(10.1)
Execution Copy
INDENTURE OF TRUST
by and between
ATLANTIC AMERICAN CORPORATION
and
THE BANK OF NEW YORK,
as Trustee
Dated as of June 1, 1999
Relating to the Issuance of
$25,000,000 TAXABLE
VARIABLE RATE DEMAND BONDS,
SERIES 1999
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.1 .........................................Defined Terms
1
Section 1.2...................................Rules of Construction
13
ARTICLE II
THE BONDS
Section 2.1..............................Authorized Amount of Bonds
13
Section 2.2.......................................Issuance of Bonds
13
Section 2.3.................................Interest Rates on Bonds
14
Section 2.4........Conversion of Interest Rate Determination Method
19
Section 2.5..............................................[Reserved]
21
Section 2.6............................Tender of Bonds for Purchase
21
Section 2.7....................................Remarketing of Bonds
24
Section 2.8.............................Delivery of Purchased Bonds
25
Section 2.9...............................................Execution
26
Section 2.10..........................Certificate of Authentication
26
Section 2.11..........................................Form of Bonds
27
Section 2.12......................................Delivery of Bonds
27
Section 2.13.............Mutilated, Lost, Stolen or Destroyed Bonds
30
Section 2.14Exchangeability and Transfer of Bonds; Persons Treated as Owners
31
Section 2.15......................................Replacement Bonds
32
Section 2.16...........................................Cancellation
32
Section 2.17........................................Ratably Secured
32
Section 2.18.......Redemption of Bonds; Partial Redemption of Bonds
32
Section 2.19...................................Notice of Redemption
34
Section 2.20......................................Book Entry System
35
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY;
CREDIT FACILITY
Section 3.1Representations, Warranties and Covenants of the Company
36
Section 3.2...................................Covenant to Pay Bonds
37
Section 3.3....Covenant to Perform Obligations Under This Indenture
38
Section 3.4Corporate Existence, Sale of Assets, Consolidation or Merger; Notice
of Certain Acquisitions of Control....................38
Section 3.5....................................Compliance with Laws
38
Section 3.6...............................Maintenance of Properties
38
Section 3.7.......................Payment of Taxes and Other Claims
39
Section 3.8.........................................Credit Facility
39
ARTICLE IV
FUNDS
Section 4.1Establishment and Use of Bond Fund, Current Account and Bond Fund
Subaccounts...........................................42
Section 4.2......................Establishment and Use Initial Fund
43
Section 4.3..............................................[Reserved]
44
Section 4.4.............Establishment and Use of Bond Purchase Fund
44
Section 4.5................................Deposit of Bond Proceeds
45
Section 4.6.................................................Records
45
Section 4.7Investment of Initial Fund, Bond Fund and Bond Purchase Fund Moneys
46
Section 4.8..............................................[Reserved]
46
Section 4.9................................Non-presentment of Bonds
46
ARTICLE V
DISCHARGE OF INDENTURE
Section 5.1..................................Discharge of Indenture
47
Section 5.2..........................Provision for Payment of Bonds
47
ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES
Section 6.1.......................................Events of Default
49
Section 6.2............................................Acceleration
51
Section 6.3.......................Other Remedies; Rights of Holders
52
Section 6.4Right of Holders and Credit Issuer to Direct Proceedings
52
Section 6.5...................Discontinuance of Default Proceedings
53
Section 6.6..................................................Waiver
53
Section 6.7...................................Application of Moneys
54
Section 6.8...............................Rights of a Credit Issuer
55
ARTICLE VII
THE TRUSTEE; THE PAYING AGENT; THE TENDER AGENT;
THE REGISTRAR; THE UNDERWRITER; THE REMARKETING AGENT
Section 7.1..................................Appointment of Trustee
55
Section 7.2Compensation and Indemnification of Trustee, Paying Agents, Tender
Agent and Registrar; Trustee's Prior Claim............57
Section 7.3..............................Intervention in Litigation
58
Section 7.4.........................Resignation; Successor Trustees
58
Section 7.5......................................Removal of Trustee
59
Section 7.6............................................Paying Agent
59
Section 7.7............................................Tender Agent
60
Section 7.8Qualifications of Paying Agents and Tender Agent; Resignation;
Removal; Successors...................................61
Section 7.9..................................Instruments of Holders
61
Section 7.10...........................Power to Appoint Co-Trustees
62
Section 7.11......................Underwriters for Additional Bonds
64
Section 7.12......................................Remarketing Agent
64
Section 7.13Qualifications of Remarketing Agent; Resignation; Removal
64
Section 7.14.....................................Several Capacities
65
Section 7.15Trustee Not Responsible for Duties of Remarketing Agent, Tender
Agent, Registrar and Paying Agents....................65
Section 7.16Cooperation of the Trustee, the Tender Agent, the Registrar and
the Paying Agents.....................................65
ARTICLE VIII
AMENDMENTS, SUPPLEMENTAL INDENTURES
Section 8.1.................................Supplemental Indentures
65
Section 8.2Amendments to Indenture; Consent of Holders and the Credit Issuers
67
Section 8.3Amendments, Changes and Modifications to a Credit Facility
67
Section 8.4........................Notice to and Consent of Holders
68
ARTICLE IX
MISCELLANEOUS
Section 9.1..............................................[Reserved]
69
Section 9.2....................................Limitation of Rights
69
Section 9.3............................................Severability
69
Section 9.4.................................................Notices
69
Section 9.5.......................Payments Due on Non-Business Days
71
Section 9.6..........................................Binding Effect
71
Section 9.7................................................Captions
71
Section 9.8...........................................Governing Law
71
Section 9.9................................Notices to Rating Agency
71
Section 9.10..............................Execution in Counterparts
72
EXHIBIT A Form of Bond
EXHIBIT B Form of Conversion Notice
EXHIBIT C Form of Notice of Credit Modification Date
EXHIBIT D Form of Notice of Mandatory Purchase Date
EXHIBIT E Form of Notice of Alternate Credit Facility
INDENTURE OF TRUST
THIS INDENTURE OF TRUST (the "Indenture"), dated as of June 1, 1999, is
made and entered into by and between ATLANTIC AMERICAN CORPORATION, a Georgia
corporation (the "Company"), and THE BANK OF NEW YORK, a New York banking
corporation, as trustee, and its successors and assignees in trust (the
"Trustee").
W I T N E S S E T H:
WHEREAS, the Company desires (i) to issue and sell its Taxable Variable
Rate Demand Bonds, Series 1999 in the aggregate principal amount of $25,000,000
(the "Series 1999 Bonds"), (ii) to secure payment of the principal and purchase
price of and interest on the Series 1999 Bonds with an irrevocable, direct-pay
letter of credit (the "Series 1999 Credit Facility") issued by Wachovia Bank,
N.A. (in such capacity, the "Series 1999 Credit Issuer"), and (iii) to provide
for the issuance of Additional Bonds (as hereinafter defined) of the Company
from time to time subject to the terms and conditions set forth in Section
2.12(b) hereof; and
WHEREAS, the Series 1999 Bonds and the Trustee's certificate of
authentication to be endorsed thereon are to be in substantially the form
attached hereto as Exhibit A, with appropriate variations, omissions and
insertions as are permitted or required by this Indenture;
NOW, THEREFORE, in consideration of the premises and of the covenants and
undertakings herein expressed, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. In addition to terms defined elsewhere in this
Indenture, the following words and terms as used in this Indenture and the
preambles hereto shall have the following meanings unless the context or use
clearly indicates another or different meaning or intent.
"Act of Bankruptcy" means, with respect to any Series of
Bonds, any of the following events:
(i) The Company (or any other Person obligated, as guarantor or
otherwise, to make payments on such Series or under a Credit Agreement
relating to such Series or an "affiliate" of the Company as defined in
Bankruptcy Code ss. 101(2)) shall (1) apply for or consent to the
appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or the like of the Company (or such other Person) or
of all or any substantial part of their respective property, (2) commence
a voluntary case under the Bankruptcy Code, or (3) file a petition seeking
to take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up or composition or adjustment of debts; or
(ii) A proceeding or case shall be commenced, without the application
or consent of the Company (or any other Person obligated, as guarantor or
otherwise, to make payments on such Series or under a Credit Agreement
relating to such Series or an "affiliate" of the Company as defined in
Bankruptcy Code ss. 101(2)) in any court of competent jurisdiction,
seeking (1) the liquidation, reorganization, dissolution, winding-up, or
composition or adjustment of debts, of the Company (or any such other
Person), (2) the appointment of a trustee, receiver, custodian, liquidator
or the like of the Company (or any such other Person) or of all or any
substantial part of its property, or (3) similar relief in respect of the
Company (or any such other Person) under any law relating to bankruptcy,
insolvency, reorganization, winding-up or composition or adjustment of
debts.
"Additional Bonds" means bonds other than the Series 1999 Bonds issued
under this Indenture pursuant to Section 2.12(b).
"Alternate Credit Facility" means an irrevocable, direct-pay letter of
credit delivered to, and accepted by, the Trustee pursuant to Section 3.8(e) in
substitution for a Credit Facility then in effect.
"Alternate Credit Facility Effective Date" has the meaning
specified in Section 3.8(e).
"Alternate Weekly Index" means, as of the date of determination thereof,
the rate per annum determined on the basis of the rate for deposits in United
States dollars of amounts equal to or comparable to the principal amount of the
Bonds to which the Alternate Weekly Index will apply, offered for a term of one
month, which rate appears on the display designated as Page "3750" of the
Telerate Service (or such other page as may replace page 3750 of that service or
such other service or services as may be nominated by the British Bankers'
Association for the purpose of displaying London interbank offered rates for
United States dollar deposits), determined as of 1:00 p.m., Local Time, on the
date of determination, plus 0.10% per annum.
"Applicable Credit Facility" means, with respect to a Series of Bonds, the
Credit Facility securing such Series.
"Applicable Credit Issuer" means (a) with respect to a Series of Bonds,
the issuer of the Credit Facility then in effect securing such Series, and (b)
with respect to a Credit Facility, the issuer of such Credit Facility.
"Applicable Paying Agent" means, with respect to a Series of Bonds, the
Paying Agent for such Series.
"Authorized Denomination" means (i) with respect to the Series 1999 Bonds,
(a) during any Short-Term Rate Period or any Medium-Term Rate Period, $100,000
and integral multiples thereof, and (b) during the Fixed Rate Period, $5,000 and
integral multiples thereof; and (ii) with respect to any Series of Additional
Bonds, the denominations specified in the supplemental indenture authorizing the
issuance of such Series.
"Bankruptcy Code" means Title 11 of the United States Code, as amended,
and any successor statute or statutes having substantially the same function.
"Beneficial Owner" means the Person in whose name a Bond is recorded as
beneficial owner of such Bond by the Securities Depository or a Participant or
an Indirect Participant on the records of such Securities Depository,
Participant or Indirect Participant, as the case may be, or such Person's
subrogee.
"Bond" or "Bonds" means any Bonds authorized under this Indenture,
including the Series 1999 Bonds and any Additional Bonds.
"Bond Documents" means, collectively, the Series 1999 Bonds, this
Indenture, the Series 1999 Credit Facility, the Series 1999 Credit Agreement,
the Purchase Agreement, the Remarketing Agreement and the Official Statement.
"Bond Fund" means the fund created by Section 4.1.
"Bond Purchase Fund" means the fund created by Section 4.4.
"Book Entry System" means a book entry system established and operated for
the recordation of Beneficial Owners of the Bonds pursuant to Section 2.20.
"Business Day" means, with respect to a Series of Bonds, any day on which
the offices of the Applicable Credit Issuer at which drawings on the Applicable
Credit Facility are made, the Trustee, the Applicable Paying Agent, the Tender
Agent, the Registrar and the Remarketing Agent are each open for business and on
which The New York Stock Exchange is not closed.
"Ceiling Rate" means (i) with respect to the Series 1999 Bonds, 12% per
annum; and (ii) with respect to any Series of Additional Bonds, the rate per
annum set forth in the supplemental indenture authorizing the issuance of such
Series.
"Code" means the Internal Revenue Code of 1986, as amended, and the
rulings and regulations (including temporary and proposed regulations)
promulgated thereunder or under the Internal Revenue Code of 1954, as amended.
"Company" means Atlantic American Corporation, a Georgia
corporation, and its successors and assigns.
"Company Agent" shall have the meaning set forth in
Section 7.2.
"Company Representative" means any one of the persons at the time
designated to act on behalf of the Company by written certificate furnished to
the Trustee containing the specimen signatures of such persons and signed on
behalf of the Company by the President or any Vice President of the Company.
"Computation Date" means, with respect to a Series of Bonds, (i) the
Business Day next preceding the first day of each Interest Period during which
such Series bears interest at a Weekly Rate, (ii) the last Business Day of the
calendar month next preceding each Interest Period during which such Series
bears interest at a Monthly Rate, (iii) the first Business Day of each Flexible
Term Rate Period and (iv) a date that is not more than twenty (20) nor less than
two (2) days prior to any Conversion Date relating to conversion of such Series
to a Long-Term Rate.
"Conversion Date" means, with respect to a Series of Bonds, (i) each date
on which the Interest Rate Determination Method then in effect with respect to
such Series is changed to another Interest Rate Determination Method, including
a Fixed Rate Conversion Date with respect to such Series, and (ii) each date on
which the interest rate borne by such Series is changed from the interest rate
applicable during a Medium-Term Rate Period to the interest rate applicable
during another Medium-Term Rate Period.
"Conversion Notice" shall have the meaning set forth in
Section 2.4(a).
"Counsel" means an attorney, or firm of attorneys, admitted to practice
law before the highest court of any state in the United States of America or the
District of Columbia.
"Credit Agreement" means any agreement between the Company and a Credit
Issuer relating to a Credit Facility, as such agreement may be amended or
supplemented from time to time pursuant to its terms.
"Credit Facility" means an irrevocable, direct-pay letter of credit issued
by a Credit Issuer on the Issue Date of a Series of Bonds in favor of the
Trustee, for the account of the Company, which provides security for the payment
of certain payments on or with respect to such Series of Bonds as contemplated
pursuant to Section 3.8 and, upon acceptance by the Trustee of any Alternate
Credit Facility with respect to such Series, such Alternate Credit Facility.
"Credit Issuer" means the issuer of any Credit Facility, its successors
and assigns; provided, however, that in connection with the acceptance of an
Alternate Credit Facility that results in the occurrence of a Mandatory Purchase
Date for a Series of Bonds, until the occurrence of such Mandatory Purchase
Date, "Credit Issuer" shall mean, with respect to such Series, the Applicable
Credit Issuer immediately prior to acceptance of such Alternate Credit Facility.
"Credit Modification Date" means, with respect to a Series of Bonds,
either (a) the second Business Day next preceding the date on which the
Applicable Credit Facility then in effect is stated to expire (unless extended),
or (b) if the Applicable Credit Facility will terminate prior to its stated
expiration date on account of the delivery of an Alternate Credit Facility, the
proposed Alternate Credit Facility Effective Date with respect to such Alternate
Credit Facility, if:
(i) such Series is then rated by a Rating Agency and (1) the Company
fails to deliver to the Trustee, no more than sixty (60) nor less than
forty (40) days prior to such stated expiration date or proposed Alternate
Credit Facility Effective Date, (a) notice that an Alternate Credit
Facility will be delivered to the Trustee with respect to such Series on
or prior to the second Business Day preceding such stated expiration date
or on or prior to such proposed Alternate Credit Facility Effective Date,
and (b) a letter from any Rating Agency then rating such Series stating
that such Rating Agency has reviewed the terms of such Alternate Credit
Facility and the issuer thereof and that acceptance of the Alternate
Credit Facility for the benefit of the Holders will not result in a
lowering or elimination of the rating then assigned by such Rating Agency
to such Series, (2) the Company delivers such notice and letter but prior
to the date such Alternate Credit Facility is to be delivered such Rating
Agency revokes such letter, or (3) the Company delivers such notice and
letter but such Alternate Credit Facility is not delivered to, and
accepted by, the Trustee on or prior to the second Business Day preceding
such stated expiration date or on or prior to such proposed Alternate
Credit Facility Effective Date; or
(ii) such Series is not then rated and (1) the Company fails to
deliver to the Trustee, not more than sixty (60) nor less than forty (40)
days prior to such stated expiration date or proposed Alternate Credit
Facility Effective Date, (a) notice that an Alternate Credit Facility will
be delivered to the Trustee with respect to such Series on or prior to the
second Business Day preceding such stated expiration date or on or prior
to such proposed Alternate Credit Facility Effective Date, and (b) written
evidence that the issuer of such Alternate Credit Facility is a commercial
bank organized and doing business in the United States of America or a
branch or agency of a foreign commercial bank located and doing business
in the United States of America and subject to regulation by state or
federal banking regulatory authorities and that has, as of the date sixty
(60) days prior to such stated expiration date or proposed Alternate
Credit Facility Effective Date (i) senior debt or long-term bank deposits
rated by a Rating Agency with a rating at least equivalent to the senior
debt or long-term bank deposits of the Applicable Credit Issuer or (ii)
outstanding letters of credit or other similar instruments that, when
supporting debt obligations, result in such debt obligations being rated
by a Rating Agency with a rating at least the equivalent of the ratings
assigned to debt obligations supported with letters of credit or other
similar instruments or devices issued by such Credit Issuer on the date
sixty (60) days prior to such stated expiration date or such proposed
Alternate Credit Facility Effective Date or (2) the Company delivers such
notice but such Alternate Credit Facility is not delivered to, and
accepted by, the Trustee on or prior to the second Business Day preceding
such stated expiration date or such proposed Alternate Credit Facility
Effective Date.
"Current Subaccount" means each subaccount so designated within the Bond
Fund established pursuant to Section 4.1.
"Eligible Funds" means, when a Credit Facility is in effect with respect
to a Series of Bonds, moneys held by the Trustee or the Applicable Paying Agent
under this Indenture which consist of any of the following:
(i) any moneys if, in the written opinion of Counsel experienced in
bankruptcy law matters (which opinion shall be delivered to the Trustee
and the Rating Agency, if any, rating such Series at or prior to the time
of the deposit of such moneys with the Trustee and shall be in form and
substance satisfactory to the Rating Agency, if any, rating such Series),
the deposit and use of such moneys with respect to such Series will not
constitute an avoidable preferential payment pursuant to Section 547 of
the Bankruptcy Code, or an avoidable post-petition transfer pursuant to
Section 549 of the Bankruptcy Code, recoverable from Holders of the Bonds
pursuant to Section 550 of the Bankruptcy Code in the event of an Act of
Bankruptcy, and if a Rating Agency is rating such Series, such Rating
Agency has confirmed to the Trustee in writing that its rating will not be
withdrawn or reduced as a result of using such moneys; or
(ii) moneys paid by a Credit Issuer to the Trustee under a Credit
Facility which are not commingled with any other moneys.
If no Credit Facility is in effect with respect to a Series of Bonds, any moneys
held by the Trustee or the Applicable Paying Agent under this Indenture shall
constitute "Eligible Funds" with respect to such Series.
"Event of Default" means any of the events specified in
Section 6.1.
"Fitch" means Fitch IBCA Inc., a corporation organized and existing under
the laws of the State of Delaware, 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, with respect to a Series
of Bonds, be deemed to refer to any other nationally recognized securities
rating agency designated by the Company with the approval of the Remarketing
Agent, by notice to the Trustee.
"Fixed Rate" means, with respect to a Series of Bonds, the Fixed Rate
established for such Series in accordance with Section 2.3(g).
"Fixed Rate Conversion Date" means, with respect to a Series of Bonds, the
day on which the Interest Rate Determination Method for such Series shall be
converted to a Fixed Rate.
"Fixed Rate Period" means, with respect to a Series of Bonds, the period
from and including the applicable Fixed Rate Conversion Date to and including
the date of payment in full of such Series.
"Flexible Term Rate" means, with respect to the Bonds of a Series, the
Flexible Term Rate established for each such Bond in accordance with Section
2.3(e).
"Flexible Term Rate Period" means, with respect to the Bonds of a Series,
any and all periods during which each such Bond bears interest at a Flexible
Term Rate, such periods not to be of a duration in excess of 270 days as may be
determined by the Remarketing Agent pursuant to Section 2.3(e).
"Government Obligations" means (i) direct obligations of the United States
of America for the full and timely payment of which the full faith and credit of
the United States of America is pledged, and (ii) obligations issued by a Person
controlled or supervised by and acting as an instrumentality of the United
States of America, the full and timely payment of the principal of, premium, if
any, and interest on which is fully guaranteed as a full faith and credit
obligation of the United States of America (including any securities described
in (i) or (ii) issued or held in book-entry form on the books of the Department
of the Treasury of the United States of America), which obligations, in either
case, are not subject to redemption prior to maturity at less than par at the
option of anyone other than the holder thereof.
"Holder" means the Person who shall be the registered owner
of any Bond.
"Indenture" means this Indenture of Trust, as the same may be amended or
supplemented from time to time as permitted hereby.
"Indirect Participant" means a broker-dealer, bank or other financial
institution for which the Securities Depository holds Bonds as a securities
depository through a Participant.
"Initial Fund" means the fund created pursuant to
Section 4.2.
"Interest Payment Date" means, with respect to a Series of Bonds, (i)
during any Weekly Rate Period or any Monthly Rate Period, each Monthly Interest
Payment Date, (ii) during any Medium-Term Rate Period or the Fixed Rate Period,
each Semiannual Interest Payment Date, and (iii) during any Flexible Term Rate
Period, the first Business Day immediately following the last day of each
Flexible Term Rate Period, but only as to Bonds of such Series for which such
Flexible Term Rate Period is applicable.
"Interest Period" means (a) with respect to a Series of Bonds bearing
interest at a Weekly Rate, (i) if such Series initially bears interest at a
Weekly Rate, the period from and including the Issue Date to and including the
next Tuesday, (ii) the period from and including the Conversion Date on which
the Interest Rate Determination Method for such Series is changed to the Weekly
Rate to and including the next Tuesday, and (iii) in each case, each succeeding
period from and including each Wednesday to and including the following Tuesday;
and (b) with respect to a Series of Bonds bearing interest at a Monthly Rate,
(i) if such Series initially bears interest at a Monthly Rate, the period from
and including the Issue Date to and including the last day of the calendar month
in which such Issue Date occurred, (ii) the period from and including the
Conversion Date on which the Interest Rate Determination Method for such Series
is changed to the Monthly Rate to and including the last day of the calendar
month in which such Conversion Date occurred, and (iii) in each case, each
succeeding period from and including the first day of each calendar month to and
including the last day of such calendar month.
"Interest Rate Determination Method" means any of the methods of
determining the interest rate on a Series of Bonds described in Section 2.3.
"Issue Date" means, with respect to a Series of the Bonds, the date on
which such Series is delivered to the purchaser or purchasers thereof upon
original issuance.
"Local Time" means eastern time (daylight or standard, as
applicable).
"Long-Term Rate" means either a Medium-Term Rate or the
Fixed Rate.
"Long-Term Rate Period" means either a Medium-Term Rate Period or the
Fixed Rate Period.
"Mandatory Purchase Date" means, with respect to a Series of Bonds (or, in
the case of clause (iii) of this sentence, with respect to each Bond of a Series
then bearing interest at a Flexible Term Rate), (i) a Conversion Date for such
Series (other than Conversion Dates resulting from deemed conversions under
Sections 2.3(c), (e) or (f)), (ii) a Credit Modification Date for such Series,
(iii) the day next succeeding the last day of each Flexible Term Rate Period
applicable to such Bond, (iv) the fifth Business Day after receipt by the
Trustee of a written notice from the Applicable Credit Issuer that an event of
default under the Credit Agreement pursuant to which such Credit Issuer issued
its Applicable Credit Facility has occurred and is continuing and a written
request from such Applicable Credit Issuer that all of the Bonds of such Series
be required to be tendered for purchase, or (v) while such Series bears interest
at the Weekly Rate or the Monthly Rate, any Business Day designated by the
Company, with the consent of the Remarketing Agent and the Applicable Credit
Issuer, that could be an Optional Tender Date for the Bonds of such Series.
"Medium-Term Rate" means, with respect to a Series of Bonds, the interest
rate on such Series established from time to time pursuant to Section 2.3(f).
"Medium-Term Rate Period" means, with respect to a Series of Bonds, any
period of not less than 271 days during which such Series bears interest at a
Medium-Term Rate.
"Monthly Interest Payment Date" means the first day of each
calendar month.
"Monthly Rate" means, with respect to a Series of Bonds, the interest rate
on such Series established from time to time pursuant to Section 2.3(c).
"Monthly Rate Period" means, with respect to a Series of Bonds, any period
during which such Series bears interest at a Monthly Rate.
"Moody's" means Moody's Investors Service, Inc., a corporation organized
and existing under the laws of the State of Delaware, 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, with
respect to a Series of Bonds, be deemed to refer to any other nationally
recognized securities rating agency designated by the Company with the approval
of the Remarketing Agent, by notice to the Trustee.
"Official Statement" means the Preliminary Official Statement and the
final Official Statement prepared and used in connection with the initial sale
of the Series 1999 Bonds on the Issue Date thereof.
"Optional Tender Date" means, with respect to a Series of Bonds, (i)
during any Weekly Rate Period, any Business Day, and (ii) during any Monthly
Rate Period, the first Business Day of each Interest Period.
"Outstanding" means, when used with reference to the Bonds at any date as
of which the amount of outstanding Bonds is to be determined, all Bonds that
have been authenticated and delivered by the Trustee hereunder, except:
(i) Bonds canceled or delivered for cancellation at or
prior to such date;
(ii) Bonds deemed to be paid in accordance with Section 5.2;
(iii) Bonds in lieu of which others have been authenticated under
Sections 2.13, 2.14 and 2.15;
(iv) Untendered Bonds; and
(v) For purposes of any consent, request, demand, authorization,
direction, notice, waiver or other action to be taken by the Holders of a
specified percentage of Outstanding Bonds hereunder, all Bonds held by or
for the account of the Company or any affiliate of the Company; provided,
however, that for purposes of any such consent, request, demand,
authorization, direction, notice, waiver or action the Trustee shall be
obligated to consider as not being outstanding only Bonds known by the
Trustee by actual notice thereof to be so held; provided, further, that if
all of the Bonds of a Series are at any time held by or for the account of
the Company or any affiliate of the Company, then such Bonds of such
Series shall be deemed to be Outstanding at such time for the purposes of
this subparagraph (v).
"Participant" means a broker-dealer, bank or other financial institution
for which the Securities Depository holds Bonds as a securities depository.
"Paying Agent" means (i) with respect to the Series 1999 Bonds, The Bank
of New York, and its successors appointed and serving under this Indenture; and
(ii) with respect to any Series of Additional Bonds, the party named as the
"Paying Agent" for such Series pursuant to Section 7.6, and its successors
appointed and serving under this Indenture.
"Permitted Investments" means, with respect to a Series of Bonds, any one
or more of the following investments, if and to the extent the same are then
legal investments under the applicable laws of the State for moneys proposed to
be invested therein:
(i) Bonds or other obligations of the United States;
(ii) Bonds or other obligations, the payment of the principal and
interest of which is unconditionally guaranteed by the United States;
(iii) Direct obligations issued by the United States or obligations
guaranteed in full as to principal and interest by the United States or
repurchase agreements with a qualified depository bank fully
collateralized by such obligations, maturing on or before the date when
such funds will be required for disbursement;
(iv) Obligations of state and local government and municipal bond
issuers, which are rated investment-grade by either S&P or Moody's or
other non-rated obligations of such issuers guaranteed or credit enhanced
by a Person whose long-term debt or long-term deposits or other
obligations are rated investment-grade by either S&P or Moody's;
(v) Prime commercial paper rated either "A-1" by S&P or "P-1" by
Moody's and, if rated by both, not less than "A-1" by S&P and "P-1" by
Moody's;
(vi) Bankers' acceptances drawn on and accepted by commercial banks;
(vii) Interests in any money market fund or trust, the investments of
which are restricted to obligations described in clauses (i)-(vi) of this
definition or obligations determined to be of comparable quality by the
board of directors of such fund or trust; and
(viii) Such other obligations as may at any time hereafter be approved by
the Applicable Credit Issuer.
"Person" means any natural person, firm, partnership, association,
corporation, limited liability company or public body.
"Purchase Agreement" means the Bond Purchase Agreement dated July 13, 1999
between the Company and the Underwriter, relating to the initial sale of the
Series 1999 Bonds.
"Purchase Price" means an amount equal to 100% of the principal amount of
any Bond tendered or deemed tendered for purchase pursuant to Section 2.6, plus
accrued and unpaid interest thereon to the date of purchase.
"Rate" means any Short-Term Rate or any Long-Term Rate.
"Rate Period" means any Weekly Rate Period, Monthly Rate
Period, Flexible Term Rate Period, Medium-Term Rate Period or
Fixed Rate Period.
"Rating Agency" means Fitch when a Series of Bonds is rated by Fitch,
Moody's when a Series of Bonds is rated by Moody's, and S&P when a Series of
Bonds is rated by S&P.
"Record Date" means with respect to each Interest Payment Date (i) during
any Short-Term Rate Period, the Trustee's close of business on the Business Day
next preceding such Interest Payment Date, and (ii) during any Long-Term Rate
Period, the Trustee's close of business on the fifteenth (15th) day of the
calendar month next preceding the calendar month during which such Interest
Payment Date occurs, regardless of whether such day is a Business Day.
"Register" means the register of the record owners of Bonds
maintained by the Registrar.
"Registrar" means the Trustee.
"Remarketing Agent" means Wachovia Securities, Inc. and its
successors appointed and serving in such capacity under this
Indenture.
"Remarketing Agreement" means any agreement between the Company and a
Remarketing Agent relating to the Bonds, as such agreement may be amended,
supplemented or restated from time to time pursuant to its terms.
"Replacement Bonds" means Bonds issued pursuant to Section 2.15, which
Bonds shall contain the terms and provisions specified herein as being
applicable to the Bonds following a Mandatory Purchase Date and have excised
therefrom the terms and provisions that are not so applicable and added thereto
terms that have become applicable.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, 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, with respect to a Series of Bonds, be
deemed to refer to any other nationally recognized securities rating agency
designated by the Company with the approval of the Remarketing Agent, by notice
to the Trustee.
"Securities Depository" means The Depository Trust Company and any
substitute for or successor to such securities depository that shall maintain a
Book Entry System with respect to the Bonds.
"Securities Depository Nominee" means the Securities Depository or the
nominee of such Securities Depository in whose name there shall be registered on
the Register the Bonds to be delivered to such Securities Depository during the
continuation with such Securities Depository of participation in its Book Entry
System.
"Semiannual Interest Payment Date" means each June 1 and
December 1.
"Series" means the Series 1999 Bonds and each series of
Additional Bonds.
"Series 1999 Credit Agreement" means, initially, the Credit Agreement
pursuant to which the Series 1999 Credit Facility is issued, and upon acceptance
by the Trustee of any Alternate Credit Facility securing the Series 1999 Bonds,
the Credit Agreement pursuant to which such Alternate Credit Facility is issued.
"Series 1999 Credit Facility" means, initially, the letter of credit
issued by the Series 1999 Credit Issuer on the Issue Date of the Series 1999
Bonds, and upon acceptance by the Trustee of any Alternate Credit Facility
securing the Series 1999 Bonds, such Alternate Credit Facility.
"Series 1999 Credit Issuer" means, initially, Wachovia Bank, N.A., and
upon acceptance by the Trustee of any Alternate Credit Facility securing the
Series 1999 Bonds, the issuer of such Alternate Credit Facility.
"Short-Term Rate" means any of the Weekly Rate, the Monthly Rate or the
Flexible Term Rate.
"Short-Term Rate Period" means, with respect to a Series of Bonds, any
period during which such Series bears interest at a Short-Term Rate.
"State" means the State of Georgia.
"Tender Agent" means Wachovia Bank, N.A., and its successors appointed and
serving in such capacity under this Indenture.
"Tender Agent Agreement" means any certificate or agreement executed by a
Tender Agent in connection with such Tender Agent's duties hereunder.
"Trustee" means The Bank of New York, as trustee hereunder, and any
successor trustee appointed under this Indenture.
"U.C.C." means the Uniform Commercial Code of the State as
now in effect or hereafter amended.
"Underwriter" means (i) with respect to the Series 1999 Bonds, Wachovia
Securities, Inc., and (ii) with respect to any Series of Additional Bonds, the
Person appointed by the Company to serve as Underwriter for such Series pursuant
to Section 7.11.
"Untendered Bond" means any Untendered Bond as defined in
Section 2.6(f).
"Weekly Rate" means, with respect to a Series of Bonds, the interest rate
on such Series established pursuant to Section 2.3(b).
"Weekly Rate Period" means, with respect to a Series of Bonds, any period
during which such Series bears interest at a Weekly Rate.
Section 1.2 Rules of Construction. Unless the context clearly indicates to
the contrary, the following rules shall apply to the construction of this
Indenture:
(a) Words importing the singular number shall include the plural number
and vice versa.
(b) The table of contents, captions and headings herein are for
convenience of reference only and shall not constitute a part of this Indenture
nor shall they affect its meaning, construction or effect.
(c) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders, and words of the neuter
gender shall be deemed and construed to include correlative words of the
masculine and feminine genders.
(d) All references in this Indenture to particular Articles or Sections
are references to Articles or Sections of this Indenture, unless otherwise
indicated.
ARTICLE II
THE BONDS
Section 2.1 Authorized Amount of Bonds. No Bonds may be issued under the
provisions of this Indenture except in accordance with this Article. The total
principal amount of Series 1999 Bonds that may be issued and outstanding
hereunder is expressly limited to $25,000,000, subject to the provisions of
Sections 2.13, 2.14 and 2.15. The Company may issue Additional Bonds pursuant to
Section 2.12(b). The total principal amount of Bonds and the number of Series of
Bonds that may be issued hereunder are not limited.
Section 2.2 Issuance of Bonds.
(a) The Series 1999 Bonds shall be designated "Atlantic American
Corporation Taxable Variable Rate Demand Bonds, Series 1999." The form of Bond
attached as Exhibit A to this Indenture shall be the form of Series 1999 Bond
referred to herein. The Series 1999 Bonds shall bear interest from the Issue
Date thereof, until paid, at the rates set forth in Section 2.3 (computed on the
basis of a 360-day year for the actual days elapsed during any Short-Term Rate
Period (calculated by multiplying the principal amount of Bonds by the interest
rate, dividing that sum by 360, and multiplying that amount by the actual days
elapsed) and a 360-day year of twelve 30-day months during any Long-Term Rate
Period), and shall mature, unless sooner paid, on June 1, 2009, on which date
all unpaid principal, redemption premium, if any, and interest on the Series
1999 Bonds shall be due and payable.
(b) The Bonds of each Series shall be issued as fully registered bonds
without coupons in Authorized Denominations. The Bonds of each Series shall be
numbered from R-1 upwards bearing numbers not then contemporaneously outstanding
(in order of issuance) according to the records of the Registrar.
The Bonds of each Series shall be dated the Issue Date thereof. Interest
on each of the Bonds shall be computed from the Interest Payment Date to which
interest has been paid or duly provided for next preceding the date of
authentication thereof, unless (a) such date of authentication shall be prior to
the first Interest Payment Date, in which case interest shall be computed from
the Issue Date thereof, or (b) such date of authentication shall be an Interest
Payment Date to which interest on such Bond has been paid in full or duly
provided for, in which case interest shall be computed from such date of
authentication; provided, however, that if interest on the Bonds shall be in
default, Bonds issued in exchange for Bonds surrendered for registration of
transfer or exchange shall bear interest from the last date to which interest
has been paid or duly provided for on the Bonds or, if no interest has been paid
or duly provided for on the Bonds, from the Issue Date thereof.
The principal of, redemption premium, if any, and the interest on the
Bonds shall be payable in lawful currency of the United States. The principal of
and redemption premium, if any, on a Series of Bonds shall be payable at the
principal office of the Applicable Paying Agent upon presentation and surrender
of the Bonds. Payments of interest on the Bonds will be mailed to the persons in
whose names the Bonds are registered on the Register at the close of business on
the Record Date next preceding each Interest Payment Date; provided that, prior
to the Fixed Rate Conversion Date for a Series of Bonds, any Holder of a Bond or
Bonds of such Series in an aggregate principal amount of not less than $250,000
may, by prior written instructions filed with the Applicable Paying Agent (which
instructions shall remain in effect until revoked by subsequent written
instructions), instruct that interest payments for any period prior to the Fixed
Rate Conversion Date be made by wire transfer to an account in the continental
United States or other means acceptable to such Paying Agent.
Section 2.3 Interest Rates on Bonds.
(a) Initial Rate - General. Each of the Bonds shall bear interest as
provided herein from its Issue Date to the date that such Bond is paid in full.
Interest accrued on the Bonds of a Series (or the applicable portion of the
Bonds of a Series if the Bonds of such Series bear interest at a Flexible Term
Rate) shall be paid on each Interest Payment Date for such Series (or, if such
day is not a Business Day, the next succeeding Business Day) commencing (i) with
respect to the Series 1999 Bonds, on July 1, 1999, and (ii) with respect to any
Series of Additional Bonds, on the date set forth as the initial Interest
Payment Date in the supplemental indenture authorizing the issuance of such
Series. The interest rate for a Series of Bonds will be determined as provided
in this Section except that no rate shall exceed the lesser of (i) the Ceiling
Rate applicable to such Series or (ii) the maximum rate permitted by applicable
law. The Ceiling Rate applicable to a Series of Bonds may be increased to a rate
not to exceed the maximum rate permitted by applicable law by execution and
delivery of a supplemental indenture, if the interest component of the
Applicable Credit Facility is increased on or prior to the effective date of
such supplemental indenture by recalculating the amount of such interest
component using the increased Ceiling Rate and the number of days coverage then
provided for in the Applicable Credit Facility. The Series 1999 Bonds shall
initially bear interest at a Weekly Rate from the Issue Date thereof until the
date on which the Interest Rate Determination Method for such Bonds is changed
as described in Section 2.4. Such Weekly Rate for the initial Interest Period
for the Series 1999 Bonds shall be determined by the Underwriter for such Series
on the Issue Date thereof in the manner set forth in Section 2.3(b) with respect
to subsequent Interest Periods. Thereafter, during any Weekly Rate Period for a
Series of Bonds, the Remarketing Agent will determine a Weekly Rate for such
Series in accordance with Section 2.3(b).
Notwithstanding anything herein to the contrary, each Interest Rate
Determination Method in effect for a Series of Bonds from time to time shall
continue in effect until the date on which the Interest Rate Determination
Method for such Series is changed as described in Section 2.3(c), (e) or (f) or
Section 2.4. Series of Bonds issued hereunder may bear interest using the same
or different Interest Rate Determination Methods; provided, however, all Bonds
of the same Series must bear interest using the same Interest Rate Determination
Method, as such Interest Rate Determination Method may be changed from time to
time as described in Section 2.3(c), (e) or (f) or Section 2.4.
(b) Weekly Rate. During any Weekly Rate Period in effect for a Series of
Bonds, all Bonds of such Series will bear interest at the Weekly Rate. During
any Weekly Rate Period for a Series of Bonds, the Remarketing Agent will
determine the Weekly Rate for the applicable Interest Period by 4:00 p.m., Local
Time, on the applicable Computation Date. Each Weekly Rate shall be the rate of
interest that, if borne by such Bonds, would, in the judgment of the Remarketing
Agent, having due regard for the prevailing financial market conditions for
bonds or other securities that are comparable as to credit and maturity (or
comparable with respect to optional tender provisions) with the credit and
maturity or the optional tender provisions of such Bonds, be the interest rate
necessary, but would not exceed the interest rate necessary, to enable the
Remarketing Agent to place such Bonds at a price of par (plus accrued interest,
if any) on the first Business Day of such Interest Period; provided, that, if
for any reason the Weekly Rate for any Interest Period is not established as
aforesaid by the Remarketing Agent, no Remarketing Agent shall be serving as
such hereunder or the rate so established is held to be invalid or unenforceable
with respect to any Interest Period, then the Weekly Rate for such Interest
Period shall be 100% of the Alternate Weekly Index on the date such interest
rate was (or would have been) determined as provided above. The Remarketing
Agent (or if no Remarketing Agent is serving as such hereunder, the Trustee)
shall notify the Company immediately by telephone if the Alternate Weekly Index
is applicable, with written notice to follow promptly. In connection with any
change in the Interest Rate Determination Method for a Series of Bonds to a
Weekly Rate pursuant to Section 2.3(c), (e) or (f) or Section 2.4(a), the
initial Weekly Rate for such Series shall be determined as provided above on the
applicable Computation Date.
(c) Monthly Rate. During any Monthly Rate Period in effect for a Series of
Bonds, all Bonds of such Series will bear interest at the Monthly Rate. During
any Monthly Rate Period in effect for a Series of Bonds, the Remarketing Agent
will determine a Monthly Rate by 4:00 p.m., Local Time, on the applicable
Computation Date. Each Monthly Rate shall be the rate of interest which, if
borne by such Bonds, would, in the judgment of the Remarketing Agent, having due
regard for the prevailing financial market conditions for bonds or other
securities that are comparable as to credit and maturity (or comparable with
respect to optional tender provisions) with the credit and maturity or the
optional tender provisions of such Bonds, be the interest rate necessary, but
would not exceed the interest rate necessary, to enable the Remarketing Agent to
place such Bonds at a price of par (plus accrued interest, if any) on the first
Business Day of such Interest Period; provided that, if for any reason the
Monthly Rate for any Interest Period is not established as aforesaid by the
Remarketing Agent, no Remarketing Agent shall be serving as such hereunder or
the rate so established is held to be invalid or unenforceable with respect to
any Interest Period, then the Interest Rate Determination Method with respect to
such Series of Bonds shall be deemed to have converted to the Weekly Rate on the
date such interest rate was (or would have been) determined as provided above.
The Remarketing Agent (or if no Remarketing Agent is serving as such hereunder,
the Trustee) shall notify the Company, the Trustee and the Applicable Paying
Agent immediately by telephone if such a conversion is deemed to have occurred,
with written notice to follow promptly. In connection with any change in the
Interest Rate Determination Method for a Series of Bonds to a Monthly Rate
pursuant to Section 2.4(a), the initial Monthly Rate for such Series shall be
determined as provided above on the applicable Computation Date.
(d) [Reserved].
(e) Flexible Term Rate. During any Flexible Term Rate Period for the Bonds
of a Series, each of the Bonds of such Series will bear interest at a Flexible
Term Rate. During any Flexible Term Rate Period for the Bonds of a Series, the
Remarketing Agent will determine the Flexible Term Rate and Flexible Term Rate
Period to be applicable to each Bond of such Series by 1:00 p.m., Local Time, on
the applicable Computation Date. For each Flexible Term Rate Bond, the Flexible
Term Rate Period shall be the period which would, in the judgment of the
Remarketing Agent, having due regard to prevailing financial market conditions
for securities of the same general nature as such Bond which are comparable as
to credit and maturity (or period for tender) with the credit and maturity of
such Bond, ultimately produce the lowest overall net interest cost on such Bond
to maturity. No Flexible Term Rate Period applicable to any Bond of a Series may
(A) be less than one or more than 270 days in length, (B) extend beyond any
scheduled Mandatory Purchase Date or the final maturity date of the Bonds of
such Series, or (C) end on a day preceding a non-Business Day. The Remarketing
Agent may assign different Flexible Term Rate Periods to different Flexible Term
Rate Bonds. For each Flexible Term Rate Bond, the Flexible Term Rate shall be
the rate of interest which, if borne by such Bond for its applicable Flexible
Term Rate Period, would, in the judgment of the Remarketing Agent, having due
regard for the prevailing financial market conditions for securities of the same
general nature as such Bond which are comparable as to credit and maturity (or
period for tender) with the credit and maturity of such Bond, be the interest
rate necessary, but would not exceed the interest rate necessary, to enable the
Remarketing Agent to place such Bond at a price of par (plus accrued interest,
if any) on the first Business Day of such Flexible Term Rate Period. If for any
reason the applicable rate is not established as aforesaid by the Remarketing
Agent, no Remarketing Agent shall be serving as such hereunder or the rate so
established is held to be invalid or unenforceable, then the Interest Rate
Determination Method with respect to such Series of Bonds shall be deemed to
have converted to the Weekly Rate on the date such interest rate was (or would
have been) determined as provided above. The Remarketing Agent (or if no
Remarketing Agent is serving as such hereunder, the Trustee) shall notify the
Company, the Trustee and the Applicable Paying Agent immediately by telephone if
such a conversion is deemed to have occurred, with written notice to follow
promptly. In connection with any change in the Interest Rate Determination
Method for a Series of Bonds to a Flexible Term Rate pursuant to Section 2.4,
the initial Flexible Term Rate and Flexible Term Rate Period for each Bond of
such Series shall be determined as provided above on the applicable Computation
Date.
(f) Medium-Term Rate. During any Medium-Term Rate Period in effect for a
Series of Bonds, all Bonds of such Series shall bear interest at the Medium-Term
Rate. The interest rate to be borne by such Bonds from the applicable Conversion
Date to the last day of the applicable Medium-Term Rate Period shall be the rate
determined by the Remarketing Agent on the applicable Computation Date to be the
rate which, if borne by such Bonds would, in the judgment of the Remarketing
Agent having due regard for prevailing market conditions for bonds or other
securities that are comparable to such Bonds, be the interest rate necessary,
but would not exceed the interest rate necessary, to enable the Remarketing
Agent to place such Bonds at a price of par (plus accrued interest, if any) on
the applicable Conversion Date. If for any reason the applicable rate is not
established as aforesaid by the Remarketing Agent, no Remarketing Agent shall be
serving as such hereunder or the rate so established is held to be invalid or
unenforceable, then the Interest Rate Determination Method with respect to such
Series of Bonds shall be deemed to have converted to the Weekly Rate on the date
such interest rate was (or would have been) determined as provided above. The
Remarketing Agent (or if no Remarketing Agent is serving as such hereunder, the
Trustee) shall notify the Company, the Trustee and the Applicable Paying Agent
immediately by telephone if such a conversion is deemed to have occurred, with
written notice to follow promptly.
On the Computation Date with respect to a Medium-Term Rate, the
Remarketing Agent shall determine the applicable Medium-Term Rate Period. Each
Medium-Term Rate Period with respect to a Series of Bonds shall be at least 271
days and shall end no later than the date of maturity of the Bonds of such
Series or, if earlier, on a day immediately preceding a Business Day. If the
Remarketing Agent fails to determine any Medium-Term Rate Period for a Series or
the Medium-Term Rate Period so established for a Series is held to be invalid or
unenforceable, the Medium-Term Rate Period with respect to such Series shall be
(i) if the Interest Rate Determination Method in effect for such Series
immediately prior to such Conversion Date was a Medium-Term Rate, the shorter of
(a) the period equal to the Medium-Term Rate Period for such Medium-Term Rate
(provided, however, that if the last day of such period would not be a day
immediately preceding a Business Day, such period shall be extended to the next
succeeding day that is a day immediately preceding a Business Day) and (b) the
remaining maturity of the Bonds of such Series, or (ii) if the Interest Rate
Determination Method in effect with respect to such Series immediately prior to
such Conversion Date was not a Medium-Term Rate, the shorter of (a) the period
ending on the first date that is a day immediately preceding a Business Day and
is at least 271 days after the Conversion Date and (b) the remaining maturity of
the Bonds of such Series.
If requested in the Conversion Notice by the Company changing the Interest
Rate Determination Method for a Series of Bonds to a Medium-Term Rate, the
Remarketing Agent may also determine on the Computation Date redemption premiums
with respect to such Series of Bonds, different from those set forth in Section
2.18 (or, in the case of any Series of Additional Bonds, different from those
set forth in the supplemental indenture authorizing the issuance of such
Series), for optional redemption of the Bonds of such Series during the
Medium-Term Rate Period. These redemption premiums shall be consistent with the
prevailing market conditions, in the reasonable judgment of the Remarketing
Agent.
(g) Fixed Rate. During any Fixed Rate Period in effect for a Series of
Bonds, all Bonds of such Series shall bear interest at the Fixed Rate
established for such Series under this Section 2.3(g). The interest rate to be
borne by such Bonds from the applicable Fixed Rate Conversion Date to the date
of payment in full of such Bonds shall be the rate determined by the Remarketing
Agent on the applicable Computation Date to be the rate which, if borne by such
Bonds would, in the judgment of the Remarketing Agent having due regard for the
prevailing market conditions for bonds or other securities that are comparable
to such Bonds, be the interest rate necessary, but would not exceed the interest
rate necessary, to enable the Remarketing Agent to place such Bonds at a price
of par (plus accrued interest, if any) on the applicable Fixed Rate Conversion
Date. If for any reason the Fixed Rate is not established as aforesaid by the
Remarketing Agent or no Remarketing Agent shall be serving as such hereunder,
then the provisions of the last paragraph of Section 2.4(e) shall apply; if the
Fixed Rate established by the Remarketing Agent is held to be invalid or
unenforceable, the interest rate to be borne by such Bonds from the applicable
Fixed Rate Conversion Date to the date of payment in full of such Bonds shall be
determined by the Remarketing Agent based on the criteria in the preceding
sentence and avoiding the cause of invalidity or unenforceability.
If requested in the Conversion Notice by the Company changing the Interest
Rate Determination Method for a Series of Bonds to a Fixed Rate, the Remarketing
Agent may also determine on the Computation Date redemption premiums with
respect to such Series, different from those set forth in Section 2.18 (or, in
the case of any Series of Additional Bonds, different from those set forth in
the supplemental indenture authorizing the issuance of such Series), for
optional redemption of the Bonds of such Series during the Fixed Rate Period.
These redemption premiums shall be consistent with the prevailing market
conditions, in the reasonable judgment of the Remarketing Agent.
(h) Notice of Rates and Deemed Conversions. Promptly following the
determination of any Rate for a Series of Bonds, the Remarketing Agent shall
give notice thereof to the Trustee, the Company and the Applicable Paying Agent.
Promptly upon receipt from the Remarketing Agent of any Medium-Term Rate or
Fixed Rate for a Series of Bonds, the Applicable Paying Agent shall give each
Holder of Bonds of such Series notice of the new Rate. Any Holder or Beneficial
Owner may obtain any Rate on or after the applicable Computation Date upon
request to the Remarketing Agent. Promptly upon receipt from the Remarketing
Agent or the Trustee of notice of any deemed conversion of a Series of Bonds to
the Weekly Rate under this Section, the Applicable Paying Agent shall give each
Holder of Bonds of such Series, the Applicable Credit Issuer, and the Rating
Agency, if any, then rating such Series notice of the deemed conversion.
(i) Determination of Rate Conclusive. The determination of any Rate for a
Series by the Remarketing Agent in accordance with the terms of this Indenture
shall be conclusive and binding upon the Company, the Trustee, the Applicable
Paying Agent, the Tender Agent, the Remarketing Agent and the Holders or
Beneficial Owners of such Series.
(j) No Liability. In determining the interest rate or rates that a Series
of Bonds shall bear as provided in this Section, the Remarketing Agent shall
have no liability to the Company, the Trustee, the Tender Agent, the Applicable
Paying Agent, the Registrar, the Applicable Credit Issuer or any Holder or
Beneficial Owner of any of the Bonds of such Series, except for its gross
negligence or willful misconduct.
Section 2.4 Conversion of Interest Rate Determination
Method.
(a) Conversion Notice. The Interest Rate Determination Method for a Series
of Bonds may be changed under this Section from any Short-Term Rate or a
Medium-Term Rate to any other Interest Rate Determination Method or from a
Medium-Term Rate to a new Medium-Term Rate on any Conversion Date by the Company
giving written notice of such change (a "Conversion Notice") to the Remarketing
Agent and the Trustee with a copy to the Tender Agent, the Applicable Paying
Agent, the Rating Agency, if any, rating such Series and the Applicable Credit
Issuer. The Conversion Notice must be received by the Remarketing Agent and the
Trustee at least forty (40) days prior to the proposed Conversion Date.
Each Conversion Notice shall state (i) the Series of Bonds to which such
Conversion Notice applies, (ii) that the Company elects to change the Interest
Rate Determination Method for such Series to a new Interest Rate Determination
Method, or from the interest rate applicable during a Medium-Term Rate Period to
a new interest rate during a new Medium-Term Rate Period, (iii) the proposed
Conversion Date, (iv) the Interest Rate Determination Method to be in effect for
such Series from and after such Conversion Date, (v) the terms of the Credit
Facility to be in effect for such Series from and after such Conversion Date,
and (vi) if a Long-Term Rate is to be in effect for such Series from and after
such Conversion Date, and if redemption premiums different from those set forth
in Section 2.18 (or, in the case of any Series of Additional Bonds, different
from those set forth in the supplemental indenture authorizing the issuance of
such Series) are to be applicable as described in Section 2.3(f) and (g), the
redemption premiums to be applicable during such Long-Term Rate Period.
(b) [Reserved].
(c) Conversion Date. If the Interest Rate Determination Method for a
Series of Bonds prior to a Conversion Date under this Section is:
(i) a Weekly Rate or a Monthly Rate, the Conversion Date must be the
first Business Day of an Interest Period;
(ii) a Flexible Term Rate, the Conversion Date for a change to another
Interest Rate Determination Method must be the first Business Day
immediately following the last Interest Payment Date during the Flexible
Term Rate Period, such Interest Payment Date to be determined at the time
the Conversion Notice is received by the Remarketing Agent; or
(iii) a Medium-Term Rate, the Conversion Date must be the day next
succeeding the last day of the Medium-Term Rate Period.
(d) Notice of Conversions to Holders. The Trustee shall give written
notice of a Conversion Date to the Holders of the Series to which such
Conversion Date applies, which notice shall be in substantially the form
attached to this Indenture as Exhibit B, appropriately completed, and shall be
sent by first-class mail, postage prepaid, at least thirty (30) days prior to
the Conversion Date.
(e) Failure or Revocation of Conversion. If an Event of Default shall have
occurred and be continuing hereunder, the Interest Rate Determination Method for
a Series of Bonds shall not be changed on the Conversion Date and the Trustee
shall immediately notify by telephone the Applicable Credit Issuer, the
Remarketing Agent, the Applicable Paying Agent and the Tender Agent that the
Interest Rate Determination Method for such Series shall not be changed on the
Conversion Date.
Notwithstanding any other provision in this Indenture to the contrary, no
conversion of the Interest Rate Determination Method for a Series of Bonds to
the Fixed Rate shall occur if the Company, not later than 10:00 a.m., Local
Time, on the Business Day immediately preceding the applicable Computation Date,
directs the Remarketing Agent not to change the Interest Rate Determination
Method for such Series to the Fixed Rate by written notice, with a copy to the
Trustee, the Applicable Paying Agent, the Tender Agent, the Remarketing Agent
and the Applicable Credit Issuer.
If a proposed conversion of the Interest Rate Determination Method for a
Series of Bonds is canceled pursuant to the provisions of the two preceding
paragraphs, all Bonds of such Series shall nevertheless be deemed to have been
tendered for purchase on the Conversion Date and shall be purchased on the
Conversion Date. The Bonds of such Series shall continue to bear interest in
accordance with the Interest Rate Determination Method in effect with respect to
such Series prior to the Conversion Date and, in the case of a proposed change
from a Medium-Term Rate, for a Medium-Term Rate Period ending on the first day
that is a day immediately preceding a Business Day and that occurs on or after
the day that is the same number of days after the proposed Conversion Date as
the number of days in the immediately preceding Medium-Term Rate Period (but in
no event later than the maturity of the Bonds of such Series); provided,
however, that the rate of interest that such Series will bear shall be
determined on the Conversion Date.
(f) Failure to Mail Certain Notices. Failure to mail the notice described
in subsection (d), or any defect therein, shall not affect the validity of any
interest rate or change in the Interest Rate Determination Method for a Series
of Bonds or the requirement that such Bonds be tendered pursuant to Section
2.6(e) or extend the period for tendering any of such Bonds for purchase, and
the Trustee shall not be liable to any Holder by reason of its failure to mail
such notice or any defect therein.
(g) Credit Facility Requirements Upon Conversion to Flexible Term Rate or
Long-Term Rate. The Interest Rate Determination Method for a Series of Bonds
shall not be changed to the Flexible Term Rate unless the Credit Facility to be
in effect for such Series immediately following such conversion provides for
drawings with respect to the interest component thereunder to pay at least 271
days of interest on such Bonds at the applicable Ceiling Rate. The Interest Rate
Determination Method for a Series of Bonds may not be converted to a Long-Term
Rate unless the Credit Facility to be in effect for such Series immediately
following such conversion provides for drawings with respect to the interest
component thereunder to pay 210 days of interest on such Bonds at the applicable
Ceiling Rate and for drawings with respect to premium to pay the maximum premium
due in connection with an optional redemption of such Bonds. If one or more
ratings for such Series is to be maintained after a conversion to the Flexible
Term Rate or a Long-Term Rate, the Trustee and the Remarketing Agent must
receive, prior to the effective date of such conversion, written confirmation
from each Rating Agency rating such Series that such rating will not be reduced
or withdrawn.
Section 2.5 [Reserved].
Section 2.6 Tender of Bonds for Purchase.
(a) Optional Tender During Weekly Rate Period or Monthly Rate Period.
During any Weekly Rate Period or Monthly Rate Period in effect for a Series of
Bonds, the Holders of the Bonds of such Series shall have the right to tender
any such Bond (or portion thereof in an Authorized Denomination, provided that
any Bond or portion thereof remaining is also in an Authorized Denomination),
for purchase on any Optional Tender Date, but only upon:
(i) delivery to the Remarketing Agent at its principal office, not
later than 4:00 p.m., Local Time, on or before the seventh (7th) day (or
on the immediately preceding Business Day, if such seventh (7th) day is
not a Business Day) next preceding such Optional Tender Date, of an
irrevocable written, telephonic (followed, if requested by the Remarketing
Agent, by written or facsimile confirmation delivered to the Remarketing
Agent no later than the close of business on the next succeeding Business
Day), facsimile or telegraphic notice (with a written or facsimile copy to
the Tender Agent) stating (1) that such Holder will tender for purchase
all or any portion of his/her Bonds in an Authorized Denomination and the
amount of Bonds to be tendered and (2) the Optional Tender Date on which
such Bonds will be tendered; and
(ii) delivery of such Bond (with an appropriate instrument of transfer
duly executed in blank) to the Tender Agent at its principal office at or
prior to 10:00 a.m., Local Time, on such Optional Tender Date; provided,
however, that no Bond (or portion thereof) shall be purchased unless such
Bond as delivered to the Tender Agent shall conform in all respects to the
description thereof in the aforesaid notice.
(b) [Reserved].
(c) Election to Tender Irrevocable. Any election of a Holder to tender
Bonds for purchase on an Optional Tender Date in accordance with subsection (a)
above shall be irrevocable and shall be binding on the Holder making such
election and on any transferee of such Holder.
(d) Notices. The Remarketing Agent shall give the Tender Agent prompt
notice by telephone of receipt of any tender notice received by it in accordance
with paragraph (i) of subsection (a) above. Upon the receipt of any such notice,
the Tender Agent shall promptly notify the Trustee, the Applicable Paying Agent
and the Applicable Credit Issuer by telephone.
(e) Mandatory Purchase on Mandatory Purchase Date. On any Mandatory
Purchase Date for a Series of Bonds, all Bonds of such Series (or the applicable
portion of the Bonds of such Series during any Flexible Term Rate Period) shall
be subject to mandatory tender for purchase at the Purchase Price thereof.
Notwithstanding the preceding sentence, there shall be no purchase pursuant to
this subsection of Bonds to be redeemed on the Mandatory Purchase Date, nor of
Bonds issued in exchange for or upon the registration of transfer of Bonds to be
redeemed on the Mandatory Purchase Date. Holders of Bonds subject to mandatory
tender shall tender such Bonds to the Tender Agent by 10:00 a.m., Local Time, on
each Mandatory Purchase Date.
(f) Bonds Deemed Tendered. If (i) with respect to a Mandatory Purchase
Date, a Holder fails to deliver Bonds subject to mandatory tender to the Tender
Agent on or before the Mandatory Purchase Date, or (ii) with respect to an
Optional Tender Date, a Holder gives notice pursuant to Section 2.6(a) to the
Remarketing Agent and thereafter fails to deliver such Bonds (or portion
thereof) to the Tender Agent, as required, then such Bond (or portion thereof),
that is not delivered to the Tender Agent, shall be deemed to have been properly
tendered (such Bond being hereinafter referred to as an "Untendered Bond") and,
to the extent that there shall be on deposit with the Applicable Paying Agent on
the date purchase thereof is required as provided herein an amount sufficient to
pay the Purchase Price thereof, such Untendered Bond shall cease to constitute
or represent a right to payment of principal or interest thereon and shall
constitute and represent only the right to the payment of the Purchase Price
payable on such date.
(g) Source of Funds for Purchase of Bonds. On each Optional Tender Date
and each Mandatory Purchase Date there shall be purchased (but solely from funds
set forth below) the Bonds (or portions thereof) of a Series, tendered (or
deemed tendered) to the Tender Agent for purchase in accordance with this
section at the applicable Purchase Price. Funds for the payment of the Purchase
Price for Bonds (or portions thereof) of a Series shall be paid by the
Applicable Paying Agent solely from the following sources and in the following
order of priority:
(i) proceeds of the remarketing of Bonds of such Series (or portions
thereof) pursuant to Section 2.7 that have been transferred to such Paying
Agent pursuant to said Section;
(ii) moneys drawn under the Applicable Credit Facility pursuant to
Section 3.8(a)(ii);
(iii) moneys from the account relating to such Series within the Bond
Purchase Fund constituting Eligible Funds, if any, under clause (i) of the
definition of Eligible Funds that have been transferred to such Paying
Agent pursuant to Section 4.4; and
(iv) any other moneys furnished by or on behalf of the Company for
purchase of Bonds of such Series.
Bonds (or portions thereof) purchased as provided above shall be delivered as
provided in Section 2.8.
(h) Notice of Mandatory Purchase Date. With respect to a Series of Bonds,
not less than thirty (30) days prior to each Mandatory Purchase Date for such
Series occurring as a result of a Credit Modification Date or at the Company's
direction, and not less than three (3) days prior to each Mandatory Purchase
Date occurring at the Applicable Credit Issuer's direction, the Trustee shall
give written notice of such Mandatory Purchase Date to the Remarketing Agent,
the Tender Agent, the Applicable Paying Agent and, by first-class mail, postage
prepaid, the Holders of the Bonds of such Series, which notice shall be in
substantially the form of Exhibits C or D hereto, as the case may be,
appropriately completed. Failure to mail such notice or any defect therein shall
not affect the rights or obligations of Holders and the Trustee shall not be
liable to any Holder by reason of its failure to mail such notice or any defect
therein. With respect to a Mandatory Purchase Date that is a Conversion Date
with respect to any Series of Bonds, the Trustee shall provide notice to the
Holders of the Bonds of such Series as set forth in Section 2.4(d). With respect
to a Mandatory Purchase Date that is the day next succeeding the last day of
each Flexible Term Rate Period, no notice of mandatory tender will be sent to
the Holders.
(i) Purchase Notice. If the Bonds are held in a Book Entry System, a
purchase notice pursuant to Section 2.6(a)(i) may be delivered by a Beneficial
Owner. Such purchase notice must be delivered as set forth in Section 2.6(a)(i)
and must state that such Beneficial Owner will cause its beneficial interest (or
portion thereof in an Authorized Denomination) to be tendered, the Series and
amount of such interest to be tendered, the Optional Tender Date on which such
interest will be tendered and the identity of the Participant through which the
Beneficial Owner maintains its interest. Upon delivery of such notice, the
Beneficial Owner must make arrangements to have its beneficial ownership
interest in the Bonds being tendered transferred to the Tender Agent at or prior
to 10:00 a.m., on the Optional Tender Date, but need not otherwise comply with
Section 2.6(a)(ii).
Section 2.7 Remarketing of Bonds.
(a) Best Efforts to Place Bonds. The Remarketing Agent shall use its best
efforts to place Bonds of a Series (or portions thereof) at a price of par plus
accrued interest, if any, on each date that such Bonds (or portions thereof) are
required to be purchased pursuant to Section 2.6 and if such Bonds are not
placed on such date (such Bonds being hereinafter referred to as "Unremarketed
Bonds"), the Remarketing Agent shall continue to use its best efforts to place
such Unremarketed Bonds at a price of par plus accrued interest, if any. By
12:00 noon, Local Time, on the Business Day prior to each date that the Bonds
(or portions thereof) are required to be purchased pursuant to Section 2.6, the
Remarketing Agent shall give initial notice by telephone (promptly confirmed by
telecopy) of the principal amount of the Bonds of a Series for which it has
arranged placement, together with the principal amount of the Bonds of such
Series, if any (and such other particulars with respect thereto as the Trustee
or Tender Agent may deem necessary), for which it has not arranged placement, to
the Trustee, the Tender Agent, the Company, the Applicable Credit Issuer and the
Applicable Paying Agent.
Such initial notice shall be confirmed by telephone notice by 9:00 a.m.,
Local Time, on the date that such Bonds are to be purchased (such notice to be
promptly confirmed in writing) of the amount of Bonds of a Series not remarketed
and the information necessary to enable the Trustee to prepare new Bond
certificates with respect to the Bonds that were remarketed. By 9:30 a.m., Local
Time, the Remarketing Agent shall transfer to the Applicable Paying Agent the
proceeds of the remarketing of such Bonds. By 10:30 a.m., Local Time, the
Applicable Paying Agent shall notify the Trustee of the amount of remarketing
proceeds it received from the Remarketing Agent.
Notwithstanding anything herein to the contrary, Bonds may be remarketed
only at a price of par.
(b) Draws on Credit Facility. In the event that moneys from the source
described in Section 2.6(g)(i) are insufficient to pay the Purchase Price of
Bonds of a Series that are tendered or deemed tendered on an Optional Tender
Date or a Mandatory Purchase Date, the Trustee shall, by 11:00 a.m., Local Time,
on such Optional Tender Date or Mandatory Purchase Date, take all action
required to cause the Purchase Price of each such Bond, to the extent not
available from the source described in Section 2.6(g)(i), to be paid from the
Applicable Credit Facility. In the event the Purchase Price of Bonds of a Series
is paid from the Applicable Credit Facility as described herein, and the Company
does not reimburse the Applicable Credit Issuer for such Purchase Price, upon
the remarketing of such Bonds as described in Section 2.7(a), the Applicable
Paying Agent shall deliver the proceeds of the remarketing of such Bonds to the
Applicable Credit Issuer.
(c) No Remarketing During Default. The Remarketing Agent shall not be
required to remarket any Bonds pursuant to this Section if it has actual
knowledge that an Event of Default shall have occurred and be continuing
hereunder or if the Remarketing Agent determines, in its sole discretion, that
the remarketing of the Bonds would be unlawful or would be likely to result in
the imposition of liability or damages against the Remarketing Agent, any Paying
Agent, the Tender Agent, the Trustee, any Credit Issuer, or the Company.
(d) Remarketing to Company. If a Credit Facility is then in effect with
respect to a Series of Bonds, the Remarketing Agent shall not remarket any Bonds
to (i) the Company, (ii) any other Person obligated (as guarantor or otherwise)
to make payments on such Series or under any Credit Agreement relating to such
Series, or (iii) an "affiliate" of the Company as defined in Bankruptcy Code ss.
101(2) (if the Remarketing Agent has actual knowledge that such Person is an
"affiliate" at the time of such remarketing), pursuant to this Section prior to
the expiration or earlier termination of the Applicable Credit Facility unless,
prior to such remarketing, the Trustee, the Rating Agency, if any, rating such
Series, and the Remarketing Agent shall have received an unqualified opinion of
Counsel experienced in bankruptcy law matters to the effect that such
remarketing would not result in a preferential payment pursuant to the
provisions of Section 547 of the Bankruptcy Code recoverable from Holders of the
Bonds of such Series pursuant to Section 550 of the Bankruptcy Code in the event
of an Act of Bankruptcy, and if a Rating Agency is rating such Series, such
Rating Agency has confirmed to the Trustee in writing that its rating will not
be withdrawn or reduced as a result of such remarketing.
(e) Notice to Proposed Purchasers of Bonds. The Remarketing Agent will
give any Person to whom Bonds are proposed to be remarketed written notice of
any Mandatory Purchase Date, acceleration of maturity of Bonds or redemption of
Bonds, notice of which has been given to Holders of the Bonds of the same Series
as that of the Bonds proposed to be remarketed, prior to remarketing such Bonds
to such Person.
(f) No Remarketing Under Certain Conditions. Notwithstanding anything to
the contrary herein provided, the Bonds of a Series shall not be remarketed
unless a Credit Facility providing for the payment of the principal of, premium,
if any, and interest on, and Purchase Price of, the Bonds of such Series will be
in effect following the remarketing of such Bonds. Notwithstanding anything to
the contrary herein provided, the Bonds of a Series shall not be remarketed
following a Mandatory Purchase Date for such Series occurring at the Applicable
Credit Issuer's direction unless and until the Remarketing Agent has received
the consent of such Applicable Credit Issuer to such remarketing.
Section 2.8 Delivery of Purchased Bonds. Bonds (or portions thereof)
purchased pursuant to Section 2.6 shall be delivered as follows:
(a) Bonds Purchased from Remarketing Proceeds. Bonds purchased with moneys
described in Section 2.6(g)(i) shall be delivered to the purchasers thereof upon
receipt of payment therefor. Prior to such delivery the Registrar shall provide
for registration of transfer to the Holders, as provided in a written notice
from the Remarketing Agent.
(b) Bonds Purchased from Draws Under Credit Facility. Bonds (or portions
thereof) purchased with moneys drawn under a Credit Facility shall be
surrendered to the Trustee for registration of transfer to the Company and upon
such registration of transfer, the Bonds issued in respect thereof shall be (i)
delivered to and held by the Trustee for the account of the Company, and no such
Bond shall be released, pledged or otherwise transferred or disposed of until
the Trustee shall have received written notice from the Applicable Credit Issuer
that the amounts so drawn under such Credit Facility, together with interest
thereon, if any, due pursuant to any applicable Credit Agreement, have been
reimbursed to such Credit Issuer and that the amount so drawn under such Credit
Facility with respect to such Bonds has been, or upon such release will be,
correspondingly and fully reinstated, and thereupon shall be delivered to, or in
accordance with the written direction of, the Company or (ii) if required
pursuant to any Credit Agreement, issued to a pledge agent for the account of
the Applicable Credit Issuer as pledgee of such Bonds and no such Bond shall be
released, pledged or otherwise transferred or disposed of until the Trustee
shall have received written notice from such Credit Issuer that the amounts so
drawn under such Credit Facility, together with interest thereon, if any, due
pursuant to any Credit Agreement, have been reimbursed to such Credit Issuer and
that the amount so drawn under such Credit Facility with respect to such Bonds
has been, or upon such release will be, correspondingly and fully reinstated.
(c) Bonds Purchased with Other Moneys. Bonds (or portions thereof)
purchased with any other moneys pursuant to Section 2.6(g) shall be delivered to
the Trustee (i) for cancellation and shall be canceled, or (ii) if the Company
requests, for registration of transfer to the Company.
(d) During Book Entry System. Notwithstanding anything herein to the
contrary, so long as the Bonds are held under the Book Entry System, Bonds will
not be delivered as set forth in (a) - (c) above; rather, transfers of
beneficial ownership and pledges of the Bonds to the persons indicated above
will be effected on the books of the Securities Depository and its Participants
pursuant to its rules and procedures.
Section 2.9 Execution. The Bonds shall be executed on behalf of the
Company by the manual or facsimile signature of the President or a Vice
President of the Company and attested by the manual or facsimile signature of
the Secretary or Assistant Secretary of the Company and shall have impressed or
imprinted thereon the seal (or a facsimile thereof), if any, of the Company.
In case an officer of the Company whose manual or facsimile signature
shall appear on the Bonds shall cease to be an officer of the Company before the
delivery of such Bonds, such manual or facsimile signatures shall nevertheless
be valid and sufficient for all purposes.
Section 2.10 Certificate of Authentication. No Bonds shall be secured
hereby or entitled to the benefit hereof or shall be or become valid or
obligatory for any purpose unless there shall be endorsed thereon a certificate
of authentication, substantially in the form as set forth in the form of Bond
referred to in Section 2.11, executed by an authorized signatory of the Trustee;
and such certificate on any Bond issued by the Company shall be conclusive
evidence and the only competent evidence that it has been duly authenticated and
delivered hereunder.
Section 2.11 Form of Bonds.
(a) The Series 1999 Bonds, the Trustee's certificate of authentication to
be endorsed on such Series and the form of assignment shall be in substantially
the form set forth as Exhibit A hereto, with such appropriate variations,
omissions, substitutions and insertions as are permitted or required hereby or
are required by law and may have such letters, numbers or other marks of
identification and such legends and endorsements placed thereon as may be
required to comply with any applicable laws or rules or regulations, or as may,
consistent herewith, be determined by the officers of the Company executing such
Bonds, as evidenced by their execution of the Bonds. Any Series of Additional
Bonds shall be in substantially the form set forth in Exhibit A hereto, with
such appropriate variations, omissions, substitutions and insertions as are
permitted or required under the supplemental indenture authorizing the issuance
of such Series.
(b) The Bonds shall be in either typewritten or printed form, as the
Company shall direct, with approval of the Trustee; provided that any expenses,
including but not limited to expenses of printing, incurred in connection
therewith shall be paid by the Company.
(c) On and after any Mandatory Purchase Date occurring with respect to a
Series of Bonds, Bonds of such Series authenticated and delivered hereunder
shall have omitted from the text thereof such provisions contained in the form
of the Bonds set forth as Exhibit A hereto as are not applicable to such Bonds
on and after such date or shall include such provisions as will become
applicable after such date including, without limitation, any reference to
entitlement to any benefit of a Credit Facility, if then in effect, and any
redemption provisions made applicable as a result of the occurrence of a
Conversion Date relating to a conversion to a Long-Term Rate.
Section 2.12 Delivery of Bonds.
(a) Series 1999 Bonds. Upon the execution and delivery hereof, the Company
shall execute the Series 1999 Bonds and deliver them to the Trustee, and the
Trustee shall authenticate the Series 1999 Bonds and deliver them to such
purchaser or purchasers as shall be directed in writing by the Company as
hereinafter in this Section provided.
Prior to the direction by the Company to the Trustee to deliver any of the
Series 1999 Bonds there shall be filed with the Trustee:
(i) A certified copy of all resolutions adopted and proceedings had by
the Company authorizing execution of the Indenture and the issuance of the
Series 1999 Bonds;
(ii) An original executed counterpart of this Indenture, the Purchase
Agreement and the Remarketing
Agreement;
(iii) An original executed counterpart of the Series 1999 Credit
Agreement and the original executed Series 1999 Credit Facility;
(iv) An opinion of Counsel for the Company to the effect that (A) the
Series 1999 Bonds, this Indenture, the Purchase Agreement, the Remarketing
Agreement and the Series 1999 Credit Agreement have been duly authorized,
executed and delivered by the Company and are legal, valid and binding
agreements of the Company, (B) the Bonds are exempt from registration
pursuant to the Securities Act of 1933, as amended, and this Indenture is
exempt from qualification as an indenture pursuant to the Trust Indenture
Act of 1939, as amended, and (C) that nothing has come to the attention of
Counsel for the Company which would lead them to believe that the
information concerning the Company contained in the Official Statement or
incorporated by reference therein contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) An opinion of Counsel for the Series 1999 Credit Issuer, addressed
to the Company, the Remarketing Agent, the Trustee and the Paying Agent
for such Series to the effect that the Series 1999 Credit Facility has
been duly executed and delivered by such Credit Issuer and is a legal,
valid and binding obligation of such Credit Issuer or, if the Series 1999
Credit Facility is issued by a branch or agency of a foreign commercial
bank, to the effect that the Series 1999 Credit Facility is the legal,
valid and binding obligation of such branch or agency and there shall also
be delivered an opinion of Counsel licensed to practice law in the
jurisdiction in which the main office of such bank is located,
satisfactory to the Trustee, to the effect that the Series 1999 Credit
Facility has been duly executed and delivered by such branch or agency and
is the legal, valid and binding obligation of such bank; and
(vi) A request and authorization to the Trustee on behalf of the
Company and signed by a duly authorized officer of the Company directing
the Trustee to authenticate and deliver the Series 1999 Bonds in such
specified denominations as permitted herein to the initial purchaser or
purchasers upon payment to the Trustee, but for the account of the
Company, of a specified sum of money.
Upon receipt of the foregoing, the Trustee shall authenticate and deliver
the Series 1999 Bonds as provided above.
(b) Additional Bonds. So long as no Event of Default hereunder has
occurred and is continuing, the Company may issue Additional Bonds in one or
more Series. Upon the execution and delivery of a supplemental indenture
authorizing the issuance of a Series of Additional Bonds, the Company shall
execute and deliver to the Trustee, and the Trustee shall authenticate, such
Additional Bonds and deliver them to such purchaser or purchasers as shall be
directed in writing by the Company as hereinafter provided.
Prior to the direction by the Company to the Trustee to deliver a Series
of Additional Bonds, there shall be filed with the Trustee:
(i) An original executed counterpart of a supplemental indenture
executed by the Company:
(A) establishing such Series and the principal amount of the
Additional Bonds to be issued thereunder;
(B) establishing the final maturity date for such Series and
the times and prices, if any, at which such Bonds shall be
subject to mandatory sinking fund redemption;
(C) establishing the authorized denominations of such Series;
(D) specifying the initial Interest Rate Determination Method
to be in effect with respect to such Series;
(E) specifying the initial Interest Payment Date for such
Series;
(F) establishing the Ceiling Rate for such Series;
(G) designating the Paying Agent for such Series;
(H) establishing accounts or subaccounts within
the Bond Fund, the Initial Fund and the Bond
Purchase Fund for such Series and authorizing
the Trustee to disburse the proceeds of such
Series deposited in the Initial Fund to the
Company or to such other Person or Persons
specified therein and specifying any
conditions to such disbursement; and
(I) setting forth any other terms and conditions to the
issuance of such Series;
(ii) A certified copy of all resolutions adopted and proceedings had by
the Company authorizing execution of the supplemental indenture referred
to in (i) above and the issuance of such Series;
(iii) An original executed counterpart of an agreement between the
Company and the Underwriter for such Series, which shall be in form and
substance satisfactory to the Trustee and the Remarketing Agent, providing
for the initial sale of such Series and the determination of the Rate for
the initial Interest Period for such Series;
(iv) An original executed counterpart of the Credit Agreement relating
to such Series and the original executed Credit Facility for such Series;
(v) A certificate signed by an officer of the Company satisfactory to
the Trustee and the Remarketing Agent to the effect that no Event of
Default under this Indenture is then existing or will result from the
issuance of such Series;
(vi) An opinion of Counsel for the Company to the effect that the
Additional Bonds of such Series, the supplemental indenture authorizing
such Series, the placement agreement for such Series, the Remarketing
Agreement and the Credit Agreement for such Series have been duly
authorized, executed and delivered by the Company and are legal, valid and
binding agreements of the Company, (B) the Additional Bonds of such Series
are exempt from registration pursuant to the Securities Act of 1933, as
amended, and the supplemental indenture authorizing such Series is exempt
from qualification as an indenture pursuant to the Trust Indenture Act of
1939, as amended, and (C) that nothing has come to the attention of
Counsel for the Company which would lead them to believe that the
information concerning the Company contained in the official statement
prepared in connection with the sale of the Additional Bonds of such
Series or incorporated by reference therein contains any untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(vii) An opinion of Counsel for the Applicable Credit Issuer, addressed
to the Company, the Remarketing Agent, the Trustee and the Paying Agent
for such Series to the effect that such Credit Facility has been duly
executed and delivered by such Credit Issuer and is a legal, valid and
binding obligation of such Credit Issuer or, if such Credit Facility is
issued by a branch or agency of a foreign commercial bank, to the effect
that such Credit Facility is the legal, valid and binding obligation of
such branch or agency and there shall also be delivered an opinion of
Counsel licensed to practice law in the jurisdiction in which the main
office of such bank is located, satisfactory to the Trustee, to the effect
that such Credit Facility has been duly executed and delivered by such
branch or agency and is the legal, valid and binding obligation of such
bank; and
(viii) A request and authorization to the Trustee on behalf of the
Company and signed by a duly authorized officer of the Company directing
the Trustee to authenticate and deliver such Series in such specified
denominations as permitted under the supplemental indenture to the initial
purchaser or purchasers upon payment to the Trustee, but for the account
of the Company, of a specified sum of money, which sum shall be paid over
to the Trustee and deposited to the credit of the Initial Fund.
Upon receipt of the foregoing, the Trustee shall authenticate and deliver
the Series of Additional Bonds as provided above.
Section 2.13 Mutilated, Lost, Stolen or Destroyed Bonds. If any Bond is
mutilated, lost, stolen or destroyed, the Company may execute and the Trustee
may authenticate and deliver a new Bond of the same Series, maturity, interest
rate, principal amount and tenor in lieu of and in substitution for the Bond
mutilated, lost, stolen or destroyed; provided, that there shall be first
furnished to the Trustee evidence satisfactory to it and the Company of the
ownership of such Bond and of such loss, theft or destruction (or, in the case
of a mutilated Bond, such mutilated Bond shall first be surrendered to the
Trustee), together with indemnity satisfactory to the Trustee and the Company
and compliance with such other reasonable regulations as the Company and the
Trustee may prescribe. If any such Bond shall have matured or a redemption date
pertaining thereto shall have passed, instead of issuing a new Bond the Company
may pay the same without surrender thereof. The Company and the Trustee may
charge the Holder of such Bond with their reasonable fees and expenses in this
connection.
Section 2.14 Exchangeability and Transfer of Bonds; Persons Treated as
Owners. Books for the registration of the Bonds and for the registration of
transfer of the Bonds as provided herein shall be kept by the Registrar.
Any Holder of a Bond, in person or by his/her duly authorized attorney,
may transfer title to his/her Bond on the Register upon surrender thereof at the
principal office of the Trustee, and by providing the Registrar with a written
instrument of transfer (in substantially the form of assignment attached to the
Bond) executed by the Holder or his/her duly authorized attorney, and thereupon,
the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Bond or Bonds of the same Series,
aggregate principal amount and tenor as the Bond surrendered (or for which
transfer of registration has been effected) and of any Authorized Denomination
or Authorized Denominations.
Bonds may be exchanged upon surrender thereof at the principal office of
the Registrar with a written instrument of transfer satisfactory to the
Registrar executed by the Holder or such Holder's attorney duly authorized in
writing, for an equal aggregate principal amount of Bonds of the same Series and
tenor as the Bonds being exchanged and of any Authorized Denomination or
Authorized Denominations. The Company shall execute and the Trustee shall
authenticate and deliver Bonds that the Holder making the exchange is entitled
to receive, bearing numbers not contemporaneously then outstanding with respect
to such Series.
Such registrations of transfer or exchanges of Bonds shall be without
charge to the Holders of such Bonds, but any taxes or other governmental charges
required to be paid with respect to the same shall be paid by the Holder of the
Bond requesting such registration of transfer or exchange as a condition
precedent to the exercise of such privilege. Any service charge made by the
Registrar for any such registration of transfer or exchange and all reasonable
expenses of the Trustee shall be paid by the Company.
The Registrar shall not register any transfer of any Bond, except pursuant
to a tender of Bonds on an Optional Tender Date or a Mandatory Purchase Date,
after notice calling such Bond (or portion thereof) for redemption has been
given and prior to such redemption, except in the case of any Bond to be
redeemed in part, the portion thereof not to be redeemed. In connection with any
such transfer pursuant to a tender of Bonds on an Optional Tender Date or a
Mandatory Purchase Date, the Registrar shall deliver to the transferee a copy of
the applicable notice of redemption.
The person in whose name any Bond shall be registered shall be deemed and
regarded as the absolute owner thereof for all purposes, and payment of or on
account of either principal or interest shall be made only to or upon the order
of the registered owner thereof or his/her duly authorized attorney, but such
registration may be changed as hereinabove provided. All such payments shall be
valid and effectual to satisfy and discharge the liability upon such Bond to the
extent of the sum or sums so paid.
All Bonds issued upon any registration of transfer or exchange of Bonds
shall be legal, valid and binding obligations of the Company, evidencing the
same debt, and entitled to the same security and benefits under this Indenture,
as the Bonds surrendered upon such registration of transfer or exchange.
Notwithstanding the foregoing, for so long as the Bonds are held under the
Book Entry System, transfers of beneficial ownership will be effected pursuant
to rules and procedures established by the Securities Depository.
Section 2.15 Replacement Bonds. Except when the Bonds are held in the Book
Entry System, the Company shall execute and the Trustee shall authenticate and
deliver Replacement Bonds to replace Untendered Bonds. Any such Replacement Bond
shall be executed and authenticated as provided in this Indenture. The Company
shall bear all expenses in connection with the preparation and delivery of the
Replacement Bonds.
Section 2.16 Cancellation. All Bonds that have been surrendered to the
Registrar pursuant to Sections 2.13, 2.14 or 2.15 of this Indenture or for the
purpose of purchase upon an Optional Tender Date or a Mandatory Purchase Date,
or for payment upon maturity or redemption prior to maturity, shall be canceled
and destroyed by the Registrar and a certificate of destruction shall be
delivered to the Company.
Section 2.17 Ratably Secured. All Bonds of a Series issued hereunder are
and are to be, to the extent provided in this Indenture, equally and ratably
secured by this Indenture without preference, priority or distinction on account
of the actual time or times of the authentication, delivery or maturity of the
Bonds of such Series so that subject as aforesaid, all Bonds of such Series at
any time Outstanding shall have the same right, lien and preference under and by
virtue of this Indenture and shall all be equally and ratably secured hereby
with like effect as if they had all been executed, authenticated and delivered
simultaneously on the date hereof, whether the same, or any of them, shall
actually be disposed of at such date, or whether they, or any of them, shall be
disposed of at some future date. Notwithstanding the foregoing, any Bond of a
Series that is registered in the name of the Company or held or required to be
held by the Trustee or any pledge agent under a pledge agreement pursuant to
Section 2.8 shall not be entitled to any benefit of the Applicable Credit
Facility.
Section 2.18 Redemption of Bonds; Partial Redemption of
Bonds.
(a) Optional Redemption. Bonds of a Series then bearing interest at a
Weekly Rate are subject to redemption, at the direction of the Company, in whole
on any Business Day or in part on any Interest Payment Date for such Bonds, at a
redemption price equal to the principal amount of the Bonds to be redeemed plus
accrued interest thereon to the redemption date.
Bonds of a Series then bearing interest at a Monthly Rate are subject to
redemption, at the direction of the Company, in whole on the first Business Day
of any calendar month or in part on any Interest Payment Date for such Bonds, at
a redemption price equal to the principal amount of the Bonds to be redeemed
plus accrued interest thereon to the redemption date.
Bonds of a Series then bearing interest at a Flexible Term Rate are
subject to redemption, at the direction of the Company, in whole or in part on
any Interest Payment Date applicable to the Bonds to be redeemed, at a
redemption price equal to the principal amount of the Bonds to be redeemed plus
accrued interest thereon to the redemption date.
Bonds of a Series then bearing interest at a Long-Term Rate are subject to
redemption, at the direction of the Company, in whole or in part on any Interest
Payment Date for such Bonds occurring on or after the First Day of Redemption
Period for such Bonds as described below, at a redemption price equal to the
principal amount of the Bonds to be redeemed, plus a redemption premium
(expressed as a percentage of principal amount) plus accrued interest thereon to
the redemption date as follows, provided, however, if a Credit Facility is then
in effect with respect to such Bonds, such redemption premium shall be paid only
from Eligible Funds described in clause (i) of the definition of Eligible Funds
on deposit in the Bond Fund, unless such Credit Facility provides for payment of
such premium:
Length of Long-Term
Rate Period From
Conversion Date
Until First Day of Redemption Premium as a
End of Rate Period Redemption Percentage of Principal Amount
(Expressed in Period of Bonds
Years)
More than 7 5th 2% declining by 1% every year Anniversary of
after the 5th Anniversary of the Conversion Date Conversion
Date until reaching
0%, and thereafter 0%.
More than 5 but 4th 1% declining by 1% to 0% the
not more than 7 Anniversary of first year after the 4th
Conversion Date Anniversary of the Conversion Date, and
thereafter 0%.
5 or less Bonds not N/A
redeemable
pursuant to
this paragraph.
The above premiums may be changed for the Bonds of any Series upon the
conversion of such Bonds to a Long-Term Rate in accordance with the provisions
of Section 2.3(f) and (g). The above premiums may also be changed, with respect
to any Series of Additional Bonds, to the extent provided in the supplemental
indenture delivered pursuant to Section 2.12(b) authorizing the issuance of such
Additional Bonds.
(b) [Reserved].
(c) [Reserved].
(d) Mandatory Sinking Fund Redemption. The Series 1999 Bonds shall not be
subject to mandatory sinking fund redemption prior to their final maturity. A
Series of Additional Bonds shall be subject to mandatory sinking fund redemption
to the extent and subject to such related provisions, if any, set forth in the
supplemental indenture authorizing the issuance of such Series.
(e) Selection of Bonds to be Redeemed. If less than all the Outstanding
Bonds of a Series shall be called for redemption, the Registrar or, if the Bonds
are held in the Book Entry System, the Securities Depository shall first select
and call for redemption Bonds of such Series held by the Trustee or a pledge
agent for the account of the Company and pledged to the Credit Issuer for such
Series as contemplated in Section 2.8(b). If, following such selection,
additional Bonds of such Series must be selected and called for redemption, the
Registrar or, if the Bonds are held in the Book Entry System, the Securities
Depository shall select or arrange for the selection, in such manner as it shall
deem fair and equitable and pursuant to its rules and procedures, the Bonds of
such Series, in Authorized Denominations, provided that any Bond or portion
thereof remaining Outstanding shall be in an Authorized Denomination. If there
shall be called for redemption less than the principal amount of a Bond, the
Company shall execute and the Trustee shall authenticate and deliver, upon
surrender of such Bond, without charge to the Holder thereof in exchange for the
unredeemed principal amount of such Bond at the option of such Holder, Bonds of
like Series in any of the Authorized Denominations or, if the Bonds are held in
the Book Entry System, the Securities Depository shall, acting pursuant to its
rules and procedures, reflect in said system the partial redemption and the
Trustee shall (i) either exchange the Bond or Bonds held by the Securities
Depository for a new Bond or Bonds of like Series in the appropriate principal
amount, if such Bond is presented to the Trustee by the Securities Depository,
or (ii) obtain from the Securities Depository a written confirmation of the
reduction in the principal amount of the Bonds of such Series held by such
Securities Depository.
Section 2.19 Notice of Redemption. The Company shall exercise its option
to direct the redemption of Bonds by giving written notice to the Remarketing
Agent, the Trustee, the Applicable Paying Agent and the Applicable Credit
Issuer, not less than forty-five (45) days prior to the date selected for
redemption. To exercise any optional redemption of Bonds of a Series pursuant to
Section 2.18(a) so long as a Credit Facility is in effect with respect to such
Series, then at least one day before the Trustee is to give notice of such
redemption, the Trustee must have received written consent from the Applicable
Credit Issuer to a draw on such Credit Facility in the amount of such redemption
price if moneys in the Bond Fund constituting Eligible Funds under clause (i) of
the definition of Eligible Funds will not be available to reimburse the
Applicable Credit Issuer for such drawing on the date of such redemption. If the
Applicable Credit Issuer does not consent to a drawing for an optional
redemption of Bonds of a Series pursuant to Section 2.18(a), the Trustee may
condition such call for redemption upon the deposit with the Trustee of
sufficient Eligible Funds on or prior to the date selected for redemption to
reimburse the Applicable Credit Issuer for such drawing or to retire the Bonds
to be redeemed if the Applicable Credit Issuer fails to honor such drawing, and
if sufficient Eligible Funds are not so available on the date selected for
redemption, such call for redemption shall be revoked. Notice of redemption
shall be mailed by the Trustee by first-class mail, postage prepaid, at least
thirty (30) days before the redemption date to each Holder of the Bonds of such
Series to be redeemed in whole or in part at his/her last address appearing on
the Register, but no defect in or failure to give such notice of redemption
shall affect the validity of the redemption. A notice of optional redemption
shall describe whether and the conditions under which the call for redemption
shall be revoked. All Bonds properly called for redemption will cease to bear
interest on the date fixed for redemption, provided Eligible Funds for their
redemption have been duly deposited with the Trustee and, thereafter, the
Holders of such Bonds called for redemption shall have no rights in respect
thereof except to receive payment of the redemption price from the Trustee and a
new Bond for any portion not redeemed.
Section 2.20 Book Entry System. Bonds shall be initially issued pursuant
to a Book Entry System administered by the Securities Depository with no
physical distribution of Bond certificates to be made except as provided in this
Section. Any provision of this Indenture or the Bonds requiring physical
delivery of the Bonds shall, with respect to any Bonds held under the Book Entry
System, be deemed to be satisfied by a notation on the Register maintained by
the Registrar that such Bonds are subject to the Book Entry System.
So long as a Book Entry System is being used, one Bond in the aggregate
principal amount of each Series issued hereunder and registered in the name of
the Securities Depository Nominee will be issued and deposited with the
Securities Depository and held in its custody. The Book Entry System will be
maintained by the Securities Depository and the Participants and Indirect
Participants and will evidence beneficial ownership of the Bonds in Authorized
Denominations, with registration of transfers of ownership effected on the
records of the Securities Depository, the Participants and the Indirect
Participants pursuant to rules and procedures established by the Securities
Depository, the Participants and the Indirect Participants. The principal of,
interest and any premium on each Bond shall be payable to the Securities
Depository Nominee or any other person appearing on the Register as the
registered Holder of such Bond or his/her registered assigns or legal
representative at the principal office of the Registrar. So long as the Book
Entry System is in effect, the Securities Depository will be recognized as the
Holder of the Bonds for all purposes (except as provided in Section 2.6(i)).
Transfer of principal, interest and any premium payments or notices to
Participants and Indirect Participants will be the responsibility of the
Securities Depository, and transfer of principal, interest and any premium
payments or notices to Beneficial Owners will be the responsibility of the
Participants and the Indirect Participants. No other party will be responsible
or liable for such transfers of payments or notices or for maintaining,
supervising or reviewing such records maintained by the Securities Depository,
the Participants or the Indirect Participants. While the Securities Depository
Nominee or the Securities Depository, as the case may be, is the registered
owner of the Bonds, notwithstanding any other provisions set forth herein,
payments of principal of, redemption premium, if any, and interest on the Bonds
shall be made to the Securities Depository Nominee or the Securities Depository,
as the case may be, by wire transfer in immediately available funds to the
account of said Holder as may be specified in the Register maintained by the
Registrar or by such other method of payment as the Trustee may determine to be
necessary or advisable with the concurrence of the Securities Depository.
If (i) the Securities Depository determines not to continue to administer
a Book Entry System for the Bonds, or (ii) the Remarketing Agent, with the
consent of the Trustee, elects to remove the Securities Depository, then the
Remarketing Agent, with the consent of the Trustee, may appoint a new Securities
Depository. The Remarketing Agent may elect to remove the Securities Depository
at any time.
If (i) the Securities Depository determines not to continue to administer
a Book Entry System for the Bonds or has been removed and the Remarketing Agent
fails to appoint a new Securities Depository, or (ii) the Remarketing Agent,
with the consent of the Trustee, determines that continuation of a Book Entry
System of evidence and transfer of ownership of the Bonds would adversely affect
the interests of the Beneficial Owners, the Book Entry System will be
discontinued, in which case the Trustee will deliver replacement Bonds in the
form of fully registered certificates in Authorized Denominations in exchange
for the Outstanding Bonds as required by the Trustee and the Beneficial Owners.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY;
CREDIT FACILITY
Section 3.1 Representations, Warranties and Covenants of
the Company. The Company hereby represents, warrants and
covenants that:
(a) The Company is a corporation duly organized, validly existing and in
good standing under the laws of the State of Georgia, has legal authority to
enter into and to perform the agreements and covenants on its part contained in
the Bond Documents to which it is a party, and has duly authorized the
execution, delivery and performance of the Bond Documents to which it is a
party.
(b) The issuance of the Bonds, the execution and delivery of the Bond
Documents to which it is a party, the consummation of the transactions
contemplated hereby, and the fulfillment of or compliance with the terms and
conditions hereof do not and will not violate, conflict with or constitute a
breach of or default under or require any consent (except for such consents and
approvals as have heretofore been obtained) pursuant to the Articles of
Incorporation or Bylaws of the Company, any law or regulation of the United
States or the State (other than federal and state securities laws requiring
registration of the Bonds) or, to the best knowledge of the Company, of any
other jurisdiction presently applicable to the Company, any order of any court,
regulatory body or arbitral tribunal or any agreement or instrument to which the
Company is a party or by which it or any of its property is bound.
(c) Assuming due authorization, execution and delivery by the other
parties thereto and due registration and filing under federal and state
securities laws or due exemption from any such requirements, when executed and
delivered, the Bond Documents to which the Company is a party will be the valid
and binding obligations or agreements of the Company enforceable in accordance
with their respective terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and the application of general principles of equity.
(d) There is no action, suit or proceeding, or, to the knowledge of the
Company, any investigation, at law or in equity, or before or by any court,
public board or body or other governmental authority, pending or, to the
knowledge of the Company, threatened against or affecting the Company which, if
determined adversely to the Company, would materially and adversely affect the
condition (financial or otherwise) of the Company or the legality, validity or
enforceability of, or the Company's ability to perform its obligations under,
any of the Bond Documents (other than the Credit Agreements).
(e) The Company has filed all federal, state and local tax returns which
are required to be filed by it and has paid or caused to be paid all taxes as
shown on said returns or on any assessment received by it, to the extent that
such taxes have become due, unless the failure to file such returns or make such
payments could not reasonably be expected to materially adversely affect the
ability of the Company to perform its obligations under any of the Bond
Documents. No controversy in respect of additional income taxes, state or
federal, of the Company is pending or, to the knowledge of the Company,
threatened which has not heretofore been disclosed in writing to the Trustee and
which, if adversely determined, would materially and adversely affect the
transactions contemplated by, the validity of, or the ability of the Company to
perform its obligations under, any of the Bond Documents (other than the Credit
Agreements).
(f) No approval, consent or authorization of, or registration, declaration
or filing (other than registration and filing under federal and state securities
laws) with, any governmental or public body or authority is required in
connection with the valid execution, delivery and performance by the Company of
the Bond Documents to which it is a party which has not heretofore been
obtained.
(g) The Company will cause the proceeds of the Series 1999 Bonds to be
used for general corporate purposes.
All of the above representations, warranties and covenants shall survive
the execution of this Indenture, the issuance of the Series 1999 Bonds and the
issuance of any Series of Additional Bonds.
Section 3.2 Covenant to Pay Bonds. The Company covenants that it will
promptly pay the principal of, premium, if any, and interest on and Purchase
Price of the Bonds at the places, on the dates and in the manner provided herein
and in the Bonds according to the true intent and meaning thereof. The
obligation of the Company to make the payments required under the Bonds shall be
absolute and unconditional. The Company will pay without abatement, diminution
or deduction (whether for taxes or otherwise) all such amounts regardless of any
cause or circumstance whatsoever including, without limitation, any defense,
set-off, recoupment or counterclaim that the Company may have or assert against
the Trustee or any Holder.
Section 3.3 Covenant to Perform Obligations Under This Indenture. The
Company covenants that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in this
Indenture, in the Bonds executed and delivered hereunder and in all proceedings
of the Company pertaining thereto and will faithfully observe and perform at all
times any and all covenants, undertakings, stipulations and provisions of this
Indenture on its part to be observed or performed.
Section 3.4 Corporate Existence, Sale of Assets,
Consolidation or Merger; Notice of Certain Acquisitions of
Control.
(a) Unless the Trustee consents in writing, the Company will maintain its
corporate existence, will not dissolve or otherwise dispose of all or
substantially all of its assets and will not enter into any transaction of
merger or consolidation except where the Company is the surviving corporation;
provided, however, that if a Credit Facility is in effect with respect to every
Series, the Company may take such action if it is permitted by the terms of each
Credit Agreement or consented to by each Credit Issuer.
(b) With respect to each Series of Bonds, the Company hereby covenants to
provide or cause to be provided written notice to the Trustee, the Remarketing
Agent, and the Holders of such Series thirty days prior, where reasonable, and
not more than thirty days subsequent to the consummation of any transaction that
would result in the Company controlling or being controlled by the Applicable
Credit Issuer. The Company acknowledges that the foregoing sentence supercedes
any exemptions from the continuing disclosure requirement pursuant to Rule
15c2-12(b)(5) of the Securities and Exchange Act of 1934.
Section 3.5 Compliance with Laws. The Company shall comply in all material
respects with all applicable laws, regulations and other valid requirements of
any regulatory authority with respect to its operations unless the failure to
comply could not reasonably be expected to have a material adverse effect on the
Company's ability to perform its obligations under any of the Bonds or the Bond
Documents.
Section 3.6 Maintenance of Properties. The Company will cause all
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, unless the
failure to maintain its properties could not reasonably be expected to have a
material adverse effect on the Company's ability to perform its obligations
under any of the Bonds or the Bond Documents; provided, however, that nothing in
this Section shall prevent the Company from discontinuing the operation or
maintenance of any of such properties if such discontinuance is (i) in the
judgment of the Company, desirable in the conduct of its business and not
disadvantageous in any material respect to the Holders or (ii) if a Credit
Facility is in effect with respect to every Series, permitted by the terms of
each Credit Agreement or consented to by each Credit Issuer.
Section 3.7 Payment of Taxes and Other Claims. The Company will pay or
discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or upon the income, profits or property of the Company,
and (2) all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien upon the property of the Company, unless the failure
to pay any such taxes or claims could not reasonably be expected to have a
material adverse effect on the Company's ability to perform its obligations
under any of the Bonds or the Bond Documents; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
Section 3.8 Credit Facility.
(a) Draws on Credit Facility. Except with respect to Bonds of a Series
registered in the name of the Company, or held or required to be held by the
Trustee or any pledge agent under a pledge agreement pursuant to Section 2.8
(which Bonds shall not be entitled to any benefit of the Applicable Credit
Facility) at any time a Credit Facility is in effect with respect to a Series of
Bonds (i) the Trustee shall draw moneys under such Credit Facility to the extent
necessary to make timely payments of principal, premium, if any (if such Credit
Facility provides for payment of such premium), and interest on such Series, in
accordance with Section 4.1, (ii) the Trustee shall draw moneys, in accordance
with Section 2.7, under such Credit Facility to the extent available in
accordance with the terms of such Credit Facility in order to effect the
purchase of Bonds of such Series (or portions thereof in Authorized
Denominations) on a Mandatory Purchase Date or an Optional Tender Date, and
(iii) upon declaration of acceleration of the Bonds of such Series, the Trustee
shall draw on such Credit Facility to the extent available in an amount equal to
the unpaid principal of and accrued interest on the Bonds of such Series.
Notwithstanding anything in this Indenture to the contrary, no Credit Facility
shall be drawn upon for the payment of principal of, premium, if any, interest
on or the Purchase Price of any Bonds except for Bonds of the Series secured by
such Credit Facility. With respect to a Series of Bonds, the Applicable Paying
Agent shall promptly provide notice to the Trustee of any failure to pay
principal of, premium, if any, or interest on such Series or the Purchase Price
thereof.
(b) Reduction of Credit Facility. Upon any redemption or defeasance of any
Bonds of a Series or upon cancellation of any Bonds of a Series upon purchase
thereof as contemplated by Section 2.8, the Trustee shall send notice to the
Applicable Credit Issuer to reduce the amount available to be drawn on the
Applicable Credit Facility (with written notice of the same to the Company) and
the Trustee shall, upon request, confirm to the Applicable Credit Issuer and the
Company the principal amount of Bonds redeemed, canceled or defeased.
(c) Extensions of Credit Facility. In the event that the term of a Credit
Facility is extended, unless it is automatically extended by its terms or is
extended by amendment, the Trustee shall surrender the instrument evidencing
such Credit Facility to the Applicable Credit Issuer in exchange for a new
instrument conforming, in the opinion of Counsel, in all material respects to
the instrument evidencing such Credit Facility being surrendered, except that
the term thereof shall reflect the new term of such Credit Facility. Upon
discharge of the Indenture with respect to a Series of Bonds pursuant to Section
5.1, the Trustee shall promptly surrender the Applicable Credit Facility to the
Applicable Credit Issuer for cancellation. Following the effective date of an
Alternate Credit Facility delivered with respect to a Series of Bonds (or, if
such Alternate Credit Facility results in the occurrence of a Credit
Modification Date, following such Credit Modification Date), the Trustee shall
promptly surrender the Applicable Credit Facility to the Applicable Credit
Issuer for cancellation. If a Series of Bonds is rated by a Rating Agency,
notice of any extension of the Applicable Credit Facility (unless automatically
extended by its terms) shall be furnished to such Rating Agency by the Trustee.
(d) Expiration or Termination of Credit Facility. The Trustee shall give
notice to the Remarketing Agent and the Applicable Paying Agent, in the name of
the Applicable Credit Issuer, of the expiration or earlier termination of any
Credit Facility then in effect, which notice shall specify the date of such
expiration or earlier termination of the Credit Facility. If a Series of Bonds
is rated by a Rating Agency, notice of any such expiration or termination of the
Applicable Credit Facility shall be furnished to such Rating Agency by the
Trustee. With respect to a Series of Bonds, in the event that the expiration or
termination of the Applicable Credit Facility results in the occurrence of a
Credit Modification Date, the Trustee shall not surrender the Applicable Credit
Facility to be terminated until the Trustee shall have made such drawings, if
any, and taken such other actions, if any, thereunder as shall be required under
this Indenture in order to provide sufficient money for payment of the Purchase
Price of Bonds of such Series tendered or deemed tendered on such Credit
Modification Date to the extent necessary pursuant to Section 2.6(g), and shall
have received the proceeds of such drawing from the Applicable Credit Issuer.
Notwithstanding any provision hereof to the contrary, the Company may not cause
a Credit Facility to be terminated prior to its stated expiration date (whether
in connection with the delivery of an Alternate Credit Facility or otherwise) if
such termination would result in the occurrence of a Credit Modification Date
during a Flexible Term Rate Period or a Long-Term Rate Period.
(e) Alternate Credit Facility. At any time, upon at least sixty (60) days
prior written notice to the Trustee, the Applicable Paying Agent, the Rating
Agency, if any, rating the affected Series of Bonds, and the Remarketing Agent,
the Company may, with the consent of the Remarketing Agent, provide for delivery
to the Trustee of an Alternate Credit Facility with respect to a Series of Bonds
in accordance with the terms and conditions contained in this Section. Not less
than thirty (30) days prior to the proposed Alternate Credit Facility Effective
Date (as defined below), the Trustee shall give each Holder of the affected
Series of Bonds notice of the proposed Alternate Credit Facility by first-class
mail, postage prepaid, which notice shall be in substantially the form of
Exhibit E hereto, appropriately completed; provided, however, that if the
provision of an Alternate Credit Facility results in a Credit Modification Date,
the notice provisions of Section 2.6(h) shall apply; provided further, that if
the Alternate Credit Facility Effective Date (as defined below) is also a
Conversion Date, the notice provisions of Section 2.4(d) shall apply.
If the terms and conditions contained in this Section are satisfied, the
Trustee shall accept an Alternate Credit Facility, and such Alternate Credit
Facility shall become effective, on the date such Alternate Credit Facility is
delivered to the Trustee (the "Alternate Credit Facility Effective Date"). If
the Series of Bonds to which the Alternate Credit Facility relates then bears
interest at a Weekly Rate or a Monthly Rate, the Alternate Credit Facility
Effective Date must be either a Credit Modification Date or a day that could be
an Optional Tender Date upon giving of proper notice by a Holder. If the Bonds
of the Series to which the Alternate Credit Facility relates then bear interest
at a Flexible Term Rate, the Alternate Credit Facility Effective Date must be an
Interest Payment Date. If the Bonds of the Series to which the Alternate Credit
Facility relates then bear interest at a Flexible Term Rate or Long-Term Rate,
the Trustee shall not accept any Alternate Credit Facility if the provision
thereof would result in a Credit Modification Date.
An Alternate Credit Facility for a Series of Bonds shall be an
irrevocable, direct-pay letter of credit issued by a commercial bank organized
and doing business in the United States or a branch or agency of a foreign
commercial bank located in the United States and subject to regulation by state
or federal banking regulatory authorities and shall have an expiration date that
shall be at least one (1) year following the effective date thereof or on the
second Business Day following the final maturity date of such Bonds, if sooner.
On or before the date of the delivery of any Alternate Credit Facility for a
Series of Bonds to the Trustee, as a condition to the acceptance of any
Alternate Credit Facility by the Trustee, the Company shall furnish to the
Trustee (i) written evidence that the issuer of such Alternate Credit Facility
is a commercial bank organized and doing business in the United States or a
branch or agency of a foreign commercial bank located and doing business in the
United States and subject to regulation by state or federal banking regulatory
authorities, (ii) an opinion of Counsel satisfactory to the Company, the
Trustee, the Rating Agency, if any, rating such Series, and the Remarketing
Agent to the effect that the Alternate Credit Facility has been duly executed,
issued and delivered by, and is the legal, valid and binding obligation of, the
Credit Issuer (or, in the case of a branch or agency of a foreign commercial
bank, the branch or agency) issuing the same, enforceable in accordance with its
terms, that payments of principal, premium, if any, or Purchase Price of or
interest on the Bonds of such Series from the proceeds of a drawing on the
Alternate Credit Facility will not constitute avoidable preferences under the
Bankruptcy Code and that the Alternate Credit Facility is not subject to the
registration requirements of the Securities Act of 1933, as amended, and (iii)
evidence of written consent of the Remarketing Agent. In the case of an
Alternate Credit Facility issued for a Series of Bonds by a branch or agency of
a foreign commercial bank there shall also be delivered an opinion of Counsel
licensed to practice law in the jurisdiction in which the head office of such
bank is located, satisfactory to the Trustee, the Rating Agency, if any, rating
the Bonds, and the Remarketing Agent, to the effect that the Alternate Credit
Facility has been duly executed, issued and delivered by and is the legal, valid
and binding obligation of such bank enforceable in accordance with its terms.
The Trustee shall accept any such Alternate Credit Facility only in accordance
with the terms, and upon the satisfaction of the conditions, contained in this
Section and any other provisions applicable to acceptance of an Alternate Credit
Facility under this Indenture.
ARTICLE IV
FUNDS
Section 4.1 Establishment and Use of Bond Fund and Current Subaccounts.
There is hereby created and established with the Trustee the Bond Fund and
within such Fund a separate account relating to the Series 1999 Bonds. Within
such account in the Bond Fund relating to the Series 1999 Bonds there is hereby
created and established a special subaccount designated the "Current
Subaccount." Upon issuance of a Series of Additional Bonds, there shall be
created and established within the Bond Fund a separate account relating to such
Series and within each such account relating to such Series a special subaccount
designated the "Current Subaccount." With respect to each Series of Bonds, the
Trustee shall establish with the Applicable Paying Agent a separate subaccount
of the Bond Fund which, while a Credit Facility is in effect with respect to the
Bonds of such Series, shall be used for depositing moneys drawn by the Trustee
under the Applicable Credit Facility for the payment of principal and interest
on the Bonds of such Series. Neither the Trustee nor the Paying Agents shall
commingle proceeds of a drawing under a Credit Facility with any other funds.
With respect to each Series of Bonds, there shall be deposited in the Bond Fund
and credited to the account relating to such Series within the Bond Fund (a) all
moneys received by the Trustee from the Company with respect to such Series for
deposit by the Trustee in the Bond Fund, and (b) all moneys drawn under any
Applicable Credit Facility to pay principal, premium, if any, or interest on the
Bonds of such Series.
Each deposit into an account within the Bond Fund not constituting
Eligible Funds shall be placed in the Current Subaccount within such account
within the Bond Fund and shall not be commingled with other moneys in the Bond
Fund. The Trustee shall establish separate subaccounts within each Current
Subaccount for each deposit (including any investment income thereon) made into
the Bond Fund so that the Trustee may at all times ascertain the date of deposit
of the moneys in each subaccount.
With respect to each Series of Bonds, moneys in the account relating to
such Series within the Bond Fund shall be held in trust for the Holders of the
Bonds of such Series and, except as otherwise expressly provided herein, shall
be used solely for the payment of the interest on the Bonds of such Series and
for the payment of principal of and premium, if any, on the Bonds of such Series
upon maturity, whether stated or accelerated, or upon mandatory or optional
redemption.
With respect to each Series of Bonds, the Company hereby authorizes and
directs the Trustee, and the Trustee hereby agrees, to withdraw from the account
relating to such Series or the subaccount established for such Series with the
Applicable Paying Agent and make available at the principal office of the
Applicable Paying Agent, sufficient funds from the Bond Fund to pay the
principal of, premium, if any, and interest on the Bonds of such Series as the
same become due and payable, but only in the following order of priority:
FIRST: Amounts drawn by the Trustee under the Applicable Credit
Facility then in effect with respect to such Series (provided, however,
that such amounts shall not be used to pay any premium on such Series
unless such Credit Facility provides for the payment of such premium);
SECOND: From the sources provided in clause (i) of the
definition of Eligible Funds; and
THIRD: Any other amounts (whether or not Eligible
Funds) in the account relating to such Series in the Bond
Fund.
If moneys in the Bond Fund available pursuant to items FIRST and SECOND
above are insufficient to make any payment of principal of, premium, if any or
interest on a Series of Bonds, whether due by maturity, acceleration, redemption
or otherwise, or if the Applicable Credit Issuer has dishonored its obligations
under such Credit Facility, the Trustee, on or after the date such payment is to
be made, shall apply any moneys described in item THIRD above.
With respect to each Series of Bonds, to the extent that an Applicable
Credit Facility is drawn on to make a payment to any Holder, the Trustee shall
use any moneys in the account relating to such Series within the Bond Fund not
then needed to make payments to Holders, regardless of whether such moneys
constitute Eligible Funds, to reimburse the Applicable Credit Issuer.
After payment in full of the Bonds, or provision for the payment of the
Bonds having been made pursuant to Section 5.2, and the payment of all other
amounts owing hereunder, any amounts remaining in the account within the Bond
Fund established for a Series of Bonds shall be paid (i) first to the Applicable
Credit Issuer, if there is then any amount owing by the Company to such Credit
Issuer (and such amount shall be credited against the Company's reimbursement
obligations to such Credit Issuer under the Credit Agreement pursuant to which
such Credit Issuer issued its Applicable Credit Facility), and (ii) second to
all other Credit Issuers, if any, in proportion to the respective amounts, if
any, then owing by the Company to such other Credit Issuers, and (iii) third to
the Company.
Section 4.2 Establishment and Use of Initial Fund. There is hereby created
and established with the Trustee the Initial Fund and within such Fund a special
account designated the "Series 1999 Account." The proceeds of the Series 1999
Bonds, as described in Section 4.5, shall be delivered to the Trustee for
deposit into the Series 1999 Account. Funds in the Series 1999 Account shall be
disbursed by the Trustee to the Company on the Issue Date of the Series 1999
Bonds.
Upon the issuance of a Series of Additional Bonds, the supplemental
indenture authorizing the issuance of such Series shall create and establish
with the Trustee a separate account within the Initial Fund for such Series. The
proceeds of such Additional Bonds shall be delivered to the Trustee for deposit
into the account within the Initial Fund established for such Series, which
funds shall then be disbursed by the Trustee as provided in the supplemental
indenture authorizing the issuance of such Series.
After payment in full of a Series of Bonds, or provision for the payment
of such Series having been made pursuant to Section 5.2, and the payment of all
other amounts owing hereunder with respect to such Series, any amounts remaining
in the account within the Initial Fund established for such Series shall be paid
(i) first to the Applicable Credit Issuer, if there is then any amount owing by
the Company to such Credit Issuer (and such amount shall be credited against the
Company's reimbursement obligations to such Credit Issuer under the Credit
Agreement pursuant to which such Credit Issuer issued its Applicable Credit
Facility), and (ii) second to all other Credit Issuers, if any, in proportion to
the respective amounts, if any, then owing by the Company to such other Credit
Issuers, and (iii) third to the Company.
Section 4.3 [Reserved].
Section 4.4 Establishment and Use of Bond Purchase Fund .
There is hereby established and created with the Trustee the Bond Purchase
Fund and within such fund a separate account relating to the Series 1999 Bonds.
Within such account in the Bond Purchase Fund relating to the Series 1999 Bonds
there is hereby created and established a special subaccount designated the
"Current Purchase Subaccount." Upon issuance of a Series of Additional Bonds,
there shall be created and established within the Bond Purchase Fund a separate
account relating to such Series and within such account relating to such Series
a special subaccount designated the "Current Purchase Subaccount."
With respect to each Series of Bonds, there shall be deposited in the Bond
Purchase Fund and credited to the account relating to such Series within the
Bond Purchase Fund all moneys required to be paid by the Company to provide for
the payment of the Purchase Price of Bonds of such Series pursuant to this
Indenture, together with any other moneys received by the Trustee pursuant to
this Indenture or otherwise (including draws under the Applicable Credit
Facility pursuant to Section 3.8(a)(ii)) that are required or directed to be
paid by or on behalf of the Company with respect to such Series into the Bond
Purchase Fund. With respect to each Series of Bonds, the Trustee shall establish
with the Applicable Paying Agent a separate subaccount of the Bond Purchase
Fund, into which the proceeds of the remarketing of Bonds of such Series to
purchasers (other than the Company, any other Person obligated (as guarantor or
otherwise) to make payments on such Series or under any Credit Agreement
relating to such Series or any "affiliate" of the Company as defined in
Bankruptcy Code ss. 101(2)) will be deposited and a separate subaccount of the
Bond Purchase Fund into which all amounts drawn under the Credit Facility in
effect with respect to such Series pursuant to Section 3.8(a)(ii) will be
deposited. Neither the Trustee nor any Paying Agent shall commingle amounts in
any of such subaccounts with any other funds.
Each deposit made with respect to a Series of Bonds into the Bond Purchase
Fund not constituting Eligible Funds shall be placed in the Current Purchase
Subaccount within the account relating to such Series within the Bond Purchase
Fund and shall not be commingled with other moneys in the Bond Purchase Fund.
With respect to each Series of Bonds, moneys in the account relating to
such Series within the Bond Purchase Fund shall be held in trust for the Holders
of the Bonds of such Series and, except as otherwise expressly provided herein,
shall be used solely for the payment of the Purchase Price of the Bonds of such
Series required to be purchased as set forth in Section 2.6(g).
With respect to each Series of the Bonds, the Trustee is hereby authorized
and directed, and the Trustee hereby agrees, to withdraw and to transfer to the
Applicable Paying Agent, sufficient funds from the account relating to such
Series within the Bond Purchase Fund as contemplated by Section 2.6(g) by 9:30
a.m., Local Time, on each date that Bonds of such Series are to be purchased
pursuant to Section 2.6 from the Bond Purchase Fund to pay the Purchase Price of
Bonds of such Series tendered (or deemed tendered) for purchase pursuant to
Section 2.6. The Trustee shall give the Remarketing Agent prompt telephonic
notice of each such transfer.
After payment in full of the Bonds, or provision for the payment of the
Bonds having been made pursuant to Section 5.2, and the payment of all other
amounts owing hereunder, any amounts remaining in the account within the Bond
Purchase Fund established for a Series of Bonds shall be paid (i) first to the
Applicable Credit Issuer, if there is then any amount owing by the Company to
such Credit Issuer (and such amount shall be credited against the Company's
reimbursement obligations to such Credit Issuer under the Credit Agreement
pursuant to which such Credit Issuer issued its Applicable Credit Facility), and
(ii) second to all other Credit Issuers, if any, in proportion to the respective
amounts, if any, then owing by the Company to such other Credit Issuers, and
(iii) third to the Company.
Section 4.5 Deposit of Bond Proceeds. The proceeds from the initial sale
of the Series 1999 Bonds shall be deposited in the Series 1999 Account within
the Initial Fund. The proceeds of any Series of Additional Bonds shall be
delivered to the Trustee for deposit into the account within the Initial Fund
established for such Series.
Section 4.6 Records. The Trustee shall cause to be kept and maintained
records pertaining to the Initial Fund, the Bond Fund and the Bond Purchase Fund
and all disbursements therefrom and shall periodically deliver to the Company
statements of activity and statements indicating the investments made with
moneys in all such funds during the applicable period. The Trustee shall provide
the Company, by July 10 of each year, with a report stating the principal amount
of each Series of Bonds outstanding and a list of the registered owners of the
Bonds as of June 30 of each such year.
The Trustee shall provide the Company with a written report, not later
than January 10 of each year, and not later than thirty (30) days following the
retirement of the last obligation of any Series of Bonds, identifying the
Permitted Investments in which the moneys held as part of the Initial Fund, the
Bond Fund and the Bond Purchase Fund were invested during the preceding period
and the dates of such investment.
Section 4.7 Investment of Initial Fund, Bond Fund and Bond Purchase Fund
Moneys. Moneys held as part of the Initial Fund, the Bond Fund and the Bond
Purchase Fund shall be invested and reinvested in Permitted Investments as
instructed by a Company Representative; provided, however, that (i) any moneys
from a drawing under a Credit Facility and any moneys held by the Trustee to pay
the principal or Purchase Price of, premium, if any, or interest that has become
payable with respect to the Bonds shall not be invested and (ii) no Paying Agent
shall invest any moneys it receives under this Indenture. All Permitted
Investments shall be held by or under the control of the Trustee and shall be
deemed at all times to be a part of the fund, account and subaccount (as
applicable) which was used to purchase the same. All interest accruing thereon
and any profit realized from Permitted Investments shall be credited to the
respective fund or account and any loss resulting from Permitted Investments
shall be similarly charged. The Trustee is authorized to cause to be sold and
reduced to cash a sufficient amount of Permitted Investments whenever the cash
balance in any fund or account hereunder is or will be insufficient to make a
requested or required disbursement. The Trustee shall not be responsible for any
depreciation in the value of any Permitted Investment or for any loss resulting
from such sale, so long as the Trustee performs its obligations hereunder in
accordance with the provisions of Section 7.1(e). Absent specific instructions
from the Company to invest cash balances in Permitted Investments hereunder, the
Trustee shall invest in Permitted Investments constituting obligations of the
U.S. Treasury or its agencies having a term to maturity of not more than 30 days
or any money market fund or similar investment fund that purchases and holds
exclusively obligations of the United States of America or its agencies that
have a term to maturity of not more than 30 days. Notwithstanding anything to
the contrary herein provided, moneys constituting Eligible Funds shall only be
invested in Government Obligations maturing on or before the date such Eligible
Funds will be required for disbursement.
Section 4.8 [Reserved].
Section 4.9 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 tender thereof or otherwise, if
funds sufficient to pay the principal of, premium (if any), and interest on such
Bond shall have been made available to the Trustee for the benefit of the Holder
or Holders thereof, payment of such Bond or portion thereof as the case may be,
shall forthwith cease, terminate and be completely discharged, and thereupon it
shall be the duty of the Trustee, subject to any applicable escheat laws, to
hold such fund or funds uninvested in the Bond Fund, without liability to the
Holder of such Bond for interest thereon, for the benefit of the Holder of such
Bond, who shall thereafter be restricted exclusively to such fund or funds, for
any claim of whatever nature on his/her part on, or with respect to, said Bond,
or portion thereof, or premium, if any.
ARTICLE V
DISCHARGE OF INDENTURE
Section 5.1 Discharge of Indenture. Upon payment in full of a Series of
Bonds or delivery of such Series to the Trustee for cancellation, such Series
shall no longer be Outstanding and will cease to be entitled to any lien,
benefit or security under this Indenture. Upon payment in full of a Series of
Bonds, the Trustee shall return the Applicable Credit Facility to the Applicable
Credit Issuer. Upon payment in full of all of the Bonds, these presents shall
cease, determine and be discharged, and thereupon the Trustee, upon receipt by
the Trustee of an opinion of Counsel stating that all conditions precedent to
the satisfaction and discharge of this Indenture have been complied with shall
(a) cancel and discharge this Indenture; and (b) execute and deliver to the
Company, at the Company's expense, such instruments in writing as shall be
required to cancel and discharge this Indenture, and assign and deliver to the
Company all moneys in any fund established under this Indenture under its
possession or subject to its control, except for moneys and Government
Obligations held in the Bond Fund for the purpose of paying Bonds and except for
moneys held in the Bond Purchase Fund for the purpose of paying the Purchase
Price of the Bonds which have been purchased pursuant to Section 2.6(g);
provided, however, that the cancellation and discharge of this Indenture
pursuant to Section 5.2 shall not terminate the powers and rights granted to the
Trustee, the Registrar, the Tender Agent and each Paying Agent with respect to
the payment, registration of transfer and exchange of the Bonds; provided,
further, that the rights of the Trustee, the Registrar, the Tender Agent and
each Paying Agent to indemnity, non-liability and payment of all reasonable fees
and expenses shall survive the cancellation and discharge of this Indenture
pursuant to this Section or Section 5.2. If a Series of Bonds is rated by a
Rating Agency, notice of payment in full of such Series shall be furnished to
such Rating Agency.
Section 5.2 Provision for Payment of Bonds. A Series of Bonds shall be
deemed to have been paid within the meaning of Section 5.1 if:
(a) there shall have been irrevocably deposited in the Bond Fund:
(i) if such Series does not bear interest at the Fixed Rate,
sufficient Eligible Funds, or
(ii) if such Series bears interest at the Fixed Rate, either (1)
sufficient Eligible Funds, or (2) Government Obligations purchased with
Eligible Funds of such maturities and interest payment dates and bearing
such interest as will, in the opinion of a nationally recognized firm of
certified public accountants, without further investment or reinvestment
of either the principal amount thereof or the interest earnings thereon
(said earnings also to be held in trust), be sufficient together with any
moneys referred to in subsection (a)(ii)(1) above,
for the payment at their respective maturities or redemption or tender dates
prior to maturity of the principal thereof and the redemption premium, if any,
and interest to accrue thereon at such maturity or redemption or tender dates,
as the case may be (assuming that the Bonds of such Series bear interest at the
Ceiling Rate for such Series during any period during which the interest rate on
such Series may change);
(b) there shall have been paid or provision duly made for the payment of
all fees and expenses of the Trustee, the Registrar, the Applicable Paying
Agent, the Remarketing Agent and the Tender Agent with respect to such Series
due or to become due; and
(c) if any Bonds of such Series are to be redeemed on any date prior to
their maturity, the Trustee shall have received in form satisfactory to it
irrevocable instructions from a Company Representative to redeem such Bonds on
such date and either evidence satisfactory to the Trustee that all redemption
notices required by this Indenture have been given or irrevocable power
authorizing the Trustee to give such redemption notices has been granted to the
Trustee.
Limitations set forth elsewhere herein regarding the investment of
moneys held by the Trustee in the Bond Fund shall not be construed to prevent
the depositing and holding in the Bond Fund of the obligations described in
paragraph (a)(ii) of this section for the purpose of defeasing the lien of this
Indenture as to Bonds which have not yet become due and payable. Notwithstanding
any other provision of this Indenture to the contrary, all Eligible Funds
deposited with the Trustee as provided in this Section may be invested and
reinvested, at the direction of the Company, in Government Obligations (or, in
the case of a deposit under paragraph (a)(i) of this section, in a money market
fund that invests solely in Government Obligations and is rated in the highest
category by one of Fitch, Moody's or S&P and, if more than one of such rating
agencies then rates such money market fund, is rated no less than the highest
rating category by each of such rating agencies then rating such money market
fund) maturing in the amounts and times as hereinbefore set forth, and all
income from all Government Obligations (or money market fund) in the hands of
the Trustee pursuant to this Section which is not required for the payment of
the Bonds and interest and redemption premium, if any, thereon with respect to
which such moneys shall have been so deposited shall be deposited in the Bond
Fund as and when realized and collected for use and application as are other
moneys deposited in the Bond Fund. Notwithstanding the foregoing provisions of
this paragraph, if the Bonds of a Series are rated by S&P at the time a deposit
is made under paragraph (a)(i) of this section, such Eligible Funds may be
invested solely in Government Obligations maturing or to be available to be
withdrawn at par no later than the earlier of the maturity date, a mandatory
tender date, redemption date or the next possible Optional Tender Date.
Notwithstanding any other provision of this Indenture to the contrary, if
a Series of Bonds has been deemed to be paid under this section and the Holder
or Beneficial Owner of any Bond of such Series delivers a tender notice with
respect to such Bond that would result in the occurrence of an Optional Tender
Date for such Bond prior to its maturity or redemption date: (1) the Remarketing
Agent shall not remarket such Bond; (2) the Remarketing Agent shall notify the
Trustee, the Paying Agent and the Tender Agent by the third Business Day prior
to such Tender Date for such Bond that it has received a tender notice with
respect to such Bond; (3) the Trustee shall transfer to the Paying Agent, not
later than 9:30 a.m., Local Time, on such Optional Tender Date for such Bond,
Eligible Funds from the deposit made with respect to such Series into the Bond
Fund under paragraph (a)(i) of this section sufficient to pay the Purchase Price
of such Bond; (4) the Paying Agent shall purchase such Bond on such Optional
Tender Date applicable to such Bond; and (5) such Bond shall be delivered to the
Trustee for cancellation and shall be cancelled.
Notwithstanding any other provision of this Indenture to the contrary, if
all Bonds of a Series have been deemed to be paid because a deposit has been
made under paragraph (a)(i) of this section, and such Series is rated by S&P at
the time such deposit is made, then (i) if such deposit is made with proceeds of
one or more drawings under the Applicable Credit Facility, then any excess funds
remaining in the Bond Fund after payment of all of the Bonds of such Series at
their respective maturities or redemption or tender dates shall be returned to
the Applicable Credit Issuer, or (ii) if such deposit is made with Eligible
Funds as described in clause (i) of that definition, then there shall be
delivered a written opinion of Counsel experienced in bankruptcy law matters, in
form satisfactory to S&P, that the portion of such deposit needed to pay
principal of, interest on and Purchase Price of such Series when due will not be
subject to the automatic stay under Section 362 of the Bankruptcy Code in the
event of an Act of Bankruptcy.
Notwithstanding any other provision of this Indenture to the contrary, if
all Bonds of a Series have been deemed to be paid because a deposit has been
made under paragraph (a)(i) of this section, the Interest Rate Determination
Method with respect to such Series may not thereafter be changed by the Company.
Notwithstanding any other provision of this Indenture to the contrary, if
all Bonds of a Series have been deemed to be paid because a deposit has been
made under paragraphs (a)(i) or (a)(ii) of this section with proceeds of one or
more drawings under the Applicable Credit Facility securing such Series, then
the surrender by the Trustee of such Applicable Credit Facility to the
Applicable Credit Issuer for cancellation prior to the maturity or redemption
date of the Bonds of such Series shall not constitute a Credit Modification
Date.
If a Series of Bonds bears interest at the Fixed Rate and is to be rated
by a Rating Agency at or prior to the time provision for payment shall be made
there shall be delivered to such Rating Agency the opinion of nationally
recognized certified public accountants referred to in paragraph (a)(ii) above
and a written opinion of Counsel experienced in bankruptcy law matters and in
form satisfactory to such Rating Agency that the deposit and use of such moneys
will not constitute an avoidable preferential payment pursuant to Section 547 of
the Bankruptcy Code, or an avoidable post-petition transfer pursuant to Section
549 of the Bankruptcy Code, recoverable from Holders of the Bonds of such Series
pursuant to Section 550 of the Bankruptcy Code in the event of an Act of
Bankruptcy.
ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES
Section 6.1 Events of Default. Any one of the following
shall constitute an Event of Default hereunder:
(a) Failure to pay interest on any Bond when and as the
same shall have become due;
(b) Failure to pay the principal of or any premium on any Bond when and as
the same shall become due, whether at the stated maturity or redemption date
thereof or by acceleration;
(c) Failure to pay the Purchase Price of any Bond required to be purchased
hereunder when and as the same shall become due;
(d) Failure to observe or perform any other of the covenants, agreements
or conditions on the part of the Company included in this Indenture or in the
Bonds and the continuance thereof for a period of thirty (30) days after written
notice to the Company and each Applicable Credit Issuer has been given by the
Trustee; provided, however, that if such default cannot be fully remedied within
such 30-day period, but can reasonably be expected to be fully remedied, such
default shall not constitute an Event of Default if the Company shall
immediately upon receipt of such notice commence the curing of such default and
shall thereafter prosecute and complete the same with due diligence and
dispatch; provided, further, that no default under this subsection shall
constitute an Event of Default unless any Applicable Credit Issuer shall have
consented to the same constituting an Event of Default;
(e) Any representation or warranty of the Company contained herein, or in
any document, instrument or certificate delivered pursuant hereto or in
connection with the issuance and sale of the Bonds of any Series, shall be
false, misleading or incomplete in any material respect on the date as of which
made; provided, however, that no default under this subsection shall constitute
an Event of Default unless any Applicable Credit Issuer shall have consented to
the same constituting an Event of Default;
(f) The commencement by the Company of a voluntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or the
consent by it to, or its acquiescence in the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of the Company or of any substantial part of its property, or
the making by it of or the consent by it to any assignment for the benefit of
creditors, or the taking of any action by the Company in furtherance of any of
the foregoing;
(g) The commencement against the Company of an involuntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or of
any action or proceeding for the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of the Company
or for any substantial part of its property, or for the winding-up or
liquidation of its affairs and the continuance of any such case, action, or
proceeding unstayed and in effect for a period of sixty (60) consecutive days;
(h) The Company defaults in the payment of principal or interest on any
other indebtedness for money borrowed (other than the indebtedness under the
Bonds or otherwise arising hereunder) if the outstanding principal balance of
such indebtedness at the time of the default exceeds $1,000,000 in the aggregate
beyond any period of grace provided with respect thereto, or in performance of
any other agreement, term or conditions contained in any agreement under which
any such obligation is created, if the effect of such default is to cause, or
permit the holder or holders of such obligation to cause such obligation to
become due prior to its stated maturity; provided, however, that no default
under this subsection shall constitute an Event of Default unless any Applicable
Credit Issuer shall have consented to the same constituting an Event of Default;
(i) The Trustee shall have received a written notice from a Credit Issuer
of the occurrence and continuance of an Event of Default as defined in the
Credit Agreement pursuant to which such Credit Issuer issued its Credit
Facility, together with a written request from such Credit Issuer that the
Series of Bonds secured by such Credit Facility be accelerated; or
(j) The Trustee shall have received, within ten (10) calendar days
following a drawing under any Credit Facility to pay interest on any Bonds,
written notice from the Applicable Credit Issuer thereof that it has not been
reimbursed for the amount of such drawing together with interest, if any, due
pursuant to the Credit Agreement pursuant to which such Credit Facility was
issued and that the amount of such drawing will not be reinstated as provided in
such Credit Facility.
Section 6.2 Acceleration. Upon the occurrence of any Event of Default
hereunder the Trustee may and upon (i) the written request of the Holders of not
less than twenty-five percent (25%) in aggregate principal amount of Bonds then
Outstanding or (ii) the occurrence of an Event of Default under Section 6.1(a),
(b), (c), (i) or (j), the Trustee immediately shall, by notice in writing sent
to the Company, each Paying Agent, the Tender Agent, and each Credit Issuer,
declare the principal of all Bonds then Outstanding (if not then due and
payable) and the interest accrued thereon to be due and payable immediately,
and, upon said declaration, such principal and interest shall become and be
immediately due and payable; provided, however, the Trustee shall not accelerate
any Series of Bonds (other than a Series with respect to which such payment
default occurred or a Series secured by a Credit Facility issued by a Credit
Issuer who consented to or gave notice of such default or of non-reinstatement)
unless the Applicable Credit Issuer consents to such acceleration.
Upon any declaration of acceleration of a Series of Bonds hereunder, the
Trustee shall immediately draw upon the Credit Facility for such Series as
provided in Section 3.8(a)(iii). If the Applicable Credit Issuer honors the
drawing under the Applicable Credit Facility upon a declaration of acceleration
of such Series, interest on such Series of the Bonds shall accrue only to the
date of such declaration and the Trustee shall pay the principal of and interest
on such Series to the Holders thereof immediately following the receipt of funds
from such drawing. If no Credit Facility is in effect with respect to a Series
of Bonds, or if the Applicable Credit Issuer fails to honor the drawing under
the Applicable Credit Facility upon acceleration of such Series, then interest
on the Bonds of such Series shall cease to accrue as provided in Section 6.7.
Immediately following any such declaration of acceleration of a Series of
Bonds, the Trustee shall cause to be mailed notice of such declaration by
first-class mail, postage prepaid, to each Holder of a Bond of such Series at
his/her last address appearing on the Register. Any defect in or failure to give
such notice of such declaration shall not affect the validity of such
declaration.
Section 6.3 Other Remedies; Rights of Holders. Upon the happening and
continuance of an Event of Default hereunder the Trustee may, with or without
taking action under Section 6.2, pursue any available remedy to enforce the
performance of or compliance with any other obligation or requirement of this
Indenture; provided, however, the Trustee shall not pursue any remedy with
respect to a Series of Bonds (other than a Series with respect to which such
payment default occurred or a Series secured by a Credit Facility issued by a
Credit Issuer who consented to or gave notice of such default or of
non-reinstatement) unless the Applicable Credit Issuer consents to such action.
Upon the happening and continuance of an Event of Default, and if
requested to do so by the Holders of at least twenty-five percent (25%) in
aggregate principal amount of Bonds then Outstanding and if the Trustee is
indemnified as provided in Section 7.1, the Trustee shall exercise such of the
rights and powers conferred by this Section and by Section 6.2 as the Trustee,
being advised by Counsel, shall deem most effective to enforce and protect the
interests of the Holders and, except to the extent inconsistent with the
interests of the Holders, each Credit Issuer; provided, however, the Trustee
shall not exercise such rights with respect to a Series of Bonds (other than a
Series with respect to which such payment default occurred or a Series secured
by a Credit Facility issued by a Credit Issuer who consented to or gave notice
of such default or of non-reinstatement) unless the Applicable Credit Issuer
consents to such exercise.
No remedy by the terms of this Indenture conferred upon or reserved to the
Trustee (or to the Holders) is intended to be exclusive of any other remedy, but
each and every such remedy shall be cumulative and shall be in addition to any
other remedy given to the Trustee or to the Holders hereunder or now or
hereafter existing.
No delay or omission to exercise any right or power accruing upon any
default or Event of Default shall impair any such right or power or shall be
construed to be a waiver of any such default or Event of Default or acquiescence
therein and every such right and power may be exercised from time to time and as
often as may be deemed expedient.
No waiver of any default or Event of Default hereunder, whether by the
Trustee or by the Holders, shall extend to or shall affect any subsequent
default or Event of Default or shall impair any rights or remedies consequent
thereon.
Section 6.4 Right of Holders and Credit Issuer to Direct Proceedings.
Anything in this Indenture to the contrary notwithstanding, and subject to the
rights of the Applicable Credit Issuer as provided in Sections 6.2 and 6.3, the
Holders of a majority in aggregate principal amount of Bonds of a Series then
Outstanding 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 any other proceedings hereunder with
respect to such Series; provided that such direction shall not be otherwise than
in accordance with the provisions of law and of this Indenture, and provided
that the Trustee shall be indemnified to its satisfaction and the Trustee may
take any other action deemed proper by the Trustee that is not inconsistent with
such direction. No Holder shall individually have the right to present a draft
to, or otherwise make a demand on, a Credit Issuer to collect amounts available
under a Credit Facility.
No Holder of a Bond of a Series shall have the right to institute any
proceeding for the enforcement of this Indenture unless such Holder has given
the Trustee and the Company written notice of an Event of Default, the Holders
of a majority in aggregate principal amount of the Bonds of such Series then
Outstanding shall have requested the Trustee in writing to institute such
proceeding, the Trustee shall have been afforded a reasonable opportunity to
exercise its powers or to institute such proceeding, there shall have been
offered to the Trustee indemnity satisfactory to it against the cost, expense
and liability to be incurred in connection with such request and the Trustee
shall have thereafter failed or refused to exercise such powers or to institute
such proceeding within sixty days (60) after receipt of notice with no
inconsistent direction given during such sixty days (60) by the Holders of a
majority in aggregate principal amount of the Bonds of such Series then
Outstanding. Nothing in this Indenture shall affect or impair any right of any
Holder to enforce (i) the payment of the principal of and premium, if any, and
interest on Bonds at and after the maturity thereof, or (ii) the obligation of
the Company to pay the principal of, premium, if any, and interest on Bonds to
such Holder at the time, place, from the sources and in the manner as provided
in this Indenture.
Section 6.5 Discontinuance of Default Proceedings. Prior to the drawing on
a Credit Facility pursuant to Section 3.8(a)(iii), in case the Trustee shall
have proceeded to enforce any right under this Indenture by the appointment of a
receiver or otherwise, and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely, then and in
every such case the Applicable Credit Issuer and the Trustee shall be restored
to their former positions and rights hereunder and all rights, remedies and
powers of the Trustee and such Credit Issuer shall continue as if no such
proceedings had been taken subject to the limits of any adverse determination.
Section 6.6 Waiver. With respect to a Series of Bonds, the Trustee, with
the consent of the Applicable Credit Issuer, may waive any default or Event of
Default hereunder and its consequences and rescind any declaration of
acceleration of maturity of principal, and shall do so upon the written request
of the Applicable Credit Issuer; provided, however, that there shall be no such
waiver or rescission unless the Purchase Price and all principal, premium, if
any, and interest on the Bonds of such Series in arrears, together with interest
thereon (to the extent permitted by law) at the applicable rate of interest
borne by the Bonds of such Series and all fees and expenses of the Trustee
relating to such Series shall have been paid or provided for. The Trustee may
not waive any default or Event of Default until the Trustee has received notice
in writing from the Applicable Credit Issuer that the amount available to be
drawn under the Applicable Credit Facility then in effect in respect of the
principal and Purchase Price of and interest on such Series of Bonds has been
reinstated in full.
Section 6.7 Application of Moneys. All moneys received by the Trustee for
a Series of Bonds pursuant to any right given or action taken under the
provisions of this Article shall be deposited in the Bond Fund and, after
payment (out of moneys derived from a source other than the Applicable Credit
Facility, Eligible Funds, moneys held for the purchase of Untendered Bonds,
moneys held for the redemption of Bonds and proceeds from the remarketing of
Bonds) 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, including reasonable attorneys' fees, and all other outstanding
fees and expenses of the Trustee, and thereafter any fees, expenses, liabilities
and advances due to, or incurred or made by, the Applicable Paying Agent, the
Tender Agent and the Registrar, such moneys shall be applied in the order set
forth below:
(a) Unless the principal of all Bonds of such Series shall have become or
been declared due and payable, all such moneys shall be applied:
FIRST: To the payment of all installments of interest then due on the
Bonds of such Series in order of priority first to installments past due for the
greatest period and, if the amount available shall not be sufficient to pay in
full any particular installment, then to the ratable payment of the amounts due
on such installment; and
SECOND: To the payment of the unpaid principal of and premium, if any, of
the Bonds of such Series which shall have become due (other than Bonds called
for redemption for the payment of which moneys are held pursuant to the
provisions of this Indenture), with interest on such Bonds from the respective
dates upon which they became due (at the rate borne by the Bonds, to the extent
permitted by law) and, if the amount available shall not be sufficient to pay in
full Bonds due on any particular date, together with such premium, then to the
ratable payment of the amounts due on such date.
(b) If the principal of all the Bonds of such Series shall have become or
been declared due and payable, all such moneys shall be applied to the payment
of the principal, premium, if any, and interest then due and unpaid upon the
Bonds of such Series, without preference or priority as to the Bonds of such
Series or as between principal, premium, interest, installments of interest on
Bonds of such Series, ratably according to the amounts due respectively for
principal, premium and interest to the persons entitled thereto.
(c) If the principal on all Bonds of such Series shall have been declared
due and payable, and if such declaration shall thereafter have been rescinded
under this Article then, subject to subsection (b) of this Section in the event
that the principal of all the Bonds of such Series shall again become or be
declared due and payable, the moneys shall be applied in accordance with
subsection (a) of this Section.
Notwithstanding the foregoing, (a) except with respect to a Credit
Facility that permits drawings to pay premium with respect to Bonds, the Trustee
shall be obligated to apply moneys received under a Credit Facility then in
effect only to principal and Purchase Price of, and interest on the Series of
Bonds secured by such Credit Facility (except Bonds of such Series that are not
entitled to any benefit of a Credit Facility as provided in Section 3.8); and
(b) proceeds of a drawing under a Credit Facility shall be applied solely to the
payment of principal, interest, Purchase Price and premium (but only to the
extent such Credit Facility permits drawings to pay premium) of the Bonds of the
Series specifically secured by such Credit Facility. Whenever moneys (other than
moneys received under a Credit Facility) are to be applied pursuant to this
Section, the Trustee shall fix the date which shall be not more than seven (7)
calendar days after such acceleration upon which such application is to be made
and upon such date interest on the principal amount of Bonds to be paid on such
dates shall cease to accrue. The Trustee shall give such notice as it may deem
appropriate of the deposit with it of any such moneys and of the fixing of any
such date. As provided in Section 6.2, moneys received under a Credit Facility
in effect with respect to a Series of Bonds upon declaration of acceleration of
such Series are to be applied as soon as is practicable following receipt to pay
the principal of and interest on such Bonds to the Holders thereof.
Section 6.8 Rights of a Credit Issuer. All rights of a Credit Issuer under
this Indenture to consent to certain extensions, remedies, waivers, actions and
amendments hereunder shall, with respect to such Credit Issuer, be suspended (i)
for so long as such Credit Issuer wrongfully dishonors any draft (or other
appropriate form of demand) presented in strict conformity with the requirements
of its Credit Facility and has not honored a subsequent draft (or other
appropriate form of demand), if any, thereunder or (ii) if no Credit Facility
issued by such Credit Issuer is in effect or any Credit Facility issued by such
Credit Issuer terminates in accordance with its terms.
ARTICLE VII
THE TRUSTEE; THE PAYING AGENT; THE TENDER AGENT;
THE REGISTRAR; THE UNDERWRITER; THE REMARKETING AGENT
Section 7.1 Appointment of Trustee. The Trustee is hereby appointed and
does hereby agree to act in such capacity, and to perform the duties of the
Trustee under this Indenture, but only upon and subject to the following express
terms and conditions (and no implied covenants or other obligations shall be
read into this Indenture against the Trustee):
(a) The Trustee may execute any of its trusts or powers hereunder and
perform any of its duties by or through attorneys, agents, receivers or
employees and shall not be held liable for their actions if such agents are
selected with reasonable care. The Trustee shall be entitled to advice of
Counsel concerning all matters hereunder, and may in all cases pay such
reasonable compensation to all such attorneys, agents, receivers and employees.
The Trustee may act upon the opinion or advice of Counsel, accountants,
engineers or surveyors selected by it in the exercise of reasonable care. The
Trustee shall not be responsible for any loss or damage resulting from any
action or non-action in good faith in reliance upon such opinion or advice.
(b) The Trustee shall not be responsible for any recital herein or in the
Bonds, or for the recording, re-recording, filing or re-filing of this
Indenture, of any financing statements or continuation statements, or for the
validity of this Indenture or of any supplements hereto or instruments of
further assurance, or for the sufficiency of the security for the Bonds issued
hereunder or intended to be secured hereby. The Trustee shall not be liable to
the Company, any Holder, any Beneficial Owner or any other Person for any loss
suffered in connection with any investment of funds made by it in accordance
with Section 4.7. The Trustee shall not be liable to the Company for any loss
suffered as a result of or in connection with any investment of funds made by
the Trustee in good faith as instructed by or approved by a Company
Representative. The Trustee shall have no duty or responsibility to examine or
review and shall have no liability for the contents of any documents submitted
to or delivered to any Holder in the nature of a preliminary or final placement
memorandum, official statement, offering circular or similar disclosure
document.
(c) The Trustee shall not be accountable for the use of any Bonds
authenticated or delivered hereunder after such Bonds shall have been delivered
in accordance with instructions of the Company or for the use by the Company of
the proceeds of the Bonds advanced to the Company as provided in this Indenture
or for the use or application of any moneys received by any Paying Agent. The
Trustee may become the owner of Bonds secured hereby with the same rights as any
other Holder.
(d) The Trustee shall be protected in acting upon opinions of Counsel and
upon any notice, request, consent, certificate, order, affidavit, letter,
telegram or other paper or document believed to be genuine and correct and to
have been signed or sent by the proper person or persons. Any action taken by
the Trustee pursuant to this Indenture upon the request or authority or consent
of any person who at the time of making such request or giving such authority or
consent is the Holder of any Bond shall be conclusive and binding upon all
future Holders of the same Bond and upon Bonds issued in exchange therefor or in
place thereof. The Trustee may conclusively rely upon a certificate furnished by
a Credit Issuer as to amounts owing under the Credit Agreement to which such
Credit Issuer is a party.
(e) The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as duties. The Trustee shall only be
responsible for the performance of the duties expressly set forth herein and
shall not be answerable for other than its negligence or bad faith in the
performance of those express duties.
(f) The Trustee shall not be required to give any bond or surety in
respect of the execution of the said trust and powers or otherwise in respect of
the premises.
(g) Before taking any action requested hereunder by the Holders (except
for acceleration of the Bonds as required by Section 6.2, for drawing on any
Credit Facility as required by Section 3.8(a) and with respect to the payment of
principal, interest and Purchase Price to Holders), the Trustee may require
satisfactory security or indemnity bond for the reimbursement of all expenses to
which it may be put and to protect it against all liability, except liability
which is adjudicated to have resulted from its own gross negligence or bad faith
by reason of any action so taken.
(h) All moneys received by the Trustee or any Paying Agent, until used or
applied or invested as herein provided, shall be held as special trust funds for
the purposes specified in this Indenture and for the benefit and security of the
Holders of the Bonds and each Credit Issuer as herein provided. Such moneys need
not be segregated from other funds except to the extent required by law or
herein provided, and neither the Trustee nor any Paying Agent shall otherwise be
under any liability for interest on any moneys received hereunder except such as
may be agreed upon.
(i) The Trustee shall not be bound to ascertain or inquire as to the
performance of the obligations of the Company under this Indenture, and shall
not be deemed to have, or be required to take, notice of default under this
Indenture (other than under Section 6.1(a), (b) or (c) if notice thereof has
been received from a Paying Agent or under Section 6.1(i) or (j)), except (i) in
the event of an insufficient amount in the Bond Fund (or any account therein) to
make a principal or interest payment on the Bonds, (ii) written notification of
such default by two or more Holders with combined holdings of not less than
twenty-five percent (25%) of the principal amount of Outstanding Bonds or (iii)
written notification from a Credit Issuer pursuant to Section 6.1, and in the
absence of such notice the Trustee may conclusively presume there is no default
except as aforesaid. The Trustee may nevertheless require the Company to furnish
information regarding performance of its obligations under this Indenture, but
is not obligated to do so.
(j) The Trustee shall, prior to any Event of Default and after the curing
of all Events of Default which may have occurred, perform such duties and only
such duties of the Trustee as are specifically set forth in this Indenture. The
Trustee shall, during the existence of any Event of Default which has not been
cured, exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his/her own
affairs. The foregoing shall not limit the Trustee's obligations under Section
3.8(a) or Section 6.2.
(k) Each Paying Agent, the Tender Agent and the Registrar shall each be
entitled to the same rights and immunities with respect to their respective
duties under this Indenture as the Trustee is under this Section 7.1 with
respect to its duties hereunder.
(l) In addition to the Trustee's other duties hereunder, the Trustee shall
authenticate and cancel Bonds as provided herein, keep such books and records
relating to such duties as shall be consistent with prudent industry practice
and make such books and records available for inspection by the Company at all
reasonable times. All Bonds shall be made available for authentication, exchange
and registration of transfer at the principal office of the Trustee.
Section 7.2 Compensation and Indemnification of Trustee, Paying Agent,
Tender Agents and Registrar; Trustee's Prior Claim. The Company agrees to pay
the reasonable fees and expenses of the Trustee, the Tender Agent, each Paying
Agent, each Underwriter, the Remarketing Agent and the Registrar under this
Indenture and all other amounts which may be payable to the Trustee, each Paying
Agent, Registrar or Tender Agent under this Section, and the reasonable fees and
expenses of the Remarketing Agent, such fees and expenses to be paid when due
and payable by the Company directly to the Trustee, Tender Agent, each Paying
Agent, Registrar, each Underwriter and the Remarketing Agent, respectively, for
their own account.
The Company shall (a) pay the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust), (b) pay each Paying Agent, the Tender Agent and the Registrar and any
other agent of the Company acting hereunder (each Paying Agent, the Tender Agent
and the Registrar and any other agent of the Company being herein referred to as
a "Company Agent") reasonable compensation, (c) pay or reimburse each of the
Trustee and any Company Agent upon request for all reasonable expenses,
disbursements and advances incurred or made, in accordance with any of the
provisions of this Indenture (including the reasonable compensation and the
reasonable expenses and disbursements of its Counsel and of all agents and other
persons not regularly in its employ), except to the extent that any such
expense, disbursement or advance is due to its own gross negligence or bad
faith, and (d) indemnify each of the Trustee and any Company Agent for, and to
hold it harmless against, any loss, liability or expense incurred by it, arising
out of or in connection with the acceptance or administration of this Indenture
or the trusts hereunder or the performance of its duties hereunder, including
the reasonable costs and expenses of defending itself against or investigating
any claim of liability in the premises, except to the extent that any such loss,
liability or expense was due to its own gross negligence or bad faith. Such
additional indebtedness shall be a senior claim to that of the Bonds upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the benefit of the Holders of the Bonds, funds held with respect to
Untendered Bonds and unredeemed Bonds for which notice of redemption has been
given. Notwithstanding the foregoing, neither the Trustee nor any Company Agent
shall have any claim upon or shall be paid, prior to any Holder, from any Credit
Facility, Eligible Funds or proceeds from the remarketing of Bonds, or the
proceeds thereof, with respect to any such compensation, payment, reimbursement
or indemnity. "Trustee", "Company Agent", "Paying Agent", "Tender Agent" and
"Registrar" for purposes of this Section shall include (i) officers, directors,
employees or agents of any such party and (ii) any predecessor Trustee, Company
Agent, Paying Agent, Tender Agent and Registrar but the gross negligence or bad
faith of any Trustee, Company Agent, Paying Agent, Tender Agent or Registrar
shall not affect the indemnification of any other Person. The obligations of the
Company under this Section shall survive the termination of this Indenture.
Section 7.3 Intervention in Litigation. In any judicial proceedings to
which the Company is a party, the Trustee may intervene on behalf of Holders,
and shall intervene if requested in writing by the Holders of at least
twenty-five percent (25%) in aggregate principal amount of Bonds then
Outstanding.
Section 7.4 Resignation; Successor Trustees. The Trustee and any successor
Trustee may resign only upon giving sixty (60) days prior written notice to the
Company, each Credit Issuer, and each Holder of Bonds then Outstanding as shown
on the Register. Such resignation shall take effect only upon the appointment of
a successor Trustee by the Company with the written consent of each Credit
Issuer, if any, and the acceptance of such appointment by the successor Trustee.
If no successor is appointed within sixty (60) days after the notice of
resignation, the resigning party may appoint a successor or petition any court
of competent jurisdiction to appoint a successor. Upon appointment of a
successor Trustee, the resigning Trustee shall assign all of its right, title
and interest in this Indenture, including its right, title and interest in any
Credit Facility then in effect and the Indenture, to the successor Trustee. The
successor Trustee shall be a national banking association or a bank or trust
company with trust powers organized under the laws of the United States of
America or any state of the United States, or the District of Columbia, having a
combined capital stock, surplus and undivided profits aggregating at least
$50,000,000. Any successor Trustee shall accept in writing its duties and
responsibilities hereunder and such writing shall be filed with the Company and
each Credit Issuer, if any.
Section 7.5 Removal of Trustee. The Trustee may be removed at any time (a)
by an instrument or concurrent instruments in writing delivered to the Trustee,
the Company and each Credit Issuer, and signed by the Holders of a majority in
aggregate principal amount of Bonds then Outstanding, and (b) if no Event of
Default has occurred and is continuing, by an instrument or concurrent
instruments in writing delivered to the Trustee and each Credit Issuer and
signed by the Company. Such removal shall take effect only upon the appointment
of a successor Trustee by the Company with the written consent of each Credit
Issuer and the acceptance of such appointment by the successor Trustee. Upon
such removal, the Trustee shall assign to the successor Trustee all of its
right, title and interest in this Indenture in the same manner as provided in
Section 7.4. If a Series of Bonds is rated by a Rating Agency, notice concerning
any change in the Trustee shall be furnished to such Rating Agency.
Section 7.6 Paying Agent. The Bank of New York, is hereby appointed by the
Company as the initial Paying Agent with respect to the Series 1999 Bonds. The
supplemental indenture authorizing the issuance of a Series of Additional Bonds
shall designate the initial Paying Agent for such Series, subject to the
conditions set forth in Section 7.8. The Company shall appoint any successor
Paying Agent for a Series of Bonds, with the approval of the Remarketing Agent
and the Applicable Credit Issuer, subject to the conditions set forth in Section
7.8. Each Paying Agent shall designate to the Company and the Trustee its
principal office for all purposes hereof and signify its acceptance of the
duties imposed upon it hereunder by a written instrument of acceptance delivered
to the Issuer and the Trustee under which such Paying Agent shall agree,
particularly:
(a) to hold all sums held by it for the payment of the principal of,
premium, if any, or interest on a Series of Bonds in trust for the benefit of
the Holders of such Series of Bonds until such sums shall be paid to such
Holders of such Bonds or otherwise disposed of as herein provided;
(b) to perform its obligations under this Indenture; and
(c) to keep such books and records relating to its duties as Paying Agent
as shall be consistent with prudent industry practice and to make such books and
records available for inspection by the Company and the Trustee at all
reasonable times.
The Company shall cooperate with the Trustee and each Paying Agent to cause the
necessary arrangements to be made and to be thereafter continued whereby:
(i) funds derived from the sources specified in this Indenture will be
made available at the principal office of such Paying Agent for the timely
payment of principal, premium, if any, and interest on the Series of Bonds
for which such Paying Agent is serving hereunder; and
(ii) each Paying Agent shall be furnished such records and other
information, at such times, as shall be required to enable such Paying
Agent to perform the duties and obligations imposed upon it hereunder.
In carrying out its responsibilities hereunder each Paying Agent will act
for the benefit of the Holders of the Series of Bonds for which such Paying
Agent is serving hereunder. Notwithstanding anything to the contrary in this
Indenture, no Paying Agent shall invest any moneys it receives from a draw on
any Credit Facility.
No purchase of Bonds by a Paying Agent shall constitute a redemption of
Bonds or any extinguishment of the debt represented thereby or constitute a
Paying Agent the owner of such Bonds for any purpose whatsoever.
Section 7.7 Tender Agent. Wachovia Bank, N.A., is hereby appointed by the
Company as the initial Tender Agent. The Company, with the approval of the
Remarketing Agent and each Credit Issuer, shall appoint any succeeding Tender
Agent for the Bonds, subject to the conditions set forth in Section 7.8. The
Tender Agent shall designate to the Company and the Trustee its principal office
for all purposes hereof and signify its acceptance of the duties imposed upon it
hereunder by a written instrument of acceptance delivered to the Company and the
Trustee under which the Tender Agent shall agree, particularly:
(a) to hold all sums held by it for the payment of the principal of,
premium, if any, or interest on the Bonds in trust for the benefit of the
Holders of the Bonds until such sums shall be paid to such Holders of the Bonds
or otherwise disposed of as herein provided;
(b) to perform its obligations under this Indenture; and
(c) to keep such books and records relating to its duties as Tender Agent
as shall be consistent with prudent industry practice and to make such books and
records available for inspection by the Company and the Trustee at all
reasonable times.
The Company shall cooperate with the Trustee to cause the necessary
arrangements to be made and to be thereafter continued whereby the Tender Agent
shall be furnished such records and other information, at such times, as shall
be required to enable the Tender Agent to perform the duties and obligations
imposed upon it hereunder.
No delivery of Bonds to the Tender Agent shall constitute a redemption of
Bonds or any extinguishment of the debt represented thereby or constitute the
Tender Agent the owner of such Bonds for any purpose whatsoever.
Section 7.8 Qualifications of Paying Agents and Tender
Agent; Resignation; Removal; Successors.
(a) Each Paying Agent and the Tender Agent shall each be a bank or trust
company with trust powers 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 $15,000,000 and authorized by law to
perform all the duties imposed upon it by this Indenture. The principal office
of each Paying Agent and the Tender Agent for all purposes hereof shall be the
office of such Paying Agent or the Tender Agent, as the case may be, at which
all deliveries to it hereunder shall be made and any and all notices and other
communications in connection herewith shall be delivered. Each Paying Agent or
the Tender Agent may at any time resign and be discharged of its duties and
obligations created by this Indenture by giving at least sixty (60) days' notice
to the Company and the Trustee. Each Paying Agent or the Tender Agent may be
removed at any time by an instrument signed by the Company, filed with such
Paying Agent or Tender Agent, as the case may be, and with the Trustee.
(b) In the event of the resignation or removal of a Paying Agent or the
Tender Agent, such Paying Agent or the Tender Agent, as the case may be, shall
deliver any moneys and any Bonds and any related books and records held by it in
such capacity to its successor or, if there be no successor, to the Trustee.
(c) In the event that a Paying Agent or the Tender Agent shall resign or
be removed, or be dissolved, or if the property or affairs of a Paying Agent or
the Tender Agent shall be taken under the 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 Paying Agent or
Tender Agent, as the case may be, the Trustee shall ipso facto be deemed to be
the Paying Agent (with respect to the applicable series of Bonds) or Tender
Agent, as the case may be, for all purposes of this Indenture until the
appointment by the Company of a successor Paying Agent or Tender Agent, as the
case may be.
Section 7.9 Instruments of Holders. Any instrument required by this
Indenture to be executed by Holders may be in any number of writings of similar
tenor and may be executed by Holders in person or by agent appointed in writing.
Proof of the execution of any such instrument or of the writing appointing any
such agent and of the ownership of Bonds given in any of the following forms
shall be sufficient for any of the purposes of this Indenture:
(a) A certificate of any officer in any jurisdiction who by law has power
to take acknowledgments within such jurisdiction that the person signing such
writing acknowledged before him/her the execution thereof; or
(b) A certificate executed by any trust company or bank stating that at
the date thereof the party named therein did exhibit to an officer of such trust
company or bank, as the property of such party, the Bonds therein mentioned.
The Trustee may rely on such an instrument of Holders unless and until the
Trustee receives notice in the form specified in (a) or (b) above that the
original such instrument is no longer reliable. In the event that the Trustee
shall receive conflicting directions from two or more groups of Holders, each
with combined holdings of not less than twenty-five percent (25%) of the
principal amount of Outstanding Bonds, the directions given by the group of
Holders which holds the largest percentage of Bonds shall be controlling and the
Trustee shall follow such directions to the extent required herein.
Section 7.10 Power to Appoint Co-Trustees. At any time or times, for the
purpose of meeting any legal requirements of any jurisdiction in which the
Company may at the time be doing business, the Company and the Trustee shall
have power to appoint and, upon the request of the Trustee or of the Holders of
a majority of the aggregate principal amount of the Bonds then Outstanding, the
Company shall for such purpose join with the Trustee in the execution, delivery
and performance of all instruments and agreements necessary or proper to
appoint, one or more persons approved by the Trustee and the Company either to
act as co-trustee or co-trustees, jointly with the Trustee, or to act as
separate trustee or separate co-trustees, and to vest in such person or persons,
in such capacity, such rights, powers, duties, trusts or obligations as the
Company and the Trustee may consider necessary or desirable, subject to the
remaining provisions of this section.
The Trustee and co-trustee, if any, may by written instrument between them
designate and assign either the Trustee or the co-trustee or both of them to
perform all or any part of the responsibilities and duties of the Trustee under
this Indenture.
If the Company shall not have joined in such appointment within thirty
(30) days after the receipt by it of a written request to do so, or in case an
Event of Default shall have occurred and be continuing, the Trustee and the
Company shall have the power to make such appointment.
The Company shall execute, acknowledge and deliver all such instruments as
may be required by any such co-trustee or separate trustee for more fully
confirming such title, rights, powers, trusts, duties and obligations to such
co-trustee or separate trustee.
Every co-trustee or separate trustee appointed pursuant to this section,
to the extent permitted by law or any applicable contract, shall be subject to
the following terms, namely:
(a) This Indenture shall become effective at the time the Bonds shall be
authenticated and delivered, and thereupon such co-trustee or separate trustee
shall have all rights, powers, trusts, duties and obligations by this Indenture
conferred upon the Trustee in respect of the custody, control or management of
moneys, papers, securities and other personal property.
(b) All rights, powers, trusts, duties and obligations conferred or
imposed upon the trustees shall be conferred or imposed upon and exercised or
performed by the Trustee, or by the Trustee and such co-trustee or co-trustees,
or separate trustee or separate trustees, as shall be provided in the instrument
appointing such co-trustee or co-trustees or separate trustee or separate
trustees, except to the extent that, under the law of any jurisdiction in which
any particular act or acts are to be performed, the Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such act or acts
shall be performed by such co-trustee or co-trustees or separate trustee or
separate trustees.
(c) Any request in writing by the Trustee to any co-trustee or separate
trustee to take or to refrain from taking any action hereunder shall be
sufficient warrant for the taking, or the refraining from taking, of such action
by such co-trustee or separate trustee.
(d) Any co-trustee or separate trustee, to the extent permitted by law,
may delegate to the Trustee the exercise of any right, power, trust, duty or
obligation, discretionary or otherwise.
(e) The Trustee at any time, by an instrument in writing, with the
concurrence of the Company evidenced by a resolution, may accept the resignation
of any co-trustee or separate trustee appointed under this Section, and, in case
an Event of Default shall have occurred and be continuing, the Trustee shall
have power to accept the resignation of, or remove, any such co-trustee or
separate trustee without the concurrence of the Company. Upon the request of the
Trustee, the Company shall join with the Trustee in the execution, delivery and
performance of all instruments and agreements necessary or proper to effectuate
such resignation or removal. A successor to any co-trustee or separate trustee
so resigned or removed may be appointed in the manner provided in this Section.
(f) No co-trustee or separate trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee hereunder.
(g) Any moneys, paper, securities or other items of personal property
received by any such co-trustee or separate trustee hereunder shall forthwith,
so far as may be permitted by law, be turned over to the Trustee.
Upon the acceptance in writing of such appointment by any such co-trustee
or separate trustee, it or he shall be vested with such rights, powers, duties,
trusts or obligations, as shall be specified in the instrument of appointment
jointly with the Trustee (except insofar as applicable law makes it necessary
for any such co-trustee or separate trustee to act alone) subject to all the
terms of this Indenture. Every such acceptance shall be filed with the Trustee.
If a Series of Bonds is rated by a Rating Agency, any co-trustee or separate
trustee shall be a bank or trust company with trust powers.
In case any co-trustee or separate trustee shall die, become incapable of
acting, resign or be removed, all rights, powers, trusts, duties and obligations
of said co-trustee or separate trustee shall, so far as permitted by law, vest
in and be exercised by the Trustee unless and until a successor co-trustee or
separate trustee shall be appointed in the same manner as provided for with
respect to the appointment of a successor Trustee pursuant to Section 7.4
hereof.
Section 7.11 Underwriters for Additional Bonds. The Company shall appoint
an Underwriter for each Series of Additional Bonds, provided that such
Underwriter shall be a financial institution or registered broker/dealer
authorized by law to perform all the duties imposed upon it as Underwriter.
Section 7.12 Remarketing Agent. The Company hereby appoints Wachovia
Securities, Inc. as the initial Remarketing Agent. The Company, with the consent
of each Credit Issuer, which consent shall not be unreasonably withheld, shall
appoint any successor Remarketing Agent for the Bonds (except for assignees
permitted under the following sentence), subject to the conditions set forth in
Section 7.13. To the extent permitted by any Remarketing Agreement then in
effect, the Remarketing Agent may at any time transfer all of its duties and
obligations as Remarketing Agent hereunder to an affiliate of such Remarketing
Agent that satisfies the conditions set forth in Section 7.13 and, upon such
transfer, such affiliate shall automatically become the Remarketing Agent
hereunder without any further action.
Any Remarketing Agent shall designate to the Company and the Trustee its
principal office for purposes hereof, which shall be the office of such
Remarketing Agent at which all notices and other communications in connection
herewith may be delivered to it, and signify its acceptance of the duties and
obligations imposed upon it hereunder by a written instrument of acceptance
delivered to the Company, the Trustee and each Credit Issuer under which such
Remarketing Agent shall agree particularly (i) to hold all Bonds delivered to it
hereunder in trust for the benefit of the respective Holders of Bonds that
delivered such Bonds until moneys representing the Purchase Price of such Bonds
are delivered to or for the account of or to the order of such Holders of Bonds;
(ii) to hold all moneys delivered to it hereunder for the purchase of Bonds in
trust for the benefit of the person or entity that has delivered such moneys
until the Bonds purchased with such moneys are delivered to or for the account
of such person or entity; and (iii) to keep books and records with respect to
its activities hereunder available for inspection by the Company, the Trustee
and each Credit Issuer at all reasonable times.
Section 7.13 Qualifications of Remarketing Agent; Resignation; Removal.
The Remarketing Agent shall be a financial institution or registered
broker/dealer authorized by law to perform all the duties imposed upon it by
this Indenture. The Remarketing Agent may at any time resign and be discharged
of its duties and obligations created by this Indenture by giving at least
thirty (30) days' notice to the Company, the Tender Agent, each Paying Agent,
the Trustee and each Credit Issuer; provided, however, that if no successor
Remarketing Agent has been appointed in accordance with Section 7.12 and this
Section on or prior to the effective date of such resignation, the resigning
Remarketing Agent shall give written notice to Holders on the effective date of
such resignation that all optional tender notices under Sections 2.6(a) and (b)
should be delivered to the Tender Agent and the Trustee until a successor
Remarketing Agent has been appointed. The Remarketing Agent may be removed at
any time, upon not less than thirty (30) days' notice by an instrument signed by
the Company and filed with the Remarketing Agent, the Trustee, each Paying
Agent, the Tender Agent and each Credit Issuer; provided that no such removal
shall be effective until a successor Remarketing Agent has been appointed in
accordance with Section 7.12 and this Section and such successor Remarketing
Agent has accepted such appointment.
Section 7.14 Several Capacities. Anything in this Indenture to the
contrary notwithstanding, the same entity may serve hereunder as the Trustee,
the Credit Issuer with respect to one or more Series of Bonds, the Paying Agent
with respect to one or more Series of Bonds, the Tender Agent, the Registrar,
the Remarketing Agent and the Underwriter with respect to one or more Series of
Bonds, and in any other combination of such capacities, to the extent permitted
by law.
Section 7.15 Trustee Not Responsible for Duties of Remarketing Agent,
Tender Agent, Registrar and Paying Agents. Notwithstanding anything to the
contrary in this Indenture, the Trustee shall not be liable or responsible for
any of the duties or obligations of the Remarketing Agent, the Tender Agent, the
Registrar or any Paying Agent under this Indenture (or be liable or responsible
for the acts or omissions of any Paying Agent, the Tender Agent, the Registrar
or the Remarketing Agent or any action taken by the Trustee or failure to act in
reasonable reliance upon any action or failure to act by any Paying Agent, the
Tender Agent, the Registrar or the Remarketing Agent) except for the duties
imposed upon, or the acts and omissions of, the Trustee as the Tender Agent or
any Paying Agent after receipt of the written notice provided for in Section
7.8(c) to the effect that a successor agent has not been appointed by the
Company. The Trustee shall not be bound to ascertain or inquire as to the truth
or accuracy of any information provided to it by any Paying Agent, the Tender
Agent, the Registrar or the Remarketing Agent but may for any purpose
conclusively rely upon any information given to the Trustee by any Paying Agent,
the Tender Agent, the Registrar or the Remarketing Agent.
Section 7.16 Cooperation of the Trustee, the Tender Agent, the Registrar
and the Paying Agents. The Trustee, the Tender Agent, the Registrar and each
Paying Agent shall cooperate in all respects and shall provide to the other in a
timely fashion the information and knowledge each possesses so that the Trustee
and each of such parties may faithfully exercise their respective obligations
hereunder.
ARTICLE VIII
AMENDMENTS, SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures. The Company and the Trustee, with the
consent of each Credit Issuer, but without the consent of or notice to any
Holders (except in the case of supplemental indentures described in (j) below,
in which case prior notice shall be given to Holders by the Trustee), may enter
into an indenture or indentures supplemental to this Indenture that do not
materially adversely affect the interest of the Holders for one or more of the
following purposes:
(a) to grant to or confer upon the Trustee for the benefit of the Holders
and the Credit Issuers, any additional rights, remedies, powers or authority
that may lawfully be granted to or conferred upon the Holders or the Trustee;
(b) to grant or pledge to the Trustee for the benefit of Holders and the
Credit Issuers, any additional security other than that granted or pledged under
this Indenture; provided that no additional security shall be granted or pledged
to the Trustee for the benefit of a Credit Issuer unless such Credit Issuer
agrees that the Trustee shall hold such security in trust for the equal or
ratable benefit of such Credit Issuer, on the one hand, and the Holders, on the
other hand;
(c) to modify, amend or supplement this Indenture or any indenture
supplemental hereto in such manner as to permit the qualification thereof under
the Trust Indenture Act of 1939 or any similar federal statute then in effect or
to permit the qualification of the Bonds for sale under the securities laws of
any of the states of the United States;
(d) to appoint a successor Trustee, separate trustees or co-trustees in
the manner provided in Article VII hereof;
(e) to modify, amend or supplement this Indenture for the purpose of
obtaining or retaining a rating on one or more Series of Bonds from a Rating
Agency;
(f) to modify, amend or supplement this Indenture to permit a transfer of
Bonds from one Securities Depository to another or the discontinuance of the
Book Entry System and issuance of replacement Bonds to the Beneficial Owners;
(g) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture which shall not materially adversely affect the
interest of the Holders or the Credit Issuers;
(h) to modify, amend or supplement this Indenture to permit any Paying
Agent, the Tender Agent or the Registrar to assume any administrative duties of
the Trustee hereunder (except any duties of the Trustee with respect to the
acceptance, modification, reduction or release of or drawing on, any Credit
Facility) or for the Trustee to assume any administrative duties of any Paying
Agent or the Registrar hereunder;
(i) to make any change to the administrative provisions hereof, to
accommodate the provisions of an Alternate Credit Facility, bond insurance or a
liquidity facility;
(j) to provide for the issuance of a Series of Additional Bonds pursuant
to Section 2.12(b) and for the inclusion of any additional security in
connection therewith; and
(k) to modify, amend or supplement this Indenture or any indenture
supplemental hereto in such manner as to increase or accommodate the increase of
the Ceiling Rate applicable to a Series of Bonds pursuant to Section 2.3(a).
When requested by the Company, and if all conditions precedent under this
Indenture have been met, the Trustee shall join the Company in the execution of
any such supplemental indenture unless it imposes additional obligations on the
Trustee or adversely affects the Trustee's rights and immunities under this
Indenture or otherwise. A copy of all such supplemental indentures shall be
promptly furnished to each Credit Issuer and each Paying Agent, and the Tender
Agent and the Registrar shall be promptly advised of any modifications of their
rights, duties and obligations hereunder.
The Trustee shall file copies of all such supplemental indentures with the
Company and, if a Series of Bonds is rated by a Rating Agency, shall forward
copies of all such supplemental indentures to such Rating Agency.
Section 8.2 Amendments to Indenture; Consent of Holders and the Credit
Issuers. Exclusive of supplemental indentures covered by Section 8.1 and subject
to the terms and provisions contained in this Section, and not otherwise, the
Holders of a majority in aggregate principal amount of the Bonds then
Outstanding and affected by such indenture or indentures supplemental hereto,
with the consent of each Credit Issuer, shall have the right, from time to time,
anything contained in this Indenture to the contrary notwithstanding, to consent
to and direct the execution by the Trustee of such other indenture or indentures
supplemental hereto as shall be consented to by the Company in its sole
discretion for the purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions contained in this
Indenture or in any supplemental indenture; provided, however, that nothing
contained in this Section shall permit, or be construed as permitting, without
the consent of the Holders of all Outstanding Bonds of a Series, (a) an
extension of the maturity of the principal of, or the mandatory redemption date
of, or interest on, any Bond of such Series, (b) a reduction in the principal
amount of, or the premium or the rate of interest on, any Bond of such Series,
or (c) a preference or priority of any Bond or Bonds over any other Bond or
Bonds of such Series; provided further, however, that nothing contained in this
Section shall permit, or be construed as permitting, without the consent of the
Holders of all Outstanding Bonds, (y) a reduction in the aggregate principal
amount of the Bonds required for any consent to any supplemental indenture, or
(z) a modification or change in the duties of the Trustee hereunder without the
consent of the Trustee. The giving of notice to and consent of the Holders to
any such proposed supplemental indenture shall be obtained pursuant to Section
8.4.
If a Series of Bonds is rated by a Rating Agency, the Trustee shall
furnish copies of all such supplemental indentures to such Rating Agency.
Section 8.3 Amendments, Changes and Modifications to a Credit Facility.
Except as otherwise provided in this Indenture, subsequent to the initial
issuance of a Series of Bonds and prior to payment of the Bonds of such Series
in full (or provision for the payment thereof having been made in accordance
with the provisions of this Indenture), the Applicable Credit Facility may not
be effectively amended, changed or modified without the prior written consent of
the Trustee and the Applicable Paying Agent. The Trustee may, without the
consent of the Holders of the Bonds of such Series, consent to any amendment of
the Applicable Credit Facility that, in the Trustee's and the Applicable Paying
Agent's judgment, does not prejudice in any material respect the interests of
the Holders of Bonds of such Series, as may be required (a) to extend the term
thereof; (b) to increase the amount available to be drawn thereunder in respect
of the interest on the Bonds of such Series (or the portion of the Purchase
Price of such Bonds corresponding to interest); (c) for purposes of curing any
ambiguity, formal defect or omission; or (d) for obtaining or retaining a rating
on such Series from a Rating Agency. Except for such amendments, and as
otherwise provided herein, the Applicable Credit Facility may be amended only
with the consent of the Company, the Trustee and the Holders of a majority in
aggregate principal amount of the Outstanding Bonds of such Series, except that
no such amendment may be made that would reduce the amounts required to be paid
thereunder, change the time for payment of such amounts or accelerate the
expiration date of such Credit Facility without the written consent of the
Holders of all Outstanding Bonds of such Series. The foregoing shall not limit
the Trustee's obligation to send notice to a Credit Issuer to reduce amounts
available to be drawn under a currently effective Credit Facility under the
circumstances set forth therein.
The Trustee shall file copies of all such amendments, changes or
modifications with the Rating Agency, if any, rating such Series of Bonds.
Section 8.4 Notice to and Consent of Holders. If consent of the Holders is
required under the terms of this Indenture for the amendment of this Indenture
or the Credit Facility or for any other similar purpose, the Trustee shall cause
notice of the proposed execution of the amendment or supplemental indenture to
be given by first-class mail, postage prepaid, (a) in the case of an amendment
to a Credit Facility in effect for a Series of Bonds, to the Holders of the
Outstanding Bonds of such Series then shown on the Register, or (b) in any other
case, to the Holders of all the Outstanding Bonds then shown on the Register.
Such notice shall briefly set forth the nature of the proposed amendment,
supplemental indenture or other action and shall state that copies of any such
amendment, supplemental indenture or other document are on file at the principal
office of the Trustee for inspection by Holders. If, within sixty (60) days or
such longer period as shall be prescribed by the Trustee following the mailing
of such notice, the Holders of a majority or all, as the case may be, of the
principal amount of the Bonds Outstanding (or, in the case of an amendment to a
Credit Facility in effect for a Series of Bonds, the principal amount of the
Bonds Outstanding for such Series) by instruments filed with the Trustee shall
have consented to the amendment, supplemental indenture or other proposed
action, then the Trustee may execute such amendment, supplemental indenture or
other document or take such proposed action and the consent of the Holders shall
thereby be conclusively presumed.
ARTICLE IX
MISCELLANEOUS
Section 9.1 [Reserved].
Section 9.2 Limitation of Rights. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from
this Indenture or the Bonds is intended or shall be construed to give to any
Person other than the parties hereto, the Holders and the Credit Issuers any
legal or equitable right, remedy or claim under or in respect to this Indenture
or any covenants, conditions and provisions herein contained; this Indenture and
all of the covenants, conditions and provisions herein being intended to be and
being for the sole and exclusive benefit of the parties hereto, the Holders and
the Credit Issuers as herein provided.
Section 9.3 Severability. If any provision of this Indenture is held to be
in conflict with any applicable statute or rule of law or is otherwise held to
be unenforceable for any reason whatsoever, such circumstances shall not have
the effect of rendering the other provision or provisions herein contained
invalid, inoperative, or unenforceable to any extent whatsoever.
The invalidity of any one or more phrases, sentences, clauses or sections
of this Indenture, shall not affect the remaining portions of this Indenture or
any part thereof.
Section 9.4 Notices. Except as otherwise provided herein, all notices,
approvals, consents, requests, and other communications hereunder shall be in
writing and shall be deemed to have been given when the writing is delivered if
given or delivered by hand, overnight delivery service or facsimile transmitter
(with confirmed receipt) to the address or facsimile number set forth below and
shall be deemed to have been given on the date deposited in the mail, if mailed,
by first-class, registered or certified mail, postage prepaid, addressed as set
forth below. Where required herein, notice shall be given by telephone, and
promptly confirmed in writing, and shall be deemed given when given by telephone
to the telephone numbers set forth below. The Company, each Credit Issuer, the
Trustee, the Tender Agent, the Remarketing Agent and each Paying Agent may, by
written notice given hereunder, designate any different addresses, phone numbers
and facsimile numbers to which subsequent notices, certificates, approvals,
consents, requests or other communications shall be sent.
To the Company: Atlantic American Corporation
4370 Peachtree Road, N.E.
Atlanta, Georgia 30319-3000
Attention: Mr. Edward L. Rand, Jr.
Telephone: (404) 266-5500 (ext.
5535)
Facsimile: (404) 266-5702
To the Trustee: The Bank of New York
100 Ashford Center North, Suite 520
Atlanta, Georgia 30338
Attention: Corporate Trust
Department
Telephone: (770) 698-5190
Facsimile: (770) 698-5195
To the Series 1999 Wachovia Bank, N.A.
Credit Issuer: International Operations
Standby Letters of Credit, NC-30034
401 Linden Street
Winston-Salem, North Carolina 27101
Telephone: (800) 522-9487
Facsimile: (336) 735-0950
With a copy to: Wachovia Bank, N.A.
Mail Code GA-3940
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Mr. William J. Darby
Telephone: (404) 332-1371
Facsimile: (404) 332-5016
To any other Credit Issuer: As provided in the
supplemental indenture authorizing
such Series of Bonds
To the Remarketing Agent:Wachovia Securities, Inc.
100 North Main Street
Winston-Salem, North Carolina 27101
Attention: Fixed Income Sales and
Trading/
Money Market Desk
Telephone: (336) 732-4646
Facsimile: (336) 732-6744
To the Series 1999 Paying Agent: The Bank of New York
100 Ashford Center North, Suite 520
Atlanta, Georgia 30338
Attention: Corporate Trust
Department
Telephone: (770) 698-5190
Facsimile: (770) 698-5195
To any other Paying Agent: As provided in the
supplemental indenture authorizing
such Series of Bonds
To the Tender Agent: Wachovia Bank, N.A.
100 North Main Street
Winston-Salem, North Carolina 27101
Attention: Fixed Income Sales and
Trading/
Money Market Desk
Telephone: (336) 732-4646
Facsimile: (336) 732-6744
To the Rating Agency (if a Series Standard & Poor's
Ratings Services
of Bonds is rated by S&P): 55 Water Street
New York, New York 10041-0003
Section 9.5 Payments Due on Non-Business Days. In any case where the date
of maturity of interest on or premium, if any, or principal of the Bonds or the
date fixed for redemption of any Bonds shall not be a Business Day, then payment
of such interest, premium or principal need not be made on such date but shall
be made on the next succeeding Business Day, with the same force and effect as
if made on the date of maturity or the date fixed for redemption, and, in the
case of such payment, no interest shall accrue for the period from and after
such date.
Section 9.6 Binding Effect. This instrument shall inure to the benefit of
and shall be binding upon the Company and the Trustee and their respective
successors and assigns, subject, however, to the limitations contained in this
Indenture.
Section 9.7 Captions. The captions or headings in this Indenture are for
convenience only and in no way define, limit or describe the scope or intent of
any provisions or sections of this Indenture.
Section 9.8 Governing Law. This Indenture shall be
governed by and interpreted in accordance with the laws of the
State.
Section 9.9 Notices to Rating Agency. If a Series of Bonds is rated by a
Rating Agency, the Trustee shall provide written notice to such Rating Agency
with respect to (i) the appointment of any successor Trustee, Remarketing Agent
or Tender Agent, (ii) the appointment of any agent by the Trustee to perform any
material duties of the Trustee under this Indenture, (iii) any material
amendment or supplement to this Indenture, the Remarketing Agreement or the
Tender Agent Agreement, (iv) the appointment of a successor Paying Agent for
such Series, (v) the expiration, termination, extension (other than an automatic
extension) or substitution of any Credit Facility in effect for such Series,
(vi) any Fixed Rate Conversion Date for such Series or any conversion of such
Series to a Long-Term Rate, (vii) any Mandatory Purchase Date (except Conversion
Dates) for such Series, (viii) any material amendment or supplement to the
Credit Facility in effect for such Series or the Credit Agreement pursuant to
which such Credit Facility was issued, (ix) acceleration of such Series, and (x)
the payment in full of all of the Bonds of such Series (whether at stated
maturity or upon redemption, acceleration or defeasance). Failure of the Trustee
to provide any such notice shall not have any effect on the occurrence of such
event.
Section 9.10 Execution in Counterparts. This Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
[The remainder of this page is left blank intentionally]
IN WITNESS WHEREOF, the Company has caused this Indenture to be executed
in its name and on its behalf by its President and Chief Executive Officer and
its seal affixed and attested by its Secretary and the Trustee has caused this
Indenture to be executed, sealed and attested in its name by its duly authorized
officers, all as of the day and year first above written.
ATLANTIC AMERICAN CORPORATION
(SEAL) By:
- ------------------------------------
Hilton H. Howell, Jr.
President and Chief Executive
Officer
ATTEST:
- -------------------------
Janie L. Ryan
Secretary
THE BANK OF NEW YORK,
as Trustee
(SEAL) By:
- ------------------------------------
Janet F. Holton
Authorized Agent
ATTEST:
- -------------------------
Name:____________________
__________ Secretary
A-10
C-585247v05!.15121.00011
EXHIBIT "A"
- --------------------------------------------------------------------
Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York
corporation ("DTC"), to issuer or its agent for registration of
transfer, exchange, or payment and any certificate issued is
registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by
an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
- --------------------------------------------------------------------
Atlantic American Corporation
Taxable Variable Rate Demand Bonds
Series 1999
No. R-__
Interest Rate Maturity Date Issue Date CUSIP
As Stated Below June 1, 2009 June __, 1999
REGISTERED OWNER: CEDE & CO.
PRINCIPAL AMOUNT: Twenty-Five Million Dollars ($25,000,000)
FOR VALUE RECEIVED, Atlantic American Corporation, a corporation duly
organized and existing under the laws of the State of Georgia (the "Company"),
hereby promises to pay to the Holder specified above, or registered assigns,
upon surrender hereof, at the principal office of the Paying Agent named below,
on the Maturity Date specified above, unless redeemed prior thereto, the
Principal Amount specified above, together with interest thereon at the rates
determined as set forth herein from the Issue Date specified above, but only
from the sources and in the manner hereinafter provided on the first day of each
month during any Weekly Rate Period or Monthly Rate Period, on the first
Business Day immediately following the last day of each Flexible Term Rate
Period (but only as to Bonds for which such Flexible Term Rate Period is
applicable) or on each June 1 and December 1 during any Medium-Term Rate Period
or Fixed Rate Period (an "Interest Payment Date") until the principal hereof is
paid or duly provided for upon redemption or maturity. Payment of the principal
and redemption premium, if any, and interest on this Bond shall be made in
lawful money of the United States of America which on the respective dates of
payment thereof shall be legal tender for the payment of public and private
debts. Unless other arrangements are made pursuant to the Indenture (hereinafter
defined), interest is payable by check or draft drawn upon The Bank of New York,
as Paying Agent (the "Paying Agent"), mailed on the Interest Payment Date (or,
if such day is not a Business Day, the next succeeding Business Day) to the
Holder hereof at the close of business on the Record Date immediately preceding
each Interest Payment Date at the address of such Holder as it appears on the
Register. Interest on this Bond shall be computed on the basis of a 360-day year
for the actual days elapsed during any Short-Term Rate Period (calculated by
multiplying the principal amount of Bonds by the interest rate, dividing that
sum by 360, and multiplying that amount by the actual days elapsed) and a
360-day year consisting of twelve months of thirty days each during any
Long-Term Rate Period. In any case where the date of maturity of interest on or
premium, if any, or principal of this Bond or the date fixed for redemption of
this Bond shall not be a Business Day, then payment of such interest, premium or
principal need not be made on such date but shall be made on the next succeeding
Business Day, with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and, in the case of such payment, no interest
shall accrue for the period from and after such date.
This Bond is one of the Bonds of a duly authorized issue of Taxable
Variable Rate Demand Bonds of the Company in the aggregate principal amount of
$25,000,000 known as Atlantic American Corporation Taxable Variable Rate Demand
Bonds, Series 1999 (herein called the "Bonds"), dated as of the Issue Date
referenced above. All of the Bonds are issued under and pursuant to an Indenture
of Trust (as amended or supplemented from time to time, the "Indenture"), dated
as of June 1, 1999, by and between the Company and The Bank of New York, as
Trustee (the "Trustee"). Reference is hereby made to the Indenture for the
provisions, among others, with respect to the custody and application of the
proceeds of the Bonds, the collection and disposition of revenues, a description
of the funds charged with and pledged to the payment of the principal of and
redemption premium, if any, and interest on the Bonds, the nature and extent of
the security for the Bonds, the terms and conditions under which the Bonds are
or may be issued, the rights, duties and obligations of the Company and of the
Trustee and the rights of the Holders of the Bonds, and, by the acceptance of
this Bond, the Holder hereof assents to all of the provisions of the Indenture.
Capitalized terms used herein and not defined shall have the meaning ascribed to
them in the Indenture.
The Bonds are secured by an irrevocable, direct-pay letter of credit (the
"Original Credit Facility") from Wachovia Bank, N.A. (the "Credit Issuer"), in
the amount of the aggregate principal amount of the Bonds outstanding from time
to time, plus 52 days interest computed at an assumed interest rate of 12% per
annum, which Original Credit Facility will expire on July 5, 2000, unless
extended or earlier terminated in accordance with its terms. Under certain
circumstances described in the Indenture, the Company may obtain an Alternate
Credit Facility in substitution for the Original Credit Facility.
The Bonds are issuable as fully registered Bonds in the principal amount
of $100,000 and integral multiples thereof (during any Short-Term Rate Period or
Medium-Term Rate Period, an "Authorized Denomination"). This Bond, upon
surrender hereof at the principal office of the Registrar with a written
instrument of transfer satisfactory to the Registrar executed by the Holder
hereof or his/her attorney duly authorized in writing, may, at the option of the
Holder hereof, be exchanged for an equal aggregate principal amount of Bonds of
the same aggregate principal amount and tenor as the Bonds being exchanged and
of any Authorized Denomination. This Bond may be registered as transferred as
provided in the Indenture, subject to certain limitations therein contained,
only upon the Register, and only upon surrender of this Bond for registration of
transfer to the Registrar accompanied by a written instrument of transfer (in
substantially the form of the assignment attached hereto) duly executed by the
Holder hereof or his/her duly authorized attorney. Thereupon, one or more new
Bonds of any Authorized Denomination and in the same aggregate principal amount
and tenor as the Bond surrendered (or for which registration of transfer has
been effected) will be issued to the designated transferee or transferees.
1. Interest Rates on Bonds.
(a) Initial Rate -- General. This Bond shall bear interest as provided in
the Indenture from the Issue Date to the date of payment in full hereof.
Interest accrued on this Bond shall be paid on each Interest Payment Date (or,
if such day is not a Business Day, the next succeeding Business Day) commencing
on July 1, 1999. The interest rate on this Bond will be determined as provided
in the Indenture; provided, that no Rate shall exceed the lesser of (i) the
Ceiling Rate and (ii) the maximum rate permitted by applicable law. The Bonds
shall bear interest at the Weekly Rate from the Issue Date until the date, if
any, on which the Interest Rate Determination Method is changed as described in
the Indenture. The Weekly Rate for the initial Interest Period shall be
determined by the Underwriter on the Issue Date.
(b) Determination of Rate. After the determination of the Weekly Rate for
the initial Interest Period, the applicable Rate shall be determined by the
Remarketing Agent at the time and in the manner specified in the Indenture;
provided, that if for any reason such Rate is not established by the Remarketing
Agent, no Remarketing Agent shall be serving as such under the Indenture or the
rate so established is held to be invalid or unenforceable, then the applicable
Rate shall be determined as provided in the Indenture. The determination of any
Rate in accordance with the terms of the Indenture shall be conclusive and
binding.
2. Tender of Bonds for Purchase.
(a) Optional Tender. Except as set forth in the Indenture, during any
Weekly Rate Period or Monthly Rate Period, the Holders of the Bonds shall have
the right to tender any such Bond (or portion thereof in an Authorized
Denomination, provided that any Bond or portion thereof remaining is also in an
Authorized Denomination) for purchase on any Optional Tender Date, but only
upon:
(1) delivery to the Remarketing Agent at its principal office, not
later than 4:00 p.m., Local Time, on the seventh (7th) day (or on the
immediately preceding Business Day if such seventh (7th) day is not a
Business Day) next preceding such Optional Tender Date, of an irrevocable
written, telephonic (followed, if requested by the Remarketing Agent, by
written or facsimile confirmation delivered to the Remarketing Agent no
later than the close of business on the next succeeding Business Day),
facsimile or telegraphic notice (with a written or facsimile copy to the
Tender Agent) stating (i) that such Holder will tender for purchase all or
any portion of his/her Bonds in an Authorized Denomination and the amount
of Bonds to be tendered, and (ii) the Optional Tender Date on which such
Bonds will be tendered; and
(2) delivery of such Bond (with an appropriate instrument of transfer
duly executed in blank) to the Tender Agent at its principal office at or
prior to 10:00 a.m., Local Time, on such Optional Tender Date; provided,
however, that no Bond (or portion thereof) shall be purchased unless such
Bond as delivered to the Tender Agent shall conform in all respects to the
description thereof in the aforesaid notice.
Any election of a Holder to tender a Bond for purchase on an Optional
Tender Date in accordance with the Indenture shall be irrevocable and shall be
binding on the Holder making such election and on any transferee of such Holder.
(b) Certain Required Tenders for Purchase. All Bonds are subject to
mandatory tender for purchase as provided in the Indenture on any Mandatory
Purchase Date (i.e., certain Conversion Dates, any Credit Modification Date and
certain dates designated by the Credit Issuer or the Company) at the Purchase
Price thereof.
(c) Bonds Deemed Tendered. If (1) with respect to a Mandatory Purchase
Date, a Holder fails to deliver such Bond to the Tender Agent on or before the
Mandatory Purchase Date, or (2) with respect to an Optional Tender Date, a
Holder gives notice pursuant to Section 2.6(a) of the Indenture to the
Remarketing Agent and thereafter fails to deliver such Bonds (or portion
thereof), to the Tender Agent, as required, then such Bond (or portion thereof),
that is not delivered to the Tender Agent shall be deemed to have been properly
tendered (such Bond being hereinafter referred to as an "Untendered Bond") and,
to the extent that there shall be on deposit with the Paying Agent on the date
purchase thereof is required as provided in the Indenture, an amount sufficient
to pay the Purchase Price thereof, such Untendered Bond shall cease to
constitute or represent a right to payment of principal or interest thereon and
shall constitute and represent only the right to the payment of the Purchase
Price payable on such date.
(d) Purchase Notice. If the Bonds are held in a Book Entry System, a
purchase notice pursuant to 2(a)(1) above may be delivered by a Beneficial
Owner. Such purchase notice must be delivered as set forth in 2(a)(1) above and
must state that such Beneficial Owner will cause its beneficial interest (or
portion thereof in an Authorized Denomination) to be tendered, the amount of
such interest to be tendered, the Optional Tender Date on which such interest
will be tendered and the identity of the Participant through which the
Beneficial Owner maintains its interest. Upon delivery of such notice, the
Beneficial Owner must make arrangements to have its beneficial ownership
interest in the Bonds being tendered transferred to the Tender Agent at or prior
to 10:00 a.m., on the Optional Tender Date, but need not otherwise comply with
2(a)(2) above.
3. Conversion of the Interest Rate Determination Method for the Bonds. The
Indenture provides that the Company may change the Interest Rate Determination
Method for the Bonds, subject to the terms and conditions set forth therein.
4. Issuance of Alternate Credit Facility. The Indenture provides that the
Company may arrange for the issuance of an Alternate Credit Facility with
respect to the Bonds, subject to the terms and conditions set forth therein.
5. Optional Redemption.
(a) During a Short-Term Rate Period. During any Weekly Rate Period, the
Bonds are subject to redemption, at the direction of the Company, in whole on
any Business Day or in part on any Interest Payment Date at a redemption price
equal to the principal amount of the Bonds to be redeemed plus accrued interest
thereon to the redemption date. During any Monthly Rate Period the Bonds are
subject to redemption, at the direction of the Company, in whole, on the first
Business Day of any calendar month or in part on any Interest Payment Date at a
redemption price equal to the principal amount of the Bonds to be redeemed plus
accrued interest thereon to the redemption date. During any Flexible Term Rate
Period, each of the Bonds is subject to redemption, at the direction of the
Company, in whole or in part on any Interest Payment Date applicable to such
Bond to be redeemed, at a redemption price equal to the principal amount of such
Bond to be redeemed plus accrued interest thereon to the redemption date.
(b) During a Long-Term Rate Period. During any Long-Term Rate Period, the
Bonds are subject to redemption, at the direction of the Company, in whole or in
part, on any Interest Payment Date occurring on or after the First Day of
Redemption Period as described below, at a redemption price equal to the
principal amount thereof, plus a redemption premium (expressed as a percentage
of principal amount) plus accrued interest thereon to the redemption date as
follows, provided, however, if a Credit Facility is then in effect with respect
to the Bonds, such redemption premium shall be paid only from Eligible Funds
described in clause (i) of the definition of Eligible Funds on deposit in the
Bond Fund, unless such Credit Facility provides for payment of such premium:
[Remainder of this page left blank intentionally]
Length of Long-Term
Rate Period From
Conversion Date
Until First Day of Redemption Premium as a
End of Rate Period Redemption Percentage of Principal Amount
(Expressed in Period of Bonds
Years)
More than 7 5th 2% declining by 1% every year Anniversary of
after the 5th Anniversary of the Conversion Date Conversion
Date until reaching
0%, and thereafter 0%.
More than 5 but 4th 1% declining by 1% to 0% the
not more than 7 Anniversary of first year after the 4th
Conversion Date Anniversary of the Conversion Date, and
thereafter 0%.
5 or less Bonds not N/A
redeemable
pursuant to
this paragraph.
The above premiums may be changed upon the conversion to a Long-Term Rate
in accordance with the provisions of Section 2.3(f) and (g) of the Indenture.
6. Notice of Redemption. Notice of redemption shall be mailed by the
Trustee by first-class mail, postage prepaid, at least thirty (30) days before
the redemption date to each Holder of the Bonds to be redeemed in whole or in
part at his/her last address appearing on the Register, but no defect in or
failure to give such notice of redemption shall affect the validity of the
redemption. A notice of optional redemption may state that redemption of the
Bonds is conditioned upon the deposit with the Trustee of sufficient Eligible
Funds on or prior to the date selected for redemption to reimburse the Credit
Issuer for the drawing under the Credit Facility to redeem the Bonds or to
retire the Bonds to be redeemed if the Credit Issuer fails to honor such
drawing, and that if sufficient Eligible Funds are not so available on the date
selected for redemption, such call for redemption shall be revoked. All Bonds so
called for redemption will cease to bear interest on the date fixed for
redemption, provided funds for their redemption have been duly deposited with
the Trustee pursuant to the Indenture and, thereafter, the Holders of such Bonds
called for redemption shall have no rights in respect thereof except to receive
payment of the redemption price from the Trustee and a new Bond for any portion
not redeemed.
7. Miscellaneous.
Under certain circumstances as described in the Indenture, the principal
of all the Bonds may be declared due and payable in the manner and with the
effect provided in the Indenture.
Modifications or alterations to the Indenture or the Credit Facility may
be made only to the extent and in the circumstances permitted by the Indenture.
The Holder of this Bond shall have no right to enforce the provisions of
the Indenture, or to institute action to enforce the covenants therein, or to
take any action with respect to a default under the Indenture, or to institute,
appear in or defend any suit or other proceedings with respect thereto, except
as provided under certain limited circumstances described in the Indenture;
provided, however, that nothing contained in the Indenture shall affect or
impair any right of the Holder hereof to enforce (i) the payment of the
principal of and premium, if any, and interest on this Bond at and after the
maturity hereof, or (ii) the obligation of the Company to pay the principal of
and premium, if any, and interest on this Bond to the Holder hereof at the time,
place, from the source and in the manner as provided in the Indenture.
It is hereby certified that all acts, conditions and things required to
happen, exist and be performed under the Indenture precedent to and in the
issuance of this Bond have happened, exist and have been performed as so
required and that the issuance, authentication and delivery of this Bond have
been duly authorized by the Company.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature of one of its authorized signers, this Bond shall
not be entitled to any benefit under the Indenture, or be valid or obligatory
for any purpose.
[Signatures appear on next page.]
IN WITNESS WHEREOF, Atlantic American Corporation has caused this Bond to
be executed in its name and on its behalf by the manual or facsimile signature
of its President and Chief Executive Officer and its seal to be impressed or
imprinted hereon and attested by manual or facsimile signature of the Secretary
of the Company, all as of the Issue Date referenced above.
ATLANTIC AMERICAN CORPORATION
(SEAL) By:
- ----------------------------------
Hilton H. Howell, Jr.
President and Chief
Executive Officer
ATTEST:
By: ________________________
Janie L. Ryan
Secretary
CERTIFICATE OF AUTHENTICATION
This Bond is one of the Series 1999 Bonds issued under the provisions of
the within-mentioned Indenture.
THE BANK OF NEW YORK
By:
------------------------------------
Authorized Agent
Dated: ______________________
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto ______________________________________ (Please print or typewrite the Name
and Address, including the Zip Code of the Transferee, and the federal taxpayer
identification or social security number) the within Bond and all rights
thereunder, and hereby irrevocably constitutes and appoints
_______________________ attorney to transfer the within Bond on the books kept
for registration and transfer thereof, with full power of substitution in the
premises.
Dated: _____________________
- -----------------------------------------
NOTICE: The signature on this Assignment must correspond with the name as it
appears upon the face of the within-mentioned Bond in every particular, without
alteration or enlargement or any change whatever.
Signature Guaranteed
By: ______________________________
NOTICE: Signature(s) must be guaranteed by
a member firm of the STAMP, SEMP or MSP signature
guaranty medallion program.
EXHIBIT "B"
CONVERSION NOTICE
[Name and Address of Holder]
This Conversion Notice is delivered pursuant to that certain Indenture of
Trust dated as of June 1, 1999, between The Bank of New York, as trustee (the
"Trustee"), and Atlantic American Corporation (the "Company"), relating to the
Company's $_____________ principal amount Taxable Variable Rate Demand Bonds,
Series _____ (the "Bonds"). You are hereby notified that:
1. The Company has elected to change the Interest Rate Determination
Method pertaining to the Bonds to a new Interest Rate Determination Method (or
the interest rate applicable during a Medium-Term Rate Period to a new interest
rate during a new Medium-Term Rate Period).
2. The Conversion Date shall be _______________.
3. As a result of a conversion, a Mandatory Purchase Date, as defined in
the Indenture, shall occur and the Bonds shall be subject to mandatory tender
for purchase at the Purchase Price thereof, as defined in the Indenture.
4. If certain conditions set forth in the Indenture are not satisfied or
if the conversion is revoked, the Interest Rate Determination Method shall not
be changed, and all Bonds shall be deemed to have been tendered for purchase on
the Mandatory Purchase Date.
5. All Bonds should be presented to the Tender Agent at Wachovia Bank,
N.A., Attention: Fixed Income Sales and Trading/Money Market Desk, 100 North
Main Street, Winston-Salem, North Carolina 27101.
6. Holders have no right to retain Bonds subject to mandatory tender. The
Bonds will be remarketed by Wachovia Securities, Inc. as Remarketing Agent.
Holders interested in repurchasing Bonds on the Conversion Date may contact the
Remarketing Agent at (336) 732-4646.
7. All capitalized terms not otherwise defined herein shall have the
meaning given to such terms in the Indenture.
Very truly yours,
------------------------------------------
[Trustee]
EXHIBIT "C"
NOTICE OF CREDIT MODIFICATION DATE
[Name and Address of Holder]
This Notice of Credit Modification Date is delivered pursuant to that
certain Indenture of Trust dated as of June 1, 1999, between The Bank of New
York, as trustee (the "Trustee"), and Atlantic American Corporation (the
"Company"), relating to the Company's $___________ principal amount Taxable
Variable Rate Demand Bonds, Series _____ (the "Bonds"). You are hereby notified
that:
1. The undersigned Trustee is Trustee under the Indenture.
2. A Credit Modification Date, as defined in the Indenture, shall occur on
__________ __, ____. Bonds shall be subject to mandatory tender for purchase at
the Purchase Price thereof, as defined in the Indenture.
3. The rating, if any, assigned to the Bonds could be lowered or
eliminated following the Credit Modification Date.
4. All Bonds should be presented to the Tender Agent at Wachovia Bank,
N.A., Attention: Fixed Income Sales and Trading/Money Market Desk, 100 North
Main Street, Winston-Salem, North Carolina 27101.
5. Holders have no right to retain Bonds subject to mandatory tender. The
Bonds will be remarketed by Wachovia Securities, Inc. as Remarketing Agent.
Holders interested in repurchasing Bonds on the Credit Modification Date may
contact the Remarketing Agent at (336) 732-4646.
6. All capitalized terms not otherwise defined herein shall have the
meaning given to such terms in the Indenture.
Very truly yours,
------------------------------------------
[Trustee]
EXHIBIT "D"
NOTICE OF MANDATORY PURCHASE DATE
[Name and Address of Holder]
This Notice of Mandatory Purchase Date is delivered pursuant to that
certain Indenture of Trust dated as of June 1, 1999, between The Bank of New
York, as trustee (the "Trustee"), and Atlantic American Corporation (the
"Company"), relating to the Company's $_____________ principal amount Taxable
Variable Rate Demand Bonds Series _____ (the "Bonds"). You are hereby notified
that:
1. The undersigned Trustee is Trustee under the Indenture.
2. [The Company, with the consent of the Remarketing Agent and the Credit
Issuer, if any, has designated ______________ as a Mandatory Purchase Date.]
[The Applicable Credit Issuer has notified the Trustee that an event of default
under the Credit Agreement pursuant to which such Credit Issuer issued its
Applicable Credit Facility has occurred and is continuing and has requested that
the Bonds be required to be tendered for purchase. Under the terms of the
Indenture, _____________ has been designated as a Mandatory Purchase Date.] The
Bonds are subject to mandatory tender for purchase at the Purchase Price
thereof, as defined in the Indenture, on such date.
3. All Bonds should be presented to the Tender Agent at Wachovia Bank,
N.A., Attention: Fixed Income Sales and Trading/Money Market Desk, 100 North
Main Street, Winston-Salem, North Carolina 27101.
4. Holders have no rights to retain Bonds subject to
mandatory tender. [The Bonds will be remarketed by Wachovia
Securities, Inc. as Remarketing Agent. Holders interested in
repurchasing Bonds on the Mandatory Purchase Date may contact the
Remarketing Agent at (336) 732-4646.]
5. All capitalized terms not otherwise defined herein shall have the
meaning given to such terms in the Indenture.
Very truly yours,
- ------------------------------------------
[Trustee]
EXHIBIT "E"
NOTICE OF ALTERNATE CREDIT FACILITY
[Name and Address of Holder]
This Notice of Alternate Credit Facility is being sent to you as a Holder
of Atlantic American Corporation Taxable Variable Rate Demand Bonds, Series
_____ (the "Bonds"), issued pursuant to that certain Indenture of Trust dated as
of June 1, 1999, between The Bank of New York, as trustee (the "Trustee"), and
Atlantic American Corporation (the "Company"). You are hereby notified that:
1. The undersigned is the Trustee under the Indenture.
2. The Company has delivered notice pursuant to the Indenture that on
___________ (the "Alternate Credit Facility Effective Date"), the Company, with
the consent of the Remarketing Agent, intends to deliver to the Trustee an
Alternate Credit Facility with respect to the Bonds issued by
- ------------------------.
3. Under the terms of the Indenture, the Bonds are NOT subject to
mandatory tender for purchase on the proposed Alternate Credit Facility
Effective Date[, but Holders have the right to tender Bonds for purchase on
____[describe optional tender date(s) for applicable Rate Period]___________ in
accordance with the Indenture].
4. In the event that certain conditions set forth in the Indenture are not
satisfied, the Trustee shall not accept the Alternate Credit Facility.
5. [The anticipated rating(s) from _______________ will be ______ upon
issuance of the Alternate Credit Facility.] or [The Bonds will not be rated.]
6. All capitalized terms not otherwise defined herein shall have the
meaning given to such terms in the Indenture.
Very truly yours,
---------------------------------
(TRUSTEE)