category shall mean one of the generic rating categories of a Rating Agency without regard to any refinement or gradation of such rating by a numerical modifier or otherwise.
Rebate Amount shall have the meaning assigned to that term in the Tax Regulatory Agreement.
Rebate Fund shall mean the special trust fund so designated, established pursuant to Section 5.01.
Record Date shall mean, with respect to any Interest Payment Date for the Initial Bonds, the close of business on the fifteenth (15th) day of the month next preceding such Interest Payment Date, or, if such day is not a Business Day, the next preceding Business Day.
Redemption Account shall mean the special trust account of the Bond Fund so designated, established pursuant to Section 5.01.
Redemption Date shall mean the date fixed for redemption of Bonds subject to redemption in any notice of redemption given in accordance with the terms of the Indenture.
Redemption Price shall mean, with respect to any Bond or a portion thereof, the principal amount thereof to be redeemed in whole or in part, plus the applicable premium, if any, payable upon redemption thereof pursuant to such Bond or the Indenture.
Refunding Bonds shall have the meaning assigned to that term in Section 2.08(c).
Related Security Documents shall mean all Security Documents other than the Indenture.
Remarketing Account shall mean the special trust account of the Purchase Fund so designated, established pursuant to Section 5.01.
Remarketing Agent shall mean (a) initially, Roosevelt & Cross, Incorporated, New York, New York, and (b) thereafter, any Person meeting the qualifications of and designated from time to time to act as Remarketing Agent for the Initial Bonds under Section 9.13(a).
Remarketing Agreement shall mean, as of any date, the Remarketing Agreement between the Company and the then Remarketing Agent.
Renewal Fund shall mean the special trust fund so designated, established pursuant to Section 5.01.
Representations Letter shall mean the Blanket Agency Letter of Representations from the Issuer and the Trustee to DTC with respect to the Initial Bonds.
Responsible Officer shall mean, with respect to the Trustee, any officer within the corporate trust office of the Trustee, including any vice-president, any assistant vice-president, any secretary, any assistant secretary, the treasurer, any assistant treasurer or other officer of the corporate trust office of the Trustee customarily performing functions similar to those performed by any of the above designated officers, who has direct responsibility for the administration of the trust granted in the Indenture, and shall also mean, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of that officer’s knowledge of and familiarity with the particular subject.
S&P shall mean Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc., a corporation organized and existing under the laws of the State, its successors and their assigns, and, if such corporation shall be dissolved or liquidated or shall no longer perform the functions of a securities rating agency, “S&P” shall be deemed to refer to any other nationally recognized securities rating agency designated by the Trustee, by notice to the other Notice Parties.
Securities Depository shall mean any securities depository that is a clearing agency under federal law operating and maintaining, with its participants or otherwise, a book-entry system to record ownership of book-entry interests in the Bonds, and to effect transfers of book-entry interests in the Bonds in book-entry form, and includes and means initially DTC.
Security Documents shall mean, collectively, the Loan Agreement, the Promissory Note, the Pledge and Security Agreement, this Indenture, the Bond Guaranty Agreement, the Project Completion Guaranty Agreement, the Tax Regulatory Agreement, the Building Loan Agreement and the Mortgage.
Series shall mean all of the Bonds designated as being of the same series authenticated and delivered on original issuance in a simultaneous transaction, and any Bonds thereafter authenticated and delivered in lieu thereof or in substitution therefor pursuant to the Indenture.
Sinking Fund Installment shall mean an amount so designated and which is established for mandatory redemption on a date certain of the Bonds of any Series of Bonds pursuant to the Indenture. The portion of any such Sinking Fund Installment of a Series of Bonds remaining after the deduction of any amounts credited pursuant to the Indenture toward the same (or the original amount of any such Sinking Fund Installment if no such amounts shall have been credited toward the same) shall constitute the unsatisfied balance of such Sinking Fund Installment for the purpose of calculation of Sinking Fund Installments of such Series of Bonds due on a future date.
Sinking Fund Installment Account shall mean the special trust account of the Bond Fund so designated, which is established pursuant to Section 5.01.
Special Record Date shall have the meaning specified in Section 2.02(f).
State shall mean the State of New York.
Supplemental Indenture shall mean any indenture supplemental to or amendatory of the Indenture, executed and delivered by the Issuer and the Trustee in accordance with Article XI.
Taxable Rate shall mean thirteen percent (13%) per annum.
Tax Prohibited Uses shall mean rental of residential property for family units, any private or commercial golf course, any airplane, skybox or other private luxury box, health club facility, country club, massage parlor, hot tub facility, suntan facility, racetrack or other facility used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises, or any other use as shall not constitute a permitted use for recovery zone facility bonds under the Code.
Tax Regulatory Agreement shall mean the Tax Regulatory Agreement, dated the Closing Date, from the Issuer and the Company to the Trustee, and shall include any and all amendments thereof and supplements thereto hereafter made in conformity therewith and with the Indenture.
Tender Agent shall mean initially, The Bank of New York Mellon, New York, New York, and any successor tender agent appointed pursuant to Section 9.11.
Trustee shall mean The Bank of New York Mellon, New York, New York, in its capacity as trustee under this Indenture, and its successors in such capacity and their assigns hereafter appointed in the manner provided in the Indenture.
Trust Estate shall mean all property, interests, revenues, funds, contracts, rights and other security granted to the Trustee under the Security Documents.
Yield shall have the meaning assigned to such term in the Tax Regulatory Agreement.
Section 1.02. Construction.
(a) The terms “hereby,” “hereof,” “hereto,” “herein,” “hereunder” and any similar terms, as used in this Indenture, refer to this Indenture, and the term “hereafter” shall mean after, and the term “heretofore” shall mean before, the Closing Date.
(b) Words of the masculine gender shall mean and include correlative words of the feminine and neuter genders and words importing the singular number shall mean and include the plural number and vice versa.
(c) Words importing persons shall include firms, associations, partnerships (including limited partnerships and limited liability partnerships), trusts, corporations, limited liability companies and other legal entities, including public bodies, as well as natural persons.
(d) Any headings preceding the texts of the several Articles and Sections of this Indenture, and any table of contents appended to copies hereof, shall be solely for convenience of reference and shall not constitute a part of this Indenture, nor shall they affect its meaning, construction or effect.
(e) Unless the content indicates otherwise, references to designated “Exhibits”, “Articles”, “Sections”, “Subsections”, “clauses” and other subdivisions are to the designated Exhibits, Articles, Sections, Subsections, clauses and other subdivisions of or to this Indenture.
(f) The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.
(g) The word “will” shall be construed to have the same meaning and effect as the word “shall”.
(h) Any definition of or reference to any agreement, instrument or other document herein shall be construed to refer to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth therein).
(i) Any reference to any Person, or to any Person in a specified capacity, shall be construed to include such Person’s successors and assigns or such Person’s successors in such capacity, as the case may be.
ARTICLE II
AUTHORIZATION AND ISSUANCE OF BONDS
Section 2.01. Authorized Amount of Bonds; Pledge Effected by this Indenture. i) No Bond may be authenticated and delivered under the provisions of this Indenture except in accordance with this Article. Except as provided in Sections 2.08 and 3.07, the total aggregate principal amount of Bonds that may be authenticated and delivered hereunder is limited to the Authorized Principal Amount.
(b) The proceeds of the Bonds deposited in the Project Fund and certain of the loan payments, receipts and revenues derived from or in connection with the Facility, including moneys which are required to be set apart, transferred and pledged to the Earnings Fund, to the Bond Fund, to the Purchase Fund, to the Advance Interest Deposit Fund, to the Renewal Fund or to certain special funds, including the investments, if any, thereof (subject to disbursements from such Funds in accordance with the provisions of this Indenture) are pledged by this Indenture for the payment of the principal or Redemption Price, if any, of, Sinking Installments for, Purchase Price, and interest on, the Bonds. All such Funds shall be held by the Trustee in trust for the benefit of the Bondholders, and while held by the Trustee constitute part of the Trust Estate and be subject to the lien hereof. The Rebate Fund (including amounts on deposit therein) shall not be subject to any assignment, pledge, lien or security interest in favor of the Trustee or any Bondholder or any other Person. The Purchase Fund shall be held in trust only in favor of those Persons entitled thereto as provided in this Indenture. The Bonds shall be the special limited revenue obligations of the Issuer and shall be payable by the Issuer as to the principal or Redemption Price, if any, of the Bonds, Sinking Fund Installments for the Bonds, Purchase Price, and interest on the Bonds only from the Funds, special funds and loan payments, revenues and receipts pledged therefor. The Bonds are additionally secured by a pledge and assignment of (y) the Promissory Note, and (z) substantially all of the Issu er’s right, title and interest in and to the Loan Agreement. The payment of the principal of, Sinking Fund Installments for, redemption premium, if any, and interest on the Initial Bonds, and the payments, obligations, covenants and agreements of the Company under the Loan Agreement, have been guaranteed by the Guarantors pursuant to the Bond Guaranty Agreement. The completion of the Project, in accordance with the Ground Lease and the Loan Agreement, has been guaranteed by the Guarantors pursuant to the Project Completion Guaranty Agreement. Further, the Company has granted a first lien in Facility Revenues and the remainder of the Pledged Collateral to the Trustee pursuant to the Pledge and Security Agreement. In addition, the Company has granted mortgage liens on and security interests in its leasehold interest in the Facility under the Ground Lease, and an assignment of leases and rents, to the Trustee pursuant to the Mortgage.
In no event shall any obligations of the Issuer under this Indenture or the Bonds or under the Loan Agreement or under any other Security Document or related document for the payment of money create a debt of the State or the City and neither the State nor the City shall be liable on any obligation so incurred, but any such obligation shall be a special limited revenue obligation of the Issuer secured and payable solely as provided in this Indenture.
Section 2.02. Issuance and Terms of the Initial Bonds. ii) The Initial Bonds in the Authorized Principal Amount shall be issued under and secured by this Indenture. The Initial Bonds shall be issuable in fully registered form without coupons substantially in the form set forth in Exhibit C and shall be dated as provided in Section 3.01.
(b) The Initial Bonds shall mature on the Final Maturity Date, and shall bear interest at the Adjustable Fixed Interest Rate, all as provided in this Article II. Interest shall be payable on each Interest Payment Date and shall be computed on the basis of a 360-day year of twelve 30-day months. Notwithstanding anything herein to the contrary, the interest rate borne by the Initial Bonds shall not exceed the Maximum Interest Rate.
(c) If there shall occur an Event of Default (other than by reason of a failure to redeem the Initial Bonds in whole if there shall occur a Determination of Taxability), the rate of interest on the Initial Bonds shall be the Default Rate commencing with the date of the occurrence of the Event of Default and any additional interest thereby due with respect to a period of time for which interest has already been paid shall be payable on the Interest Payment Date next following the Event of Default. Any former Bondholder who was a Bondholder commencing on or after the date of the occurrence of the Event of Default, but who subsequent to such date sold or otherwise disposed of its Initial Bonds or whose Initial Bonds were redeemed or matured, shall be entitled to receive from the Company under the Loan Agreement the following, in an amount allocable to such period during which it held the Initial Bonds subsequent to the Event of Default and the date upon the Initial Bonds were sold, or otherwise disposed of, or redeemed or matured: the difference between the rate of interest borne by the Initial Bonds prior to the Event of Default and the rate borne by the Initial Bonds on and subsequent to such date.
(d) If there shall occur a Determination of Taxability, the rate of interest on the Initial Bonds shall be the Taxable Rate commencing with the date of the Event of Taxability and any additional interest thereby due with respect to a period of time for which interest has already been paid shall be payable on the Interest Payment Date next following the Determination of Taxability. Any former Bondholder who was a Bondholder commencing on or after the date of the occurrence of an Event of Taxability, but who subsequent to such date sold or otherwise disposed of its Initial Bonds or whose Initial Bonds were redeemed or matured, shall be entitled to receive from the Company under the Loan Agreement the following, in an amount allocable to such period during which it held the Initial Bonds subsequent to the Event of Taxability and the date upon which the Initial Bonds were sold, or otherwise disposed of, or redeemed or matured: the difference between the rate of interest borne by the Initial Bonds prior to the Event of Taxability and the rate borne by the Initial Bonds on and subsequent to such date.
(e) The Initial Bonds shall be numbered from R-1 upward in consecutive numerical order. Initial Bonds issued upon any exchange or transfer hereunder shall be numbered in such manner as the Trustee in its discretion shall determine.
(f) The principal of, Sinking Fund Installments for, and the Redemption Price, if applicable, on all Initial Bonds shall be payable by check or draft at maturity or upon earlier redemption to the Persons in whose names such Initial Bonds are registered on the bond registration books maintained by the Trustee as Bond Registrar at the maturity or redemption date thereof, upon presentation and surrender of such Initial Bonds, at the designated corporate trust office of the Trustee or of any Paying Agent.
The interest payable on each Initial Bond on any Interest Payment Date shall be paid by the Trustee to the registered owner of such Initial Bond as shown on the bond registration books of the Trustee as Bond Registrar at the close of business on the Regular Record Date for such interest, (1) by check or draft mailed to such registered owner at his address as it appears on the bond registration books or at such other address as is furnished to the Trustee in writing by such owner, or (2) if such Initial Bonds are held by a Securities Depository or, at the written request addressed to the Trustee by any registered owner of Initial Bonds in the aggregate principal amount of at least $1,000,000 that all such payments be made by wire transfer, by electronic transfer in immediately available funds to the bank for credit to the ABA rout ing number and account number filed with the Trustee no later than five (5) Business Days before an Interest Payment Date, but no later than a Regular Record Date for any interest payment.
Interest on any Initial Bond that is due and payable but not paid on the date due (“Defaulted Interest”) shall cease to be payable to the owner of such Initial Bond on the relevant Regular Record Date and shall be payable to the owner in whose name such Initial Bond is registered at the close of business on a special record date (the “Special Record Date”) for the payment of such Defaulted Interest, which Special Record Date shall be fixed in the following manner. It is provided in the Loan Agreement that the Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Initial Bond and the date of the proposed payment (which date shall be such as will enable the Trustee to comply with the next sentence hereof), and shall deposit with the Trustee at the time of such notice an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment. Money deposited with the Trustee on account of Defaulted Interest shall be held in trust for the benefit of the owners of the Initial Bonds entitled to such Defaulted Interest as provided in this Section. Following receipt of such funds the Trustee shall fix the Special Record Date for the payment of such Defaulted Interest which shall be not more than fifteen (15) nor less than ten (10) days prior to the date of the proposed payment and not less than ten (10) days after the receipt of such funds by the Trustee. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Co mpany, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each owner of an Initial Bond entitled to such notice at the address of such owner as it appears on the bond registration books not less than ten (10) days prior to such Special Record Date.
Subject to the foregoing provisions of this Section, each Initial Bond delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Initial Bond shall carry all the rights to interest accrued and unpaid, and to accrue, which were carried by such other Initial Bond and each such Initial Bond shall bear interest from such date, so that neither gain nor loss in interest shall result from such transfer, exchange or substitution.
(g) The Initial Bonds are issuable in the form of fully registered bonds in the Authorized Denominations.
(h) Anything in the Initial Bonds or in this Indenture to the contrary notwithstanding, the obligations of the Issuer hereunder and under the Initial Bonds shall be subject to the limitation that payments of interest or other amounts on the Initial Bonds shall not be required to the extent that receipt of any such payment by a Holder of an Initial Bond would be contrary to the provisions of law applicable to such Holder which would limit the maximum rate of interest which may be charged or collected by such Holder of an Initial Bond.
Section 2.03. Determination of Adjustable Fixed Interest Rate. iii) For the Initial Adjustable Fixed Interest Rate Term, the Initial Bonds shall bear interest at seven and one-quarter percent (7¼%) per annum. The interest rate payable on the Initial Bonds shall be adjusted on each Adjustment Date in accordance with the provisions of this Indenture and the Initial Bonds.
(b) Each Adjustable Fixed Interest Rate Term (other than the Initial Adjustable Fixed Interest Rate Term which shall commence on the Closing Date) shall commence on the Adjustment Date immediately following the end of the preceding Adjustable Fixed Interest Rate Term and will continue to but excluding the next succeeding Adjustment Date. For each Adjustable Fixed Interest Rate Term after the Initial Adjustable Fixed Interest Rate Term, the Adjustable Fixed Interest Rate Term shall be a period determined at the direction of the Company which is equal to one (1) whole year or any integral multiple of whole years, but in no event shall any such Adjustable Fixed Interest Rate Term extend beyond the Final Maturity Date of the Initial Bonds. The Business Day immediately following the last day of each Adjustable Fixed Interest Rate Term as determined pursuant to this Section 2.03(b) shall be the Adjustment Date. The Initial Bonds are subject to mandatory purchase on each Adjustment Date pursuant to Section 2.03(h).
(c) Subject to subsection (e) below, the interest rate applicable to the Initial Bonds on and after each Adjustment Date shall be the interest rate determined by the Remarketing Agent on the Determination Date immediately preceding such Adjustment Date. The Adjustable Fixed Interest Rate applicable to the Initial Bonds shall be the lower of (i) the lowest rate which, in the best professional judgment of the Remarketing Agent (having due regard to the prevailing market conditions), would be necessary to enable the Initial Bonds to be sold at par on the Adjustment Date, provided that the Adjustable Fixed Interest Rate shall not exceed the Maximum Rate, or (ii) The Bond Buyer Revenue Bond Index (a s published in The Bond Buyer or any successor publication thereto) for the most recent period for which such information is available as of the date the Adjustable Fixed Interest Rate is established, plus two hundred fifty (250) basis points. Upon such determination of the Adjustable Fixed Interest Rate, the Remarketing Agent shall promptly notify the Trustee and the Company of the Adjustable Fixed Interest Rate. Not less than the fifth (5th) Business Day prior to the Adjustment Date, the Trustee shall promptly notify each Holder of the Initial Bonds of the Adjustable Fixed Interest Rate which will be applicable to the Initial Bonds during the next succeeding Adjustable Fixed Interest Rate Term.
(d) The interest rate on the Initial Bonds (other than for the Initial Adjustable Fixed Interest Rate Term) will not be reset on any Adjustment Date unless (i) at least thirty (30) days prior to such Adjustment Date and (ii) again on such Adjustment Date, the Company shall cause to be delivered at its expense to the Issuer, the Trustee and the Remarketing Agent, a Favorable Opinion of Bond Counsel. The Company shall use its best efforts to cause such Favorable Opinion of Bond Counsel to be delivered to the Issuer, the Trustee and the Remarketing Agent by such date. In the event that any such Favorable Opinion of Bond Counsel is not delivered when required, the interest rate on the Initial Bonds then in effect shall remain in effect as the Adjustable Fixed Interest Rate for the next succeeding Adjustable Fixed Interest Rate Term, and the term of the next Adjustable Fixed Interest Rate Term shall be the shorter of (i) the same period as the immediately preceding Adjustable Fixed Interest Rate Term, or (ii) the period until the Final Maturity Date of the Initial Bonds.
(e) If the Remarketing Agent is unable to remarket all of the Initial Bonds at the Adjustable Fixed Interest Rate determined by the Remarketing Agent pursuant to subsection (c) above, the Remarketing Agent may at any time prior to the Adjustment Date increase the Adjustable Fixed Interest Rate to that rate of interest which, as of the date of determination, is the lowest rate which, in the best professional judgment of the Remarketing Agent (having due regard to the prevailing market conditions), would be necessary to enable the Initial Bonds to be sold at par on the Adjustment Date; provided, however, that such re-determined Adjustable Fixed Interest Rate shall not exceed the Maximum Interest Rate. No more than five (5) days prior to the Adjustment Date, the Trustee shall notify by mail the Company and the Holders of the Initial Bonds of any such revision in the Adjustable Fixed Interest Rate. The Remarketing Agent shall not increase the Adjustable Fixed Interest Rate later than five (5) days prior to the Adjustment Date (except with the consent of the Company) and notice of the increased Adjustable Fixed Interest Rate shall in that event be given by the Remarketing Agent concurrently to the Trustee and the Company.
(f) If, for any reason, the Adjustable Fixed Interest Rate for the Initial Bonds is not or cannot be determined by the Remarketing Agent in the manner specified above, the Adjustable Fixed Interest Rate will be equal to the closing yield, plus two hundred fifty (250) basis points, for Treasury Bills, Notes or Bonds, as applicable, of the maturity closest to, without exceeding, the term of the Adjustable Fixed Interest Rate Term determined in accordance with Section 2.03(b), as such yield is published in the table captioned “U.S. Securities Prices” in the edition of The Bond Buyer (or if The Bond Buyer or such table is no longer published, any other published similar rate as is determined by th e Trustee in its sole discretion to be appropriate) published on the day on which such Adjustable Fixed Interest Rate is determined, or if such yield or other similar rate is not published on that day, the day of the most recent publication of such yield or other similar rate.
(g) The determination in accordance with the Indenture of the Adjustable Fixed Interest Rate to be borne by the Initial Bonds shall, in the absence of manifest error, be conclusive and binding on the Holders of the Initial Bonds and the Notice Parties. Failure by the Trustee to give any notice required hereunder, or any defect therein, shall not affect the interest rate borne by the Initial Bonds.
(h) On each Purchase Date, the Initial Bonds shall be subject to mandatory tender for purchase by the Tender Agent at the Purchase Price.
IN THE EVENT OF A FAILURE BY HOLDERS OF INITIAL BONDS TO TENDER INITIAL BONDS FOR PURCHASE ON A PURCHASE DATE AS PROVIDED ABOVE, SAID HOLDERS OF INITIAL BONDS SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE SUBSEQUENT TO THE PURCHASE DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNTENDERED INITIAL BONDS, AND THE HOLDERS OF ANY UNTENDERED INITIAL BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFITS OF THIS INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE THEREOF, AND SHALL BE DEEMED PURCHASED, CANCELLED AND NO LONGER OUTSTANDING UNDER THIS INDENTURE.
(i) The Trustee shall give notice to the Notice Parties and the registered Holders of the Initial Bonds, not later than ten (10) Business Days prior to each Purchase Date, which notice shall state:
(A) the Purchase Date;
(B) that an Interest Rate Change on the Initial Bonds will occur on the Adjustment Date;
(C) the Determination Date for the next Adjustable Fixed Interest Rate;
(D) the commencement and termination dates of the next Adjustable Fixed Interest Rate Term; and
(E) that all Initial Bonds will be deemed sold to the Tender Agent on the Purchase Date at the Purchase Price, that such Initial Bonds should be delivered to the Principal Office of the Tender Agent by no later than 11:30 a.m., New York City time, on the Purchase Date, and that said Holders of Initial Bonds deemed sold shall not be entitled to any payment (including any interest to accrue subsequent to the Purchase Date) other than the Purchase Price for such untendered Initial Bonds.
(j) Funds for the payment of the Purchase Price of Initial Bonds shall be derived solely from the following sources in the order of priority indicated and none of the Issuer, the Tender Agent, the Trustee nor the Remarketing Agent shall be obligated to provide funds from any other source:
(A) immediately available funds on deposit in the Remarketing Account of the Purchase Fund; and
(B) moneys of the Company on deposit in the Company Purchase Account.
Section 2.04. Redemption of Initial Bonds. iv) General Optional Redemption. (1) During the Initial Adjustable Fixed Interest Rate Term, the Initial Bonds shall be subject to redemption, on or after May 1, 2012, in whole at any time or in part on any Interest Payment Date (but if in part in integral multiples of $5,000 and in the minimum principal amount of $100,000) at the option of the Issuer (which option shall be exercised only upon the giving of notice by the Company of its intention to prepay loan payments due under the Loan Agr eement pursuant to Section 4.3(c) thereof), at the Redemption Price of one hundred percent (100%) of the unpaid principal amount of the Initial Bonds to be redeemed, plus accrued interest to the date of redemption.
(ii) During any Adjustable Fixed Interest Rate Term (other than the Initial Adjustable Fixed Interest Rate Term), the Initial Bonds shall be subject to redemption, in whole at any time or in part on any Interest Payment Date (but if in part in integral multiples of $5,000 and in the minimum principal amount of $100,000) at the option of the Issuer (which option shall be exercised only upon the giving of notice by the Company of its intention to prepay loan payments due under the Loan Agreement pursuant to Section 4.3(c) thereof), at the Redemption Price of one hundred percent (100%) of the unpaid principal amount of the Initial Bonds to be redeemed, plus accrued interest to the date of redemption, commen cing on or after that date (the “First Optional Redemption Date”) as determined below:
(A) if there shall be ten (10) or less years in such Adjustable Fixed Interest Rate Term, the First Optional Redemption Date shall be the second (2nd) anniversary of the date of commencement of such Adjustable Fixed Interest Rate Term, and
(B) if there shall be more than ten (10) years in such Adjustable Fixed Interest Rate Term, the First Optional Redemption Date shall be the fifth (5th) anniversary of the date of commencement of such Adjustable Fixed Interest Rate Term.
(b) Extraordinary Redemption. The Initial Bonds are also subject to redemption prior to maturity, at the option of the Issuer exercised at the direction of the Company (which option shall be exercised only upon the giving of notice by the Company of its intention to prepay loan payments due under the Loan Agreement pursuant to Section 4.3(c) thereof), as a whole on any date, upon notice or waiver of notice as provided in this Indenture, at a Redemption Price of one hundred percent (100%) of the unpaid principal amount thereof plus accrued interest to the date of redemption if one or more of the following events shall have occ urred:
(i) The Facility shall have been damaged or destroyed to such extent that, as evidenced by a certificate of an Independent Engineer filed with the Issuer and the Trustee, (A) the Facility cannot be reasonably restored within a period of one year from the date of such damage or destruction to the condition thereof immediately preceding such damage or destruction, (B) the Company is thereby prevented or likely to be prevented from carrying on its normal operation at the Facility for a period of one year from the date of such damage or destruction, or (C) the restoration cost of the Facility would exceed the total amount of all insurance proceeds, including any deductible amount, in respect o f such damage or destruction; or
(ii) Title to, or the temporary use of, all or substantially all of the Facility shall have been taken or condemned by a competent authority which taking or condemnation results, or is likely to result, in the Company being thereby prevented or likely to be prevented from carrying on its normal operation at the Facility for a period of one year from the date of such taking or condemnation, as evidenced by a certificate of an Independent Engineer filed with the Issuer and the Trustee; or
(iii) As a result of changes in the Constitution of the United States of America or of the State or of legislative or executive action of the State or any political subdivision thereof or of the United States of America or by final decree or judgment of any court after the contest thereof by the Company, the Loan Agreement becomes void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed therein or unreasonable burdens or excessive liabilities are imposed upon the Company by reason of the operation of the Facility.
If the Initial Bonds are to be redeemed in whole as a result of the occurrence of any of the events described above, the Company shall deliver to the Issuer and the Trustee a certificate of an Authorized Representative of the Company stating that, as a result of the occurrence of the event giving rise to such redemption, the Company has discontinued, or at the earliest practicable date will discontinue, its operation of the Facility for its intended purposes.
(c) Mandatory Sinking Fund Installment Redemption. The Initial Bonds shall be subject to mandatory redemption by the Issuer prior to maturity, in part by lot, at a Redemption Price equal to one hundred percent (100%) of the principal amount thereof, together with accrued interest to the date of redemption, from mandatory Sinking Fund Installments on the dates and in the principal amounts set forth below, provided that the amounts of such Sinking Fund Installments shall be reduced by the credits provided for in Sections 5.06(d) and (f):
Sinking Fund Installment Payment Date | Sinking Fund Installment |
| | |
| May 1, 2015 | $115,000 |
| November 1, 2015 | 120,000 |
| May 1, 2016 | 125,000 |
| November 1, 2016 | 125,000 |
| May 1, 2017 | 130,000 |
| November 1, 2017 | 135,000 |
| May 1, 2018 | 140,000 |
| November 1, 2018 | 145,000 |
| May 1, 2019 | 150,000 |
| November 1, 2019 | 155,000 |
| May 1, 2020 | 165,000 |
| November 1, 2020 | 170,000 |
| May 1, 2021 | 175,000 |
| November 1, 2021 | 180,000 |
| May 1, 2022 | 190,000 |
| November 1, 2022 | 195,000 |
| May 1, 2023 | 200,000 |
| November 1, 2023 | 210,000 |
| May 1, 2024 | 215,000 |
| November 1, 2024 | 225,000 |
| May 1, 2025 | 235,000 |
| November 1, 2025 | 240,000 |
Sinking Fund Installment Payment Date | Sinking Fund Installment |
| May 1, 2026 | $250,000 |
| November 1, 2026 | 260,000 |
| May 1, 2027 | 270,000 |
| November 1, 2027 | 280,000 |
| May 1, 2028 | 290,000 |
| November 1, 2028 | 300,000 |
| May 1, 2029 | 310,000 |
| November 1, 2029 | 320,000 |
| May 1, 2030 | 335,000 |
| November 1, 2030 | 345,000 |
| May 1, 2031 | 355,000 |
| November 1, 2031 | 370,000 |
| May 1, 2032 | 385,000 |
| November 1, 2032 | 400,000 |
| May 1, 2033 | 410,000 |
| November 1, 2033 | 425,000 |
| May 1, 2034 | 440,000 |
| November 1, 2034 | 460,000 |
| May 1, 2035 | 475,000 |
| November 1, 2035 | 490,000 |
| May 1, 2036 | 510,000 |
| November 1, 2036 | 530,000 |
| May 1, 2037 | 545,000 |
| November 1, 2037 | 565,000 |
| May 1, 2038 | 590,000 |
| November 1, 2038 | 610,000 |
| May 1, 2039 | 630,000 |
| November 1, 2039 | 655,000 |
| May 1, 2040 | 680,000 |
| November 1, 2040 | 700,000 |
| May 1, 2041 | 730,000 |
| November 1, 2041 | 755,000 |
| May 1, 2042 | 780,000 |
| November 1, 2042 (final maturity) | 810,000 |
(d) Mandatory Redemption from Excess Proceeds and Certain Other Amounts. The Initial Bonds shall be redeemed at any time in whole or in part by lot prior to maturity in the event and to the extent
(i) excess Bond proceeds shall remain after the completion of the Project,
(ii) excess title insurance or property insurance proceeds or condemnation awards shall remain after the application thereof pursuant to the Loan Agreement and this Indenture, or
(iii) excess proceeds shall remain after the release or substitution of fixtures or other portions of the Facility,
in each case at a Redemption Price equal to one hundred percent (100%) of the principal amount of the Initial Bonds to be redeemed, together with interest accrued thereon to the date of redemption.
(e) Mandatory Redemption Upon Failure to Operate the Facility for Approved Project Operations, Material Violation of Material Legal Requirements, False Representation or Failure to Maintain Liability Insurance. The Initial Bonds are also subject to mandatory redemption prior to maturity, at the option of the Issuer, as a whole only, in the event (i) the Issuer shall determine that (w) the Company is operating the Facility or any portion thereof, or is allowing the Facility or any portion thereof to be operated, not for the Approved Project Operations, (x) the Company, any Principal of the Company or any Person that directly or indirectly Controls, is Controlled by or is under common Control with the Company has committed a material violation of a material Legal Requirement, (y) any Conduct Representation is false, misleading or incorrect in any material respect at any date, as if made on such date, or (z) a Required Disclosure Statement delivered to the Issuer under any Project Document is not acceptable to the Issuer acting in its sole discretion, or (ii) the Company shall fail to obtain or maintain the public liability insurance with respect to the Facility required under the Loan Agreement, and, in the case of clause (i) or (ii) above, the Company shall fail to cure any such default or failure within the applicable time periods set forth in the Loan Agreement following the receipt by the Company of written notice of such default or failure from the Issuer and a demand by the Issuer on the Company to cure the same. Any such redemption shall be made upon notice or waiver of notice to the Bondholders as provided in this Indenture, at the Redemption Price of one hundred percent (100%) of the unpaid principal amount of the Initial Bonds, together with interest accrued thereon to the date of redemption.
(f) Mandatory Taxability Redemption. Upon the occurrence of a Determination of Taxability, the Initial Bonds shall be redeemed prior to maturity on any date within one hundred twenty (120) days following such Determination of Taxability, at a Redemption Price equal to one hundred percent (100%) of the principal amount thereof, together with accrued interest at the Taxable Rate from the occurrence of the Event of Taxability to the date of redemption. The Initial Bonds shall be redeemed in whole unless redemption of a portion of the Initial Bonds Outstanding would have the result that interest payable on the Initial Bonds remaining Outstanding after such redemption would not be includable in the gross income of any Holder of an Initial Bond (other than a Holder who is a “substantial user” of the Facility or a “related person”, within the meaning of the Code). In such event, the Initial Bonds shall be redeemed in such amount as is deemed necessary in the opinion of Nationally Recognized Bond Counsel to accomplish that result.
(g) Purchase in Lieu of Optional Redemption. In lieu of calling Initial Bonds for optional redemption, Initial Bonds shall be subject to mandatory tender for purchase at the direction of the Issuer, upon the direction of the Company, in whole or in part (and, if in part, in such manner as determined by the Company) on any date, at a Purchase Price equal to the applicable Redemption Price for any optional redemption of such Initial Bonds as provided in Section 2.04(a), plus accrued interest to the purchase date. Purchases of tendered Initial Bonds may be made without regard to any provision of the Indenture relating to t he selection of Initial Bonds in a partial optional redemption. Initial Bonds purchased pursuant to any mandatory tender(s) are not required to be cancelled (subject to Section 10.5 of the Loan Agreement), and if not so cancelled, shall, prior to any resale by or on behalf of the Company, not be deemed Outstanding in connection with any subsequent partial optional redemption solely for purposes of those provisions of the Indenture relating to the selection of Initial Bonds in a partial redemption.
Purchases in lieu of an optional redemption shall be permitted, with the consent of the Issuer, upon the delivery to the Issuer and the Trustee of (i) an opinion of Nationally Recognized Bond Counsel addressed to the Issuer and the Trustee substantially to the effect that (A) such purchases in lieu of optional redemption comply with the provisions of the Indenture and (B) neither such purchases in lieu of an optional redemption nor any transaction directly related thereto will adversely affect the exclusion from gross income of interest on the Initial Bonds for purposes of federal income taxation, and (ii) such other opinions, certificates or documentation as the Issuer may require.
(h) Redemption of Initial Bonds permitted or required by this Article II shall be made as follows, and the Trustee shall give the notice of redemption required by Section 6.03 in respect of each such redemption:
(1) Redemption shall be made pursuant to the general optional redemption provisions of Section 2.04(a) or (b) at such times as are permitted under such Section and, in the case of Section 2.04(a), in such principal amounts, as the Company shall request in a written notice to the Trustee in accordance with Section 4.3(c) of the Loan Agreement.
(2) Redemption shall be made pursuant to the mandatory Sinking Fund Installment redemption provisions of Section 2.04(c) as and when required by this Section without the necessity of any request by, or notification from the Issuer or from the Company, but subject to the provisions of Section 5.06(d) and (f).
(3) Redemption shall be made pursuant to the mandatory redemption provisions of Section 2.04(d) at the earliest possible date following the deposit of the excess proceeds or other amounts in the Redemption Account of the Bond Fund, without the necessity of any instructions or further act of the Issuer or the Company.
(4) Redemption shall be made pursuant to the mandatory redemption provisions of Section 2.04(e) on the date specified therein in the event redemption is required under such circumstances, without the necessity of any instructions or further act of the Company.
(5) Redemption shall be made pursuant to the mandatory taxability redemption provisions of Section 2.04(f) at the earliest possible date, but no later than one hundred twenty (120) days following the Determination of Taxability, without the necessity of any instructions or further act of the Issuer or the Company.
Section 2.05. Delivery of Initial Bonds. The Initial Bonds shall be executed in the form and manner set forth in this Indenture and shall be deposited with the Trustee and thereupon shall be authenticated by the Trustee. Upon payment to the Trustee of the proceeds of sale of the Initial Bonds including the interest, if any, accrued on the Initial Bonds to the Closing Date, the Initial Bonds shall be delivered by the Trustee on behalf of the Issuer to or upon the order of the purchaser(s) thereof, but only upon receipt by the Trustee of:
(a) a copy, duly certified by the Secretary, Assistant Secretary, Executive Director, Deputy Executive Director, General Counsel or Vice President for Legal Affairs of the Issuer, of the Bond Resolution;
(b) an original executed counterpart of all Security Documents;
(c) a written opinion by Nationally Recognized Bond Counsel to the effect that the issuance of the Initial Bonds and the execution thereof have been duly authorized and that all conditions precedent to the delivery thereof have been fulfilled; and
(d) the written order to the Trustee executed by an Authorized Representative of the Issuer to authenticate and deliver the Initial Bonds to the purchaser(s) therein identified upon payment to the Trustee for the account of the Issuer of the purchase price therein specified, plus accrued interest, if any.
Section 2.06. Execution of Bonds. The Bonds shall be executed on behalf of the Issuer by the manual or facsimile signature of the Chairman, Vice Chairman, Executive Director, Deputy Executive Director, General Counsel or Vice President for Legal Affairs of the Issuer, and the seal of the Issuer shall be affixed thereto or imprinted thereon and attested by the manual or facsimile signature of the Secretary, Assistant Secretary, Executive Director, Deputy Executive Director, General Counsel or Vice President for Legal Affairs of the Issuer. Any facsimile signatures shall have the same force and effect as if the ap propriate officers had personally signed each of said Bonds. In case one or any of the officers who shall have signed or attested the Bonds or whose reproduced facsimile signature appears thereon shall cease to be such officer or officers before the Bonds so signed and attested shall have been actually issued and delivered, the Bonds may be issued and delivered as though the person who signed or attested or whose reproduced facsimile signature appears on the Bonds had not ceased to be such officer. Neither the members, directors, officers or agents of the Issuer nor any person executing the Bonds shall be liable personally or be subject to any personal liability or accountability by reason of the issuance thereof.
Section 2.07. Authentication. Only such Bonds as shall have endorsed thereon a certificate of authentication, in substantially the form set forth in the Form of Initial Bond in Exhibit C, duly executed by the Trustee, shall be entitled to any right or benefit under this Indenture. No Bond shall be valid or obligatory for any purpose or be entitled to any security or benefit under this Indenture unless and until such certificate of authentication on such Bond shall have been duly executed by the Trustee, and such certificate of the Trustee upon any such Bond shall be conclusive evidence that such Bond has been duly authenticated and delivered under this Indenture. The Trustee shall note, with respect to each Bond to be authenticated under this Indenture in the space provided in the certificate of authentication for such Bond, the date of the authentication and delivery of such Bond. The Trustee’s certificate of authentication on any Bond shall be deemed to have been duly executed if signed by an authorized officer or signatory of the Trustee, but it shall not be necessary that the same officer or signatory sign the certificate of authentication on all of the Bonds.
Section 2.08. Additional Bonds. v) So long as the Ground Lease, the Mortgage, the Loan Agreement, the Pledge and Security Agreement, the Promissory Note and the Bond Guaranty Agreement are each in effect, and the prior written consent of the Holders of at least sixty-six and two-thirds percent (66-2/3%) in aggregate principal amount of the Bonds shall have been obtained, one or more Series of Additional Bonds may be issued, authenticated and delivered upon original issuance for the purpose of (i) completing the Project , (ii) providing funds in excess of Net Proceeds to repair, relocate, replace, rebuild or restore the Facility in the event of damage, destruction or taking by eminent domain, (iii) providing extensions, additions or improvements to the Facility, the purpose of which shall be for the Approved Project Operations, or (iv) refunding Outstanding Bonds. Such Additional Bonds shall be payable from the loan payments, receipts and revenues of the Facility including such extensions, additions and improvements thereto. Prior to the issuance of a Series of Additional Bonds and the execution of a Supplemental Indenture in connection therewith, the Issuer and the Company shall enter into an amendment to the Loan Agreement, and the Company shall execute a new Promissory Note, which shall provide, among other things, that the loan payments payable under the Loan Agreement and the aggregate amount to be paid under all Promissory Notes, shall be increased and computed so as to amortize in full the principal of and interest on such Additional Bonds and any other costs in connection therewith. In addition, each of the Guarantors and the Issuer shall enter into an amendment to each Security Document with the Trustee which shall provide that the amounts guaranteed or otherwise secured thereunder be increased accordingly.
(b) Each such Series of Additional Bonds shall be deposited with the Trustee and thereupon shall be authenticated by the Trustee. Upon payment to the Trustee of the proceeds of sale of such Series of Additional Bonds, they shall be made available by the Trustee for pick-up by the order of the purchaser or purchasers thereof, but only upon receipt by the Trustee of:
(1) a copy of the resolution, duly certified by the Secretary, Assistant Secretary, Executive Director, Deputy Executive Director, General Counsel or Vice President for Legal Affairs of the Issuer, authorizing, issuing and awarding the Series of Additional Bonds to the purchaser or purchasers thereof and providing the terms thereof and authorizing the execution of any Supplemental Indenture and any amendments of or supplements to the Loan Agreement and any other Security Document to which the Issuer shall be a party;
(2) original executed counterparts of the Supplemental Indenture and an amendment of or supplement to the Loan Agreement expressly providing that, to the extent applicable, for all purposes of the Supplemental Indenture, the Loan Agreement and the Mortgage, the Facility referred to therein and the premises subject thereto shall include the buildings, structures, improvements, machinery, equipment or other facilities being financed, and the Bonds referred to therein shall mean and include the Series of Additional Bonds being issued as well as the Initial Bonds and any Series of Additional Bonds theretofore issued;
(3) a written opinion by Nationally Recognized Bond Counsel, to the effect that the issuance of the Series of Additional Bonds and the execution thereof have been duly authorized and that all conditions precedent to the delivery thereof have been fulfilled and that the issuance of the Series of Additional Bonds will not cause the interest on any Series of Bonds Outstanding to become includable in gross income for Federal income tax purposes;
(4) except in the case of a Series of Refunding Bonds (defined below) refunding all Outstanding Bonds, a certificate of an Authorized Representative of each Guarantor to the effect that each Security Document to which it is a party continues in full force and effect and that there is no Event of Default nor any event which upon notice or lapse of time or both would become an Event of Default;
(5) written evidence from each Rating Agency by which any Series of Outstanding Bonds are then rated, if any, to the effect that it has reviewed the documentation pertaining to the issuance of the Series of Additional Bonds, and that the issuance of such Series of Additional Bonds will not result in a withdrawal, a suspension or a reduction of the long and short-term ratings, if applicable, then assigned to any Series of Outstanding Bonds by such Rating Agency;
(6) an original, executed counterpart of the amendment to each Security Document; and
(7) a written order to the Trustee executed by an Authorized Representative of the Issuer to authenticate and make available for pick-up the Series of Additional Bonds to the purchaser or purchasers therein identified upon payment to the Trustee of the purchase price therein specified, plus accrued interest, if any.
(c) (a) Upon the request of the Company, one or more Series of Additional Bonds may be authenticated and made available for pick-up upon original issuance to refund (“Refunding Bonds”) all Outstanding Bonds or any Series of Outstanding Bonds or any part of one or more Series of Outstanding Bonds. Bonds of a Series of Refunding Bonds shall be issued in a principal amount sufficient, together with other moneys available therefor, to accomplish such refunding and to make such deposits required by the provisions of this Indenture and of the resolution authorizing said Series of Refunding Bonds. In the case of the r efunding under this Section 2.08 of less than all Bonds Outstanding of any Series or of any maturity within such Series, the Trustee shall proceed to select such Bonds in accordance with Section 6.02.
(2) A Series of Refunding Bonds may be authenticated and made available for pick-up only upon receipt by the Trustee (in addition to the receipt by it of the documents required by Section 2.08(b), as may be applicable) of:
(A) Irrevocable instructions from the Issuer to the Trustee, satisfactory to it, to give due notice of redemption pursuant to Section 6.03 to the Holders of all the Outstanding Bonds to be refunded prior to maturity on the redemption date specified in such instructions; and
(B) Either:
(i) moneys in an amount sufficient to effect payment at maturity or upon redemption at the applicable Redemption Price of the Bonds to be refunded, together with accrued interest on such Bonds to the maturity or redemption date, which moneys shall be held by the Trustee or any Paying Agent in a separate account irrevocably in trust for and assigned to the respective Holders of the Outstanding Bonds being refunded, or
(ii) Defeasance Obligations in such principal amounts, having such maturities, bearing such interest, and otherwise having such terms and qualifications, as shall be necessary to comply with the provisions of Article X, and any moneys required pursuant to said Section (with respect to all Outstanding Bonds or any part of one or more Series of Outstanding Bonds being refunded), which Defeasance Obligations and moneys shall be held in trust and used only as provided in Article X.
(3) The Company shall furnish to the Trustee and the Issuer at the time of delivery of the Series of Refunding Bonds a certificate of an independent certified public accountant stating that the Trustee and/or the Paying Agent (and/or any escrow agent as shall be appointed in connection therewith) hold in trust the moneys or such Defeasance Obligations and moneys required to effect such payment at maturity or earlier redemption.
(d) Each Series of Additional Bonds issued pursuant to this Section shall be equally and ratably secured under this Indenture with the Initial Bonds and all other Series of Additional Bonds, if any, issued pursuant to this Section, without preference, priority or distinction of any Bond over any other Bonds except as expressly provided in or permitted by this Indenture.
(e) No Series of Additional Bonds shall be issued unless the Ground Lease, the Loan Agreement, the Promissory Note, the Mortgage, the Pledge and Security Agreement and the Bond Guaranty Agreement are in effect and at the time of issuance there is no Event of Default nor any event which upon notice or lapse of time or both would become an Event of Default.
Section 2.09. CUSIP Numbers. The Issuer in issuing the Bonds may use CUSIP numbers (if then generally in use), and, if so, the Trustee shall use such CUSIP numbers in notices of redemption as a convenience to registered owners; provided that any such notice may 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 a redemption and that reliance may be placed only on the other identification numbers printed on the Bonds, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will pr omptly notify the Trustee of any change in the CUSIP numbers of which it has actual knowledge.
Section 2.10. Book Entry Bonds. vi) Except as provided in Section 2.10(c), the Initial Bonds shall be registered in the name of Cede & Co., as nominee for DTC. Payment of interest for any Initial Bond registered in the name of Cede & Co. shall be made by wire transfer of New York Clearing House or equivalent same day funds to the account of Cede & Co. on the Interest Payment Date for the Initial Bonds at the address indicated for Cede & Co. in the registration books of the Issuer kept by the Trustee. It is anticipated that during the term of the Initial Bonds, the Securities Depository will make book entry transfers among its Participants and receive and transmit payment of principal of, Sinking Fund Installments for, Purchase Price, redemption premium, if any, and interest on, the Initial Bonds to the Participants until and unless the Trustee authenticates and delivers replacement bonds to the Beneficial Owners as described in Section 2.10(c).
(b) The Initial Bonds shall be initially issued in the form of a separate single authenticated fully registered certificate for the single maturity thereof. Upon initial issuance, the ownership of such Initial Bonds shall be registered in the registration books of the Issuer kept by the Trustee in the name of Cede & Co., as nominee of DTC. The Trustee, the Tender Agent, the Bond Registrar, the Remarketing Agent, the Paying Agent and the Issuer shall treat DTC (or its nominee) as the sole and exclusive Holder of the Initial Bonds registered in its name for the purposes of payment of the principal, Sinking Fund Installments, Purchase Price, Redemption Price of or interest on the In itial Bonds, selecting the Initial Bonds or portions thereof to be redeemed, giving any notice permitted or required to be given to Bondholders under this Indenture, registering the transfer of Initial Bonds, obtaining any consent or other action to be taken by Holders of the Initial Bonds and for all other purposes whatsoever; and neither the Trustee, the Tender Agent, the Bond Registrar, the Remarketing Agent, the Paying Agent, the Company, nor the Issuer shall be affected by any notice to the contrary. All notices with respect to the Initial Bonds shall be made and given to DTC as provided in the Representations Letter. Neither the Trustee, the Tender Agent, the Bond Registrar, the Remarketing Agent, the Paying Agent nor the Issuer shall have any responsibility or obligation to any Participant, any Person claiming a beneficial ownership interest in the Initial Bonds under or through DTC or any Participant, or any other Person that is not shown on the registration books of the Trustee as being a Holder, with respect to the accuracy of any records maintained by DTC or any Participant; the payment of DTC or any Participant of any amount in respect of the principal, Sinking Fund Installments, Purchase Price, Redemption Price of or interest on the Initial Bonds; any notice that is permitted or required to be given to Bondholders under this Indenture or any other Security Documents; the selection by DTC or any Participant of any Person to receive payment in the event of a partial redemption of the Initial Bonds; or any consent given or other action taken by DTC as Bondholder. The Trustee shall pay all principal of, Sinking Fund Installments, Purchase Price, redemption premium, if any, and interest on the Initial Bonds only to or “upon the order of” (as that term is used in the Uniform Commercial Code as adopted in the State) DTC, and all such payments shall be valid and effective to fully satisfy and discharge the Issuer’s obligations with respect to the principal of, Sinking Fund Installments, Purchase Price, redemption premium, if any, and interest on the Initial Bonds to the extent of the sum or sums so paid. Except as otherwise provided in Section 2.10(c), no Person other than DTC shall receive an authenticated Initial Bond certificate evidencing the obligation of the Issuer to make payments of principal of, Sinking Fund Installments, Purchase Price, redemption premium, if any, and interest pursuant to this Indenture. Upon delivery by DTC to the Trustee of written notice to the effect that DTC has determined to substitute a new nominee in place of Cede & Co., and subject to the provisions of this Indenture with respect to transfers of Bonds, the word “Cede & Co.” in this Indenture shall refer to such new nominee of DTC.
(c) In the event the Issuer determines that it is in the best interest of the Beneficial Owners that they be able to obtain Initial Bond certificates, the Issuer may notify DTC and the Trustee, whereupon DTC will notify the Participants, of the availability through DTC of Initial Bond certificates. In such event, the Trustee shall issue, transfer and exchange Initial Bond certificates as requested by DTC in appropriate amounts within the guidelines set forth in this Indenture. DTC may determine to discontinue providing its services with respect to the Initial Bonds at any time by giving written notice to the Issuer and the Trustee and discharging its responsibilities with respect the reto under applicable law. Under such circumstances (if there is no successor securities depository), the Issuer and the Trustee shall be obligated to deliver Initial Bond certificates as described in this Indenture. In the event Initial Bond certificates are issued, the provisions of this Indenture shall apply to, among other things, the transfer and exchange of such certificates and the method of payment of principal of, Sinking Fund Installments, Purchase Price, redemption premium, if any, and interest on such certificates. Whenever DTC requests the Issuer and the Trustee to do so, the Issuer will direct the Trustee (at the sole cost and expense of the Company) to cooperate with DTC in taking appropriate action after reasonable notice (i) to make available one or more separate certificates evidencing the Initial Bonds to any DTC Participant having Initial Bonds credited to its DTC account or (ii) to arrange for another securities depository to maintain custody of certifica tes evidencing the Initial Bonds.
(d) In connection with any notice or other communication to be provided to Bondholders pursuant to this Indenture or any other Security Document by the Issuer or the Trustee with respect to any consent or other action to be taken by Bondholders, the Issuer or the Trustee, as the case may be, shall establish a record date for such consent or other action and give DTC notice of such record date not less than fifteen (15) calendar days in advance of such record date to the extent possible. Such notice to DTC shall be given only when DTC is the sole Bondholder.
(e) NEITHER THE ISSUER, THE COMPANY NOR THE TRUSTEE WILL HAVE ANY RESPONSIBILITY OR OBLIGATIONS TO THE PARTICIPANTS OR THE BENEFICIAL OWNERS WITH RESPECT TO (1) THE ACCURACY OF ANY RECORDS MAINTAINED BY DTC OR ANY PARTICIPANT; (2) THE PAYMENT BY DTC OR ANY PARTICIPANT OF ANY AMOUNT DUE TO ANY BENEFICIAL OWNER IN RESPECT OF THE PRINCIPAL AMOUNT, SINKING FUND INSTALLMENTS, PURCHASE PRICE, REDEMPTION PRICE OF OR INTEREST ON THE INITIAL BONDS; (3) THE DELIVERY BY DTC OR ANY PARTICIPANT OF ANY NOTICE TO ANY BENEFICIAL OWNER THAT IS REQUIRED OR PERMITTED UNDER THE TERMS OF THE INDENTURE TO BE GIVEN TO BONDHOLDERS; OR (4) THE SELECTION OF THE BENEFICIAL OWNERS TO RECEIVE PAYMENT IN THE EVENT OF ANY PARTIAL REDEM PTION OF THE INITIAL BONDS.
(f) SO LONG AS CEDE & CO. IS THE REGISTERED OWNER OF THE INITIAL BONDS, AS NOMINEE OF DTC, REFERENCES HEREIN TO THE INITIAL BONDHOLDERS OR REGISTERED HOLDERS OF THE INITIAL BONDS SHALL MEAN CEDE & CO. AND SHALL NOT MEAN THE BENEFICIAL OWNERS OF THE INITIAL BONDS.
(g) For so long as the Holder of all of the Initial Bonds shall be DTC, and all Initial Bonds shall be registered in the name of Cede & Co. as nominee for DTC, (i) only DTC may tender Initial Bonds for purchase or upon redemption or retirement in whole and (ii) unless all Initial Bonds are being redeemed or retired in whole, Initial Bonds shall not be required to be presented to the Trustee for payment of principal, Sinking Fund Installments, Purchase Price or Redemption Price except upon final maturity or redemption in whole.
(h) In the event the Securities Depository resigns, is unable to properly discharge its responsibilities, or is no longer qualified to act as a securities depository and registered clearing agency under the Securities and Exchange Act of 1934, as amended, the Issuer may appoint a successor Securities Depository provided the Trustee receives written evidence satisfactory to the Trustee with respect to the ability of the successor Securities Depository to discharge its responsibilities. Any such successor Securities Depository shall be a securities depository that is a registered clearing agency under the Securities and Exchange Act of 1934, as amended, or other applicable statute or regulation t hat operates a securities depository upon reasonable and customary terms. The Trustee upon its receipt of an Initial Bond or Bonds for cancellation shall cause the delivery of an Initial Bond or Bonds to the successor Securities Depository in appropriate Authorized Denominations and form as provided herein.
ARTICLE III
GENERAL TERMS AND PROVISIONS OF BONDS
Section 3.01. Date of Bonds. The Initial Bonds shall be dated their date of original issuance (subject to the provisions set forth below with respect to transfers and exchanges) and will bear interest from their date at the applicable rate or rates until the entire principal amount of the Initial Bonds has been paid. Bonds authenticated prior to the first Interest Payment Date shall bear interest from their date of original issuance. Bonds issued in exchange for or upon the registration of transfer of Bonds on or after the first Interest Payment Date thereon shall bear interest from and including the Interest Payment Date next preceding the date of the authentication thereof, unless the date of such authentication shall be an Interest Payment Date to which interest on the Bonds has been paid in full or duly provided for, in which case they shall bear interest from and including such Interest Payment Date; provided that if, as shown by the records of the Trustee, interest on the Bonds shall be in default, Bonds issued in exchange for or upon the registration of transfer of Bonds shall bear interest from the date to which interest has been paid in full on the Bonds, or if no interest has been paid on the Bonds, the date of the first delivery of fully executed and authenticated Bonds hereunder.
Section 3.02. Form and Denominations. Bonds shall be issued in fully registered form, without coupons, in any authorized denomination not exceeding the aggregate principal amount of Bonds of the same series, maturity and interest rate as the Bond for which the denomination is to be specified. Subject to the provisions of Section 3.03, the Initial Bonds shall be in substantially the form set forth in Exhibit C, with such variations, omissions and insertions as are permitted or required by this Indenture.
Section 3.03. Legends. Each Bond shall contain on the face thereof a statement to the effect that “THIS BOND SHALL NEVER CONSTITUTE A DEBT OR INDEBTEDNESS OF THE STATE OF NEW YORK OR OF THE CITY OF NEW YORK, AND NEITHER THE STATE OF NEW YORK NOR THE CITY OF NEW YORK SHALL BE LIABLE HEREON, NOR SHALL THIS BOND BE PAYABLE OUT OF ANY FUNDS OF THE NEW YORK CITY CAPITAL RESOURCE CORPORATION OTHER THAN THOSE PLEDGED THEREFOR.” The Bonds may in addition contain or have endorsed thereon such provisions, specifications and descriptive words not inconsistent with the provisions of this Indenture as may be necessary or de sirable to comply with custom or otherwise as may be determined by the Issuer prior to the delivery thereof.
Section 3.04. Medium of Payment. The principal or Redemption Price, if any, of, Sinking Fund Installments for, Purchase Price, and interest on the Bonds shall be payable in any coin or currency of the United States of America which, on the respective dates of payment thereof, is legal tender for the payment of public and private debts. Such payment may be made as provided in Section 2.02.
Section 3.05. Bond Details. Subject to the provisions hereof, the Bonds shall be dated, shall mature in such years and such amounts, shall bear interest at such rate or rates per annum, shall be subject to redemption on such terms and conditions and shall be payable as to principal or Redemption Price, if any, Sinking Fund Installments, Purchase Price, and interest at such place or places as shall be specified in this Indenture.
Section 3.06. Interchangeability, Transfer and Registry. vii) Each Bond shall be transferable only upon compliance with the restrictions on transfer set forth on such Bond and only upon the books of the Issuer, which shall be kept for the purpose at the designated corporate trust office of the Trustee, by the registered owner thereof in person or by his duly authorized attorney-in-fact, upon surrender of such Bond together with a written instrument of transfer in the form appearing on such Bond duly executed by the registered owner or his duly authorized attorney-in-fact with a guaranty of the signature thereon by a m ember of the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program in accordance with Securities and Exchange Commission Rule 17Ad-15. Upon the transfer of any Bond the Trustee shall prepare and issue in the name of the transferee one or more new Bonds of the same aggregate principal amount, related Series, maturity and interest rate as the surrendered Bond.
(b) Any Bond, upon surrender thereof at the designated corporate trust office of the Trustee in the City with a written instrument of transfer in the form appearing on such Bond, duly executed by the registered owner or his duly authorized attorney-in-fact, with a guaranty of the signature thereon by a member of the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program in accordance with Securities and Exchange Commission Rule 17Ad-15, may, at the option of the owner thereof, be exchanged for an equal aggregate principal amount of Bonds of the same Series, maturity and interest rate of any other Authorized Denominations. However, the Trustee will not be required to (i) transfer or exchange any Bonds during the period between a Record Date and the following Interest Payment Date or during the period of fifteen (15) days next preceding any day for the selection of Bonds to be redeemed, (ii) transfer or exchange any Bonds selected, called or being called for redemption in whole or in part, or (iii) register any transfer of or exchange any Bond which is subject to mandatory purchase.
(c) The Issuer, the Bond Registrar, the Trustee, the Tender Agent, the Remarketing Agent and any Paying Agent may deem and treat the Person in whose name any Bond shall be registered as the absolute owner of such Bond, whether such Bond shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal and Redemption Price, if any, of, Sinking Fund Installments for, Purchase Price, and interest on such Bond and for all other purposes, and all payments made to any such registered owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid, and neither the Issuer, the Company, the Bond Regi strar, the Trustee, the Tender Agent, the Remarketing Agent nor any Paying Agent shall be affected by any notice to the contrary.
(d) In all cases in which the privilege of transferring or exchanging Bonds is exercised, the Issuer or the Trustee may make a charge sufficient to reimburse it for any expenses and any tax, fee or other governmental charge required to be paid in connection therewith; any such expenses shall be paid by the Company but any such tax, fee or other governmental charge shall be paid by the Holder requesting such transfer or exchange.
Section 3.07. Bonds Mutilated, Destroyed, Stolen or Lost. In case any Bond shall become mutilated or be destroyed, stolen or lost, the Issuer shall execute, and thereupon the Trustee shall authenticate and deliver, a new Bond of like Series, maturity, unpaid principal amount and interest rate as the Bond so mutilated, destroyed, stolen or lost, in exchange and substitution for such mutilated Bond, upon surrender and cancellation of such mutilated Bond, or in lieu of and in substitution for the Bond destroyed, stolen or lost, upon filing with the Trustee evidence reasonably satisfactory to it that such Bond has been destroy ed, stolen or lost, and upon furnishing the Issuer and the Trustee with indemnity (an undertaking from an insurance company acceptable to the Trustee and the Issuer) satisfactory to the Trustee and to the Issuer and complying with such other reasonable regulations as the Trustee may prescribe and paying such expenses as the Issuer and the Trustee may incur. All Bonds so surrendered to the Trustee shall be cancelled by it. Every new Bond issued pursuant to the provisions of this Section by virtue of the fact that any Bond is destroyed, lost or stolen, shall, with respect to such Bond, constitute an additional contractual obligation of the Issuer whether or not the destroyed, lost or stolen Bond shall be found and shall be enforceable at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Bonds duly issued hereunder. In the event any such destroyed, stolen or lost Bond shall have matured, or be about to mature , the Issuer may, instead of issuing a new Bond, cause the Trustee to pay the same without surrender thereof upon compliance with the condition in the first sentence of this Section out of moneys held by the Trustee and available for such purpose. All Bonds shall be held and owned upon the express condition (to the extent lawful) that the foregoing provisions are exclusive with respect to the replacement or payment of any mutilated, destroyed or lost or stolen Bond and shall preclude any and all other rights and remedies, notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 3.08. Cancellation and Destruction of Bonds. All Bonds paid or redeemed, either at or before maturity, shall be delivered to the Trustee when such payment or redemption is made, and such Bonds together with all Bonds purchased by the Trustee, shall thereupon be promptly cancelled. Bonds so cancelled shall be destroyed by the Trustee.
Section 3.09. Requirements With Respect to Transfers. In all cases in which the privilege of transferring Bonds is exercised, the Issuer shall execute and the Trustee shall authenticate and deliver Bonds in accordance with the provisions of this Indenture. All Bonds surrendered in any such transfer shall forthwith be cancelled by the Trustee. For every such transfer of Bonds, the Issuer or the Trustee may, as a condition precedent to the privilege of making such transfer, make a charge sufficient to reimburse it for any tax, fee or other governmental charge required to be paid with respect to such tra nsfer and may charge a sum sufficient to pay the cost of preparing each new Bond issued upon such transfer, which sum or sums shall be paid by the Person requesting such transfer.
Section 3.10. Bond Registrar. The Trustee shall also be Bond Registrar for the Bonds, and shall maintain a register showing the names of all registered Holders of Bonds, Bond numbers and amounts, and other information appropriate to the discharge of its duties hereunder. The Trustee shall make available to the Company for its inspection during normal business hours the registration books for the Bonds, as may be requested by the Company in connection with any purchase or tender offer by it with respect to the Bonds.
Section 3.11. Payments Due on Saturdays, Sundays and Holidays. In any case where any payment date of principal, Purchase Price, Sinking Fund Installment and/or interest on the Bonds, or the date fixed for redemption of any Bonds, shall be a day other than a Business Day, then payment of such principal, Purchase Price, Sinking Fund Installment and/or interest or the Redemption Price, if applicable, need not be made on such date but may be made on the next succeeding Business Day with the same force and effect as if made on the principal, Purchase Date, Sinking Fund Installment and/or Interest Payment Date or the date fixed for redemption, as the case may be, except that interest shall continue to accrue on any unpaid principal.
ARTICLE IV
APPLICATION OF BOND PROCEEDS AND OTHER AMOUNTS
Section 4.01. Application of Proceeds of Initial Bonds. Upon the receipt by the Trustee of the original proceeds of the sale and delivery of the Initial Bonds, including the amount received as accrued interest, if any, thereon, the Trustee shall apply such proceeds as follows:
(i) $0, being the amount received as accrued interest on the Initial Bonds, if any, shall be deposited in the Interest Account of the Bond Fund;
(ii) $2,456,944, being an amount equal to capitalized interest on the Initial Bonds from the Closing Date through March 1, 2012, shall be deposited in the Capitalized Interest Account of the Project Fund; and
(iii) $17,543,056, being the balance of the proceeds of the Initial Bonds, shall be deposited in the Construction Account of the Project Fund.
Section 4.02. Deposit in the Advance Interest Deposit Fund. Upon the Closing Date, and the receipt by the Trustee of $4,000,000 from the Company as provided in Section 10.7 of the Loan Agreement, the Trustee shall deposit such amount within the Advance Interest Deposit Fund.
ARTICLE V
CUSTODY AND INVESTMENT OF FUNDS
Section 5.01. Creation of Funds and Accounts. viii) The Issuer hereby establishes and creates the following special trust Funds and Accounts comprising such Funds:
(1) Project Fund
(a) Capitalized Interest Account
(b) Construction Account
(2) Bond Fund
(a) Principal Account
(b) Interest Account
(c) Redemption Account
(d) Sinking Fund Installment Account
(3) Advance Interest Deposit Fund
(4) Purchase Fund
(a) Remarketing Account
(b) Company Purchase Account
(5) Renewal Fund
(6) Earnings Fund
(7) Rebate Fund
(b) All of the Funds and Accounts created hereunder shall be held by the Trustee, except that the Purchase Fund shall be held by the Tender Agent. All moneys required to be deposited with or paid to the Trustee for the credit of any Fund or Account under any provision of this Indenture and all investments made therewith shall be held by the Trustee in trust and applied only in accordance with the provisions of this Indenture, and while held by the Trustee shall constitute part of the Trust Estate (subject to the granting clauses of this Indenture), other than the Rebate Fund, and, to the extent provided herein, the Purchase Fund, and be subject to the lien hereof.
Section 5.02. Project Fund. ix) There shall be deposited in the Project Fund any and all amounts required to be deposited therein pursuant to Sections 4.01, 5.07 and 5.08 or otherwise required to be deposited therein pursuant to the Loan Agreement or this Indenture.
The Trustee shall apply the amounts on deposit in the Project Fund to the payment, or reimbursement to the extent the same have been paid by or on behalf of the Company or the Issuer, of Project Costs (including interest on the Bonds during the period of Project construction and renovation) to the extent requisitioned under subsection (c) hereto.
(b) The Trustee shall apply the amounts in the Capitalized Interest Account of the Project Fund for the payment of interest on the Bonds as the same shall become due until the earlier of the Completion Date (as evidenced in accordance with the provisions of Section 3.2(f) of the Loan Agreement) or the exhaustion of amounts in such Account (the “Capitalized Interest Period”). On the seventh (7th) Business Day immediately preceding each Interest Payment Date during the Capitalized Interest Period, the Trustee shall transfer from the Capitalized Interes t Account of the Project Fund to the Interest Account of the Bond Fund an amount which, together with any amounts on deposit in such Interest Account and available therefor, shall be sufficient to pay the interest on the Bonds becoming due on such Interest Payment Date. Upon the Completion Date, the Trustee shall transfer any balance remaining in the Capitalized Interest Account of the Project Fund, first, to the extent of the amount of interest accrued on the Bonds from the Interest Payment Date immediately preceding the Completion Date through but not including the Completion Date, to the Interest Account of the Bond Fund, and second, the balance to the Construction Account of the Project Fund to pay any remaining Project Costs.
(c) The Trustee is hereby authorized to disburse from the Construction Account of the Project Fund amounts required to pay (in whole or in part) the Project Costs and is directed to issue its checks (or, at the direction of the Company, make wire transfers) for each disbursement from the Construction Account of the Project Fund for the Project Costs, upon a requisition submitted to the Trustee, signed by an Authorized Representative of the Company; provided, however, that the Trustee shall retain in the Construction Account of the Project Fund an amount equal to $100,000, until an Authorized Representative of the Company shall have delivered the completion certificate and other documents required by Secti on 3.2(f) of the Loan Agreement.
The requisition from the Construction Account of the Project Fund shall be accompanied by bills or invoices (stamped “paid” by the Person to whom payment was due or with other evidence of payment if reimbursement is to be made to the Company), including evidence that the bill, invoice or other evidence was not incurred on a date prior to sixty (60) days prior to the date of adoption by the Issuer of its Preliminary Resolution for the Project. Such requisition shall be as set forth in Exhibit D — “Form of Requisition from the Construction Account of the Project Fund” and shall be submitted to the Trustee. The Trustee shall disburse amounts from the Construction Account of the Project Fund not later than five (5) Business Days following the receipt of the executed requisition and accompanying bills or invoices, except that any such requisition and accompanying bills or invoices submitted on the Closing Date shall have disbursements made by the Trustee on such Closing Date. The Trustee shall be entitled to conclusively rely on the correctness and accuracy of such requisition as well as the propriety of the signature thereon.
(d) The Trustee shall keep and maintain adequate records pertaining to each Account of the Project Fund and all disbursements therefrom and shall furnish copies of same to the Issuer or the Company upon reasonable written request.
(e) The Trustee shall on written request furnish to the Issuer and the Company within a reasonable time period a written statement of disbursements from each Account of the Project Fund, enumerating, among other things, item, cost, amount disbursed, date of disbursement and the person to whom payment was made, together with copies of all bills, invoices or other evidences submitted to the Trustee for such disbursement.
(f) The completion of the Project shall be evidenced as set forth in Section 3.2(f) of the Loan Agreement including the filing of the certificate of an Authorized Representative of the Company referred to therein. Upon the filing of such certificate, the balance in the Project Fund in excess of the amount, if any, stated in such certificate for the payment of any remaining part of the costs of the Project, shall, after making any transfer to the Rebate Fund as directed pursuant to Section 7.5 of the Tax Regulatory Agreement and Section 5.08, be deposited by the Trustee in the Redemption Account of the Bond Fund. &# 160;Upon payment of all the costs and expenses incident to the completion of the Project, any balance of such remaining amount in the Project Fund, together with any amount on deposit in the Earnings Fund derived from transfers made thereto from the Project Fund, shall, after making any such transfer to the Rebate Fund, be deposited in the Redemption Account of the Bond Fund to be applied to the redemption of Bonds at the earliest practicable date. The Trustee shall promptly notify the Company of any amounts so deposited in the Redemption Account of the Bond Fund pursuant to this Section 5.02(f).
(g) In the event the Company shall be required to or shall elect to cause the Bonds to be redeemed in whole pursuant to the Loan Agreement, the balance in the Project Fund, in the Earnings Fund (in excess of any amount the Trustee is directed to transfer to the Rebate Fund pursuant to Section 7.5 of the Tax Regulatory Agreement and Section 5.08) shall be deposited in the Redemption Account of the Bond Fund. In the event the unpaid principal amount of the Bonds shall be accelerated upon the occurrence of an Event of Default hereunder, the balance in the Project Fund, in the Earnings Fund (in excess of any amount the Trustee is directed to transfer to the Rebate Fund pursuant to Section 7.5 of the Tax Regulatory Agreement and Section 5.08) shall be deposited in the Bond Fund as provided in Section 8.03.
(h) Except as provided in Section 5.07, all earnings on amounts held in the Project Fund shall be transferred by the Trustee and deposited in the Earnings Fund. Any transfers by the Trustee of amounts to the Rebate Fund shall first be drawn by the Trustee from the Earnings Fund prior to drawing any amounts from the Project Fund.
Section 5.03. Application of Advance Interest Deposit Fund. Commencing with that Interest Payment Date with respect to which insufficient amounts are on deposit in the Capitalized Interest Account of the Project Fund to pay into the Interest Account of the Bond Fund that amount required to pay the interest on the Bonds next coming due on such Interest Payment Date, the Trustee shall apply the amounts on deposit in the Advance Interest Deposit Fund to the payment of interest on the Bonds by transferring such amount as is so required for such purpose to the Interest Account of the Bond Fund on the seventh (7th) Business Day immediately preceding such Interest Payment Date.
Section 5.04. Payments into Renewal Fund; Application of Renewal Fund.
x) The Net Proceeds resulting from any Loss Event with respect to the Facility, together with any other amounts so required to be deposited therein under the Loan Agreement, the Bond Guaranty Agreement or the Mortgage, shall be deposited in the Renewal Fund (except as otherwise provided in Section 3.12 of the Bond Guaranty Agreement).
(b) In the event the Bonds shall be subject to redemption in whole (either by reason of such Loss Event or otherwise) pursuant to the terms thereof or this Indenture, and the Company shall have so directed the Trustee in writing within ninety (90) days of the occurrence of such Loss Event, the Trustee shall, after making any transfer to the Rebate Fund as directed pursuant to Section 7.5 of the Tax Regulatory Agreement and Section 5.08, transfer the amounts deposited in the Renewal Fund to the Redemption Account of the Bond Fund.
If, on the other hand,
(1) the Bonds shall not be subject to optional redemption in whole (whether by reason of such Loss Event or otherwise), or
(2) the Bonds shall be subject to optional redemption in whole (whether by reason of such Loss Event or otherwise) and the Company shall have failed to take action to effect such redemption, or
(3) the Company shall have notified the Trustee of its intent to rebuild, replace, repair and restore the Facility,
the Trustee shall apply the amounts on deposit in the Renewal Fund, after making any transfer to the Rebate Fund as directed pursuant to Section 7.5 of the Tax Regulatory Agreement and Section 5.08, to such rebuilding, replacement, repair and restoration.
(c) If an Event of Default shall exist at the time of the receipt by the Trustee of the Net Proceeds in the Renewal Fund, the Trustee shall promptly request the written direction of the Majority Holders and shall thereupon apply such Net Proceeds, after making any transfer to the Rebate Fund as directed pursuant to the Tax Regulatory Agreement and Section 5.08, to the rebuilding, replacement, repair and restoration of the Facility, or for deposit in the Redemption Account of the Bond Fund, as directed by the Majority Holders (or if no such direction shall be received within ninety (90) days after request therefor by the Trustee shall have been made, for deposit in the Redemption Account of the Bond F und).
(d) The Trustee is hereby authorized to apply the amounts in the Renewal Fund to the payment (or reimbursement to the extent the same have been paid by or on behalf of the Company or the Issuer) of the costs required for the rebuilding, replacement, repair and restoration of the Facility upon written instructions from the Company. The Trustee is further authorized and directed to issue its checks for each disbursement from the Renewal Fund upon a requisition submitted to the Trustee and signed by an Authorized Representative of the Company. Each such requisition shall be accompanied by bills, invoices or other evidences or documentation (including, without limitation, a title continu ation or other evidence that no mechanics or other liens have been filed) satisfactory to the Trustee. The Trustee shall be entitled to rely on such requisition. The Trustee shall keep and maintain adequate records pertaining to the Renewal Fund and all disbursements therefrom and shall furnish copies of same to the Issuer and the Company upon reasonable written request therefor.
(e) The date of completion of the restoration of the Facility shall be evidenced to the Issuer and the Trustee by a certificate of an Authorized Representative of the Company stating (i) the date of such completion, (ii) that all labor, services, machinery, equipment, materials and supplies used therefor and all costs and expenses in connection therewith have been paid for or arrangement for payment, reasonably satisfactory to the Trustee, has been made, (iii) that the Facility has been rebuilt, replaced, repaired or restored to substantially its condition immediately prior to the Loss Event, or to a condition of at least equivalent value, operating efficiency and function, (iv) that t he Company has a good and valid leasehold interest in all property constituting part of the Facility, and all property constituting part of the Facility is subject to the Ground Lease and the Loan Agreement, and the mortgage liens and security interests of the Mortgage, subject to Permitted Encumbrances, (v) the Rebate Amount applicable with respect to the Net Proceeds and the earnings thereon (with a statement as to the determination of the Rebate Amount and a direction to the Trustee of any required transfer to the Rebate Fund), and (vi) that the restored Facility is ready for occupancy, use and operation for its intended purposes. Notwithstanding the foregoing, such certificate shall state (x) that it is given without prejudice to any rights of the Company against third parties which exist at the date of such certificate or which may subsequently come into being, (y) that it is given only for the purposes of this Section and Section 5.4 of the Loan Agreement, and (z) th at no Person other than the Issuer or the Trustee may benefit therefrom. Such certificate shall be accompanied by (i) a certificate of occupancy (either temporary or permanent, provided that if is a temporary certificate of occupancy, the Company will proceed with due diligence to obtain a permanent certificate of occupancy), if required, and any and all permissions, licenses or consents required of governmental authorities for the occupancy, operation and use of the Facility for the purposes contemplated by the Loan Agreement and the Ground Lease; (ii) a certificate of an Authorized Representative of the Company that all costs of rebuilding, repair, restoration and reconstruction of the Facility have been paid in full, together with releases of mechanics’ liens by all contractors and materialmen who supplied work, labor, services, materials or supplies in connection with the rebuilding, repair, restoration and reconstruction of the Facility (or, to the extent that any such costs shall be the subject of a bona fide dispute, evidence to the Trustee that such costs have been appropriately bonded or that the Company shall have posted a surety or security at least equal to the amount of such costs); and (iii) a search prepared by a title company, or other evidence satisfactory to the Trustee, indicating that there has not been filed with respect to the Facility any mechanic’s, materialmen’s or any other lien in connection with the rebuilding, replacement, repair and restoration of the Facility and that there exist no encumbrances other than those encumbrances consented to by the Issuer and the Trustee.
(f) All earnings on amounts on deposit in the Renewal Fund shall be transferred by the Trustee and deposited in the Earnings Fund. Any transfers by the Trustee of amounts to the Rebate Fund shall first be drawn by the Trustee from the Earnings Fund prior to drawing any amounts from the Renewal Fund.
(g) Any surplus remaining in the Renewal Fund after the completion of the rebuilding, replacement, repair and restoration of the Facility shall, after making any transfer to the Rebate Fund as directed pursuant to the Tax Regulatory Agreement and Section 5.08, be transferred by the Trustee to the Redemption Account of the Bond Fund.
Section 5.05. Payments into Bond Fund. The Trustee shall promptly deposit the following receipts into the Bond Fund:
(a) The interest accruing on any Series of Bonds from the date of original issuance thereof to the date of delivery, which shall be credited to the Interest Account of the Bond Fund and applied to the payment of interest on such Series of Bonds.
(b) Amounts disbursed from the Capitalized Interest Account of the Project Fund for the payment of interest on the Bonds during the Capitalized Interest Period, which shall be credited to the Interest Account of the Bond Fund and applied to the payment of interest on the Bonds;
(c) Amounts transferred from the Advance Interest Deposit Fund as provided in Section 5.03, which shall be credited to the Interest Account of the Bond Fund and applied to the payment of interest on the Bonds.
(d) Excess or remaining amounts in the Project Fund required to be deposited (subject to any transfer required to be made to the Rebate Fund in accordance with directions received pursuant to the Tax Regulatory Agreement and Section 5.08) (i) in the Redemption Account of the Bond Fund pursuant to Section 5.02(f) or the first sentence of Section 5.02(g), which shall be kept segregated from any other moneys within such Account, or (ii) in the Bond Fund pursuant to the second sentence of Section 5.02(g).
(e) Loan payments received by the Trustee pursuant to Section 4.3(a)(i), (ii), (iii), (iv) or (v) of the Loan Agreement, which shall be deposited in and credited, to the extent necessary, first to the Interest Account, second to the Principal Account, and third to the Sinking Fund Installment Account of the Bond Fund.
(f) Advance loan payments received by the Trustee pursuant to Section 4.3(c) of the Loan Agreement, which shall be deposited in and credited to the Redemption Account of the Bond Fund.
(g) Any amounts transferred from the Earnings Fund pursuant to Section 5.07, which shall be deposited in and credited to the Interest Account of the Bond Fund.
(h) The excess amounts referred to in Section 5.06(d), which shall be deposited in and credited to the Interest Account of the Bond Fund.
(i) Any amounts transferred from the Redemption Account pursuant to Section 5.06(h), which shall be deposited to the Interest Account, the Principal Account and the Sinking Fund Installment Account of the Bond Fund, as the case may be and in such order of priority, and applied solely to such purposes.
(j) Amounts in the Renewal Fund required by Section 5.04 or by the Mortgage to be deposited (subject to any transfer required to be made to the Rebate Fund in accordance with directions received pursuant to the Tax Regulatory Agreement and Section 5.08) to the Redemption Account of the Bond Fund pursuant to Section 5.04(g).
(k) All other receipts when and if required by the Loan Agreement or by this Indenture or by any other Security Document to be paid into the Bond Fund, which shall be credited (except as provided in Section 8.03) to the Redemption Account of the Bond Fund.
Section 5.06. Application of Bond Fund Moneys. xi) The Trustee shall (i) on each Interest Payment Date pay or cause to be paid out of the Interest Account in the Bond Fund the interest due on the Bonds, and (ii) further pay out of the Interest Account of the Bond Fund any amounts required for the payment of accrued interest upon any purchase or redemption (including any mandatory Sinking Fund Installment redemption) of Bonds.
(b) The Trustee shall on each principal payment date on the Bonds pay or cause to be paid to the respective Paying Agents therefor out of the Principal Account of the Bond Fund, the principal amount, if any, due on the Bonds (other than such as shall be due by mandatory Sinking Fund Installment redemption), upon the presentation and surrender of the requisite Bonds.
(c) There shall be paid from the Sinking Fund Installment Account of the Bond Fund to the Paying Agents on each Sinking Fund Installment payment date in immediately available funds the amounts required for the Sinking Fund Installment due and payable with respect to Bonds which are to be redeemed from Sinking Fund Installments on such date (accrued interest on such Bonds being payable from the Interest Account of the Bond Fund). Such amounts shall be applied by the Paying Agents to the payment of such Sinking Fund Installment when due. The Trustee shall call for redemption, in the manner provided in Article VI, Bonds for which Sinking Fund Installments are applicable in a princi pal amount equal to the Sinking Fund Installment then due with respect to such Bonds. Such call for redemption shall be made even though at the time of mailing of the notice of such redemption sufficient moneys therefor shall not have been deposited in the Bond Fund.
(d) Amounts in the Redemption Account of the Bond Fund shall be applied, at the written direction of the Company, as promptly as practicable, to the purchase of Bonds at prices not exceeding the Redemption Price thereof applicable on the earliest date upon which the Bonds are next subject to optional redemption, plus accrued interest to the date of redemption. Any amount in the Redemption Account not so applied to the purchase of Bonds by forty-five (45) days prior to the next date on which the Bonds are so redeemable shall be applied to the redemption of Bonds on such redemption date. Any amounts deposited in the Redemption Account and not applied within twelve (12) months of their date of deposit to the purchase or redemption of Bonds (except if held in accordance with Article X) shall be transferred to the Interest Account. Upon the purchase of any Bonds out of advance loan payments as provided in this subsection, or upon the redemption of any Bonds, an amount equal to the principal of such Bonds so purchased or redeemed shall be credited against the next ensuing and future Sinking Fund Installments for such Bonds in chronological order of the due dates of such Sinking Fund Installments until the full principal amount of such Bonds so purchased or redeemed shall have been so credited. The portion of any such Sinking Fund Installment remaining after the deduction of such amounts so credited shall constitute and be deemed to be the amount of such Sinking Fund Installment for the purposes of any calculation thereof under this Indenture. The Bonds to be purchased or redeemed shall be selected by the Trustee in the manner provided in Section 6.02 . Amounts in the Redemption Account to be applied to the redemption of Bonds shall be paid to the respective Paying Agents on or before the redemption date and applied by them on such redemption date to the payment of the Redemption Price of the Bonds being redeemed plus interest on such Bonds accrued to the redemption date.
(e) In connection with purchases of Bonds out of the Bond Fund as provided in this Section, the Company shall arrange and the Trustee shall execute such purchases (through brokers or otherwise, and with or without receiving tenders) at the written direction of the Company. The payment of the purchase price shall be made out of the moneys deposited in the Redemption Account of the Bond Fund and the payment of accrued interest shall be made out of moneys deposited in the Interest Account of the Bond Fund.
(f) The Issuer shall receive a credit in respect of Sinking Fund Installments for any Bonds which are subject to mandatory Sinking Fund Installment redemption and which are delivered by the Issuer or the Company to the Trustee on or before the forty-fifth (45th) day next preceding any Sinking Fund Installment payment date and for any Bonds which prior to said date have been purchased or redeemed (otherwise than through the operation of the Sinking Fund Installment Account) and cancelled by the Trustee and not theretofore applied as a credit against any Sinking Fund Installment (whether pursuant to Section 5.06(d) or otherwise). Each Bond so delivered, cancelled or previously purchased or r edeemed shall be credited by the Trustee at one hundred per cent (100%) of the principal amount thereof against the obligation of the Issuer on such Sinking Fund Installment payment date with respect to Bonds of such Series and maturity and the principal amount of such Bonds to be redeemed by operation of the Sinking Fund Installment Account on the due date of such Sinking Fund Installment shall be reduced accordingly, and any excess over such principal amount shall be credited on future Sinking Fund Installments in direct chronological order, and the principal amount of Bonds to be redeemed by application of Sinking Fund Installment payments shall be accordingly reduced.
(g) The Company shall on or before the forty-fifth (45th) day next preceding each Sinking Fund Installment payment date furnish the Trustee with the certificate of an Authorized Representative of the Company indicating whether or not and to what extent the provisions of this Section are to be availed of with respect to such Sinking Fund Installment payment, stating, in the case of the credit provided for, that such credit has not theretofore been applied against any Sinking Fund Installment and confirming that immediately available cash funds for the balance of the next succeeding prescribed Sinking Fund Installment payment will be paid on or prior to the next succeeding Sinking Fund Installment payment d ate.
(h) Moneys in the Redemption Account of the Bond Fund which are not set aside or deposited for the redemption or purchase of Bonds shall be transferred by the Trustee to the Interest Account, to the Principal Account or to the Sinking Fund Installment Account of the Bond Fund.
Section 5.07. Payments into Earnings Fund; Application of Earnings Fund.
xii) All investment income or earnings on amounts held in the Project Fund, the Renewal Fund, the Advance Interest Deposit Fund or any other special fund (other than the Rebate Fund or the Bond Fund) shall be deposited upon receipt by the Trustee into the Earnings Fund. The Trustee shall keep separate accounts of all amounts deposited in the Earnings Fund and by journal entry indicate the Fund source of the income or earnings.
(b) On the first Business Day following each Computation Period, the Trustee shall withdraw from the Earnings Fund and deposit to the Rebate Fund an amount such that the amount held in the Rebate Fund after such deposit is equal to the Rebate Amount calculated as of the last day of the Computation Period. In the event of any deficiency, the balance required shall be provided by the Company pursuant to the Tax Regulatory Agreement. Computations of the amounts on deposit in each Fund and of the Rebate Amount shall be furnished to the Trustee by the Company in accordance with the Tax Regulatory Agreement.
The foregoing notwithstanding, the Trustee shall not be required to transfer amounts from the Earnings Fund to the Rebate Fund (and shall instead apply such amounts in the Earnings Fund as provided in the immediately following sentence), if the Company shall deliver to the Trustee a certificate of an Authorized Representative of the Company to the effect that (x) the applicable requirements of a spending exception to rebate has been satisfied as of the relevant semiannual period as set forth in the Tax Regulatory Agreement, (y) the proceeds of the Bonds have been invested in obligations the interest on which is not included in gross income for Federal income tax purposes under Section 103 of the Code or (z) the proceeds of the Bonds have been invested in obligations the Yield on which (calculated as set forth in th e Tax Regulatory Agreement) does not exceed the Yield on such Bonds (calculated as set forth in the Tax Regulatory Agreement). Any amounts on deposit in the Earnings Fund following the transfers to the Rebate Fund required by this Section shall be deposited in the Project Fund until the completion of the Project as provided in Section 3.2(f) of the Loan Agreement, and thereafter in the Interest Account of the Bond Fund.
Section 5.08. Payments into Rebate Fund; Application of Rebate Fund.
b) The Rebate Fund and the amounts deposited therein shall not be subject to a security interest, pledge, assignment, lien or charge in favor of the Trustee, any Bondholder or any other Person.
(b) The Trustee, upon the receipt of a certification of the Rebate Amount from an Authorized Representative of the Company, shall deposit in the Rebate Fund within sixty (60) days following each Computation Date, an amount such that the amount held in the Rebate Fund after such deposit is equal to the Rebate Amount calculated as of such Computation Date. If there has been delivered to the Trustee a certification of the Rebate Amount in conjunction with the completion of the Project pursuant to Section 3.2(f) of the Loan Agreement or the restoration of the Facility pursuant to Section 5.04, at any time during a Bond Year, the Trustee shall deposit in the Rebate Fund at that time an amo unt such that the amount held in the Rebate Fund after such deposit is equal to the Rebate Amount calculated at the completion of the Project or the restoration of the Facility as aforesaid. The amount deposited in the Rebate Fund pursuant to the previous sentences shall be withdrawn from the Earnings Fund. If the amount on deposit in the Rebate Fund following such deposit is less than the Rebate Amount, the Trustee shall promptly deliver a notice stating the amount of such deficiency to the Company. It is provided in the Loan Agreement that promptly upon receipt of such notice, the Company shall deliver the amount necessary to make up such deficiency to the Trustee for deposit in the Rebate Fund.
(c) If within sixty (60) days following any Computation Date, the amount on deposit in the Rebate Fund exceeds the Rebate Amount, the Trustee, upon the receipt of written instructions from an Authorized Representative of the Company, shall withdraw such excess amount and deposit it in the Construction Account of the Project Fund until the completion of the Project as provided in Section 3.2(f) of the Loan Agreement, or, after the completion of the Project, deposit it in the Interest Account of the Bond Fund.
(d) The Trustee, upon the receipt of written instructions from an Authorized Representative of the Company, shall pay to the United States, out of amounts in the Rebate Fund, (i) not less frequently than once each five (5) years after the Closing Date, an amount such that, together with prior amounts paid to the United States, the total paid to the United States is equal to 90% of the Rebate Amount with respect to the Initial Bonds as of the date of such payment and (ii) notwithstanding the provisions of Article X, not later than thirty (30) days after the date on which all Initial Bonds have been paid in full, 100% of the Rebate Amount as of the date of payment.
Section 5.09. Purchase Fund. c) The Purchase Fund shall consist of Accounts for the Initial Bonds to be designated respectively the “Remarketing Account” and the “Company Purchase Account”.
(b) The Tender Agent shall promptly deposit the following receipts into the respective Account of the Purchase Fund:
(i) Upon receipt of the proceeds of a remarketing of the Initial Bonds on the date the Initial Bonds are to be purchased, the Tender Agent shall deposit such proceeds in the Remarketing Account for application to the Purchase Price of the Initial Bonds.
(ii) Upon receipt of funds from the Company pursuant to Section 2.03(j)(B), the Tender Agent shall deposit such funds in the Company Purchase Account for application to the Purchase Price of the Initial Bonds. Any amounts deposited in the Company Purchase Account and not needed with respect to the Purchase Price for any Initial Bonds shall be immediately refunded to the Company.
(c) On each Purchase Date, the Tender Agent shall pay to the Holder of each Initial Bond tendered or deemed tendered for purchase pursuant to Section 2.03 on such Purchase Date the Purchase Price of such Initial Bond.
(d) No amounts held in the Purchase Fund shall be invested.
(e) The Tender Agent shall disburse moneys from the Remarketing Account or the Company Purchase Account, as applicable, to pay the Purchase Price of Initial Bonds tendered or deemed tendered for purchase upon surrender of such Initial Bonds.
(f) The funds held by the Tender Agent in the Purchase Fund shall not be subject to the lien of this Indenture. The moneys in the Purchase Fund shall be used solely to pay the Purchase Price of Initial Bonds as aforesaid and may not be used for any other purposes. It shall be the duty of the Tender Agent to hold the moneys in the Purchase Fund, without liability for interest thereon, for the benefit of the Holders of Initial Bonds that have been tendered or deemed tendered for purchase on the Purchase Date, and if sufficient funds to pay the Purchase Price for the Initial Bonds shall be held by the Tender Agent in the Purchase Fund for the benefit of the Holders thereof, each such Ho lder shall thereafter be restricted exclusively to the Purchase Fund for any claim of whatever nature on such Holder’s part under this Indenture or on, or with respect to, such Initial Bonds. Moneys in the Purchase Fund that remain unclaimed two years after the applicable Purchase Date shall, at the request of the Company, and if the Company is not, at the time, to the knowledge of the Tender Agent, in default with respect to any covenant in the Loan Agreement or any other Security Document, be paid to the Company, and the Holders of the Initial Bonds for which the deposit was made shall thereafter be limited to a claim against the Company.
Section 5.10. Transfer to Rebate Fund. The Trustee shall have no obligation under this Indenture to transfer any amounts to the Rebate Fund unless the Trustee shall have received specific written instructions from an Authorized Representative of the Company to make such transfer.
Section 5.11. Investment of Funds and Accounts. i) Amounts in any Fund or Account established under this Indenture may, if and to the extent then permitted by law, be invested only in Qualified Investments provided that any Qualified Investment shall not have a maturity date greater than five (5) years from the date of the making of such investment unless such Qualified Investment may be put at par at any time at the option of the owner thereof. Any investment herein authorized is subject to the condition that no portion of the proceeds derived from the sale of the Bonds shall be used, directly or indirectl y, in such manner as to cause any Bond to be an “arbitrage bond” within the meaning of Section 148 of the Code. In particular, unexpended Bond proceeds transferred from the Project Fund (or from the Earnings Fund with respect to amounts deposited therein from the Project Fund) to the Redemption Account of the Bond Fund pursuant to Section 5.02(f) may not be invested at a Yield which is greater than the Yield on the applicable Series of Bonds. Such investments shall be made by the Trustee only at the written request of an Authorized Representative of the Company; and if such investment is to be in one or more certificates of deposit, investment agreements or guaranteed investment contracts, then such written request shall include written assurance to the effect that such investment complies with the Tax Regulatory Agreement. Any investment hereunder shall be made in accordance with the Tax Regulatory Agreement, and the Company shall so certify to the Trus tee with each such investment direction as referred to below. Such investments shall mature in such amounts and at such times as may be necessary to provide funds when needed to make payments from the applicable Fund. Net income or gain received and collected from such investments shall be credited and losses charged to (i) the Rebate Fund with respect to the investment of amounts held in the Rebate Fund, (ii) the Bond Fund with respect to the investment of amounts held in the Bond Fund, and (iii) the Earnings Fund with respect to the investment of amounts held in any other Fund.
(b) At the written request of an Authorized Representative of the Company no sooner than ten (10) days prior to each Loan Payment Date under the Loan Agreement, the Trustee shall notify the Company of the amount of such net investment income or gain received and collected subsequent to the last such loan payment and the amount then available in the various Accounts of the Bond Fund.
(c) Upon the written direction of an Authorized Representative of the Company, the Trustee shall sell at the best price reasonably obtainable, or present for redemption or exchange, any obligations in which moneys shall have been invested to the extent necessary to provide cash in the respective Funds or Accounts, to make any payments required to be made therefrom, or to facilitate the transfers of moneys or securities between various Funds and Accounts as may be required from time to time pursuant to the provisions of this Article. The Trustee shall not be liable for losses incurred as a result of actions taken in good faith in accordance with this Section 5.11(c). As soon as p racticable after any such sale, redemption or exchange, the Trustee shall give notice thereof to the Issuer and the Company.
(d) Neither the Trustee nor the Issuer shall be liable for any loss arising from, or any depreciation in the value of any obligations in which moneys of the Funds and Accounts shall be invested in accordance with this Indenture. The investments authorized by this Section 5.09 shall at all times be subject to the provisions of applicable law, as amended from time to time.
(e) In computing the amount in any Fund or Account, obligations purchased as an investment of moneys therein shall be valued at fair market value as determined by the Trustee one month prior to each Interest Payment Date.
The fair market value of Qualified Investments shall be determined as follows:
(i) as to investments the bid and asked prices of which are published on a regular basis in The Wall Street Journal (or, if not there, then in The New York Times), the average bid and asked prices for such investments so published on or most recently prior to such time of determination;
(ii) as to investments the bid and asked prices of which are not published on a regular basis in The Wall Street Journal or The New York Times, the average bid price at such nationally recognized government securities dealers (selected by the Trustee in its absolute discretion) at the time making a market in such investments or as quoted in the Interactive Data Service; and
(iii) as to certificates of deposit and bankers acceptances and other investments, the face amount thereof, plus accrued interest.
If more than one provision of this definition of “fair market value” shall apply at any time to any particular investment, the fair market value thereof at such time shall be determined in accordance with the provision establishing the lowest value for such investment.
Section 5.12. Application of Moneys in Certain Funds for Retirement of Bonds. Notwithstanding any other provisions of this Indenture, if on any Interest Payment Date or redemption date the amounts held in the Funds established under this Indenture (other than the Purchase Fund, the Earnings Fund and the Rebate Fund) are sufficient to pay one hundred percent (100%) of the principal or Redemption Price, as the case may be, of all Outstanding Bonds and the interest accruing on such Bonds to the next date on which such Bonds are redeemable or payable, as the case may be, whichever is earlier, the Trustee shall so notify the Is suer and the Company. Upon receipt of written instructions from an Authorized Representative of the Company directing such redemption, the Trustee shall proceed to redeem all such Outstanding Bonds in the manner provided for redemption of such Bonds by this Indenture.
Section 5.13. Repayment to the Company from the Funds. After payment in full of the Bonds (in accordance with Article X) and the payment of all fees, charges and expenses of the Issuer, the Trustee, the Tender Agent, the Remarketing Agent, the Bond Registrar and the Paying Agents and all other amounts required to be paid hereunder and under each of the Security Documents, and the payment of any amounts which the Trustee is directed to rebate to the Federal government pursuant to this Indenture and the Tax Regulatory Agreement, all amounts remaining in any Fund shall be paid to the Company upon the expiration or sooner termination of the term of the Loan Agreement as provided in Section 4.3(g) of the Loan Agreement.
Section 5.14. Non-presentment 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, and funds sufficient to pay any such Bond shall have been made available to the Trustee for the benefit of the Holder or Holders thereof, together with interest to the date on which principal is due, all liability of the Issuer to the Holder thereof for the payment of such Bond shall forthwith cease, terminate and be completely discharged, and thereupon it shall be the duty of the Trustee to pay such funds to t he Person entitled thereto or if the Person is not known to the Trustee, to hold such funds, without liability for interest thereon, for the benefit of the Holder of such Bond, who shall thereafter be restricted exclusively to such funds, for any claim of whatever nature on his part under this Indenture or on, or with respect to, such Bond. Such amounts so held shall, pending payment to the Holder of such Bond, (y) be subject to any rebate requirement as set forth in the Tax Regulatory Agreement or this Indenture, and (z) shall be uninvested, or, if invested, invested or re-invested only in Government Obligations maturing within thirty (30) days. Funds remaining with the Trustee as above and unclaimed for the earlier of two (2) years or one month less than the applicable statutory escheat period shall be paid to the Company. After the payment of such unclaimed moneys to the Company, the Holder of such Bond shall thereafter look only to the Company for the payment th ereof, and all obligations of the Trustee or such Paying Agent with respect to such moneys shall thereupon cease.
ARTICLE VI
REDEMPTION OF BONDS
Section 6.01. Privilege of Redemption and Redemption Price. Bonds or portions thereof subject to redemption prior to maturity shall be redeemable, upon mailed notice as provided in this Article, at the times, at the Redemption Prices and upon such terms in addition to and consistent with the terms contained in this Article as shall be specified in this Indenture and in said Bonds.
Section 6.02. Selection of Bonds to be Redeemed. In the event of redemption of less than all the Outstanding Bonds of the same Series and maturity, the particular Bonds or portions thereof to be redeemed shall be selected by the Trustee in such manner as the Trustee in its discretion may deem fair, except that (i) Bonds of a Series to be redeemed from Sinking Fund Installments shall be redeemed by lot, and (ii) to the extent practicable, the Trustee shall select Bonds of a Series for redemption such that no Bond of such Series shall be of a denomination of less than the Authorized Denomination for such Series of Bonds. In the event of redemption of less than all the Outstanding Bonds of the same Series stated to mature on different dates, the principal amount of such Series of Bonds to be redeemed shall be applied in inverse order of maturity of the Outstanding Series of Bonds to be redeemed and by lot within a maturity. The portion of Bonds of any Series to be redeemed in part shall be in the principal amount of the minimum Authorized Denomination thereof or some integral multiple thereof and, in selecting Bonds of a particular Series for redemption, the Trustee shall treat each such Bond as representing that number of Bonds of such Series which is obtained by dividing the principal amount of such registered Bond by the minimum Authorized Denomination thereof (referred to below as a “unit”) then issuable rounded down to the integral multiple of such minimum Authorized Denomination. If it is determined that one or more, but not all, of the units of principal amount repres ented by any such Bond is to be called for redemption, then, upon notice of intention to redeem such unit or units, the Holder of such Bond shall forthwith surrender such Bond to the Trustee for (a) payment to such Holder of the Redemption Price of the unit or units of principal amount called for redemption and (b) delivery to such Holder of a new Bond or Bonds of such Series in the aggregate unpaid principal amount of the unredeemed balance of the principal amount of such Bond. New Bonds of the same Series and maturity representing the unredeemed balance of the principal amount of such Bond shall be issued to the registered Holder thereof, without charge therefor. If the Holder of any such Bond of a denomination greater than a unit shall fail to present such Bond to the Trustee for payment and exchange as aforesaid, such Bond shall, nevertheless, become due and payable on the date fixed for redemption to the extent of the unit or units of principal amount called for redemptio n (and to that extent only).
Section 6.03. Notice of Redemption. When redemption of any Bonds is requested or required pursuant to this Indenture, the Trustee shall give notice of such redemption in the name of the Issuer, specifying the name of the Series, CUSIP number, Bond numbers, the date of original issue of such Series, the date of mailing of the notice of redemption, maturities, interest rates and principal amounts of the Bonds or portions thereof to be redeemed, the redemption date, the Redemption Price, and the place or places where amounts due upon such redemption will be payable (including the name, address and telephone number of a contac t person at the Trustee) and specifying the principal amounts of the Bonds or portions thereof to be payable and, if less than all of the Bonds of any maturity are to be redeemed, the numbers of such Bonds or portions thereof to be so redeemed. Such notice shall further state that on such date there shall become due and payable upon each Bond or portion thereof to be redeemed the Redemption Price thereof together with interest accrued to the redemption date, and that from and after such date interest thereon shall cease to accrue and be payable. Such notice may set forth any additional information relating to such redemption. The Trustee, in the name and on behalf of the Issuer, (i) shall mail a copy of such notice by first class mail, postage prepaid, not more than sixty (60) nor less than thirty (30) days prior to the date fixed for redemption, to the registered owners of any Bonds which are to be redeemed, at their last addresses, if any, appearing upon the registrati on books, but any defect in such notice shall not affect the validity of the proceedings for the redemption of such Series of Bonds with respect to which proper mailing was effected; and (ii) cause notice of such redemption to be sent to at least two (2) of the national information services that disseminate redemption notices. Any notice mailed as provided in this Section shall be conclusively presumed to have been duly given, whether or not the registered owner receives the notice. In the event of a postal strike, the Trustee shall give notice by other appropriate means selected by the Trustee in its discretion. If any Bond shall not be presented for payment of the Redemption Price within sixty (60) days of the redemption date, the Trustee shall mail a second notice of redemption to such Holder by first class mail, postage prepaid. Any amounts held by the Trustee due to non-presentment of Bonds for payments on or after any redemption date shall be retained by the Trustee for a period of at least one year after the final maturity date of such Bonds. Further, if any Holders of Bonds shall constitute registered depositories, the notice of redemption described in the first sentence of this Section 6.03 shall be mailed to such Holders at least two (2) days prior to the mailing of such notice to all Holders.
If notice of redemption shall have been given as aforesaid, the Bonds of such Series called for redemption shall become due and payable on the redemption date, provided, however, that with respect to any optional redemption of the Bonds of a Series, such notice shall state that such redemption shall be conditional upon the receipt by the Trustee on or prior to the date fixed for such redemption of moneys sufficient to pay the principal of, redemption premium, if any, and interest on the Bonds of such Series to be redeemed, and that if such moneys shall not have been so received said notice shall be of no force and effect and the Issuer shall not be required to redeem the Bonds of such Series. In the event that such notice of optional redemption contains such a condition and such moneys are not so received, the redemption sh all not be made and the Trustee shall within a reasonable time thereafter give notice, in the manner in which the notice of redemption was given, that such moneys were not so received. If a notice of optional redemption shall be unconditional, or if the conditions of a conditional notice of optional redemption shall have been satisfied, then upon presentation and surrender of the Bonds of such Series so called for redemption at the place or places of payment, such Series of Bonds shall be redeemed.
Under no circumstances shall the Trustee be required to expend any of its own funds for any purpose for which funds are to be disbursed under this Indenture.
So long as the Securities Depository is effecting book entry transfers of the Bonds, the Trustee shall provide the notices specified above only to the Securities Depository. It is expected that the Securities Depository shall, in turn, notify its Participants and that the Participants, in turn, will notify or cause to be notified the Beneficial Owners. Any failure on the part of the Securities Depository or a Participant, or failure on the part of a nominee of a Beneficial Owner of a Bond (having been mailed notice from the Trustee, the Securities Depository, a Participant or otherwise) to notify the Beneficial Owner of the Bond so affected, shall not affect the validity of the redemption of such Bond.
Section 6.04. Payment of Redeemed Bonds. ii) Notice having been given in the manner provided in Section 6.03, the Bonds or portions thereof so called for redemption shall become due and payable on the redemption dates so designated at the Redemption Price, plus interest accrued and unpaid to the redemption date. If, on the redemption date, moneys for the redemption of all the Bonds or portions thereof to be redeemed, together with interest to the redemption date, shall be held by the Paying Agents so as to be available therefor on said date and if notice of redemption shall have been given as aforesaid , then, from and after the redemption date, (i) interest on the Bonds or portions thereof so called for redemption shall cease to accrue and become payable, (ii) the Bonds or portions thereof so called for redemption shall cease to be entitled to any lien, benefit or security under this Indenture, and (iii) the Holders of the Bonds or portions thereof so called for redemption shall have no rights in respect thereof, except to receive payment of the Redemption Price together with interest accrued to the redemption date. If said moneys shall not be so available on the redemption date, such Bonds or portions thereof shall continue to bear interest until paid at the same rate as they would have borne had they not been called for redemption.
(b) Payment of the Redemption Price plus interest accrued to the redemption date shall be made to or upon the order of the registered owner only upon presentation of such Bonds for cancellation and exchange as provided in Section 6.05; provided, however, that any Holder of at least $1,000,000 in original aggregate principal amount of the Initial Bonds may, by written request to the Trustee no later than five (5) days prior to the date of redemption, direct that payments of Redemption Price and accrued interest to the date of redemption be made by wire transfer as soon as practicable after tender of the Bonds in Federal funds at such wire transfer address as the owner shall specify to the Trustee in such w ritten request.
Section 6.05. Cancellation of Redeemed Bonds. iii) All Bonds redeemed in full under the provisions of this Article, shall forthwith be cancelled and returned to the Issuer and no Bonds shall be executed, authenticated or issued hereunder in exchange or substitution therefor, or for or in respect of any paid portion of a Bond.
(b) If there shall be drawn for redemption less than all of a Bond, as described in Section 6.02, the Issuer shall execute and the Trustee shall authenticate and deliver, upon the surrender of such Bond, without charge to the owner thereof, for the unredeemed balance of the principal amount of the Bond so surrendered, a Bond or Bonds of like Series and maturity in any of the authorized denominations.
Section 6.06. No Partial Redemption After Default. Anything in this Indenture to the contrary notwithstanding, if there shall have occurred and be continuing an Event of Default hereunder, there shall be no redemption of less than all of the Bonds Outstanding.
ARTICLE VII
PARTICULAR COVENANTS
Section 7.01. Payment of Principal and Interest. The Issuer covenants that it will from the sources herein contemplated promptly pay or cause to be paid the principal of, Sinking Fund Installments for, Purchase Price, and interest on the Bonds, and the Redemption Price, if any, together with interest accrued thereon to the date of redemption, at the place, on the dates and in the manner provided in this Indenture and in the Bonds according to the true intent and meaning thereof.
Section 7.02. Performance of Covenants; Authority. The Issuer covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all proceedings pertaining thereto. The Issuer covenants that it is duly authorized under the Constitution and laws of the State, including particularly its Organizational Documents, to issue the Bonds authorized hereby and to execute this Indenture, to make the Loan to the Company pursuant to the Loan Agreement and the Promissor y Note, to assign the Loan Agreement and the Promissory Note, and to pledge the loan payments, revenues and receipts hereby pledged in the manner and to the extent herein set forth; that all action on its part for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and effectively taken; and that the Bonds in the hands of the Holders thereof are and will be the valid and enforceable special limited revenue obligations of the Issuer according to the import thereof.
Section 7.03. Books and Records; Certificate as to Defaults. The Issuer and the Trustee each covenant and agree that, so long as any of the Bonds shall remain Outstanding, proper books of record and account will be kept showing complete and correct entries of all transactions relating to the Project and the Facility, and that the Holders of any of the Bonds shall have the right at all reasonable times to inspect all records, accounts and data relating thereto. In this regard, so long as the Loan Agreement is in full force and effect, records furnished by the Issuer and the Company to, or kept by, the Trustee in connection with its duties as such shall be deemed to be in compliance with the Issuer’s obligations under this Section 7.03. Within thirty (30) days after receiving the certificate from the Company as provided in Section 7.24(b) of the Loan Agreement, the Trustee shall render to the Issuer a statement that moneys received by the Trustee pursuant to the Loan Agreement were applied by it to the payment of the principal or Redemption Price, if any, of, Purchase Price, Sinking Fund Installments for, and interest on the Bonds, at the place, on the dates and in the manner provided in this Indenture and that the Trustee has no knowledge of any defaults under this Indenture or the Loan Agreement or any other Security Document or specifying the particulars of such defaults which may exist.
Upon reasonable written request, the Trustee shall make available to the Company for its inspection during normal business hours, its records with respect to the Project and the Facility.
The Trustee agrees that, upon the written request of the Issuer or the Company, it will, not more than twice in each calendar year, provide a statement to the requesting party setting forth the principal amount of Bonds Outstanding as of the date of such statement.
Section 7.04. Loan Agreement. Reference is hereby made to the Loan Agreement for a detailed statement of the terms and conditions thereof and for a statement of the rights and obligations of the parties thereunder. All covenants and obligations of the Company under the Loan Agreement shall be enforceable either by the Issuer or by the Trustee, to whom, in its own name or in the name of the Issuer, is hereby granted the right, to the extent provided therefor in this Section 7.04 and subject to the provisions of Section 9.02, to enforce all rights of the Issuer and all obligations of the Company under th e Loan Agreement, whether or not the Issuer is enforcing such rights and obligations. The Trustee shall take such action in respect of any matter as is provided to be taken by it in the Loan Agreement (including, without limitation, Sections 3.5, 5.3 and 7.9 thereof) upon compliance or noncompliance by the Company and the Issuer with the provisions of the Loan Agreement relating to the same.
Section 7.05. Creation of Liens; Indebtedness. It is the intention of the Issuer and the Trustee that the Mortgage is and will continue to be a mortgage lien upon the Company’s leasehold interest under the Ground Lease in the Facility (subject only to Permitted Encumbrances). The Issuer shall not create or suffer to be created, or incur or issue any evidences of indebtedness secured by, any lien or charge upon or pledge of the Trust Estate, except the lien, charge and pledge created by this Indenture and the other Security Documents.
Section 7.06. Ownership; Instruments of Further Assurance. The Trustee on behalf of the Company, subject to Section 7.04 and upon the written direction of any Bondholder, shall defend the interest of the Company in the Facility and every part thereof for the benefit of the Holders of the Bonds, to the extent permitted by law, against the claims and demands of all Persons whomsoever. The Issuer covenants that it will do, execute, acknowledge and deliver or cause to be done, executed, acknowledged and delivered, such Supplemental Indentures and such further acts, instruments and transfers as the Trustee may r easonably require for the better assuring, transferring, conveying, pledging, assigning and confirming unto the Trustee all and singular the property described herein and in the remainder of the Trust Estate, subject to the liens, pledge and security interests of this Indenture and of the other Security Documents, and the loan payments, revenues and receipts pledged hereby to the payment of the principal or Redemption Price, if any, of, Sinking Fund Installments for, Purchase Price, and interest on the Bonds. Any and all property hereafter acquired which is of the kind or nature herein provided to be and become subject to the lien, pledge and security interest hereof (other than the Company’s Property) and of the other Security Documents shall ipso facto, and without any further conveyance, assignment or act on the part of the Issuer or the Trustee, become and be subject to the lien, pledge and security interest of this Indenture and of the other Security Documents as fully and completely as though specifically described herein and therein, but nothing in this sentence contained shall be deemed to modify or change the obligations of the Issuer heretofore made by this Section 7.06.
Section 7.07. Security Agreement; Recording and Filing. d) This Indenture constitutes a “security agreement” within the meaning of the New York State Uniform Commercial Code-Secured Transactions. The Issuer shall cause this Indenture and all Supplemental Indentures to be recorded (at the sole cost and expense of the Company) as a lien encumbering an interest in real property through delivery hereof and thereof to a title insurance company engaged by the Company for due recordation, in the appropriate offices of the Register of The City of New York, or in such other offices as may be at the time provided by law as the proper place for the recordation thereof. In addition, the security interest of the Trustee, as created by this Indenture, in the rights and other intangible interests described herein, shall be perfected by the filing of a financing statement at the direction of the Issuer in the office of the Secretary of State of the State in the City of Albany, New York, which financing statement shall be in accordance with the New York State Uniform Commercial Code-Secured Transactions. Subsequent to the foregoing recordation and filings, this Indenture shall be re-recorded and re-indexed, and financing and continuation statements shall be filed and re-filed, by the Trustee whenever in the Opinion of Counsel to the Company (which opinion shall be reasonably acceptable to and addressed to the Trustee) such action is necessary to preserve the lien and security interest hereof. Any such re-recordings, re-indexings, filings or re-filings shall be prepared by the Company and delivered to the Trustee (if electronic filing is not elected by the Issuer) on a timely basis accompanied by any fees or requisite charges and the Opinion of Counsel referred to above. The Trustee will thereupon effect any such filings and re-filings of financing and continuation statements in said office of the Secretary of State, and promptly notify the Company of any such filings.
(b) The Issuer and the Trustee acknowledge that, as of the Closing Date,
(i) Section 9-515 of the New York State Uniform Commercial Code-Secured Transactions provides that an initial financing statement filed in connection with a “public-financed transaction” is effective for a period of thirty (30) years after the date of filing if such initial financing statement indicates that it is filed in connection with a public financed transaction,
(ii) Section 9-102(67) of the New York State Uniform Commercial Code-Secured Transactions defines a public-finance transaction as a secured transaction in connection with which, in substance, (x) bonds are issued, (y) all or a portion of the bonds have an initial stated maturity of at least twenty (20) years, and (z) the debtor, obligor, secured party or assignee with respect to the collateral or secured obligation is a governmental unit of a state, and
(iii) subject to any future change in law, the initial financing statement as shall be filed with respect to the security interest described above shall therefore have an effective period of thirty (30) years after the date of filing, for the purpose of determining the date by which continuation statements shall be filed.
(c) The parties hereto acknowledge and agree that, because the foregoing financing statements evidence collateral for the Initial Bonds, and because the Initial Bonds are municipal securities with a term that is at least twenty (20) years in duration, there is no need under the Uniform Commercial Code of the State of New York to re-file such financing statements in order to preserve the liens and security interests that they create for the period commencing with the Closing Date and terminating on the thirtieth anniversary of the Closing Date.
Subsequent to the foregoing recordation and filings, if in the Opinion of Counsel to the Company (described hereinbelow), to preserve (after the thirtieth (30th) anniversary of the Closing Date) the lien and security interest of this Indenture, it is necessary to re-record and/or re-index documents, re-file financing statements and/or file continuation statements and/or take any other actions (individually or collectively, the “Continuation Action(s)”), then, the Company in a timely manner shall: (A) as applicable, (i) prepare and deliver to the Trustee all necessary instruments and filing papers, together with remittances equal to the cost of required filing fees and other charges, so that the Trustee may perform the Continuation Actions, or (ii) electronically perform the Continuation Actions and deliver to the Trustee written certification (upon which the Trustee may conclusively rely) that such performance has occurred, specifying the Continuation Actions performed, or (iii) perform some of the Continuation Actions in the manner described in clause “(i)” and the others in the manner described in clause “(ii)”; and (B) deliver or cause to be delivered to the Issuer and the Trustee the Opinion of Counsel to the Company as described below. The Trustee may conclusively rely upon (y) when applicable, the certification referred to in clause “(A)(ii),” and (z) in all instances, the Opinion of Counsel to the Company. In the event the Company chooses to have the Trustee perform all or some of the Continuation Actions, as provided in clause “(A)(i)” hereinabove, the Trustee shall reasonably promptly perform such Continuation Actions at the Company’s sole expense. The Company shall perform the obligations described hereinabove in clauses “(A)” and “(B)” no later than ten (10) days prior to (i)(y) the thirtieth (30th) anniversary of the Closing Date, and (z) each fifth (5th) anniversary thereafter, and/or (ii) the date (not covered by clause “(i)”) on which a Continuation Action is to be taken to preserve the lien and security interest of this Indenture.
The Opinion of Counsel to the Company shall be addressed to the Company, the Issuer and the Trustee. Counsel shall deliver successive Opinions of Counsel in respect of (i)(y) the thirtieth (30th) anniversary of the Closing Date, and (z) every five-year period thereafter through the term of the Initial Bonds, and/or (ii) the date of any required Continuation Action not covered by clause “(i),” in each case not later than fifteen (15) days prior to the date on which a Continuation Action is required to be taken. In the Opinion of Counsel to the Company, counsel shall opine as to: (i) what Continuation Actions are necessary; and (ii) the deadline dates for the required Continuation Actions; and (iii) the jurisdictions in which the Continuation Actions must be effected. Counsel in such opinion shall additionally opine that, upon performance of the Continuation Actions by, as the case may be, (i) the Trustee with instruments and papers prepared by the Company, or (ii) the Company through electronic filing, or (iii) the Trustee as to some Continuation Actions, and the Company as to the others through electronic filings, all appropriate steps shall have been taken on the part of the Company, the SubCompany, the Issuer and the Trustee then requisite to the maintenance of the perfection of the security interest of the Trustee in and to all property and interests which by the terms of this Indenture are to be subjected to the lien and security interest of this Indenture.
(d) Any filings with respect to Uniform Commercial Code financing statements may be made electronically, and the Issuer shall have the right to designate a company (which shall be reasonably acceptable to the Trustee) to facilitate the filing of Uniform Commercial Code financing statements.
(e) The Trustee acknowledges and agrees (on behalf of itself and the Bondholders) that neither the Issuer, nor any of its directors, members, officers, employees, servants, agents, persons under its control or supervision, or attorneys (including Nationally Recognized Bond Counsel to the Issuer), shall have any responsibility or liability whatsoever related in any way to the filing or re-filing of any Uniform Commercial Code financing statements or continuation statements, or the perfection or continuation of perfection of any security interests, or the recording or rerecording of any document, or the failure to effect any act referred to in this Section, or the failure to effect any such act in all appro priate filing or recording offices, or the failure of sufficiency of any such act so effected.
(f) All costs (including reasonable attorneys’ fees and expenses) incurred in connection with the effecting of the requirements specified in this Section shall be paid by the Company.
Section 7.08. Issuer Tax Covenant. The Issuer covenants that it shall not take any action within its control, nor refrain from taking any action reasonably requested by the Company or the Trustee, that would cause the interest on the Bonds to become includable in gross income for Federal income tax purposes; provided, however, the breach of this covenant shall not result in any pecuniary liability of the Issuer and the only remedy to which the Issuer shall be subject shall be specific performance.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES OF BONDHOLDERS
Section 8.01. Events of Default; Acceleration of Due Date. i) Each of the following events is hereby defined as and shall constitute an “Event of Default”:
(1) Failure in the payment of the interest on any Bond when the same shall become due and payable;
(2) Failure in the payment of the principal or redemption premium, if any, of, or Sinking Fund Installment for, any Bonds, when the same shall become due and payable, whether at the stated maturity thereof or upon proceedings for redemption thereof or otherwise, or interest accrued thereon to the date of redemption after notice of redemption therefor or otherwise;
(3) Failure to duly and punctually pay the Purchase Price of any Initial Bond tendered or deemed tendered for purchase pursuant to Section 2.03;
(4) Failure of the Issuer to observe or perform any covenant, condition or agreement in the Bonds or hereunder on its part to be performed (except as set forth in Section 8.01(a)(1), (2) or (3) and (A) continuance of such failure for more than thirty (30) days after written notice of such failure has been given to the Issuer and the Company specifying the nature of same from the Trustee or the Holders of more than twenty-five percent (25%) in aggregate principal amount of the Bonds Outstanding, or (B) if by reason of the nature of such failure the same can be remedied, but not within the said thirty (30) days, the Issuer or the Company fails to commence and thereafter proceed with reasonab le diligence after receipt of said notice to cure such failure or fails to continue with reasonable diligence its efforts to cure such failure or fails to cure such failure within sixty (60) days of delivery of said notice; or
(5) The occurrence of an “Event of Default” under the Loan Agreement or any other Security Document.
(b) Upon the happening and continuance of any Event of Default, unless the principal of all the Bonds shall have already become due and payable, either the Trustee (by notice in writing to the Issuer and the Company) or the Holders of over twenty-five percent (25%) in aggregate principal amount of the Bonds Outstanding (by notice in writing to the Issuer, the Company and the Trustee) may declare the principal or Redemption Price, if any, of all the Bonds then Outstanding, and the interest accrued thereon, to be due and payable immediately, and upon such declaration the same shall become and be immediately due and payable, anything in this Indenture or in any of the Bonds contained to the contrary notwiths tanding.
(c) If there shall occur an Event of Default under Section 8.1(d) or (e) of the Loan Agreement, the unpaid principal of all the Bonds (and all principal installments of loan payments under the Loan Agreement) and the interest accrued thereon shall be due and payable immediately without the necessity of any declaration or other action by the Trustee or any other Person.
(d) The right of the Trustee or of the Holders of over twenty-five percent (25%) in aggregate principal amount of the Bonds Outstanding to make any such declaration as aforesaid, however, is subject to the condition that if, at any time before such declaration, all overdue installments of principal of and interest on all of the Bonds which shall have matured by their terms and the unpaid Redemption Price of the Bonds or principal portions thereof to be redeemed has been paid by or for the account of the Issuer, and all other Events of Default have been otherwise remedied, and the reasonable and proper charges, expenses and liabilities of the Trustee, shall either be paid by or for the account of the Issue r or provision satisfactory to the Trustee shall be made for such payment and the Company’s interest in the Facility shall not have been sold or relet or otherwise encumbered, and all defaults have been otherwise remedied as provided in this Article VIII, then and in every such case any such default and its consequences shall ipso facto be deemed to be annulled, but no such annulment shall extend to or affect any subsequent default or impair or exhaust any right or power consequent thereon.
(e) Pursuant to the Loan Agreement, the Issuer has granted to the Company full authority for the account of the Issuer to perform any covenant or obligation the non-performance of which is alleged in any notice received by the Company to constitute a default hereunder, in the name and stead of the Issuer with full power to do any and all things and acts to the same extent that the Issuer could do and perform any such things and acts with power of substitution. The Trustee agrees to accept such performance by the Company as performance by the Issuer.
Section 8.02. Enforcement of Remedies. ii) Upon the occurrence and continuance of any Event of Default, then and in every case the Trustee may proceed, and upon the written request of the Holders of over twenty-five percent (25%) in aggregate principal amount of the Bonds Outstanding shall proceed, to protect and enforce its rights and the rights of the Bondholders under the Act, the Bonds, the Loan Agreement, this Indenture and under any other Security Document forthwith by such suits, actions or special proceedings in equity or at law, or by proceedings in the office of any board or officer having jurisdiction , whether for the specific performance of any covenant or agreement contained in this Indenture or in any other Security Document or in aid of the execution of any power granted in this Indenture or in any other Security Document or in the Act or for the enforcement of any legal or equitable rights or remedies as the Trustee, being advised by counsel, shall deem most effectual to protect and enforce such rights or to perform any of its duties under this Indenture or under any other Security Document. In addition to any rights or remedies available to the Trustee hereunder or elsewhere, upon the occurrence and continuance of an Event of Default the Trustee may take such action, without notice or demand, as it deems advisable.
(b) In the enforcement of any right or remedy under this Indenture, under any other Security Document or under the Act, the Trustee shall be entitled to sue for, enforce payment on and receive any or all amounts then or during any default becoming, and any time remaining, due from the Issuer, for principal, interest, Sinking Fund Installments, Purchase Price, Redemption Price, or otherwise, under any of the provisions of this Indenture, of any other Security Document or of the Bonds, and unpaid, with interest on overdue payments at the rate or rates of interest specified in the Bonds, together with any and all costs and expenses of collection and of all proceedings under this Indenture, under any such oth er Security Document and under the Bonds, without prejudice to any other right or remedy of the Trustee or of the Bondholders, and to recover and enforce judgment or decree against the Issuer, but solely as provided in this Indenture and in the Bonds, for any portion of such amounts remaining unpaid, with interest, costs and expenses, and to collect (but solely from the moneys in the Bond Fund and other moneys available therefor to the extent provided in this Indenture) in any manner provided by law, the moneys adjudged or decreed to be payable. The Trustee shall file proof of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Bondholders allowed in any judicial proceedings relative to the Company, the Parent or the Issuer or their creditors or property.
(c) Regardless of the occurrence of an Event of Default, the Trustee, if requested in writing by the Holders of over twenty-five percent (25%) in aggregate principal amount of the Bonds then Outstanding, and furnished with reasonable security and indemnity, shall institute and maintain such suits and proceedings as it may be advised shall be necessary or expedient to prevent any impairment of the security under this Indenture or under any other Security Document by any acts which may be unlawful or in violation of this Indenture or of such other Security Document or of any resolution authorizing any Bonds, and such suits and proceedings as the Trustee may be advised shall be necessary or expedient to pres erve or protect its interests and the interests of the Bondholders; provided, that such request shall not be otherwise than in accordance with the provisions of law and of this Indenture and shall not be unduly prejudicial to the interests of the Holders of the Bonds not making such request.
Section 8.03. Application of Revenues and Other Moneys After Default.
iii) All moneys received by the Trustee pursuant to any right given or action taken under the provisions of this Article or under any other Security Document shall, after payment of the cost and expenses of the proceedings resulting in the collection of such moneys and of the expenses, liabilities and advances incurred or made by the Trustee, be deposited in the Bond Fund and all moneys so deposited and available for payment of the Bonds shall be applied, subject to Section 9.04, as follows:
(A) Unless the principal of all of the Bonds shall have become or have been declared due and payable,
First - | To the payment to the Persons entitled thereto of all installments of interest then due on the Bonds, in the order of the maturity of the installments of such interest and, if the amount available shall not be sufficient to pay in full any particular installment, then to the payment ratably, according to the amounts due on such installment, to the Persons entitled thereto, without any discrimination or privilege; and |
Second - | To the payment to the Persons entitled thereto of the unpaid principal or Redemption Price, if any, of any of the Bonds or principal installments which shall have become due (other than Bonds or principal installments called for redemption for the payment of which moneys are held pursuant to the provisions of this Indenture), in the order of their due dates, with interest on such Bonds, at the rate or rates expressed thereon, from the respective dates upon which they become due and, if the amount available shall not be sufficient to pay in full Bonds or principal installments due on any particular date, together with such interest, then to the payment ratably, according to the amount of principal due on such date, to the Persons entitled thereto without any discrimination or privilege. |
(B) If the principal of all the Bonds shall have become or have been declared due and payable, to the payment to the Bondholders of the principal and interest (at the rate or rates expressed in the Bonds) then due and unpaid upon the Bonds and if applicable to the Redemption Price of the Bonds without preference or priority of principal over interest or of interest over principal, Sinking Fund Installments, or of any installment of interest over any other installment of interest, or of any Bond over any other Bond, ratably, according to the amounts due respectively for principal and interest, to the Persons entitled thereto without any discrimination or preference.
(C) If the principal of all the Bonds shall have been declared due and payable, and if such declaration shall thereafter have been rescinded and annulled under the provisions of this Article VIII, then, subject to the provisions of Section 8.03(a)(B) which shall be applicable in the event that the principal of all the Bonds shall later become due and payable, the moneys shall be applied in accordance with the provisions of Section 8.03(a)(A).
(b) Whenever moneys are to be applied pursuant to the provisions of this Section, such moneys shall be applied at such times, and from time to time, as the Trustee shall determine, having due regard to the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee shall apply such funds, it shall fix the date (which shall be an Interest Payment Date unless it shall deem another date more suitable) upon which such application is to be made and upon such date interest on the amounts of principal to be paid on such dates shall cease to accrue; provided, however, that if the principal or Redempt ion Price of the Bonds Outstanding, together with accrued interest thereon, shall have been declared to be due and payable pursuant to Section 8.01, such date of declaration shall be the date from which interest shall cease to accrue. The Trustee shall give such written notice to all Bondholders as it may deem appropriate of the deposit with it of any such moneys and of the fixing of any such date, and shall not be required to make payment to the Holder of any Bond until such Bond shall be presented to the Trustee for appropriate endorsement or for cancellation if fully paid.
Section 8.04. Actions by Trustee. All rights of actions under this Indenture, under any other Security Document or under any of the Bonds may be enforced by the Trustee without the possession of any of the Bonds or the production thereof in any trial or other proceedings relating thereto and any such suit or proceeding instituted by the Trustee shall be brought in its name as Trustee without the necessity of joining as plaintiffs or defendants any Holders of the Bonds, and any recovery of judgment shall, subject to the provisions of Section 8.03, be for the equal benefit of the Holders of the Outstanding Bonds.
Section 8.05. Majority Holders Control Proceedings. Anything in this Indenture to the contrary notwithstanding, the Majority Holders shall have the right, at any time, by an instrument or instruments in writing executed and delivered to the Trustee, to direct the method and place of conducting all proceedings to be taken in connection with the enforcement of the terms and conditions of this Indenture, or for the appointment of a receiver or any other proceedings hereunder; provided, that such direction shall not be otherwise than in accordance with the provisions of law and of this Indenture.
Section 8.06. Individual Bondholder Action Restricted. iv) No Holder of any Bond shall have any right to institute any suit, action or proceeding at law or in equity for the enforcement of any provisions of this Indenture or of any other Security Document or the execution of any trust under this Indenture or for any remedy under this Indenture or under any other Security Document, unless such Holder shall have previously given to the Trustee written notice of the occurrence of an Event of Default as provided in this Article, and the Holders of over twenty-five percent (25%) in aggregate principal amount of the B onds then Outstanding shall have filed a written request with the Trustee, and shall have offered it reasonable opportunity either to exercise the powers granted in this Indenture or in such other Security Document or by the Act or by the laws of the State or to institute such action, suit or proceeding in its own name, and unless such Holders shall have offered to the Trustee adequate security and indemnity against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee shall have refused to comply with such request for a period of sixty (60) days after receipt by it of such notice, request and offer of indemnity, it being understood and intended that no one or more Holders of Bonds shall have any right in any manner whatever by his, its or their action to affect, disturb or prejudice the pledge created by this Indenture, or to enforce any right under this Indenture except in the manner herein provided; and that all proceedings at law or in equity to enforce any provision of t his Indenture shall be instituted, had and maintained in the manner provided in this Indenture and, subject to the provisions of Section 8.03, be for the equal benefit of all Holders of the Outstanding Bonds.
(b) Nothing in this Indenture, in any other Security Document or in the Bonds contained shall affect or impair the right of any Bondholder to payment of the principal or Redemption Price, if applicable, of, Sinking Fund Installments for, and interest on any Bond at and after the maturity thereof, or the obligation of the Issuer to pay the principal or Redemption Price, if applicable, of, Sinking Fund Installments for, and interest on each of the Bonds to the respective Holders thereof at the time, place, from the source and in the manner herein and in said Bonds expressed.
Section 8.07. Effect of Discontinuance of Proceedings. In case any proceedings taken by the Trustee on account of any Event of Default shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case, the Company, the Issuer, the Trustee and the Bondholders shall be restored, respectively, to their former positions and rights hereunder, and all rights, remedies, powers and duties of the Trustee shall continue as in effect prior to the commencement of such proceedings.
Section 8.08. Remedies Not Exclusive. No remedy by the terms of this Indenture conferred upon or reserved to the Trustee or to the Holders of the Bonds is intended to be exclusive of any other remedy, and each and every such remedy shall be cumulative and shall be in addition to any other remedy given under this Indenture or now or hereafter existing at law or in equity or by statute.
Section 8.09. Delay or Omission. No delay or omission of the Trustee or of any Holder of the Bonds to exercise any right or power arising upon any default shall impair any right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy given by this Article to the Trustee and the Holders of the Bonds, respectively, may be exercised from time to time and as often as may be deemed expedient by the Trustee or by the Bondholders.
Section 8.10. Notice of Default. The Trustee shall promptly mail to the Issuer, to registered Holders of Bonds and to the Company by first class mail, postage prepaid, written notice of the occurrence of any Event of Default. The Trustee shall not, however, be subject to any liability to any Bondholder by reason of its failure to mail any notice required by this Section.
Section 8.11. Waivers of Default. The Trustee shall waive any default hereunder and its consequences and rescind any declaration of acceleration only upon the written request of the Majority Holders; provided, however, that there shall not be waived without the consent of the Holders of all the Bonds Outstanding (a) any default in the payment of the principal of any Outstanding Bonds at the date specified therein or (b) any default in the payment when due of the interest on any such Bonds, unless, prior to such waiver, all arrears of interest, with interest (to the extent permitted by law) at the rate borne by the Bonds on overdue installments of interest in respect of which such default shall have occurred, and all arrears of payment of principal when due, as the case may be, and all expenses of the Trustee in connection with such default shall have been paid or provided for, or in case any proceeding taken by the Trustee on account of any such default shall have been discontinued or abandoned or determined adversely to the Trustee, then and in every such case the Company, the Issuer, the Trustee and the Bondholders shall be restored to their former positions and rights hereunder, respectively, but no such waiver or rescission shall extend to any subsequent or other default, or impair any right consequent thereon.
ARTICLE IX
TRUSTEE, BOND REGISTRAR, PAYING AGENTS, TENDER AGENT
AND REMARKETING AGENT
Section 9.01. Appointment and Acceptance of Duties of Trustee. The entity identified as the Trustee on the cover page hereof is hereby appointed as Trustee. The Trustee shall signify its acceptance of the duties and obligations of the Trustee hereunder and under each Security Document by executing this Indenture and agrees to perform said trusts as a corporate trustee ordinarily would under a corporate mortgage subject to the express terms and conditions herein. All provisions of this Article IX shall be construed as extending to and including all the rights, duties and obligations imposed upon the Trustee under the Loan Agreement and under any other Security Document to which it shall be a party as fully for all intents and purposes as if this Article IX were contained in the Loan Agreement and each such other Security Document.
Section 9.02. Indemnity of Trustee. The Trustee shall be under no obligation to institute any suit, or to take any remedial or legal action under this Indenture or under or pursuant to any other Security Document or to enter any appearance or in any way defend in any suit in which it may be made defendant, or to take any steps in the execution of the trusts hereby created or in the enforcement of any rights and powers or fulfillment of any extraordinary duties under this Indenture, or under any other Security Document, until it shall be indemnified to its satisfaction against any and all reasonable compensation for s ervices, costs and expenses, outlays, and counsel fees and other disbursements, and against all liability not due to its willful misconduct or gross negligence.
Section 9.03. Responsibilities of Trustee. v) The Trustee shall have no responsibility in respect of the validity or sufficiency of this Indenture or of any other Security Document or the security provided hereunder or thereunder or the due execution of this Indenture by the Issuer, or the due execution of any other Security Document by any party (other than the Trustee) thereto, or in respect of the title or the value of the Facility, or in respect of the validity of the Bonds authenticated and delivered by the Trustee in accordance with this Indenture or to see to the recording or filing of this Indenture or a ny other document or instrument whatsoever except as otherwise provided in Section 7.07. The recitals, statements and representations contained in this Indenture and in the Bonds shall be taken and be construed as made by and on the part of the Issuer and not by the Trustee, and the Trustee does not assume any responsibility for the correctness of the same; provided, however, that the Trustee shall be responsible for its representation contained in its certificate on the Bonds and for its responsibility as to filing, refiling, recording and re-recording as contained in Section 7.07.
(b) The Trustee shall not be liable or responsible because of the failure of the Issuer to perform any act required of it by this Indenture or by any other Security Document or because of the loss of any moneys arising through the insolvency or the act or default or omission of any depositary other than itself in which such moneys shall have been deposited under this Indenture or the Tax Regulatory Agreement. The Trustee shall not be responsible for the application of any of the proceeds of the Bonds or any other moneys deposited with it and paid out, invested, withdrawn or transferred in accordance with this Indenture or the Tax Regulatory Agreement or for any loss resulting from any such inve stment. The Trustee shall not be liable in connection with the performance of its duties under the Loan Agreement, under this Indenture or under any other Security Document except for its own willful misconduct or gross negligence. The immunities and exemptions from liability of the Trustee shall extend to its directors, officers, employees, agents and servants and persons under the Trustee’s control or supervision.
(c) The Trustee, prior to the occurrence of an Event of Default and after curing of all Events of Default which may have occurred, if any, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default has occurred (which has not been cured) the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise as a prudent man would exercise under the circumstances in the conduct of his own affairs. The Trustee shall not be charged with knowledge of the occurrence of an Event of Default unless, (i) the Trustee has not received any ce rtificate, financial statement, insurance notice or other document regularly required to be delivered to the Trustee under the Loan Agreement or any other Security Document, (ii) the Trustee has not received payment of any amount required to be remitted to the Trustee under the Loan Agreement or any other Security Document, (iii) a Responsible Officer of the Trustee has actual knowledge thereof, or (iv) the Trustee has received written notice thereof from the Company, the Issuer or any Bondholder. The Trustee shall not be charged with the knowledge of a Determination of Taxability unless the Trustee has received written notice thereof from the Internal Revenue Service, the Company, the Issuer or any Bondholder or former Bondholder.
(d) The Trustee shall not be liable or responsible for the failure of the Company to effect or maintain insurance on the Facility as provided in the Ground Lease, the Mortgage, the Loan Agreement or the Bond Guaranty Agreement nor shall it be responsible for any loss by reason of want or insufficiency in insurance or by reason of the failure of any insurer in which the insurance is carried to pay the full amount of any loss against which it may have insured the Issuer, the Company, the Trustee or any other Person.
(e) The Trustee shall execute and cause to be filed those continuation statements, any additional financing statements and all other instruments required by it by Section 7.07 at the expense of the Company.
(f) The Trustee shall on the same date as it shall render the statement required of it by Section 7.03, make annual reports to the Issuer and the Company of all moneys received and expended during the preceding year by it under this Indenture and of any Event of Default known to it under the Loan Agreement or this Indenture or under any other Security Document.
(g) With respect to the Tax Regulatory Agreement, the Trustee shall not be required to make any payment of a Rebate Amount or any transfer of funds or take any other action required to be taken thereunder except upon the receipt of a written certificate of direction of an Authorized Representative of the Company delivered to the Trustee in accordance with the terms of the Tax Regulatory Agreement. Notwithstanding any provision of the Tax Regulatory Agreement or any other Security Document, nothing in the Tax Regulatory Agreement, either expressed or implied, shall be deemed to impose upon the Trustee any responsibility for the legal sufficiency of the Tax Regulatory Agreement to effect complian ce with the Code nor any duty to independently review or verify any information or calculation furnished to the Trustee by the Company.
Section 9.04. Compensation of Trustee, Bond Registrar, Paying Agents, Tender Agent and Remarketing Agent. The Trustee, the Bond Registrar, the Paying Agents, the Tender Agent and the Remarketing Agent shall be entitled to receive and collect from the Company as provided in the Loan Agreement payment or reimbursement for reasonable fees for services rendered hereunder and under each other Security Document and all advances, counsel fees and other expenses reasonably and necessarily made or incurred by the Trustee, the Bond Registrar, the Paying Agents, the Tender Agent or the Remarketing Agent in connection therewith. Upon an Event of Default, but only upon an Event of Default, the Trustee shall have a first right of payment prior to payment on account of the principal of or interest on any Bonds, upon the revenues (but not including any amounts held by the Trustee under Section 5.12, 6.04 or Article X) for the foregoing advances, fees, costs and expenses incurred.
Section 9.05. Evidence on Which Trustee May Act. vi) In case at any time it shall be necessary or desirable for the Trustee to make any investigation respecting any fact preparatory to taking or not taking any action, or doing or not doing anything, as such Trustee, and in any case in which this Indenture provides for permitting or taking any action, it may rely upon any certificate required or permitted to be filed with it under the provisions of this Indenture, and any such certificate shall be evidence of such fact to protect it in any action that it may or may not take, or in respect of anything it may or ma y not do, in good faith, by reason of the supposed existence of such fact.
(b) The Trustee may conclusively rely and shall be fully protected and shall incur no liability in acting or proceeding, or in not acting or not proceeding, in good faith, reasonably and in accordance with the terms of this Indenture, upon any resolution, order, notice, request, consent, waiver, certificate, statement, affidavit, requisition, bond or other paper or document which it shall in good faith reasonably believe to be genuine and to have been adopted or signed by the proper board or person, or to have been prepared and furnished pursuant to any of the provisions of this Indenture, or, at the sole cost and expense of the Company, and when determined necessary in the reasonable discretion of the Tr ustee, upon the written opinion of any attorney (who may be an attorney for the Issuer or an employee of the Company or the Parent), engineer, appraiser, architect or accountant believed by the Trustee to be qualified in relation to the subject matter.
Section 9.06. Trustee, Paying Agents, Tender Agent and Remarketing Agent May Deal in Bonds. Any national banking association, bank or trust company acting as a Trustee, Paying Agent, Tender Agent or Remarketing Agent, and its respective directors, officers, employees or agents, may in good faith buy, sell, own, hold and deal in any of the Bonds, and may join in any action which any Bondholder may be entitled to take with like effect as if such association, bank or trust company were not such Trustee, Paying Agent, Tender Agent or Remarketing Agent.
Section 9.07. Resignation or Removal of Trustee. The Trustee may resign and thereby become discharged from the trusts created under this Indenture for any reason by giving written notice by first class mail, postage prepaid, to the Issuer, to the Company and to the Holders of all Bonds not less than sixty (60) days before such resignation is to take effect, but such resignation shall not take effect until the appointment and acceptance thereof of a successor Trustee pursuant to Section 9.08.
The Trustee may be removed at any time by an instrument or concurrent instruments in writing filed with the Trustee and signed by the Issuer or the Majority Holders or their attorneys-in-fact duly authorized. Such removal shall become effective either upon the appointment and acceptance of such appointment by a successor Trustee or at the date specified in the instrument of removal. The Trustee shall promptly give notice of such filing to the Issuer and the Company. No removal shall take effect until the appointment and acceptance thereof of a successor Trustee pursuant to Section 9.08.
If the Trustee shall resign or shall be removed, such Trustee must transfer and assign to the successor Trustee, not later than the date of this acceptance by the successor Trustee of its appointment as such, or thirty (30) days from the date specified in the instrument of removal or resignation, if any, whichever shall last occur, (i) all amounts (including all investments thereof) held in any Fund or Account under this Indenture, together with a full accounting thereof, (ii) all records, files, correspondence, registration books, Bond inventory, all information relating to this Indenture and to Bond payment status (i.e., outstanding principal balances, principal payment and interest payment schedules, Sinking Fund Installment schedules, pending notices of redemption, payments made and to whom, delinquent payments, default or delinquency notices, deficiencies in any Fund or Account balance, etc.) and all such other information (in whatever form) relating to all Funds and Accounts in the possession of the Trustee being removed or resigning, and (iii) all Security Documents and other documents or agreements, including, without limitation, all Uniform Commercial Code Financing Statements, all insurance policies or certificates, letters of credit or other instruments provided to the Trustee being removed or resigning (clauses (i), (ii) and (iii), together with the Trust Estate, being collectively referred to as the “Trust Corpus”).
Section 9.08. Successor Trustee. vii) If at any time the Trustee shall be dissolved or otherwise become incapable of acting or shall be adjudged a bankrupt or insolvent, or if a receiver, liquidator or conservator thereof, or of its property, shall be appointed, or if any public officer shall take charge or control of the Trustee or of its property or affairs, the position of Trustee shall thereupon become vacant. If the position of Trustee shall become vacant for any of the foregoing reasons or for any other reason or if the Trustee shall resign, the Company shall cooperate with the Issuer and the Is suer shall appoint a successor Trustee and shall use its best efforts to obtain acceptance of such trust by the successor Trustee within sixty (60) days from such vacancy or notice of resignation. Within twenty (20) days after such appointment and acceptance, the Issuer shall notify in writing the Company and the Holders of all Bonds.
(b) In the event of any such vacancy or resignation and if a successor Trustee shall not have been appointed within sixty (60) days of such vacancy or notice of resignation, the Majority Holders, by an instrument or concurrent instruments in writing, signed by such Bondholders or their attorneys-in-fact thereunto duly authorized and filed with the Issuer, may appoint a successor Trustee which shall, immediately upon its acceptance of such trusts, and without further act, supersede the predecessor Trustee. If no appointment of a successor Trustee shall be made pursuant to the foregoing provisions of this Section 9.08, within ninety (90) days of such vacancy or notice of resignation, the Holder o f any Bond then Outstanding, the Issuer or any retiring Trustee or the Company may apply to any court of competent jurisdiction to appoint a successor Trustee. Such court may thereupon, after such notice, if any, as such court may deem proper, appoint a successor Trustee.
(c) Any Trustee appointed under this Section shall be a national banking association or a bank or trust company duly organized under the laws of any state of the United States authorized to exercise corporate trust powers under the laws of the State and authorized by law and its charter to perform all the duties imposed upon it by this Indenture and each other Security Document. At the time of its appointment, any successor Trustee shall (x) have a capital stock and surplus aggregating not less than $100,000,000 and (y) have an investment grade rating of at least “Baa3” or “P-3”.
(d) Any predecessor Trustee shall transfer to any successor Trustee appointed under this Section as a result of a vacancy in the position the Trust Corpus by a date not later than thirty (30) days from the date of the acceptance by the successor Trustee of its appointment as such. Where no vacancy in the position of the Trustee has occurred, the transfer of the Trust Corpus shall take effect in accordance with the provisions of Section 9.07.
(e) Every successor Trustee shall execute, acknowledge and deliver to its predecessor, and also to the Issuer, an instrument in writing accepting such appointment, and thereupon such successor Trustee, without any further act, deed, or conveyance, shall become fully vested with all moneys, estates, properties, rights, immunities, powers and trusts, and subject to all the duties and obligations, of its predecessor, with like effect as if originally named as such Trustee; but such predecessor shall, nevertheless, on the written request of its successor or of the Issuer, and upon payment of the compensation, expenses, charges and other disbursements of such predecessor which are due and payable pursuant to S ection 9.04, execute and deliver an instrument transferring to such successor Trustee all the estate, properties, rights, immunities, powers and trusts of such predecessor and the Trust Corpus; and every predecessor Trustee shall deliver all property and moneys, together with a full accounting thereof, held by it under this Indenture to its successor. Should any instrument in writing from the Issuer be required by any successor Trustee for more fully and certainly vesting in such Trustee the estate, properties, rights, immunities, powers and trusts vested or intended to be vested in the predecessor Trustee, any such instrument in writing shall, on request, be executed, acknowledged and delivered by the Issuer. Any successor Trustee shall promptly notify the Issuer and the Paying Agent of its appointment as Trustee.
(f) 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 a national banking association or a bank or trust company duly organized under the laws of any state of the United States and shall be authorized by law and its charter to perform all the duties imposed upon it by this Indenture and each other Security Document shall be the successor to such Trustee without the execution or filing of any paper or the performance o f any further act.
Section 9.09. Paying Agents. e) The Trustee is hereby appointed as Paying Agent for the Bonds. The Issuer may also from time to time appoint one or more other Paying Agents in the manner and subject to the conditions set forth in Section 9.09(b) for the appointment of a successor Paying Agent. Each Paying Agent shall signify its acceptance of the duties and obligations imposed upon it by this Indenture by executing and delivering to the Issuer, and in the case of all Paying Agents other than the Trustee, to the Trustee a written acceptance thereof. The principal offices of the Pa ying Agents are designated as the respective offices or agencies of the Issuer for the payment of the principal or Redemption Price, if any, of, Sinking Fund Installments for, and interest on the Bonds. Each Paying Agent shall not be liable in connection with the performance of its duties hereunder except for its own willful misconduct or gross negligence.
(b) Any Paying Agent may at any time resign and be discharged of the duties and obligations created by this Indenture by giving at least sixty (60) days prior written notice to the Issuer and the Trustee. Any Paying Agent may be removed at any time by an instrument filed with such Paying Agent and the Trustee and signed by the Issuer. Any successor Paying Agent shall be appointed by the Issuer, with the approval of the Trustee, and shall be a commercial bank or trust company duly organized under the laws of any state of the United States or a national banking association, having a capital stock and surplus aggregating at least $40,000,000, having an investment grade rating of at leas t “Baa3” or “P-3”, and willing and able to accept the office on reasonable and customary terms and authorized by law and its charter to perform all the duties imposed upon it by this Indenture.
(c) In the event of the resignation or removal of any Paying Agent, such Paying Agent shall pay over, assign and deliver any moneys held by it as Paying Agent to its successor, or if there be no successor, to the Trustee. In the event that for any reason there shall be a vacancy in the office of any Paying Agent, the Trustee shall act as such Paying Agent.
Section 9.10. Appointment of Co-Trustee. i) It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction denying or restricting the right of banking corporations or associations to transact business as trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture or under any other Security Document, and in particular in case of the enforcement of any on default, or in case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to t he Trustee or hold title to the properties, in trust, as herein granted, or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an additional institution as a separate trustee or co-trustee. The following provisions of this Section are adapted to these ends.
(b) In the event that the Trustee appoints an additional institution as a separate trustee or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate trustee or co-trustee but only to the extent necessary to enable such separate trustee or co-trustee to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate trustee or co-trustee shall run to and be enforceable by either of them. Such co-tr ustee may be removed by the Trustee at any time, with or without cause.
(c) Should any instrument in writing from the Issuer be required by the separate trustee or co-trustee so appointed or removed by the Trustee for more fully and certainly vesting in and confirming to it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Issuer. In case any separate trustee or co-trustee, or a successor to either, shall become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate trustee or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate trustee or co-trustee.
(d) No trustee shall be liable for the acts or omissions of any other trustee hereunder.
Section 9.11. Tender Agent - Appointment, Acceptance and Successors.
(a) The Issuer hereby appoints The Bank of New York Mellon, New York, New York, as Tender Agent. The Tender Agent shall designate to the Trustee, if the Tender Agent is not also the Trustee, its principal office, and signify its acceptance of the duties and obligations imposed on it hereunder by a written instrument of acceptance delivered to the other Notice Parties. One or more additional Tender Agents may be appointed by the Issuer to the extent necessary to effectuate the rights of the Bondholders to tender Initial Bonds for purchase pursuant to Section 2.03.
(b) The Tender Agent may at any time resign and be discharged of the duties and obligations created by this Indenture by giving at least sixty (60) days written notice to the other Notice Parties, except that such resignation shall not take effect until the appointment of a successor Tender Agent hereunder, and the acceptance of such appointment by the successor Tender Agent. The Tender Agent may be removed at any time by the Issuer by a written instrument filed with the other Notice Parties, but such removal shall not take effect until the appointment and acceptance of such appointment by the successor Tender Agent. Upon the resignation or removal of the Tender Agent, the Tender Age nt shall pay over, deliver and assign any moneys and Bonds held by it in such capacity to its successor.
(c) If the position of Tender Agent shall become vacant for any reason, or if any bankruptcy, insolvency or similar proceeding shall be commenced by or against the Tender Agent, the Issuer shall appoint a successor Tender Agent to fill the vacancy. A written acceptance of office shall be filed by the successor Tender Agent in the manner set forth in Section 9.11(a). Any successor Tender Agent shall be a national banking association, bank or trust Institution, in each case 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 $100,000,000, having an investment gra de rating of at least “Baa3” or “P-3”, and authorized by law to perform all of the duties imposed on it by this Indenture. If the position of Tender Agent shall become vacant, the Company shall cooperate with the Issuer, and the Issuer shall appoint a successor Tender Agent and shall use its best efforts to obtain acceptance of such office by the successor Tender Agent within sixty (60) days from such vacancy. Within twenty (20) days after such appointment and acceptance, the Issuer shall notify in writing the Holders of all Bonds then Outstanding and the other Notice Parties.
(d) In the event of any such vacancy and if a successor Tender Agent shall not have been appointed within sixty (60) days of such vacancy, the Majority Holders, by an instrument or concurrent instruments in writing, signed by such Bondholders or their attorneys-in-fact thereunto duly authorized and filed with the Issuer, may appoint a successor Tender Agent that shall, immediately upon its acceptance of such office, and without further act, supersede the predecessor Tender Agent. If no appointment of a successor Tender Agent shall have been made pursuant to the foregoing provisions of this Section 9.11, within 120 days of such vacancy, the Holder of any Bond then Outstanding, the Issuer, the Tr ustee or the Company may apply to any court of competent jurisdiction to appoint a successor Tender Agent. Such court may thereupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Tender Agent.
(e) Every successor Tender Agent shall execute, acknowledge and deliver to its predecessor, and also to the Issuer, an instrument in writing accepting such appointment, and thereupon such successor Tender Agent, without any further act, deed, or conveyance, shall become fully vested with all moneys, estates, properties, rights, immunities, powers and trusts, and subject to all the duties and obligations, of its predecessor, with like effect as if originally named as such Tender Agent; but such predecessor shall, nevertheless, on the written request of its successor or of the Issuer, execute and deliver an instrument transferring to such successor Tender Agent all the estate, properties, rights, immunities , powers and trusts of such predecessor; and every predecessor Tender Agent shall deliver all property and moneys held by it under this Indenture, together with a full accounting thereof, to its successor. Should any instrument in writing from the Issuer be required by any successor Tender Agent for more fully and certainly vesting in such Tender Agent the estate, properties, rights, immunities, powers and trusts vested or intended to be vested in the predecessor Tender Agent, any such instrument in writing shall, on request, be executed, acknowledged and delivered by the Issuer. Any successor Tender Agent shall promptly notify the other Notice Parties of its appointment as Tender Agent.
(f) Any Entity into which the Tender Agent may be merged or converted or with which it may be consolidated or any Entity resulting from any merger, conversion or consolidation to which it shall be a party or any Entity to which the Tender Agent may sell or transfer all or substantially all of its business, provided such Entity shall be a national banking association, a bank or trust company duly organized under the laws of the United States of America or any state or territory of the United States and shall be authorized by law and its charter to perform all the duties imposed upon it by this Indenture and each other Security Document shall be the successor to such Tender Agent without the execution or fi ling of any paper or the performance of any further act.
Section 9.12. Tender Agent - General Responsibilities. f) The Tender Agent shall perform the duties and obligations set forth in this Indenture, and in particular shall:
(1) hold all Initial Bonds delivered to it for purchase hereunder as agent and bailee of, and in escrow for the benefit of, the respective Bondholders that have so delivered such Initial Bonds, until moneys representing the Purchase Price of such Initial Bonds shall have been delivered to or for the account of or to the order of such Bondholders, provided the Tender Agent may deliver any of such Initial Bonds to the Remarketing Agent to be held as provided in Section 9.15;
(2) hold all moneys (other than moneys delivered to it by the Company for the purchase of Initial Bonds) delivered to it hereunder (without investment thereof) for the purchase of Initial Bonds as agent and bailee of, and in escrow for the benefit of, the Person that shall have so delivered such moneys, until the Initial Bonds purchased with such moneys shall have been delivered to or for the account of such Person;
(3) hold all moneys delivered to it hereunder by or on behalf of the Company for the purchase of Initial Bonds as agent and bailee of, and in escrow for the benefit of, Bondholders that shall deliver Initial Bonds to it for purchase (without investment thereof), until the Initial Bonds purchased with such moneys shall have been delivered to or for the account of the Company; except that if the Initial Bonds shall at any time become due and payable, the Tender Agent shall cause such moneys to be deposited with the Trustee for deposit in the Bond Fund on the date upon which the Initial Bonds become due and payable;
(4) keep such books and records as shall be consistent with prudent industry practice, and make such books and records available for inspection by the other Notice Parties;
(5) deliver any notices required by this Indenture to be delivered by the Tender Agent; and
(6) perform all other duties of the Tender Agent under this Indenture.
(b) In performing its duties and obligations hereunder, the Tender Agent shall use the same degree of care and skill as a prudent person would exercise under the same circumstances in the conduct of his own affairs. The Tender Agent, its officers, directors, employees and agents shall not be liable in connection with the performance of its duties hereunder except for its own willful misconduct, gross negligence or unlawful conduct.
(c) The Tender Agent may deal in Initial Bonds and with the Company to the same extent and with the same effect as provided in Section 9.06.
(d) The Tender Agent hereby waives any rights to, or Liens on, any funds or obligations held by or owing to it pursuant to this Indenture. The Tender Agent shall be reimbursed and compensated for its fees and expenses for acting under and pursuant to this Indenture only from payments to be made by the Company pursuant to Section 7.3 of the Loan Agreement.
Section 9.13. Remarketing Agent - Appointment, Acceptance and Successors. g) The Issuer hereby appoints Roosevelt & Cross Incorporated, New York, New York, as Remarketing Agent. The Remarketing Agent shall designate to the Trustee its principal office, and signify its acceptance of the duties and obligations imposed on it hereunder by a written instrument of acceptance delivered to the Notice Parties.
(b) Except as otherwise provided in the Remarketing Agreement (in which case the provisions of the Remarketing Agreement shall govern and shall supersede the provisions of this paragraph), the Remarketing Agent may at any time resign and be discharged of the duties and obligations created by this Indenture by giving at least sixty (60) days written notice to the other Notice Parties, except that such resignation shall not take effect until the appointment and acceptance of a successor Remarketing Agent hereunder; and (ii) the Remarketing Agent may be removed at any time by the Company by a written notice filed with the other Notice Parties, except that no such removal shall be effective until the app ointment of a successor Remarketing Agent hereunder and the acceptance of such appointment by the successor Remarketing Agent. Upon the resignation or removal of the Remarketing Agent, the Remarketing Agent shall pay over, deliver and assign any moneys and Initial Bonds held by it in such capacity to its successor.
(c) If the position of Remarketing Agent shall become vacant for any reason, or if any bankruptcy, insolvency or similar proceeding shall be commenced by or against the Remarketing Agent, the Issuer shall appoint a successor Remarketing Agent to fill the vacancy. A written acceptance of office shall be filed by the successor Remarketing Agent in the manner set forth in Section 9.13(a). Any successor Remarketing Agent shall be a corporation or other legal entity organized and doing business under the laws of the United States of America or of any state thereof, authorized under such laws to perform all duties imposed upon the Remarketing Agent by this Indenture, and having a principal office or agency located in the City, shall have a capitalization of at least $25,000,000, shall be acceptable to the Company, and shall be either (x) a member of the Financial Industry Regulatory Authority and registered as a Municipal Securities Dealer under the Securities Exchange Act of 1934, as amended, or (y) a national banking association, commercial bank or trust company. So long as the Initial Bonds are held in the book entry system, the Remarketing Agent must be a Participant in the book entry system with respect to the Initial Bonds.
(d) In the event of any such vacancy and if a successor Remarketing Agent shall not have been appointed by the Issuer within sixty (60) days of such vacancy, the Company may appoint a successor Remarketing Agent, which shall, immediately upon its acceptance of such office, and without further act, supersede the predecessor Remarketing Agent. If no appointment of a successor Remarketing Agent shall have been made pursuant to the foregoing provisions of this Section 9.13, within 120 days of such vacancy, the Issuer, the Holder of any Initial Bond then Outstanding or the Trustee may apply to any court of competent jurisdiction to appoint a successor Remarketing Agent. Such court may the reupon, after such notice, if any, as such court may deem proper and prescribe, appoint a successor Remarketing Agent.
(e) If the Remarketing Agent shall resign, be removed, or be dissolved, or if the property or affairs of the Remarketing Agent shall be taken under control of any state or federal court or administrative body because of bankruptcy or insolvency, or for any other reason, and the Company shall not have appointed a successor as Remarketing Agent, the Tender Agent shall ipso facto be deemed to be such Remarketing Agent for all purposes of this Indenture until the appointment by the Issuer of a successor Remarketing Agent; provided, however, that the Tender Agent, in its capacity as Remarketing Agent, shall not be required to sell Initial Bonds or determine the interest rate on the Initial Bonds hereunder if the Tender Agent should be prohibited by law from conducting such activities. The Company will notify each Rating Agency then rating the Initial Bonds, if any, of any successor Remarketing Agent or co-Remarketing Agent.
(f) Every successor Remarketing Agent shall execute, acknowledge and deliver to its predecessor, and also to the Issuer, the Trustee and the Company, an instrument in writing accepting such appointment, and thereupon such successor Remarketing Agent, without any further act, deed, or conveyance, shall become fully vested with all moneys, estates, properties, rights, immunities and powers, and subject to all the duties and obligations, of its predecessor, with like effect as if originally named as such Remarketing Agent; but such predecessor shall, nevertheless, on the written request of its successor or of the Issuer, the Trustee or the Company, execute and deliver an instrument transferring to such succe ssor Remarketing Agent all the estate, properties, rights, immunities and powers of such predecessor; and every predecessor Remarketing Agent shall deliver all property, Initial Bonds, notices and moneys held by it under this Indenture, together with a full accounting thereof, to its successor. Should any instrument in writing from the Issuer or the Trustee be required by any successor Remarketing Agent for more fully and certainly vesting in such Remarketing Agent the estate, properties, rights, immunities and powers vested or intended to be vested in the predecessor Remarketing Agent, any such instrument in writing shall, on request, be executed, acknowledged and delivered by the Issuer or the Trustee. Any successor Remarketing Agent shall promptly notify the other Notice Parties of its appointment as Remarketing Agent.
(g) Any Entity into which the Remarketing Agent may be merged or converted or with which it may be consolidated or any Entity resulting from any merger, conversion or consolidation to which it shall be a party or any Entity to which the Remarketing Agent may sell or transfer all or substantially all of its securities business, provided such Entity shall otherwise qualify under Section 9.13(c), shall be the successor to such Remarketing Agent without the execution or filing of any paper or the performance of any further act.
Section 9.14. Remarketing Agent - General Responsibilities. h) The Remarketing Agent shall perform the duties and obligations set forth in this Indenture, subject to the provisions of the Remarketing Agreement, and in particular shall:
(1) hold any Initial Bonds delivered to it hereunder by the Tender Agent in trust for the benefit of the respective Holders of the Initial Bonds that shall have delivered or shall be deemed to have delivered such Initial Bonds to the Tender Agent, as the case may be, until moneys representing the Purchase Price of such Initial Bonds shall have been delivered to or for the account of or to the order of such Holders of the Initial Bonds or deposited with the Trustee, as the case may be, and to redeliver such Initial Bonds to the Tender Agent upon its request;
(2) solicit purchases of Initial Bonds from investors able to purchase municipal bonds, effectuate and process such purchases, bill and receive payment for Initial Bonds purchased, and perform related functions in connection with the remarketing of Initial Bonds hereunder;
(3) on each Purchase Date promptly transfer all moneys delivered to it hereunder for the purchase of Initial Bonds as agent and bailee of, and in escrow for the benefit of, the Person that shall have so delivered such moneys until the Initial Bonds purchased with such moneys shall have been delivered to or for the account of such Person, provided that such moneys shall be delivered to the Tender Agent for deposit in the Remarketing Account of the Purchase Fund;
(4) keep such books and records as shall be consistent with prudent industry practice and will document its action taken hereunder, and make such books and records available for inspection by the Notice Parties;
(5) comply at all times in all material respects with all applicable state and federal securities laws and other statutes, rules and regulations applicable to the offering and sale of the Initial Bonds;
(6) promptly determine the Adjustable Fixed Interest Rate on the Initial Bonds, and remarket the Initial Bonds, as provided in Section 2.03;
(7) use its best efforts to find purchasers for the Initial Bonds tendered or deemed tendered for purchase, any such sale to be made at the Purchase Price in accordance with the terms of this Indenture;
(8) deliver to the Tender Agent all Initial Bonds held by it in accordance with the terms of this Indenture and the Remarketing Agreement;
(9) deliver any notices by this Indenture to be delivered by the Remarketing Agent; and
(10) perform all other duties of the Remarketing Agent under this Indenture and the Remarketing Agreement.
(b) In performing its duties and obligations hereunder, the Remarketing Agent shall act in a manner consistent with prudent industry practice. The Remarketing Agent shall not be liable in connection with the performance of its duties hereunder except for its own willful misconduct, gross negligence or unlawful conduct.
(c) The Remarketing Agent may deal in Initial Bonds and with the Company to the same extent and with the same effect as provided in Section 9.06.
(d) The Remarketing Agent hereby waives any right to, or Lien on, any funds or obligations held by or owing to it pursuant to this Indenture. The Remarketing Agent shall be reimbursed and compensated for its fees and expenses for acting under and pursuant to this Indenture only from payments to be made by the Company pursuant to Section 7.3 of the Loan Agreement and the Remarketing Agreement.
Section 9.15. Cooperation Among Certain of the Notice Parties.
(a) The Trustee, the Remarketing Agent, the Bond Registrar and the Tender Agent shall each cooperate to cause the necessary arrangements to be made and to be thereafter continued whereby funds from the sources specified herein and in the Loan Agreement will be made available for the purchase of Initial Bonds presented at the designated corporate trust office of the Tender Agent, and to otherwise enable the Tender Agent to carry out its duties hereunder.
(b) The Tender Agent, the Trustee, the Remarketing Agent and the Bond Registrar shall cooperate to the extent necessary to permit the timely receipt by the Bond Registrar of tendered Initial Bonds and preparation, execution, issuance, authentication and delivery by the Bond Registrar of replacement Initial Bonds in connection with the tender and remarketing of Initial Bonds hereunder.
(c) The Tender Agent, the Remarketing Agent and the Bond Registrar shall each cooperate to cause the necessary arrangements to be made and thereafter continued whereby Initial Bonds prepared, executed, authenticated and issued hereunder shall be made available to the Remarketing Agent to the extent necessary for delivery pursuant to Section 9.14, and to otherwise enable the Remarketing Agent to carry out its duties hereunder.
ARTICLE X
DISCHARGE OF INDENTURE; DEFEASANCE
Section 10.01. Defeasance. i) If the Issuer shall pay or cause to be paid, or there shall otherwise be paid, to the Holders of all Bonds the principal or Redemption Price, if applicable, of, Sinking Fund Installments for, interest and all other amounts due or to become due thereon or in respect thereof, at the times and in the manner stipulated therein and in this Indenture, and all fees and expenses and other amounts due and payable under this Indenture and the Loan Agreement, and any other amounts required to be rebated to the Federal government pursuant to the Tax Regulatory Agreement or this Indenture, shall be paid in full, then the pledge of any loan payments, revenues or receipts from or in connection with the Security Documents or the Facility under this Indenture and the estate and rights hereby granted, and all covenants, agreements and other obligations of the Issuer to the Bondholders hereunder shall thereupon cease, terminate and become void and be discharged and satisfied and the Bonds shall thereupon cease to be entitled to any lien, benefit or security hereunder, except as to moneys or securities held by the Trustee or the Paying Agents as provided below in this subsection. At the time of such cessation, termination, discharge and satisfaction, (1) the Trustee shall cancel and discharge the lien of this Indenture and of the Mortgage and execute and deliver to the Company all such instruments as may be appropriate to satisfy such liens and to evidence such discharge and satisfaction, and (2) the Trustee and the Paying Agents shall pay over or deliver to the Company or on its order all moneys or se curities held by them pursuant to this Indenture which are not required (i) for the payment of the principal or Redemption Price, if applicable, Sinking Fund Installments for, or interest on Bonds not theretofore surrendered for such payment or redemption, (ii) for the payment of all such other amounts due or to become due under the Security Documents, or (iii) for the payment of any amounts the Trustee has been directed to pay to the Federal government under the Tax Regulatory Agreement or this Indenture.
(b) Bonds or interest installments for the payment or redemption of which moneys (or Defeasance Obligations which shall not be subject to call or redemption or prepayment prior to maturity and the full and timely payment of the principal of and interest on which when due, together with the moneys, if any, set aside at the same time, will provide funds sufficient for such payment or redemption) shall then be set aside and held in trust by the Trustee or Paying Agents, whether at or prior to the maturity or the redemption date of such Bonds, shall be deemed to have been paid within the meaning and with the effect expressed in subsection (a) of this Section, if (i) in case any such Bonds are to be redeemed prior to the maturity thereof, all action necessary to redeem such Bonds shall have been taken and notice of such redemption shall have been duly given or provision satisfactory under the requirements of this Indenture to the Trustee shall have been made for the giving of such notice, and (ii) if the maturity or redemption date of any such Bond shall not then have arrived, (y) provision shall have been made by deposit with the Trustee or other methods satisfactory to the Trustee for the payment to the Holders of any such Bonds of the full amount to which they would be entitled by way of principal or Redemption Price, Sinking Fund Installments, and interest and all other amounts then due under the Security Documents to the date of such maturity or redemption, and (z) provision satisfactory to the Trustee shall have been made for the mailing of a notice to the Holders of such Bonds that such moneys are so available for such payment on such maturity or redemption date.
Section 10.02. Defeasance Opinion and Verification. Prior to any defeasance becoming effective as provided in Section 10.01(b), there shall have been delivered to the Issuer and to the Trustee (A) an opinion of Nationally Recognized Bond Counsel to the effect that interest on any Bonds being discharged by such defeasance will not become subject to federal income taxation by reason of such defeasance, and (B) a verification from an independent certified public accountant or firm of independent certified public accountants (in each case reasonably satisfactory to the Issuer and the Trustee) to the effect that the moneys and/or Defeasance Obligations are sufficient, without reinvestment, to pay the principal of, Sinking Fund Installments for, interest on, and redemption premium, if any, of the Bonds to be defeased.
Section 10.03. No Limitation of Rights of Holders. No provision of this Article X, including any defeasance of Bonds, shall limit the rights of the Holder of any Bonds under Section 3.06, 3.07 or 3.09 until such Bonds shall have been paid in full.
ARTICLE XI
AMENDMENTS OF INDENTURE
Section 11.01. Limitation on Modifications. This Indenture shall not be modified or amended in any respect except as provided in and in accordance with and subject to the provisions of this Article.
Section 11.02. Supplemental Indentures Without Bondholders’ Consent.
ii) The Issuer and the Trustee may, from time to time and at any time, enter into Supplemental Indentures without the consent of the Bondholders for any of the following purposes:
(1) To cure any formal defect, omission or ambiguity in this Indenture or in any description of property subject to the lien hereof, if such action is not materially adverse to the interests of the Bondholders.
(2) To grant to or confer upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers, authority or security which may lawfully be granted or conferred and which are not contrary to or inconsistent with this Indenture as theretofore in effect.
(3) To add to the covenants and agreements of the Issuer in this Indenture other covenants and agreements to be observed by the Issuer which are not contrary to or inconsistent with this Indenture as theretofore in effect.
(4) To add to the limitations and restrictions in this Indenture other limitations and restrictions to be observed by the Issuer which are not contrary to or inconsistent with this Indenture as theretofore in effect.
(5) To confirm, as further assurance, any pledge under, and the subjection to any lien or pledge created or to be created by, this Indenture, of the properties of the Facility, or revenues or other income from or in connection with the Facility or of any other moneys, securities or funds, or to subject to the lien or pledge of this Indenture additional revenues, properties or collateral.
(6) To modify or amend such provisions of this Indenture as shall, in the opinion of Nationally Recognized Bond Counsel, be necessary to assure that the interest on the Bonds not be includable in gross income for Federal income tax purposes.
(7) To effect any other change herein which, in the judgment of the Trustee, is not to the material prejudice of the Trustee or the Bondholders.
(8) To modify, amend or supplement this Indenture or any Supplemental Indenture in such manner as to permit the qualification hereof and thereof under the Trust Indenture Act of 1939 or any similar federal statute hereafter in effect or to permit the qualification of the Bonds for sale under the securities laws of the United States of America or of any of the states of the United States of America, and, if they so determine, to add to this Indenture or any Supplemental Indenture such other terms, conditions and provisions as may be permitted by said Trust Indenture Act of 1939 or similar federal statute.
(9) To modify, amend or supplement any of the times, dates or other mechanical procedures for the setting of the Adjustable Fixed Interest Rate or the tender and remarketing of the Initial Bonds as set forth in Section 2.03, provided that such change is not to the material prejudice of the Bondholders.
(10) To evidence the appointment of a new Remarketing Agent or Tender Agent, and in connection therewith to change any times of day specified herein by which any action must be taken.
(11) To alter the manner in which the Remarketing Agent may, in the reasonable exercise of its judgment, act pursuant to Section 2.03 to increase the likelihood of achieving the lowest net interest cost during the term of the Initial Bonds, but only if the Institution provides to the Trustee and the Issuer a Favorable Opinion of Bond Counsel.
(12) To effect any modification, amendment or supplement to this Indenture to be made effective on a date after an Adjustment Date.
(b) Before the Issuer and the Trustee shall enter into any Supplemental Indenture pursuant to this Section, there shall have been filed with the Trustee an opinion of Nationally Recognized Bond Counsel stating that such Supplemental Indenture is authorized or permitted by this Indenture and complies with its terms, and that upon execution it will be valid and binding upon the Issuer in accordance with its terms.
Section 11.03. Supplemental Indentures With Bondholders’ Consent. iii) Subject to the terms and provisions contained in this Article, the Majority Holders shall have the right from time to time, to consent to and approve the entering into by the Issuer and the Trustee of any Supplemental Indenture as shall be deemed necessary or desirable by the Issuer for the purpose of modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained herein. Nothing herein contained shall permit, or be construed as permitting, (i) a change in the times, amounts or cur rency of payment of the principal of, Sinking Fund Installments for, Purchase Price, redemption premium, if any, or interest (except upon an Interest Rate Change) on any Outstanding Bonds, a change in the terms of redemption (except as provided in Section 2.04(a)) or maturity of the principal of or the interest on any Outstanding Bonds, or a reduction in the principal amount of or the Redemption Price of any Outstanding Bond or the rate of interest thereon, or any extension of the time of payment thereof, a change in the method of determining the rate of interest on any Bond (except as provided in Section 2.03), or a change in the terms of the purchase thereof by the Tender Agent, without the consent of the Holder of such Bond, (ii) the creation of a lien upon or pledge of the Trust Estate other than the liens or pledge created by this Indenture and the other Security Documents, except as provided in this Indenture with respect to Additional Bonds, (iii) a preference or priority of any Bo nd or Bonds over any other Bond or Bonds, (iv) a reduction in the aggregate principal amount of Bonds required for consent to such Supplemental Indenture, or (v) a modification, amendment or deletion with respect to any of the terms set forth in this Section 11.03(a), without, in the case of items (ii) through and including (v) of this Section 11.03(a), the written consent of one hundred percent (100%) of the Holders of the Outstanding Bonds.
(b) If at any time the Issuer shall determine to enter into any Supplemental Indenture for any of the purposes of this Section, it shall cause notice of the proposed Supplemental Indenture to be mailed, postage prepaid, to all Bondholders. Such notice shall briefly set forth the nature of the proposed Supplemental Indenture, and shall state that a copy thereof is on file at the offices of the Trustee for inspection by all Bondholders.
(c) Within one year after the date of such notice, the Issuer and the Trustee may enter into such Supplemental Indenture in substantially the form described in such notice only if there shall have first been filed with the Trustee (i) the written consents of the Majority Holders or the Holders of not less than 100%, as the case may be, in aggregate principal amount of the Bonds then Outstanding and (ii) an opinion of Nationally Recognized Bond Counsel stating that such Supplemental Indenture is authorized or permitted by this Indenture and complies with its terms, and that upon execution it will be valid and binding upon the Issuer in accordance with its terms. Each valid consent shal l be effective only if accompanied by proof of the holding, at the date of such consent, of the Bonds with respect to which such consent is given. A certificate or certificates by the Trustee that it has examined such proof and that such proof is sufficient in accordance with this Indenture shall be conclusive that the consents have been given by the Holders of the Bonds described in such certificate or certificates. Any such consent shall be binding upon the Holder of the Bonds giving such consent and upon any subsequent Holder of such Bonds and of any Bonds issued in exchange therefor (whether or not such subsequent Holder thereof has notice thereof), unless such consent is revoked in writing by the Holder of such Bonds giving such consent or a subsequent Holder thereof by filing such revocation with the Trustee prior to the execution of such Supplemental Indenture.
(d) If the Holders of not less than the percentage of Bonds required by this Section shall have consented to and approved the execution thereof as herein provided, no Holder of any Bond shall have any right to object to the execution of such Supplemental Indenture, or to object to any of the terms and provisions contained therein or the operation thereof, or in any manner to question the propriety of the execution thereof, or to enjoin or restrain the Issuer from executing the same or from taking any action pursuant to the provisions thereof.
(e) Upon the execution of any Supplemental Indenture pursuant to the provisions of this Section, 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 Issuer, the Trustee and all Holders of Bonds then Outstanding shall thereafter be determined, exercised and enforced under this Indenture, subject in all respects to such modifications and amendments.
Section 11.04. Supplemental Indenture Part of this Indenture. Any Supplemental Indenture executed in accordance with the provisions of this Article shall thereafter form a part of this Indenture and all the terms and conditions contained in any such Supplemental Indenture as to any provisions authorized to be contained therein shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes. The Trustee shall execute any Suppl emental Indenture entered into in accordance with the provisions of Section 11.02 or 11.03.
ARTICLE XII
AMENDMENTS OF RELATED SECURITY DOCUMENTS
Section 12.01. Rights of Company. Anything herein to the contrary notwithstanding, any Supplemental Indenture entered into pursuant to Article XI which affects any obligations, rights, powers and authority of the Company under the Loan Agreement or requires a revision of the Loan Agreement shall not become effective unless and until the Company shall have given its written consent to such Supplemental Indenture signed by an Authorized Representative of the Company.
Section 12.02. Amendments of Related Security Documents Not Requiring Consent of Bondholders. The Issuer and the Trustee may, without the consent of or notice to the Bondholders, consent (if required) to any amendment, change or modification of any of the Related Security Documents for any of the following purposes: (i) to cure any ambiguity, inconsistency, formal defect or omission therein; (ii) to grant to or confer upon the Trustee for the benefit of the Bondholders any additional rights, remedies, powers, authority or security which may be lawfully granted or conferred; (iii) to subject thereto addi tional revenues, properties or collateral; (iv) to evidence the succession of a successor Trustee or to evidence the appointment of a separate or co-Trustee or the succession of a successor separate or co-Trustee; (v) to make any change required in connection with a permitted amendment to a Related Security Document or a permitted Supplemental Indenture; and (vi) to make any other change that, in the judgment of the Trustee (which, in exercising such judgment, may conclusively rely, and shall be protected in relying, in good faith, upon an Opinion of Counsel or an opinion or report of engineers, accountants or other experts) does not materially adversely affect the Bondholders. The Trustee shall have no liability to any Bondholder or any other Person for any action taken by it in good faith pursuant to this Section. Before the Issuer or the Trustee shall enter into or consent to any amendment, change or modification to any of the Related Security Documents, there shall b e filed with the Trustee an opinion of Nationally Recognized Bond Counsel to the effect that such amendment, change or modification will not cause the interest on any of the Bonds to cease to be excluded from gross income for federal income tax purposes under the Code.
Section 12.03. Amendments of Related Security Documents Requiring Consent of Bondholders. Except as provided in Section 12.02, the Issuer and the Trustee shall not consent to any amendment, change or modification of any of the Related Security Documents, without mailing of notice and the written approval or consent of the Majority Holders given and procured as in Section 11.03 set forth; provided, however, there shall be no amendment, change or modification to (i) the obligation of the Company to make loan payments with respect to the Bonds under the Loan Agreement or the Promissory Note, (ii) the obligation of the Gua rantors to guarantee payment of the Bonds pursuant to the Bond Guaranty Agreement, or (iii) the Tax Regulatory Agreement without the delivery of an opinion of Nationally Recognized Bond Counsel to the effect that such amendment, change, modification, reduction or postponement will not cause the interest on any Series of Bonds to become includable in gross income for Federal income tax purposes. If at any time the Company shall request the consent of the Trustee to any such proposed amendment, change or modification, the Trustee shall cause notice of such proposed amendment, change or modification to be mailed in the same manner as is provided in Article XI with respect to Supplemental Indentures. Such notice shall briefly set forth the nature of such proposed amendment, change or modification and shall state that copies of the instrument embodying the same are on file at the principal office of the Trustee for inspection by all Bondholders. The Trustee may, but shal l not be obligated to, enter into any such amendment, change or modification to a Related Security Document which affects the Trustee’s own rights, duties or immunities under such Related Security Document or otherwise. Before the Trustee shall enter into or consent to any amendment, change or modification to any of the Related Security Documents, there shall be filed with the Trustee an opinion of Nationally Recognized Bond Counsel to the effect that such amendment, change or modification will not cause the interest on any of the Bonds to cease to be excluded from gross income for federal income tax purposes under the Code.
ARTICLE XIII
MISCELLANEOUS
Section 13.01. Evidence of Signature of Bondholders and Ownership of Bonds. iv) Any request, consent, revocation of consent, approval, objection or other instrument which this Indenture may require or permit to be signed and executed by the Bondholders may be in one or more instruments of similar tenor, and shall be signed or executed by any Bondholder in person or by his duly authorized attorney appointed in writing. Proof of the execution of any such instrument, or of an instrument appointing any such attorney, shall be sufficient for any purpose of this Indenture (except as otherwise therein expressly provided ) if made in the following manner, or in any other manner satisfactory to the Trustee, which may nevertheless in its discretion require further or other proof in cases where it deems the same desirable: the fact and date of the execution by any Bondholder or his attorney of such instruments may be proved by a guarantee of the signature thereon by a member of the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program in accordance with Securities and Exchange Commission Rule 17Ad-15, or by the certificate of any notary public or other officer authorized to take acknowledgments of deeds that the person signing such request 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. For the purposes of the transfer or exchange of any Bond, the fact and date of the execution of the Bondholder or his attorney of the instrument of transfer shall be proved by a guarantee of the signature thereon by a member of the Stock Exchanges Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program in accordance with Securities and Exchange Commission Rule 17Ad-15. Where such execution is by an officer of a corporation or association or a member of a partnership, on behalf of such corporation, association or partnership, such signature guarantee, certificate or affidavit shall also constitute sufficient proof of his authority.
(b) The ownership of Bonds and the amount, numbers and other identification shall be proved by the registry books.
(c) Except as otherwise provided in Section 11.03 with respect to revocation of a consent, any request or consent by the owner of any Bond shall bind all future owners of such Bond in respect of anything done or suffered to be done by the Issuer or the Trustee or any Paying Agent in accordance therewith.
Section 13.02. Notices. Any notice, demand, direction, certificate, Opinion of Counsel, request, instrument or other communication authorized or required by this Indenture to be given to or filed with the Issuer, the Company or the Trustee shall be sufficient if sent (i) by return receipt requested or registered or certified United States mail, postage prepaid, (ii) by a nationally recognized overnight delivery service for overnight delivery, charges prepaid or (iii) by hand delivery, addressed, as follows:
(1) if to the Issuer, to
New York City Capital Resource Corporation
110 William Street
New York, New York 10038
Attention: General Counsel (with a copy to the
Executive Director of the Issuer at the
same address)
(2) if to the Company, to
Albee Retail Development LLC
c/o Acadia Realty Trust
1311 Mamaroneck Avenue, Suite 260
White Plains, New York 10605
Attention: General Counsel
with a copy to
Washington Square Partners
675 Third Avenue, 25th Floor
New York, New York 10017
Attention: Paul Travis
and
Akerman Senterfitt LLP
335 Madison Avenue, 26th Floor
New York, New York 10017
Attention: Steven Polivy, Esq., and
(3) if to the Trustee, to
The Bank of New York Mellon
101 Barclay Street, Floor 7W
New York, New York 10286
Attention: Corporate Trust Administration
The Issuer, the Company and the Trustee may, by like notice, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Any notice, certificate or other communication hereunder shall, except as may expressly be provided herein, be deemed to have been delivered or given (i) three (3) Business Days following posting if transmitted by mail, (ii) one (1) Business Day following sending if transmitted for overnight delivery by a nationally recognized overnight delivery service, or (iii) upon delivery if given by hand delivery, with refusal by an Authorized Representative of the intended recipient party to accept delivery of a notice given as prescribed above to constitute delivery hereunder.
Section 13.03. Parties Interested Herein. Nothing in this Indenture expressed or implied is intended or shall be construed to confer upon, or to give to, any Person, other than the Issuer, the Company, the Trustee, the Tender Agent, the Remarketing Agent, the Bond Registrar, the Paying Agents and the Holders of the Bonds, any right, remedy or claim under or by reason of this Indenture or any covenant, condition or stipulation thereof. All covenants, stipulations, promises and agreements in this Indenture contained by and on behalf of the Issuer shall be for the sole and exclusive benefit of the Issuer, the Company, th e Trustee, the Tender Agent, the Remarketing Agent, the Bond Registrar, the Paying Agents and the Holders of the Bonds.
Section 13.04. Partial Invalidity. If any one or more of the provisions of this Indenture or of the Bonds shall be ruled illegal or invalid by any court of competent jurisdiction, the illegality or invalidity of such provision(s) shall not affect any of the remaining provisions hereof or of the Bonds, but this Indenture and the Bonds shall be construed and enforced as of such illegal or invalid provision had not been contained herein.
Section 13.05. Effective Date; Counterparts. The date of this Indenture shall be for reference purposes only and shall not be construed to imply that this Indenture was executed on the date first above written. This Indenture was delivered on the Closing Date. This Indenture shall become effective upon its delivery on the Closing Date. It may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument.
Section 13.06. Laws Governing Indenture. This Indenture shall be governed by, and construed and enforced in accordance with, the laws of the State, without regard or giving effect to the principles of conflicts of laws thereof.
Section 13.07. No Pecuniary Liability of Agency or Members; No Debt of the State or the City. Every agreement, covenant and obligation of the Issuer under this Indenture is predicated upon the condition that any obligation for the payment of money incurred by the Issuer shall not create a debt of the State or the City and neither the State nor the City shall be liable on any obligation so incurred, and the Bonds shall not be payable out of any funds of the Issuer other than those pledged therefor but shall be payable by the Issuer solely from the loan payments, revenues and receipts derived from or in connection with the Facilit y pledged to the payment thereof in the manner and to the extent in this Indenture specified and nothing in the Bonds, in the Loan Agreement, in the Mortgage, in this Indenture or in any other Security Document shall be considered as pledging any other funds or assets of the Issuer. The Issuer shall not be required under this Indenture or the Loan Agreement or any other Security Document to expend any of its funds other than (i) the proceeds of the Bonds, (ii) the loan payments, revenues and receipts, rental income and other moneys held or derived from or in connection with the Facility and pledged to the payment of the Bonds, (iii) any income or gains therefrom, and (iv) the Net Proceeds with respect to the Facility. No provision, covenant or agreement contained in this Indenture or in the Bonds or any obligations herein or therein imposed upon the Issuer or the breach thereof, shall constitute or give rise to or impose upon the Issuer a pecuniary liability or a cha rge upon its general credit.
All covenants, stipulations, promises, agreements and obligations of the Issuer contained herein shall be deemed to be covenants, stipulations, promises, agreements and obligations of the Issuer and not of any member, director, officer, employee or agent of the Issuer in his individual capacity, and no recourse shall be had for the payment of the principal or Redemption Price, if any, of, Purchase Price, Sinking Fund Installments for, or interest on the Bonds or for any claim based thereon or hereunder against any member, director, officer, employee or agent of the Issuer or any natural person executing the Bonds. Neither the Bonds, the interest thereon, the Sinking Fund Installments therefor, nor the Redemption Price thereof shall ever constitute a debt of the State or of the City and neither the State nor the City shall b e liable on any obligation so incurred, and the Bonds shall not be payable out of any funds of the Issuer other than those pledged therefor.
Section 13.08. Priority of Indenture Over Liens. This Indenture and the Mortgage are given in order to secure funds to pay for the Project and by reason thereof, it is intended that this Indenture and the Mortgage shall be superior to any laborers’, mechanics’ or materialmen’s liens which may be placed upon the Facility subsequent to the recordation thereof. In compliance with Section 13 of the Lien Law, the Issuer will receive the advances secured by this Indenture and the Mortgage and will hold the right to receive such advances as a trust fund to be applied first for the purpose of paying the cost of improvements and that the Issuer will apply the same first to the payment of the costs of improvements before using any part of the total of the same for any other purpose.
IN WITNESS WHEREOF, the New York City Capital Resource Corporation, New York, New York, has caused these presents to be executed in its name and behalf by its Chairman, Vice Chairman, Executive Director, Deputy Executive Director, General Counsel or Vice President for Legal Affairs and, to evidence its acceptance of the trust hereby created, the Trustee has caused these presents to be signed in its name and behalf by an authorized representative and its corporate seal to be hereunto affixed, all as of the day and year first above written.
| | NEW YORK CITY CAPITAL RESOURCE CORPORATION | |
| | | |
| | | |
| | | | |
| | By: | /s/ Kyle Kimball | |
| | | Kyle Kimball | |
| | | Executive Director | |
| | | | |
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| | THE BANK OF NEW YORK MELLON, | |
| | as Trustee | |
| | | | |
| | By: | /s/ Gaspare Mulé | |
| | | Gaspare Mulé | |
| | | Vice President | |
| | | | |
| STATE OF NEW YORK | ) | |
| | : | ss.: |
| COUNTY OF NEW YORK | ) | |
On the 29th day of June, of the year two thousand and ten, before me, the undersigned, personally appeared Kyle Kimball, known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon the behalf of whom the individual acted, executed the instrument.
| | | |
| | | | |
| | | /s/ Carol M. Hyde | |
| | | Notary Public | |
| | | | |
| | | Carol M. Hyde | |
| | | Notary Public, State of New York | |
| | | No. 4977270 | |
| | | Qualified in Queens County | |
| | | Commission Expires Jan. 20, 2011 | |
| | | | |
| STATE OF NEW YORK | ) | |
| | : | ss.: |
| COUNTY OF NEW YORK | ) | |
On the 30 day of June, in the year two thousand and ten, before me, the undersigned, personally appeared Gaspare Mulé, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon the behalf of whom the individual acted, executed the instrument.
| | | |
| | | | |
| | | /s/ Kara A. Lobdell | |
| | | Notary Public | |
| | | | |
| | | Kara A. Lobdell | |
| | | Notary Public, State of New York | |
| | | No. 02LO6031220 | |
| | | Qualified in New York County | |
| | | Commission Expires Sept. 27, 2013 | |
| | | | |
APPENDICES
EXHIBIT A
DESCRIPTION OF THE LAND
(Block 149, Lot 103)
ALL that certain plot piece or parcel of land situate, lying and being in the Borough of Brooklyn,
County of Kings, City and State of New York, bounded and described as follows:
BEGINNING at the corner formed by the intersection of the northerly side of Dekalb Avenue
with the easterly side of Gold Street;
RUNNING THENCE easterly, along the easterly side of Gold Street, 114 feet to a point;
RUNNING THENCE easterly, at right angles to the easterly side of Gold Street, 129.12 feet to
the northwesterly side of Fleet Street
RUNNING THENCE southwesterly, along the northwesterly side of Fleet Street, 132.02 feet to
the corner formed by the intersection of the northwesterly side of Fleet Street, with the northerly
side of Dekalb Avenue;
RUNNING THENCE westerly, along the northerly side of Dekalb Avenue, 63.76 feet to the
point or place of BEGINNING.
END OF SCHEDULE A
EXHIBIT B
FACILITY PERSONALTY
NONE
EXHIBIT C
FORM OF FULLY REGISTERED INITIAL BOND
THIS BOND SHALL NEVER CONSTITUTE A DEBT OR INDEBTEDNESS OF THE STATE OF NEW YORK OR OF THE CITY OF NEW YORK, AND NEITHER THE STATE OF NEW YORK NOR THE CITY OF NEW YORK SHALL BE LIABLE HEREON, NOR SHALL THIS BOND BE PAYABLE OUT OF ANY FUNDS OF THE NEW YORK CITY CAPITAL RESOURCE CORPORATION OTHER THAN THOSE PLEDGED THEREFOR
NEW YORK CITY CAPITAL RESOURCE CORPORATION
RECOVERY ZONE FACILITY REVENUE BONDS
(ALBEE RETAIL DEVELOPMENT LLC PROJECT), SERIES 2010
| Bond Date: | |
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| Final Maturity Date: | |
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| Registered Owner: | Cede & Co. |
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| Principal Amount: | $___________ |
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| Initial Adjustable Fixed Interest Rate: 7.25% |
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| Bond Number: R- | |
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| CUSIP: | 649437AH3 |
Promise to Pay. New York City Capital Resource Corporation, a local development corporation created pursuant to the Not-for-Profit Corporation Law of the State of New York at the direction of the Mayor of The City of New York (herein called the “Issuer”), for value received, hereby promises to pay as hereinafter provided, solely from the loan payments, revenues and receipts derived from or in connection with the Facility hereinafter referred to as provided in the Indenture of Trust hereinafter referred to, to the Registered Holder identified above or registered assigns, upon presentation and surrender hereof, on the Final Maturity Date set forth above, the Principal Amount set forth above, and in like manner to pay interest at the applicable Adjust able Fixed Interest Rate on the unpaid principal balance hereof from the Bond Date hereof until the Issuer’s obligation with respect to the payment of such Principal Amount shall be discharged. Interest shall be payable at the Adjustable Fixed Interest Rate on the first day of February, May, August and November (or if such day is not a Business Day, the immediately succeeding Business Day) commencing on August 1, 2010 and terminating on the Final Maturity Date, unless this bond is sooner redeemed or paid or otherwise discharged. Such interest shall be computed on the basis of a 360-day year of twelve 30-day months. In no event shall the interest rate payable hereon exceed (the “Maximum Interest Rate”) the lesser of (i) twelve percent (12%) per annum or (ii) the maximum permitted by, or enforceable under, applicable law.
This bond shall bear interest from the Bond Date indicated above, if authenticated prior to the first Interest Payment Date. If authenticated on or after the first Interest Payment Date, in exchange for or upon the registration of transfer of Bonds (as defined below), this bond shall bear interest from and including the Interest Payment Date next preceding the date of the authentication hereof, unless the date of such authentication shall be an Interest Payment Date to which interest hereon has been paid in full or duly provided for, in which case, this bond shall bear interest from and including such Interest Payment Date.
If there shall occur an Event of Default (other than by reason of a failure to redeem the Bonds in whole if there shall have occurred a Determination of Taxability), the rate of interest on the Bonds shall be fifteen percent (15%) per annum commencing with the date of the occurrence of the Event of Default and any additional interest thereby due with respect to a period of time for which interest has already been paid shall be payable on the Interest Payment Date next following the Event of Default. Any former Bondholder who was a Bondholder commencing on or after the date of the occurrence of the Event of Default, but who subsequent to such date sold or otherwise disposed of its Bonds or whose Bonds were redeemed or matured, shall be entitled to receive from the Company under the Loan Agreement (as such terms are hereinaft er defined) the following, in an amount allocable to such period during which it held the Bonds subsequent to the Event of Default and the date upon which the Bonds were sold, or otherwise disposed of, or redeemed or matured: the difference between the rate of interest borne by the Bonds prior to the Event of Default and the rate borne by the Bonds on and subsequent to such date.
If there shall occur a Determination of Taxability, the rate of interest on the Bonds shall be thirteen per centum (13%) per annum commencing with the date of the Event of Taxability and any additional interest thereby due with respect to a period of time for which interest has already been paid shall be payable on the Interest Payment Date next following the Determination of Taxability. Any former Bondholder who was a Bondholder commencing on or after the date of the occurrence of an Event of Taxability, but who subsequent to such date sold or otherwise disposed of its Bonds or whose Bonds were redeemed or matured, shall be entitled to receive from the Company under the Loan Agreement the following, in an amount allocable to such period during which it held the Bonds subsequent to the Event of Taxability and the date upon which the Bonds were sold, or otherwise disposed of, or redeemed or matured: the difference between the rate of interest borne by the Bonds prior to the Event of Taxability and the rate borne by the Bonds on and subsequent to such date.
Method of Currency. The principal of, Sinking Fund Installments for, Redemption Price, if applicable, Purchase Price and interest on the Bonds shall be payable in any coin or currency of the United States of America that on the respective dates of payment thereof is legal tender for the payment of public and private debts.
Payments. The principal of, Sinking Fund Installments for, and the Redemption Price, if applicable, on all Bonds shall be payable by check or draft at maturity or upon earlier redemption to the Persons in whose names such Bonds are registered on the bond registration books maintained by the Trustee as Bond Registrar at the maturity or redemption date thereof, upon the presentation and surrender of such Bonds at the designated corporate trust office of The Bank of New York Mellon in New York, New York, as trustee and paying agent (the “Paying Agent”), or at the corporate trust office of any successor Paying Agent.
The interest payable on each Bond on any Interest Payment Date shall be paid by the Trustee to the registered owner of such Bond as shown on the bond registration books of the Trustee as Bond Registrar at the close of business on the Regular Record Date for such interest, (1) by check or draft mailed to such registered owner at his address as it appears on the bond registration books or at such other address as is furnished to the Trustee in writing by such owner, or (2) if such Bonds are held by a Securities Depository or, at the written request addressed to the Trustee by any registered owner of Bonds in the aggregate principal amount of at least $1,000,000 that all such payments be made by wire transfer, by electronic transfer in immediately available funds to the bank for credit to the ABA routing number and account numb er filed with the Trustee no later than five (5) Business Days before an Interest Payment Date, but no later than a Regular Record Date for any interest payment.
Interest on any Bond that is due and payable but not paid on the date due (“Defaulted Interest”) shall cease to be payable to the owner of such Bond on the relevant Regular Record Date and shall be payable to the owner in whose name such Bond is registered at the close of business on a special record date (the “Special Record Date”) for the payment of such Defaulted Interest, which Special Record Date shall be fixed as provided in the Indenture.
Authorization and Purpose. This bond is one of an authorized issue of bonds designated as “New York City Capital Resource Corporation Recovery Zone Facility Revenue Bonds (Albee Retail Development LLC Project), Series 2010 (hereinafter called the “Bonds”) issued in the aggregate principal amount of $20,000,000. The Bonds are being issued under and pursuant to and in full compliance with the Constitution and laws of the State of New York, particularly the Not-for-Profit Corporation Law of the State of New York, and a resolution adopted by the members of the Issuer on February 9, 2010, as amended on April 13, 2010, authorizing the issuance of the Bonds and under and pursuant to an Indenture of Trust, dated as of July 1 , 2010 (as the same may be amended or supplemented, the “Indenture”), made and entered into by and between the Issuer and The Bank of New York Mellon, as trustee (said bank and any successor thereto under the Indenture being referred to herein as the “Trustee”), for the purpose of financing a portion of the cost of the construction, renovation, equipping and furnishing of an approximately 50,000 square foot facility (the “Facility”) to be leased to retail tenants (the “Project”). The site for the Facility, including the improvements to be constructed thereon, is subject to a certain Severance Lease (Site 1A), dated June 30, 2010 (as the same may be amended or supplemented, the “Ground Lease”), between The City of New York, as landlord, and Albee Development, LLC, a Delaware limited liability company (“Albee Development”), as assigned by Albee Development to, and assumed by, Albee Retail Development LLC, a limited liability com pany organized and existing under the laws of the State of Delaware (the “Company”), as tenant. In order to finance a portion of the costs of the Project, the Issuer has made a loan to the Company of the proceeds of the Bonds in the original amount pursuant to a certain Loan Agreement, dated as of July 1, 2010, between the Issuer and the Company (as the same may be amended or supplemented, the “Loan Agreement”), and the Company has executed a certain Promissory Note dated the date of original issuance of the Bonds in favor of the Issuer and the Trustee (as the same may be amended or supplemented, the “Promissory Note”) to evidence the Company’s obligation under the Loan Agreement to repay such loan. Each of the Loan Agreement and the Promissory Note requires the payment by the Company of loan payments sufficient to provide for the payment of the principal or Redemption Price, if any, of, Sinking Fund Installments for, Purchase Price, and in terest on the Bonds as the same become due. Copies of the Indenture, the Loan Agreement, the Promissory Note, the Pledge and Security Agreement hereinafter referred to, the Mortgage hereinafter referred to, the Project Completion Guaranty Agreement hereinafter referred to and the Bond Guaranty Agreement hereinafter referred to are on file at the designated corporate trust office of the Trustee in New York, New York, and reference is made to such documents for the provisions relating, among other things, to the terms and security of the Bonds, the charging and collection of loan payments, the custody and application of the proceeds of the Bonds, the rights and remedies of the holders of the Bonds, and the rights, duties and obligations of the Issuer, the Company, the Parent as hereinafter referred to and the Trustee.
Pledge and Security. Pursuant to the Indenture, the Issuer has assigned to the Trustee all of its right, title and interest in and to the Promissory Note and substantially all of its right, title and interest in and to the Loan Agreement, including all rights to receive loan payments sufficient to pay the principal or Redemption Price, if any, of, Sinking Fund Installments for, Purchase Price, and interest and all other amounts due on the Bonds as the same become due, to be made by the Company pursuant to the Loan Agreement and the Promissory Note. The Bonds are further secured by a first lien in Facility Revenues and the remainder of the Pledged Collateral pursuant to a certain Pledge and Security Agreement, dated as of July 1, 2010, from the Company to the Trustee (as the same may be amended or supplemented, the “Pledge and Security Agreement”). Further, the completion of the Project has been guaranteed by the Company and by Acadia Strategic Opportunity Fund II LLC, a limited liability company organized and existing under the laws of the State of Delaware (the “Parent”, and, together with the Company, being collectively, the “Guarantors”), pursuant to a Project Completion Guaranty Agreement, dated as of July 1, 2010, from the Guarantors to the Trustee (as the same may be amended or supplemented, the “Project Completion Guaranty Agreement”). The Bonds are also secured by mortgage liens on and security interests in the Company’s leasehold interest under the Ground Lease in the Facility, and an assignment of Facility leases and rents, pursuant to a Mortgage and Security Agreement and Assignment of Leases and Rents (Acquisition Loan), a Mortgage and Secu rity Agreement and Assignment of Leases and Rents (Building Loan) and a Mortgage and Security Agreement and Assignment of Leases and Rents (Indirect Loan), each dated as of July 1, 2010, and each from the Company to the Trustee (as each of the same may hereafter be amended or supplemented, collectively the “Mortgage”). The payment of the principal of, redemption premium, if any, Sinking Fund Installments for, Purchase Price, and the interest on the Bonds, and the payments, obligations, covenants and agreements of the Company under the Loan Agreement and under the Promissory Note, have been guaranteed by the Guarantors pursuant to a Bond Guaranty Agreement, dated as of July 1, 2010, from the Guarantors to the Trustee (as the same may hereafter be amended or supplemented, the “Bond Guaranty Agreement”).
The Bonds are special limited revenue obligations of the Issuer and shall never constitute a debt of the State of New York or of The City of New York, and neither the State of New York nor The City of New York shall be liable thereon, nor shall the Bonds be payable out of any funds of the Issuer other than those pledged therefor.
Reference is hereby made to the Indenture for the definition of any capitalized word or term used but not defined herein and for a description of the property pledged, assigned and otherwise available for the payment of the Bonds, the provisions, among others, with respect to the nature and extent of the security, the rights, duties and obligations of the Issuer, the Trustee and the holders of the Bonds, and the terms upon which the Bonds are issued and secured.
Additional Bonds. As provided in the Indenture, upon satisfying certain conditions including obtaining certain prescribed Bondholder consents, a Series of Additional Bonds may be issued from time to time in one or more series for the purpose of financing the cost of completing the Project, providing funds in excess of Net Proceeds to repair, relocate, replace, rebuild or restore the Facility in the event of damage, destruction or taking by eminent domain, providing extensions, additions or improvements to the Facility, or refunding outstanding Bonds (to the extent that such Bonds shall be subject to earlier redemption). All bonds issued and to be issued under the Indenture are and will be equally secured by the pledge and covenants made therein, exc ept as may otherwise be expressly provided in the Indenture.
Initial Adjustable Fixed Interest Rate. For the Initial Adjustable Fixed Interest Rate Term, the Bonds shall bear interest at seven and one-quarter percent (7¼%) per annum. The interest rate payable on the Bonds shall be adjusted on each Adjustment Date in accordance with the provisions of the Indenture and the Bonds.
Subsequent Adjustable Fixed Interest Rate Terms. Each Adjustable Fixed Interest Rate Term (other than the Initial Adjustable Fixed Interest Rate Term) shall commence on the Adjustment Date immediately following the end of the preceding Adjustable Fixed Interest Rate Term and will continue to but excluding the next succeeding Adjustment Date. For each Adjustable Fixed Interest Rate Term after the Initial Adjustable Fixed Interest Rate Term, the Adjustable Fixed Interest Rate Term shall be a period determined at the direction of the Company which is equal to one (1) whole year or any integral multiple of whole years, but in no event shall any such Adjustable Fixed Interest Rate Term extend beyond the Final Maturity Date of the Initial Bonds. 0;The Business Day immediately following the last day of each Adjustable Fixed Interest Rate Term as determined pursuant to the Indenture shall be the Adjustment Date. The Bonds are subject to mandatory purchase on each Adjustment Date.
Except as provided in the paragraph below, the interest rate applicable to the Bonds on and after each Adjustment Date shall be the interest rate determined by the Remarketing Agent on the Determination Date immediately preceding such Adjustment Date. The Adjustable Fixed Interest Rate applicable to the Bonds shall be the lower of (i) the lowest rate which, in the best professional judgment of the Remarketing Agent (having due regard to the prevailing market conditions), would be necessary to enable the Bonds to be sold at par on the Adjustment Date, provided that the Adjustable Fixed Interest Rate shall not exceed the Maximum Rate, or (ii) The Bond Buyer Revenue Bond Index (as published in The Bond Buyer or any successor publication thereto) for the most recent period for which such information is available as of the date the Adjustable Fixed Interest Rate is established, plus two hundred fifty (250) basis points. In the event that certain conditions to an Interest Rate Change required under the Indenture shall not be met, the interest rate on the Bonds then in effect shall remain in effect as the Adjustable Fixed Interest Rate for the next succeeding Adjustable Fixed Interest Rate Term, and the term of the next Adjustable Fixed Interest Rate Term shall be the shorter of (i) the same period as the immediately preceding Adjustable Fixed Interest Rate Term, or (ii) the period until the Final Maturity Date of the Bonds.
If the Remarketing Agent is unable to remarket all of the Bonds at the Adjustable Fixed Interest Rate determined by the Remarketing Agent as provided in the Indenture, the Remarketing Agent may at any time prior to the Adjustment Date increase the Adjustable Fixed Interest Rate to that rate of interest which, as of the date of determination, is the lowest rate which, in the best professional judgment of the Remarketing Agent (having due regard to the prevailing market conditions), would be necessary to enable the Bonds to be sold at par on the Adjustment Date; provided, however, that such re-determined Adjustable Fixed Interest Rate shall not exceed the Maximum Interest Rate.
Inability to Determine Adjustable Fixed Interest Rate. If, for any reason, the Adjustable Fixed Interest Rate for the Bonds is not or cannot be determined by the Remarketing Agent in the manner specified in the Indenture, the Adjustable Fixed Interest Rate will be equal to the closing yield, plus two hundred fifty (250) basis points, for Treasury Bills, Notes or Bonds, as applicable, of the maturity closest to, without exceeding, the term of the Adjustable Fixed Interest Rate Term determined in accordance with the Indenture, as such yield is published in the table captioned “U.S. Securities Prices” in the edition of The Bond Buyer (or if The Bond Buyer or such table is no longer published, any other published similar rate as is determined by the Tr ustee in its sole discretion to be appropriate) published on the day on which such Adjustable Fixed Interest Rate is determined, or if such yield or other similar rate is not published on that day, the day of the most recent publication of such yield or other similar rate.
Conclusiveness of Adjustable Fixed Interest Rate Determination. The determination in accordance with the Indenture of the Adjustable Fixed Interest Rate to be borne by the Bonds shall, in the absence of manifest error, be conclusive and binding on the holders of the Bonds.
Mandatory Tender of Bonds on each Purchase Date. On each Purchase Date, the Bonds shall be subject to mandatory tender for purchase by the Tender Agent at the Purchase Price.
IN THE EVENT OF A FAILURE BY HOLDERS OF BONDS TO TENDER BONDS FOR PURCHASE ON A PURCHASE DATE AS PROVIDED ABOVE, SAID HOLDERS OF BONDS SHALL NOT BE ENTITLED TO ANY PAYMENT (INCLUDING ANY INTEREST TO ACCRUE SUBSEQUENT TO THE PURCHASE DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNTENDERED BONDS, AND THE HOLDERS OF ANY UNTENDERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFITS OF THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE THEREOF, AND SHALL BE DEEMED PURCHASED, CANCELLED AND NO LONGER OUTSTANDING UNDER THE INDENTURE.
Maximum Rate. In no event shall the Adjustable Fixed Interest Rate (notwithstanding any other provision of this bond) exceed the Maximum Interest Rate.
General Interest Rate Limitation. Anything herein or in the Indenture to the contrary notwithstanding, the obligations of the Issuer hereunder and under the Indenture shall be subject to the limitation that payments of interest or other amounts hereon shall not be required to the extent that receipt of any such payment by a holder of this bond would be contrary to the provisions of law applicable to such holder of this bond which would limit the maximum rate of interest which may be charged or collected by such holder of this bond.
Redemption of Bonds. (A) General Optional Redemption. (1) During the Initial Adjustable Fixed Interest Rate Term, the Bonds shall be subject to redemption, on or after May 1, 2012, in whole at any time or in part on any Interest Payment Date (but if in part in integral multiples of $5,000 and in the minimum principal amount of $100,000) at the option of the Issuer (which option shall be exercised only upon the giving of notice by the Company of its intention to prepay loan payments due under the Loan Agreement), at the Redemption Price of one hundred percent (100%) of the unpaid principal amount of the Bonds to be redeemed, plus accrued interest to the date of rede mption.
(ii) During any Adjustable Fixed Interest Rate Term (other than the Initial Adjustable Fixed Interest Rate Term), the Bonds shall be subject to redemption, in whole at any time or in part on any Interest Payment Date (but if in part in integral multiples of $5,000 and in the minimum principal amount of $100,000) at the option of the Issuer (which option shall be exercised only upon the giving of notice by the Company of its intention to prepay loan payments due under the Loan Agreement), at the Redemption Price of one hundred percent (100%) of the unpaid principal amount of the Initial Bonds to be redeemed, plus accrued interest to the date of redemption, commencing on or after that date (the “Firs t Optional Redemption Date”) as determined below:
(A) if there shall be ten (10) or less years in such Adjustable Fixed Interest Rate Term, the First Optional Redemption Date shall be the second (2nd) anniversary of the date of commencement of such Adjustable Fixed Interest Rate Term, and
(B) if there shall be more than ten (10) years in such Adjustable Fixed Interest Rate Term, the First Optional Redemption Date shall be the fifth (5th) anniversary of the date of commencement of such Adjustable Fixed Interest Rate Term.
(b) Extraordinary Redemption. The Bonds are also subject to redemption prior to maturity, at the option of the Issuer exercised at the direction of the Company (which option shall be exercised only upon the giving of notice by the Company of its intention to prepay loan payments due under the Loan Agreement), as a whole on any date, upon notice or waiver of notice as provided in the Indenture, at a Redemption Price of one hundred percent (100%) of the unpaid principal amount thereof plus accrued interest to the date of redemption, if one or more of the following events shall have occurred:
(i) The Facility shall have been damaged or destroyed to such extent that, as evidenced by a certificate of an Independent Engineer filed with the Issuer and the Trustee, (A) the Facility cannot be reasonably restored within a period of one year from the date of such damage or destruction to the condition thereof immediately preceding such damage or destruction, (B) the Company is thereby prevented or likely to be prevented from carrying on its normal operation at the Facility for a period of one year from the date of such damage or destruction, or (C) the restoration cost of the Facility would exceed the total amount of all insurance proceeds, including any deductible amount, in respect o f such damage or destruction; or
(ii) Title to, or the temporary use of, all or substantially all of the Facility shall have been taken or condemned by a competent authority which taking or condemnation results, or is likely to result, in the Company being thereby prevented or likely to be prevented from carrying on its normal operation at the Facility for a period of one year from the date of such taking or condemnation, as evidenced by a certificate of an Independent Engineer filed with the Issuer and the Trustee; or
(iii) As a result of changes in the Constitution of the United States of America or of the State or of legislative or executive action of the State or any political subdivision thereof or of the United States of America or by final decree or judgment of any court after the contest thereof by the Company, the Loan Agreement becomes void or unenforceable or impossible of performance in accordance with the intent and purpose of the parties as expressed therein or unreasonable burdens or excessive liabilities are imposed upon the Company by reason of the operation of the Facility.
If the Bonds are to be redeemed in whole as a result of the occurrence of any of the events described above, the Company shall deliver to the Issuer and the Trustee a certificate of an Authorized Representative of the Company stating that, as a result of the occurrence of the event giving rise to such redemption, the Company has discontinued, or at the earliest practicable date will discontinue, its operation of the Facility for its intended purposes.
(c) Mandatory Sinking Fund Installment Redemption. The Bonds shall be subject to mandatory redemption by the Issuer prior to maturity, in part by lot, at a Redemption Price equal to one hundred percent (100%) of the principal amount thereof, together with accrued interest to the date of redemption, from mandatory Sinking Fund Installments on the dates and in the principal amounts set forth below, provided that the amounts of such Sinking Fund Installments shall be reduced by the credits provided for in the Indenture:
Sinking Fund Installment Payment Date | Sinking Fund Installment |
| | |
| May 1, 2015 | $115,000 |
| November 1, 2015 | 120,000 |
| May 1, 2016 | 125,000 |
| November 1, 2016 | 125,000 |
| May 1, 2017 | 130,000 |
| November 1, 2017 | 135,000 |
| May 1, 2018 | 140,000 |
| November 1, 2018 | 145,000 |
| May 1, 2019 | 150,000 |
Sinking Fund Installment Payment Date | Sinking Fund Installment |
| November 1, 2019 | 155,000 |
| May 1, 2020 | 165,000 |
| November 1, 2020 | $170,000 |
| May 1, 2021 | 175,000 |
| November 1, 2021 | 180,000 |
| May 1, 2022 | 190,000 |
| November 1, 2022 | 195,000 |
| May 1, 2023 | 200,000 |
| November 1, 2023 | 210,000 |
| May 1, 2024 | 215,000 |
| November 1, 2024 | 225,000 |
| May 1, 2025 | 235,000 |
| November 1, 2025 | 240,000 |
| May 1, 2026 | 250,000 |
| November 1, 2026 | 260,000 |
| May 1, 2027 | 270,000 |
| November 1, 2027 | 280,000 |
| May 1, 2028 | 290,000 |
| November 1, 2028 | 300,000 |
| May 1, 2029 | 310,000 |
| November 1, 2029 | 320,000 |
| May 1, 2030 | 335,000 |
| November 1, 2030 | 345,000 |
| May 1, 2031 | 355,000 |
| November 1, 2031 | 370,000 |
| May 1, 2032 | 385,000 |
| November 1, 2032 | 400,000 |
| May 1, 2033 | 410,000 |
| November 1, 2033 | 425,000 |
| May 1, 2034 | 440,000 |
| November 1, 2034 | 460,000 |
| May 1, 2035 | 475,000 |
| November 1, 2035 | 490,000 |
| May 1, 2036 | 510,000 |
| November 1, 2036 | 530,000 |
| May 1, 2037 | 545,000 |
| November 1, 2037 | 565,000 |
| May 1, 2038 | 590,000 |
| November 1, 2038 | 610,000 |
| May 1, 2039 | 630,000 |
| November 1, 2039 | 655,000 |
| May 1, 2040 | 680,000 |
| November 1, 2040 | 700,000 |
| May 1, 2041 | 730,000 |
| November 1, 2041 | 755,000 |
| May 1, 2042 | 780,000 |
| November 1, 2042 (final maturity) | 810,000 |
(d) Mandatory Redemption from Excess Proceeds and Certain Other Amounts. The Bonds shall be redeemed at any time in whole or in part by lot prior to maturity in the event and to the extent
(i) excess Bond proceeds shall remain after the completion of the Project,
(ii) excess title insurance or property insurance proceeds or condemnation awards shall remain after the application thereof pursuant to the Loan Agreement and this Indenture, or
(iii) excess proceeds shall remain after the release or substitution of fixtures or other portions of the Facility,
in each case at a Redemption Price equal to one hundred percent (100%) of the principal amount of the Bonds to be redeemed, together with interest accrued thereon to the date of redemption.
(e) Mandatory Redemption Upon Failure to Operate the Facility for Approved Project Operations, Material Violation of Material Legal Requirements, False Representation or Failure to Maintain Liability Insurance. The Bonds are also subject to mandatory redemption prior to maturity, at the option of the Issuer, as a whole only, in the event (i) the Issuer shall determine that (w) the Company is operating the Facility or any portion thereof, or is allowing the Facility or any portion thereof to be operated, not for the Approved Project Operations, (x) the Company, any Principal of the Company or any Person that directly or indirectly Controls, is Controlled by or is under common Control with the Company has committed a material violation of a material Legal Requirement, (y) any Conduct Representation is false, misleading or incorrect in any material respect at any date, as if made on such date, or (z) a Required Disclosure Statement delivered to the Issuer under any Project Document is not acceptable to the Issuer acting in its sole discretion, or (ii) the Company shall fail to obtain or maintain the public liability insurance with respect to the Facility required under the Loan Agreement, and, in the case of clause (i) or (ii) above, the Company shall fail to cure any such default or failure within the applicable time periods set forth in the Loan Agreement following the receipt by the Company of written notice of such default or failure from the Issuer and a demand by the Issuer on the Company to cure the same. Any such redemption shall be made upon notice or waiver of notice to the Bondhol ders as provided in this Indenture, at the Redemption Price of one hundred percent (100%) of the unpaid principal amount of the Bonds, together with interest accrued thereon to the date of redemption.
(f) Mandatory Taxability Redemption. Upon the occurrence of a Determination of Taxability, the Bonds shall be redeemed prior to maturity on any date within one hundred twenty (120) days following such Determination of Taxability, at a Redemption Price equal to one hundred percent (100%) of the principal amount thereof, together with accrued interest at the annual rate of thirteen percent (13%) from the occurrence of the Event of Taxability to the date of redemption. The Bonds shall be redeemed in whole unless redemption of a portion of the Bonds Outstanding would have the result that interest payable on the Bonds remain ing Outstanding after such redemption would not be includable in the gross income of any Holder of a Bond (other than a Holder who is a “substantial user” of the Facility or a “related person”, within the meaning of the Code). In such event, the Bonds shall be redeemed in such amount as is deemed necessary in the opinion of Nationally Recognized Bond Counsel to accomplish that result.
(g) Purchase in Lieu of Optional Redemption. In lieu of calling Bonds for optional redemption, Bonds shall be subject to mandatory tender for purchase at the direction of the Issuer, upon the direction of the Company, in whole or in part (and, if in part, in such manner as determined by the Company) on any date, at a Purchase Price equal to the applicable Redemption Price for any optional redemption of such Bonds as provided above, plus accrued interest to the purchase date. Purchases in lieu of an optional redemption shall be permitted, with the consent of the Issuer, upon the delivery to the Issuer and the Trustee of (i) an opinion of Nationally Recognized Bond Counsel addressed to the Issuer and the Trustee substantially to the effect that (A) such purchases in lieu of optional redemption comply with the provisions of the Indenture and (B) neither such purchases in lieu of an optional redemption nor any transaction directly related thereto will adversely affect the exclusion from gross income of interest on the Bonds for purposes of federal income taxation, and (ii) such other opinions, certificates or documentation as the Issuer may require.
Redemption Procedures. If any of the Bonds are to be called for redemption, the Indenture requires a copy of the redemption notice to be mailed at least thirty (30) days prior to such redemption date to the registered owner of each Bond to be redeemed at the address shown on the registration books. All Bonds so called for redemption will cease to bear interest after the date fixed for redemption if funds for their redemption are on deposit at the place of payment at that time. If notice of redemption shall have been given as aforesaid, the Bonds called for redemption shall become due and payable on the redemption date, provided, however, that with respect to any optional redemption of the Bonds as provided in this bond, such notice shall state that such redemption shall be conditional upon the receipt by the Trustee on or prior to the date fixed for such redemption of moneys sufficient to pay the principal of, redemption premium, if any, and interest on such Bonds to be redeemed, and that if such moneys shall not have been so received said notice shall be of no force and effect and the Issuer shall not be required to redeem such Bonds. In the event that such notice of optional redemption contains such a condition and such moneys are not so received, the redemption shall not be made and the Trustee shall within a reasonable time thereafter give notice, in the manner in which the notice of redemption was given, that such moneys were not so received. If a notice of optional redemption shall be unconditional, or if the conditions of a conditional notice of optional redemption shall have been satisfied, then upon presentation and surrender of Bonds so called for redemption at the place or places of payment, such Bonds shall be redeemed.
Remarketing Agent; Tender Agent. The initial Remarketing Agent under the Indenture is Roosevelt & Cross Incorporated, New York, New York. The initial Tender Agent under the Indenture is The Bank of New York Mellon, New York, New York. The Remarketing Agent and the Tender Agent may be changed at any time in accordance with the Indenture.
Amendment of Indenture. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the holders of the Bonds at any time by the Issuer with the consent of the holders of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding thereunder. Any such consent shall be conclusive and binding upon each such holder and upon all future holders of each Bond and of any such Bond issued upon the transfer thereof, whether or not notation of such consent is made thereon.
Denominations. The Bonds are issuable in the form of fully registered bonds in the denomination of $100,000 or any integral multiple of $5,000 in excess thereof.
Exchange of Bonds. The holder of this bond may surrender the same, at the designated corporate trust office of the Trustee, in exchange for an equal aggregate principal amount of Bonds of any of the Authorized Denominations of the same maturity and maturities and interest rate as this bond or the Bonds so surrendered, subject to the conditions and upon payment of the charges provided in the Indenture. However, the Trustee will not be required to (i) transfer or exchange any Bonds during the period between a Record Date and the following Interest Payment Date or during the period of fifteen (15) days next preceding any day for the selection of Bonds to be redeemed, (ii) transfer or exchange any Bonds selected, called or being called for red emption in whole or in part, or (iii) register any transfer of or exchange any Bond which is subject to mandatory purchase.
Transfer of Bonds. This bond is transferable, as provided in the Indenture, only upon the books of the Issuer kept for that purpose at the designated corporate trust office of the Trustee by the registered owner hereof in person, or by his duly authorized attorney-in-fact, upon surrender of this bond (together with a written instrument of transfer in the form appearing on this bond duly executed by the registered owner or his duly authorized attorney-in-fact with a guaranty of the signature thereon by a member of the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Medallion Signature Program in accordance with Securities and Exchange Commission Rule 17Ad-15, and thereupon a new fully registered Bond in the same aggregate principal amount and maturity and interest rate shall be issued to the transferee in exchange therefor as provided in the Indenture and upon payment of the charges therein prescribed. The Issuer, the Bond Registrar, the Trustee and any Paying Agent may deem and treat the Person in whose name this bond is registered as the absolute owner hereof for the purpose of receiving payment of, or on account of, the principal or Redemption Price hereof, the Sinking Fund Installments therefor, and interest due hereon and for all other purposes whatsoever, and all payments made to any such registered owner or upon his order shall be valid and effectual to satisfy and discharge the liability upon such Bond to the extent of the sum or sums so paid, and neither the Issuer, the Company, the Bond Registrar, the Trustee, the Tender Agent, the Remarketing Agent nor any Paying Agent shall be affected by any notice to the contrary.
In all cases in which the privilege of transferring or exchanging Bonds is exercised, the Issuer or the Trustee may make a charge sufficient to reimburse it for any expenses and any tax, fee or other governmental charge required to be paid in connection therewith; any such expenses shall be paid by the Company but any such tax, fee or other governmental charge shall be paid by the Holder requesting such transfer or exchange.
Book Entry System. The Bonds are being issued by means of a book entry system with no physical distribution of bond certificates to be made except as provided in the Indenture. One Bond certificate with respect to each date on which the Bonds are stated to mature, registered in the nominee name of the Securities Depository, is being issued and required to be deposited with the Securities Depository and immobilized in its custody or in the custody of its agent. The book entry system will evidence positions held in the Bonds by the Securities Depository’s Participants, beneficial ownership of the Bonds in Authorized Denominations being evidenced in the records of such Participan ts. Transfers of ownership shall be effected on the records of the Securities Depository and its Participants pursuant to rules and procedures established by the Securities Depository and its Participants. The Issuer and the Trustee will recognize the Securities Depository nominee, while the registered owner of this bond, as the owner of this bond for all purposes, including (i) payments of principal of, Sinking Fund Installments for, if any, Purchase Price, redemption premium, if any, and interest on, this bond, (ii) notices, and (iii) voting. Transfer of principal, Sinking Fund Installments, Purchase Price, interest and any redemption premium payments to Participants of the Securities Depository, and transfer of principal, Sinking Fund Installments, Purchase Price, interest and any redemption premium payments to Beneficial Owners of the Bonds by Participants of the Securities Depository will be the responsibility of such Participants and other nominees of suc h Beneficial Owners. The Issuer and the Trustee will not be responsible or liable for such transfers of payments or for maintaining, supervising or reviewing the records maintained by the Securities Depository, the Securities Depository nominee, its Participants or persons acting through such Participants. While the Securities Depository nominee is the owner of this bond, notwithstanding the provision hereinabove contained, payments of principal of, Sinking Fund Installments, if any, Purchase Price, redemption premium, if any, and interest on this bond shall be made in accordance with existing arrangements among the Issuer, the Trustee and the Securities Depository.
Acceleration of Bonds. In certain events, on the conditions, in the manner and with the effect set forth in the Indenture, the principal of all the Bonds and Additional Bonds issued under the Indenture and then Outstanding may be declared and may become due and payable before the stated maturities thereof, together with accrued interest thereon.
Limitation on Bondholder Enforcement Rights. The holder of this bond shall have no right to enforce the provisions of the Indenture, to institute action to enforce the provisions and covenants thereof or to institute, appear in or defend any suit or other proceedings with respect thereto, except as provided in the Indenture.
Special Obligation of the Issuer. This bond and the issue of which it forms a part are special limited revenue obligations of the Issuer, payable by the Issuer solely out of the loan payments, revenues or other receipts, funds or moneys of the Issuer pledged under the Indenture and from any amounts otherwise available under the Indenture for the payment of the Bonds.
Estoppel Clause. It is hereby certified, recited and declared that all conditions, acts and things required by law and the Indenture to exist, to have happened and to have been performed precedent to and in the issuance of this bond, exist, have happened and have been performed, and that the issuance of this bond and the issue of which it forms a part are within every debt and other limit prescribed by the laws of the State of New York.
No Personal Liability. Neither the members, directors, officers or agents of the Issuer nor any person executing this bond shall be liable personally or be subject to any personal liability or accountability by reason of the issuance hereof.
Authentication by Trustee. 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.
IN WITNESS WHEREOF, the New York City Capital Resource Corporation has caused this bond to be executed in its name by the manual or facsimile signature of its Chairman, Vice Chairman, Executive Director, Deputy Executive Director, General Counsel or Vice President for Legal Affairs and its official seal or a facsimile thereof to be hereunto impressed or imprinted hereon and attested by the manual or facsimile signature of its Secretary, Assistant Secretary, Executive Director, Deputy Executive Director, General Counsel or Vice President for Legal Affairs, all as of the Bond Date indicated above.
| | NEW YORK CITY CAPITAL RESOURCE CORPORATION | |
| | | |
| | | |
| | | | |
| | By: | | |
| | | Executive Director | |
| | | | |
(SEAL)
ATTEST:
______________________
Assistant Secretary
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This bond is one of the Bonds of the issue described in the within-mentioned Indenture.
| | | |
| | THE BANK OF NEW YORK MELLON, | |
| | as Trustee | |
| | | | |
| | By: | | |
| | | Authorized Signatory | |
| | | | |
| | | | |
Date of Authentication: _______________________
(FORM OF ASSIGNMENT)
ASSIGNMENT
FOR VALUE RECEIVED the undersigned sells, assigns and transfers unto
(Please print or typewrite name, address and taxpayer identification number of transferee)
the within bond and does hereby irrevocably constitute and appoint _____________________ Attorney to transfer such bond on the books kept for the registration thereof, with full power of substitution in the premises.
Dated: _____________________
____________________________________
NOTICE: The signature to this assignment must correspond with the name as it appears on the face of the within bond in every particular, without alteration or enlargement or any change whatever.
SIGNATURE GUARANTEED
MEDALLION GUARANTEED
__________________________________
Authorized Signature
(Signature Guarantee Program Name)
[Signature Guarantee by (must be by a member of the Stock Exchange Medallion Program or the New York Stock Exchange, Inc. Signature Program in accordance with Securities and Exchange Commission Rule 17Ad-15)]
[END OF FORM OF INITIAL BOND]
EXHIBIT D
Form of Requisition from the Construction Account of the Project Fund
REQUISITION NO.
| TO: | The Bank of New York Mellon, |
| | as Trustee |
| | |
| FROM: | Albee Retail Development LLC |
Ladies and Gentlemen:
You are requested to draw from the Construction Account of the Project Fund, established by Section 5.01 of the Indenture of Trust, dated as of July 1, 2010 (the “Indenture”), between the New York City Capital Resource Corporation (the “Issuer”) and yourself, a check or checks in the amounts, payable to the order of those persons and for the purpose of paying those costs set forth on Schedule A attached hereto. All capitalized terms used in this Requisition not otherwise defined herein shall have the meanings given such terms by the Indenture or by the Loan Agreement referred to in the Indenture.
I hereby certify that
(i) I am an Authorized Representative of Albee Retail Development LLC (the “Company”);
(ii) the number of this Requisition is ____;
(iii) the items of cost set forth on Schedule A attached hereto are correct and proper under Section 5.02 of the Indenture and under Section 3.2 of the Loan Agreement and each such item has been properly paid or incurred as an item of Project Cost;
(iv) none of the items for which this Requisition is made has formed the basis for any disbursement heretofore made from the Project Fund;
(v) the payees and amounts stated in Schedule A attached hereto are true and correct and each item of cost so stated is due and owing;
(vi) each such item stated in Schedule A attached hereto is a proper charge against the Project Fund;
(vii) each such item in Schedule A attached hereto represents the value of work actually furnished, or labor or services actually rendered and no item relates to materials, that are not incorporated into the improvement or deposits toward same;
(viii) each item of cost set forth in Schedule A attached hereto is consistent in all material respects with the Tax Regulatory Agreement;
(ix) if the payment herein requested is a reimbursement to the Company for costs or expenses of the Company incurred by reason of work performed or supervised by officers or employees of the Company or any Affiliate, such officers or employees were specifically employed for such purpose and the amount to be paid does not exceed the actual cost thereof to the Company and such costs or expenses will be treated by the Company on its books as a capital expenditure in conformity with generally accepted accounting principles applied on a consistent basis;
(x) no portion of the proceeds of the Bonds will be applied to reimburse the Company for Project Costs paid more than sixty (60) days prior to February 9, 2010, the date the Issuer adopted its authorizing resolution for the Project, except for amounts which do not exceed twenty percent (20%) of the Project Costs financed with the proceeds of the Bonds which were applied to finance certain preliminary expenses with respect to the Project. Preliminary expenses, for purposes of this exception, include architectural, engineering, surveying, soil testing and similar costs incurred prior to the commencement of construction or rehabilitation of the Project, but do not include land acquisition, s ite preparation and similar costs incident to the commencement of construction or rehabilitation of the Project. No portion of the proceeds of the Bonds will be applied to reimburse the Company for a cost (other than preliminary expenditures) paid more than eighteen (18) months prior to the date of this requisition or the date the Facility to which the cost relates was placed in service, whichever is later. In no event shall the proceeds of the Bonds be applied to reimburse the Company for a Project Cost paid more than three (3) years prior to the date of issuance of the Bonds, unless such cost is attributable to a preliminary expenditure, as described above;
(xi) no Determination of Taxability has occurred, and no Event of Default exists and is continuing under the Indenture or the Loan Agreement or any other Security Document nor any condition, event or act which, with notice or lapse of time or both, would constitute such an Event of Default;
(xii) I have no knowledge of any vendor’s lien, mechanic’s lien or security interest which should be satisfied or discharged before the payment herein requested is made or which will not be discharged by such payment or, to the extent that any such costs shall be the subject of a bona fide dispute, for which such costs have not been appropriately bonded or for which a surety or security has not been posted which is at least equal to the amount of such costs;
(xiii) each item which payment under this requisition is to be made when added to all other payments previously made from the Project Fund, will not result in less than 95% of the proceeds of the Bonds (exclusive of costs of issuance of the Bonds or any reasonably required reserve) (including any earnings thereon) being used for the acquisition, construction, reconstruction or improvement of land or property that is subject to the allowance for depreciation provided in section 167 of the Code;
(xiv) such item of cost for which payment is herein requested is chargeable to the capital account of the Facility for Federal income tax purposes, or would be so chargeable either with an election by the Company or but for the election of the Company to deduct the amount of such item;
(xv) none of the items being requisitioned constitute “profit” to any Entity affiliated with, or related to, the Company; and
(xvi) the representations and warranties made by the Company in the Security Documents are correct on and as of the date of such disbursement as though made on and as of such date, except to the extent that such representations and warranties relate solely to an earlier date.
Attached to this Requisition is a schedule of or a copy of bills, invoices or other documents evidencing and supporting this Requisition.
Dated: _________________
| | ALBEE RETAIL DEVELOPMENT LLC | |
| | | |
| | | |
| | | | |
| | By: | | |
| | | Authorized Representative | |
| | | | |
SCHEDULE A TO REQUISITION NO. ___
| Amount | Payee (with address) | Purpose |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
Receipt is hereby acknowledged of a payment in the amount of $___________ in connection with the submission of the attached Requisition.
| | ALBEE RETAIL DEVELOPMENT LLC | |
| | | |
| | | |
| | | | |
| | By: | | |
| | | | |
| | | | |
Date: _______________
TABLE OF CONTENTS
Page
| ARTICLE I |
| | | |
| Section 1.01. | Definitions | 5 |
| Section 1.02. | Construction. | 23 |
| |
| ARTICLE II |
| |
| AUTHORIZATION AND ISSUANCE OF BONDS |
| | | |
| Section 2.01. | Authorized Amount of Bonds; Pledge Effected by this Indenture | 25 |
| Section 2.02. | Issuance and Terms of the Initial Bonds | 25 |
| Section 2.03. | Determination of Adjustable Fixed Interest Rate | 28 |
| Section 2.04. | Redemption of Initial Bonds | 30 |
| Section 2.05. | Delivery of Initial Bonds | 36 |
| Section 2.06. | Execution of Bonds | 36 |
| Section 2.07. | Authentication | 36 |
| Section 2.08. | Additional Bonds | 37 |
| Section 2.09. | CUSIP Numbers | 39 |
| Section 2.10. | Book Entry Bonds | 40 |
| |
| ARTICLE III |
| |
| GENERAL TERMS AND PROVISIONS OF BONDS |
| | | |
| Section 3.01. | Date of Bonds | 43 |
| Section 3.02. | Form and Denominations | 43 |
| Section 3.03. | Legends | 43 |
| Section 3.04. | Medium of Payment | 43 |
| Section 3.05. | Bond Details | 43 |
| Section 3.06. | Interchangeability, Transfer and Registry | 44 |
| Section 3.07. | Bonds Mutilated, Destroyed, Stolen or Lost | 45 |
| Section 3.08. | Cancellation and Destruction of Bonds | 45 |
| Section 3.09. | Requirements With Respect to Transfers | 45 |
| Section 3.10. | Bond Registrar | 45 |
| Section 3.11. | Payments Due on Saturdays, Sundays and Holidays | 46 |
| |
| ARTICLE IV |
| |
| APPLICATION OF BOND PROCEEDS AND OTHER AMOUNTS |
| | | |
| Section 4.01. | Application of Proceeds of Initial Bonds | 47 |
| Section 4.02. | Deposit in the Advance Interest Deposit Fund | 47 |
TABLE OF CONTENTS
(continued)
Page
| |
| ARTICLE V |
| |
| CUSTODY AND INVESTMENT OF FUNDS |
| | | |
| Section 5.01. | Creation of Funds and Accounts | 48 |
| Section 5.02. | Project Fund | 48 |
| Section 5.03. | Application of Advance Interest Deposit Fund | 50 |
| Section 5.04. | Payments into Renewal Fund; Application of Renewal Fund | 51 |
| Section 5.05. | Payments into Bond Fund | 53 |
| Section 5.06. | Application of Bond Fund Moneys | 54 |
| Section 5.07. | Payments into Earnings Fund; Application of Earnings Fund | 56 |
| Section 5.08. | Payments into Rebate Fund; Application of Rebate Fund | 56 |
| Section 5.09. | Purchase Fund | 57 |
| Section 5.10. | Transfer to Rebate Fund | 58 |
| Section 5.11. | Investment of Funds and Accounts | 58 |
| Section 5.12. | Application of Moneys in Certain Funds for Retirement of Bonds | 59 |
| Section 5.13. | Repayment to the Company from the Funds | 60 |
| Section 5.14. | Non-presentment of Bonds | 60 |
| |
| ARTICLE VI |
| |
| REDEMPTION OF BONDS |
| | | |
| Section 6.01. | Privilege of Redemption and Redemption Price | 61 |
| Section 6.02. | Selection of Bonds to be Redeemed | 61 |
| Section 6.03. | Notice of Redemption | 61 |
| Section 6.04. | Payment of Redeemed Bonds | 63 |
| Section 6.05. | Cancellation of Redeemed Bonds | 63 |
| Section 6.06. | No Partial Redemption After Default | 63 |
| |
| ARTICLE VII |
| |
| PARTICULAR COVENANTS |
| | | |
| Section 7.01. | Payment of Principal and Interest | 64 |
| Section 7.02. | Performance of Covenants; Authority | 64 |
| Section 7.03. | Books and Records; Certificate as to Defaults | 64 |
| Section 7.04. | Loan Agreement | 65 |
| Section 7.05. | Creation of Liens; Indebtedness | 65 |
| Section 7.06. | Ownership; Instruments of Further Assurance | 65 |
| Section 7.07. | Security Agreement; Recording and Filing | 65 |
| Section 7.08. | Issuer Tax Covenant | 68 |
TABLE OF CONTENTS
(continued)
Page
| |
| ARTICLE VIII |
| |
| EVENTS OF DEFAULT; REMEDIES OF BONDHOLDERS |
| | | |
| Section 8.01. | Events of Default; Acceleration of Due Date | 69 |
| Section 8.02. | Enforcement of Remedies | 70 |
| Section 8.03. | Application of Revenues and Other Moneys After Default | 71 |
| Section 8.04. | Actions by Trustee | 72 |
| Section 8.05. | Majority Holders Control Proceedings | 73 |
| Section 8.06. | Individual Bondholder Action Restricted | 73 |
| Section 8.07. | Effect of Discontinuance of Proceedings | 73 |
| Section 8.08. | Remedies Not Exclusive | 73 |
| Section 8.09. | Delay or Omission | 74 |
| Section 8.10. | Notice of Default | 74 |
| Section 8.11. | Waivers of Default | 74 |
| |
| ARTICLE IX |
| |
| TRUSTEE, BOND REGISTRAR, PAYING AGENTS, TENDER AGENT AND REMARKETING AGENT |
| | | |
| Section 9.01. | Appointment and Acceptance of Duties of Trustee | 75 |
| Section 9.02. | Indemnity of Trustee | 75 |
| Section 9.03. | Responsibilities of Trustee | 75 |
| Section 9.04. | Compensation of Trustee, Bond Registrar, Paying Agents, Tender Agent and Remarketing Agent | 77 |
| Section 9.05. | Evidence on Which Trustee May Act | 77 |
| Section 9.06. | Trustee, Paying Agents, Tender Agent and Remarketing Agent May Deal in Bonds | 77 |
| Section 9.07. | Resignation or Removal of Trustee | 77 |
| Section 9.08. | Successor Trustee | 78 |
| Section 9.09. | Paying Agents | 80 |
| Section 9.10. | Appointment of Co-Trustee | 80 |
| Section 9.11. | Tender Agent - Appointment, Acceptance and Successors. | 81 |
| Section 9.12. | Tender Agent - General Responsibilities | 82 |
| Section 9.13. | Remarketing Agent - Appointment, Acceptance and Successors | 84 |
| Section 9.14. | Remarketing Agent - General Responsibilities | 85 |
| Section 9.15. | Cooperation Among Certain of the Notice Parties. | 87 |
TABLE OF CONTENTS
(continued)
Page
| |
| ARTICLE X |
| |
| DISCHARGE OF INDENTURE; DEFEASANCE |
| | | |
| Section 10.01. | Defeasance | 88 |
| Section 10.02. | Defeasance Opinion and Verification | 89 |
| Section 10.03. | No Limitation of Rights of Holders | 89 |
| |
| ARTICLE XI |
| |
| AMENDMENTS OF INDENTURE |
| | | |
| Section 11.01. | Limitation on Modifications | 90 |
| Section 11.02. | Supplemental Indentures Without Bondholders’ Consent | 90 |
| Section 11.03. | Supplemental Indentures With Bondholders’ Consent | 91 |
| Section 11.04. | Supplemental Indenture Part of this Indenture | 92 |
| |
| ARTICLE XII |
| |
| AMENDMENTS OF RELATED SECURITY DOCUMENTS |
| | | |
| Section 12.01. | Rights of Company | 94 |
| Section 12.02. | Amendments of Related Security Documents Not Requiring Consent of Bondholders | 94 |
| Section 12.03. | Amendments of Related Security Documents Requiring Consent of Bondholders | 94 |
| |
| ARTICLE XIII |
| |
| MISCELLANEOUS |
| | | |
| Section 13.01. | Evidence of Signature of Bondholders and Ownership of Bonds | 96 |
| Section 13.02. | Notices | 96 |
| Section 13.03. | Parties Interested Herein | 98 |
| Section 13.04. | Partial Invalidity | 98 |
| Section 13.05. | Effective Date; Counterparts | 98 |
| Section 13.06. | Laws Governing Indenture | 98 |
| Section 13.07. | No Pecuniary Liability of Agency or Members; No Debt of the State or the City | 98 |
| Section 13.08. | Priority of Indenture Over Liens | 99 |
TABLE OF CONTENTS
(continued)
Page
EXHIBITS
Exhibit A — Description of Land
Exhibit B — Description of Facility Personalty
Exhibit C — Form of Initial Bond
Exhibit D — Form of Requisition from the Project Fund
