CLOSING ITEM NO.: A-3
_______________________________________________________________________________
TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY
AND
MANUFACTURERS AND TRADERS TRUST COMPANY, AS TRUSTEE
________________________________
TRUST INDENTURE ________________________________
DATED AS OF DECEMBER 1, 1998
________________________________
RELATING TO TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY $6,000,000 AGGREGATE
PRINCIPAL AMOUNT TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS (MECHANICAL
TECHNOLOGY INCORPORATED PROJECT - LETTER OF CREDIT SECURED), SERIES 1998A.
_______________________________________________________________________________
THIS INSTRUMENT IS INTENDED TO CONSTITUTE A SECURITY AGREEMENT UNDER THE
UNIFORM COMMERCIAL CODE OF THE STATE OF NEW YORK.
TABLE OF CONTENTS
(This Table of Contents is not part of this Trust Indenture and is for
convenience of reference only.)
PARTIES 1
RECITALS 1
GRANTING CLAUSES 4
ARTICLE I
DEFINITIONS
SECTION 101. DEFINITIONS 6
SECTION 102. INTERPRETATION 21
SECTION 103. CONDITIONS PRECEDENT SATISFIED 22
ARTICLE II
THE BONDS
SECTION 201. RESTRICTION ON ISSUANCE OF BONDS 23
SECTION 202. LIMITED OBLIGATIONS 23
SECTION 203. EXECUTION 23
SECTION 204. AUTHENTICATION 24
SECTION 205. MUTILATED, LOST, STOLEN OR DESTROYED BONDS 24
SECTION 206. TRANSFER AND EXCHANGE OF BONDS; PERSONS TREATED AS OWNERS 24
SECTION 207. PAYMENT PROVISIONS 25
SECTION 208. TEMPORARY BONDS 27
SECTION 209. SPECIFIC DETAILS OF THE BONDS 27
SECTION 210. DELIVERY OF THE INITIAL BONDS 31
SECTION 211. CANCELLATION OF BONDS 31
SECTION 212. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS 32
SECTION 213. BOOK ENTRY BONDS 32
SECTION 214. ADDITIONAL BONDS 33
ARTICLE III
REDEMPTION OF BONDS PRIOR TO MATURITY
SECTION 301. REDEMPTION OF BONDS PRIOR TO MATURITY 36
SECTION 302. COMPANY'S ELECTION TO REDEEM 38
SECTION 303. NOTICE OF REDEMPTION; PAYMENT OF REDEEMED BONDS 38
SECTION 304. MANDATORY TENDER; NOTICE 39
SECTION 305. DEMAND PURCHASE OPTION 40
SECTION 306. FUNDS FOR PURCHASE OF BONDS 42
SECTION 307. DELIVERY OF PURCHASED BONDS 42
SECTION 308. DUTIES OF TRUSTEE AND TENDER AGENT WITH RESPECT TO
PURCHASE OF BONDS 42
ARTICLE IV
FUNDS AND APPLICATION OF PROCEEDS OF BONDS AND REVENUES
SECTION 401. ESTABLISHMENT OF FUNDS 44
SECTION 402. APPLICATION OF PROCEEDS OF BONDS 44
SECTION 403. PROJECT FUND 45
SECTION 404. TRANSFERS OF TRUST REVENUES TO FUNDS 46
SECTION 405. BOND FUND 46
SECTION 406. INSURANCE AND CONDEMNATION FUND 46
SECTION 407. [INTENTIONALLY OMITTED] 48
SECTION 408. DRAWING BY THE TRUSTEE ON THE LETTER OF CREDIT 48
SECTION 409. NON-PRESENTMENT OF BONDS 50
SECTION 410. INVESTMENT OF FUNDS 50
SECTION 411. FINAL DISPOSITION OF MONEYS 51
SECTION 412. PERIODIC REPORTS BY TRUSTEE 51
ARTICLE V
GENERAL COVENANTS
SECTION 501. AUTHORITY OF ISSUER; VALIDITY OF INDENTURE AND BONDS 52
SECTION 502. PAYMENT OF PRINCIPAL AND INTEREST 52
SECTION 503. PROCESSING OF TRANSFERS 52
SECTION 504. PERFORMANCE OF COVENANTS; AUTHORITY OF ISSUER 52
SECTION 505. PRIORITY OF LIEN OF INDENTURE 52
SECTION 506. INSTRUMENTS OF FURTHER ASSURANCE 52
SECTION 507. INSPECTION OF PROJECT BOOKS 53
SECTION 508. NO MODIFICATION OF SECURITY; LIMITATION ON LIENS 53
SECTION 509. DAMAGE OR DESTRUCTION 53
SECTION 510. CONDEMNATION 53
SECTION 511. ACCOUNTS AND AUDITS 53
SECTION 512. RECORDATION; FINANCING STATEMENTS 54
SECTION 513. [INTENTIONALLY OMITTED] 54
SECTION 514. COVENANT REGARDING ADJUSTMENT OF DEBTS 54
SECTION 515. [INTENTIONALLY OMITTED] 54
SECTION 516. LIMITATION ON OBLIGATIONS OF THE ISSUER 54
SECTION 517. AGREEMENT TO PROVIDE INFORMATION 55
ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
SECTION 601. EVENTS OF DEFAULT 56
SECTION 602. ACCELERATION 57
SECTION 603. ENFORCEMENT OF REMEDIES 57
SECTION 604. APPOINTMENT OF RECEIVERS 58
SECTION 605. RIGHTS OF BONDHOLDERS TO OBLIGATE TRUSTEE TO PROTECT
BONDHOLDERS 58
SECTION 606. REMEDIES NOT EXCLUSIVE; WAIVER AND NON-WAIVER OF EVENT OF
DEFAULT 58
SECTION 607. RIGHTS OF BONDHOLDERS TO DIRECT PROCEEDINGS 59
SECTION 608. WAIVER BY ISSUER 59
SECTION 609. APPLICATION OF MONEYS 59
SECTION 610. REMEDIES VESTED IN TRUSTEE 61
SECTION 611. RIGHTS AND REMEDIES OF BONDHOLDERS 61
SECTION 612. TERMINATION OF PROCEEDINGS 61
SECTION 613. WAIVERS OF EVENTS OF DEFAULT 62
SECTION 614. NOTICE OF DEFAULTS; OPPORTUNITY TO CURE 62
SECTION 615. STATEMENT OF INCOME AND EXPENDITURES 62
ARTICLE VII
THE TRUSTEE
SECTION 701. ACCEPTANCE OF TRUSTS 64
SECTION 702. FEES, CHARGES AND EXPENSES OF TRUSTEE 66
SECTION 703. NOTICE TO BONDHOLDERS OF DEFAULT 67
SECTION 704. INTERVENTION BY TRUSTEE 67
SECTION 705. SUCCESSOR TRUSTEE 67
SECTION 706. RESIGNATION BY TRUSTEE 67
SECTION 707. REMOVAL OF TRUSTEE 67
SECTION 708. APPOINTMENT OF SUCCESSOR TRUSTEE BY BONDHOLDERS;
TEMPORARY TRUSTEE 68
SECTION 709. CONCERNING ANY SUCCESSOR TRUSTEE 68
SECTION 710. TRUSTEE PROTECTED IN RELYING UPON RESOLUTIONS, ETC. 68
SECTION 711. SUCCESSOR TRUSTEE AS TRUSTEE, PAYING AGENT AND BOND
REGISTRAR 68
SECTION 712. TRUST MAY BE VESTED IN SEPARATE OR CO-TRUSTEE 69
SECTION 713. TRUSTEE TO EXERCISE POWERS OF STATUTORY TRUSTEE 69
SECTION 714. NEW YORK REAL PROPERTY LAW 69
SECTION 715. CONFLICTS OF INTEREST 71
SECTION 716. DESIGNATION OF SUCCESSION OF TENDER AGENTS 74
SECTION 717. QUALIFICATIONS OF TENDER AGENT 75
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 801. SUPPLEMENTAL INDENTURES NOT REQUIRING CONSENT OF BONDHOLDERS 76
SECTION 802. SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF BONDHOLDERS 76
SECTION 803. SUPPLEMENTAL INDENTURES; CONSENT OF BANK 77
SECTION 804. SUPPLEMENTAL INDENTURES; CONSENT OF COMPANY 77
SECTION 805. EFFECT OF SUPPLEMENTAL INDENTURES 78
ARTICLE IX
AMENDMENT TO INSTALLMENT SALE AGREEMENT, LETTER OF CREDIT, MORTGAGE, OR OTHER
FINANCING DOCUMENTS
SECTION 901. AMENDMENTS TO INSTALLMENT SALE AGREEMENT, MORTGAGE OR OTHER
FINANCING DOCUMENTS NOT REQUIRING CONSENT OF BONDHOLDERS 79
SECTION 902. AMENDMENTS TO INSTALLMENT SALE AGREEMENT, MORTGAGE OR OTHER
FINANCING DOCUMENTS REQUIRING CONSENT OF BONDHOLDERS 79
SECTION 903. AMENDMENTS TO INSTALLMENT SALE AGREEMENT, MORTGAGE OR OTHER
FINANCING DOCUMENTS; CONSENT OF BANK 80
SECTION 904. AMENDMENTS TO LETTER OF CREDIT 80
SECTION 905. AMENDMENTS REQUESTED BY BANK 80
ARTICLE X
SATISFACTION AND DISCHARGE OR ASSIGNMENT OF INDENTURE
SECTION 1001. SATISFACTION AND DISCHARGE OR ASSIGNMENT OF LIEN 81
ARTICLE XI
MISCELLANEOUS
SECTION 1101. CONSENTS AND OTHER INSTRUMENTS OF BONDHOLDERS 83
SECTION 1102. LIMITATION OF RIGHTS 83
SECTION 1103. NOTICES 84
SECTION 1104. TRUSTEE AS PAYING AGENT AND BOND REGISTRAR 85
SECTION 1105. COUNTERPARTS 85
SECTION 1106. SUCCESSORS AND ASSIGNS 85
SECTION 1107. INFORMATION UNDER UNIFORM COMMERCIAL CODE 85
SECTION 1108. APPLICABLE LAW 85
SECTION 1109. NO RECOURSE; SPECIAL OBLIGATION 85
SECTION 1110. ASSIGNMENT TO BANK 87
SECTION 1111. NOTICES TO RATING AGENCY 87
TESTIMONIUM 88
SIGNATURES 88
ACKNOWLEDGEMENTS 89
EXHIBIT A - Form of Bond Prior to Conversion Date A-1
EXHIBIT B - Form of Bond After Conversion Date B-1
EXHIBIT C-1 - Form of Notice of Mandatory Tender or Conversion Date C-1-1
EXHIBIT C-2 - Form of Notice of Bondholder's Election Regarding
Conversion Date C-2-1
EXHIBIT C-3 - Form of Notice of Mandatory Tender or Alternate Security
Date C-3-1
EXHIBIT C-4 - Form of Notice of Bondholder's Election Regarding
Alternate Security Date C-4-1
EXHIBIT C-5 - Form of Tender Notice C-5-1
EXHIBIT D - Description of Land D-1
EXHIBIT E - Description of Equipment E-1
EXHIBIT F - Form of Request for Disbursement F-1
TRUST INDENTURE
THIS TRUST INDENTURE dated as of December 1, 1998 (the "Indenture") by and
between TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY, a public benefit
corporation of the State of New York (the "State") having an office for the
transaction of business located at 347 Old Niskayuna Road, Latham, New York
(the "Issuer") and MANUFACTURERS AND TRADERS TRUST COMPANY, a trust company
organized and existing under the laws of the State of New York having an office
for the transaction of business located at One M & T Plaza, 7th Floor, Buffalo,
New York 14203, as trustee (the "Trustee") for the holders of the Issuer's
Industrial Development Revenue Bonds (Mechanical Technology Incorporated
Project - Letter of Credit Secured), Series 1998A in the aggregate principal
amount of $6,000,000 (the "Bonds") issued by the Issuer hereunder;
W I T N E S S E T H :
WHEREAS, Title 1 of Article 18-A of the General Municipal Law of the State (the
"Enabling Act") was duly enacted into law as Chapter 1030 of the Laws of 1969
of the State; and
WHEREAS, the Enabling Act authorizes and provides for the creation of
industrial development agencies for the benefit of the several counties,
cities, villages and towns in the State and empowers such agencies, among other
things, to acquire, construct, reconstruct, lease, improve, maintain, equip and
dispose of land and any building or other improvement, and all real and
personal properties, including, but not limited to, machinery and equipment
deemed necessary in connection therewith, whether or not now in existence or
under reconstruction, which shall be suitable for manufacturing, warehousing,
research, civic, commercial or industrial purposes, in order to advance the job
opportunities, health, general prosperity and economic welfare of the people of
the State and to improve their standard of living; and
WHEREAS, the Enabling Act further authorizes each such agency to lease or sell
any or all of its facilities, to issue its bonds, for the purpose of carrying
out any of its corporate purposes and, as security for the payment of the
principal and redemption price of and interest on any such bonds so issued and
any agreements made in connection therewith, to mortgage and pledge any or all
of its facilities, whether then owned or thereafter acquired, and to pledge the
revenues and receipts from the lease or sale thereof to secure the payment of
such bonds and interest thereon; and
WHEREAS, the Issuer was created, pursuant to and in accordance with the
provisions of the Enabling Act, by Chapter 232 of the Laws of 1977 of the State
(collectively, with the Enabling Act, the "Act") and is empowered under the Act
to undertake the Project (as hereinafter defined) in order to so advance the
job opportunities, health, general prosperity and economic welfare of the
people of the State and improve their standard of living; and
WHEREAS, the Issuer, by resolution adopted on May 4, 1998 (the "Inducement
Resolution"), determined to issue its revenue bonds for the purpose of
financing a portion of the costs of a certain project consisting of the
following: (A) (1) the acquisition of a leasehold interest in a parcel of land
containing approximately 35.6 acres located at 968 Albany- Shaker Road in the
Town of Colonie, Albany County, New York (the "Land"), together with the
existing buildings located thereon which contain approximately 98,000 square
feet in the aggregate (such buildings known individually as Building I,
Building II and Building III and hereinafter collectively referred to as the
"Existing Facility"), (2) the demolition of Building I which contains
approximately 14,105 square feet of space, (3) the construction of a new
building to replace Building I and which will contain approximately 32,000
square feet of space (the "New Facility") (the Existing Facility and the New
Facility hereinafter collectively referred to as the "Facility"), (4) the
renovation of Building III and (5) the acquisition of and installation therein
and thereon of certain machinery and equipment (the "Equipment") (the Land, the
Facility and the Equipment being hereinafter collectively referred to as the
"Project Facility"), all of the foregoing to be occupied by Mechanical
Technology Incorporated (the "Company") and operated as a manufacturing
facility, a portion of which will be leased by the Company to Plug Power, LLC
and operated as a facility for the manufacture, research and development of
fuel cells for residential and automotive applications and related products and
any other related activities; (B) the financing of all or a portion of the
costs of the foregoing by the issuance of the Bonds; (C) the granting of
certain other "financial assistance" (within the meaning of Section 854(14) of
the Act) with respect to the foregoing, including exemption from certain sales
taxes, deed transfer taxes, mortgage recording taxes and real property taxes
(collectively with the Bonds, the "Financial Assistance"); and (D) the lease
(with an obligation to purchase) or sale of the Project Facility to the Company
or such other person as may be designated by the Company and agreed upon by the
Agency; and
WHEREAS, the Issuer and the Company have entered into an installment sale
agreement dated as of December 1, 1998 (the "Installment Sale Agreement")
specifying the terms and conditions pursuant to which the Issuer agrees to
acquire, construct and install the Project Facility and to sell the Project
Facility to the Company; and
WHEREAS, the Issuer, by resolution adopted on November 23, 1998 (the "Bond
Resolution"), determined to issue its $6,000,000 aggregate principal amount of
Taxable Industrial Development Revenue Bonds (Mechanical Technology
Incorporated Project - Letter of Credit Secured), Series 1998A (the "Bonds")
for the purpose of financing the costs of undertaking the Project; and
WHEREAS, the Issuer, by the terms of this Indenture and as security for the
Bonds, will grant the Trustee a first security interest in the Trust Revenues
(as hereinafter defined); and
WHEREAS, as security for the Bonds, the Company has entered into an irrevocable
letter of credit reimbursement agreement dated as of December 1, 1998 (the
"Reimbursement Agreement") with KeyBank National Association (the "Bank"),
pursuant to which the Bank has issued in favor of the Trustee an irrevocable
transferable direct-pay letter of credit (the "Letter of Credit") in an amount
equal to the principal amount of the Bonds Outstanding and sixty-five (65)
days' interest thereon, under which the Bank is obligated to pay to the
Trustee, upon presentation of a sight draft and required accompanying
documentation, the amount necessary to pay the principal of and interest on the
Bonds then due and payable; and
WHEREAS, as security for all amounts payable to the Bank pursuant to the
Reimbursement Agreement, the Issuer and the Company have granted the Bank a
mortgage Lien (as hereinafter defined) on and security interest in the Project
Facility pursuant to a mortgage dated as of December 1, 1998 (the "Mortgage");
and
WHEREAS, as further security for the Bonds the Issuer has assigned to the
Trustee certain of the Issuer's rights and remedies under the Installment Sale
Agreement, including the right to receive installment purchase payments and
other amounts payable thereunder, but not including the Unassigned Rights (as
hereinafter defined), pursuant to a pledge and assignment dated as of December
1, 1998 (the "Pledge and Assignment") from the Issuer to the Trustee; and
WHEREAS, the Trustee has the power to enter into this Indenture and to execute
the trusts hereby created and in evidence thereof has joined in the execution
hereof; and
WHEREAS, the execution and delivery of the Indenture and the issuance of the
Bonds under the Act as herein provided have been in all respects approved and
duly and validly authorized by the Bond Resolution; and
WHEREAS, the providing of the Project Facility is for a proper purpose, to wit,
to promote the job opportunities, the health and the general prosperity and
economic welfare of the inhabitants of the State pursuant to the provisions of
the Act; and
WHEREAS, the Issuer deems it appropriate and necessary that the proceeds of the
sale of the Bonds shall be deposited with the Trustee, and that, upon
satisfaction of the requirements set forth herein, the Trustee shall disburse
such proceeds to pay the Cost of the Project (as hereinafter defined); and
WHEREAS, the Bonds shall be payable solely from the Trust Revenues, which
include, without limitation, installment purchase payments made by the Company
under the Installment Sale Agreement and payments made by the Bank pursuant to
the Letter of Credit; and
WHEREAS, the Bonds and the Trustee's certificate of authentication to be
endorsed on the Bonds are to be in substantially the forms attached hereto as
Exhibits A and B and made a part hereof, with necessary and appropriate
variations, omissions and insertions as permitted or required by this
Indenture; and
WHEREAS, all things necessary to make the Bonds, when authenticated by the
Trustee and issued as in this Indenture provided, the valid, binding and legal
special obligations of the Issuer according to the import thereof, and to
constitute this Indenture a valid pledge of and Lien (as hereinafter defined)
on the Trust Revenues herein pledged to the payment of the Bonds, have been
done and performed, and the creation, execution and delivery of this Indenture,
and the execution and issuance of the Bonds, subject to the terms hereof, have
in all respects been duly authorized;
GRANTING CLAUSES
NOW, THEREFORE, the Issuer, in consideration of the premises and the acceptance
by the Trustee of the trusts hereby created and of the purchase and acceptance
of the Bonds by the holders and owners thereof, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, and in order to
secure the payment of the principal of, premium, if any, and interest on the
Bonds according to their tenor and effect and the performance and observance by
the Issuer of all the covenants expressed or implied herein and in the Bonds,
does hereby unto the Trustee and its successors and assigns, for the benefit of
the holders and all future holders of the Bonds, GRANT A SECURITY INTEREST IN,
PLEDGE AND ASSIGN the following (hereinafter referred to as the "Trust
Estate"):
I
All right, title and interest of the Issuer in and to the Trust Revenues,
including any payment made by the Bank pursuant to the Letter of Credit;
II
Any and all moneys and securities from time to time held by the Trustee under
the terms of the Indenture except (A) moneys deposited with or paid to the
Trustee for the redemption of Bonds, notice of which has been duly given, and
(B) moneys deposited with the Trustee or the Tender Agent (as hereinafter
defined) for the purchase of Tendered Bonds (as hereinafter defined) pursuant
to Section 305 hereof;
III
Any and all other Property (as hereinafter defined) of every name and nature
from time to time hereafter by delivery or by writing of any kind conveyed,
mortgaged, pledged, assigned or transferred, as and for additional security
hereunder, by the Issuer or by anyone in its behalf or with its written consent
in favor of the Trustee;
The Indenture is also intended to constitute a security agreement under the
Uniform Commercial Code of the State so that the Trustee shall have and may
enforce a security interest, to secure payment of all sums due or to become due
under the Bonds and the Indenture, in so much of the Property (as hereinafter
defined) described in Granting Clauses "I", "II" and "III" above as may be made
subject to such a security interest, including the moneys held by the Trustee
hereunder, such security interest to attach at the earliest moment permitted by
law and also to include and attach to all additions and accessions thereto, all
substitutions and replacements therefor and all proceeds thereof, and all other
contract rights and general intangibles of the Issuer (except the Unassigned
Rights [as hereinafter defined]) obtained in connection with or relating to the
Project Facility, as well as any and all items of property in the foregoing
classifications which are hereafter acquired;
SUBJECT, HOWEVER, to Permitted Encumbrances (as hereinafter defined);
EXCEPTING THEREFROM, the Unassigned Rights (as hereinafter defined);
TO HAVE AND TO HOLD all the same with all privileges and appurtenances hereby
pledged and assigned or agreed, or intended so to be, unto the Trustee and its
successors in said trust and to it and its assigns forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal
and proportionate benefit, security and protection of all holders and owners of
the Bonds issued under and secured by this Indenture without privilege,
priority or distinction as to the Lien or otherwise of any of the Bonds over
any other Bonds; and
PROVIDED, HOWEVER, that if the Issuer or its successors or assigns shall well
and truly pay, or cause to be paid, to the holders and owners of the Bonds the
principal of, premium, if any, and interest due or to become due on the Bonds
at the times and in the manner provided herein and in the Bonds, or shall
provide for the payment thereof by depositing with the Trustee the entire
amount due or to become due thereon as permitted by and in the manner provided
in Article X hereof, and shall well and truly cause to be kept, performed and
observed all of its covenants contained in this Indenture, and shall pay or
cause to be paid to the Trustee all sums of money due or to become due to it in
accordance with the terms and provisions of this Indenture, then upon such
final payment, these presents and the Lien upon the Property described in
Granting Clauses "I", "II" and "III" above and the pledge of the Trust Revenues
and rights hereby granted shall (except and only to the extent the Lien upon
the Property described in Granting Clauses "I", "II" and "III" above and the
pledge of the Trust Revenues is assigned to the Bank as provided in Section
1001(B) hereof in the event the Trustee draws upon the Letter of Credit) cease,
terminate and be void, and thereupon the Trustee shall execute and deliver to
the Person (as hereinafter defined) or Persons designated in Article X such
instruments in writing as shall be requisite to satisfy the Lien hereof upon
the Property described in Granting Clauses "I", "II" and "III" above, and
convey to the Person or Persons designated in Article X the moneys and other
Property, if any, then held by the Trustee, except moneys held by the Trustee
for the payment of interest on, premium, if any, and principal of the Bonds and
except as expressly provided in this Indenture; otherwise this Indenture shall
remain in full force and effect, upon the trusts and subject to the covenants
and conditions hereinafter set forth.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that all Bonds
issued and secured hereunder are to be issued, authenticated and delivered and
the Lien on all of the Property described in Granting Clauses "I", "II" and
"III" above and all Trust Revenues, including without limitation the revenues,
receipts and other moneys hereby assigned and pledged, are to be dealt with and
disposed of under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes as hereinafter expressed, and
the Issuer hereby agrees and covenants with the Trustee and with the respective
holders and owners, from time to time, of the Bonds, as follows:
ARTICLE I
DEFINITIONS
SECTION 101. DEFINITIONS. The following words and terms used in this Indenture
shall have the respective meanings set forth below unless the context or use
indicates another or different meaning or intent:
"Accountant" shall mean an independent certified public accountant or a firm of
independent certified public accountants selected by the Company and acceptable
to the Bank.
"Act" shall mean Title 1 of Article 18-A of the General Municipal Law of the
State, as amended from time to time, together with Chapter 232 of the Laws of
1977 of the State, as amended from time to time.
"Act of Bankruptcy" shall mean the filing of a petition in bankruptcy (or the
other commencement of a bankruptcy or similar proceeding) by or against the
Company or the Issuer under any applicable bankruptcy, insolvency,
reorganization or similar law, now or hereafter in effect.
"Additional Bonds" shall mean any bonds issued by the Issuer pursuant to
Section 214 of the Indenture.
"Adjustable Rate" shall mean the variable interest rate on the Bonds as
determined in accordance with the Indenture, from and including the original
date of issuance of the Bonds through but not including the Fixed Rate
Conversion Date.
"Adjustable Rate Period" shall mean that period during which the Bonds shall
bear interest at an Adjustable Rate.
"Adjustment Date" shall mean (i) during the Adjustable Rate Period, every
Thursday in each week of each year, and (ii) the Fixed Rate Conversion Date,
provided that if any such date shall not be a Business Day, the Adjustment Date
shall be the next succeeding Business Day.
"Adjustment Period" shall mean each period beginning on an Adjustment Date and
ending on the day immediately preceding the immediately succeeding Adjustment
Date, except that the first Adjustment Period shall be the period from and
including the date of original delivery of the Bonds to and including the day
immediately preceding the first Adjustment Date.
"Alternate Letter of Credit" shall mean a Substitute Letter of Credit which
does not satisfy the requirements of Section 5.8(A)(1) of the Installment Sale
Agreement with respect to the rating of the Substitute Letter of Credit or the
Substitute Bank delivering such Substitute Letter of Credit.
"Alternate Security Date" shall mean the date upon which an Alternate Letter of
Credit shall be effective and available to be drawn upon by the Trustee,
provided that if any such date shall not be a Business Day, such date shall be
the next succeeding Business Day.
"Applicable Laws" shall mean all statutes, codes, laws, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, directions, policies and Requirements of all Governmental
Authorities (including without limitation, Local Authorities), foreseen or
unforeseen, ordinary or extraordinary, which now or at any time hereafter may
be applicable to or affect the Project Facility or any part thereof or the
conduct of work on the Project Facility or any part thereof or to the
operation, use, manner of use or condition of the Project Facility or any part
thereof (the applicability of such statutes, codes, laws, acts, ordinances,
orders, rules, regulations, directions, policies and requirements to be
determined both as if the Issuer were the owner of the Project Facility and as
if the Company and not the Issuer were the owner of the Project Facility),
including but not limited to (1) applicable building, zoning, environmental,
planning and subdivision laws, ordinances, rules and regulations of
Governmental Authorities (including without limitation, Local Authorities)
having jurisdiction over the Project Facility, (2) restrictions, conditions or
other Requirements applicable to any permits, licenses or other governmental
authorizations issued with respect to the foregoing, and (3) judgments, decrees
or injunctions issued by any court or other judicial or quasi-judicial
Governmental Authority (including without limitation, any Local Authority).
"Authorized Investments" shall mean any of the following: (A) direct
obligations of the United States of America or of any agency or instrumentality
thereof when such obligations are backed by the full faith and credit of the
United States, including, but not limited to, United States Treasury
obligations, (B) Federal Home Loan Mortgage Corporation and Farm Credit Banks
(Federal Land Banks, Federal Intermediate Credit Banks for Cooperatives)
participation certificates and senior debt obligations, (C) Federal National
Mortgage Association mortgage backed securities and senior debt obligations,
(D) Student Loan Marketing Association (Sallie Mae) letter of credit backed
issues and senior debt obligations, (E) federal funds, certificates of deposit,
time deposits and bankers' acceptances (having original maturities of not more
than 365 days) of any bank, the debt obligations of which (or, in the case of
the principal bank in a bank holding company, debt obligations of the bank
holding company) have been rated "A-1+" or better by Standard & Poors, (F)
commercial paper (having original maturities of not more than 365 days) rated
"A-1+" or better by Standard & Poors, (G) deposits which are fully insured by
Federal Deposit Insurance Corporation or its successors ("FDIC"), (H)
repurchase agreements with any banks insured by FDIC, provided (1) the
collateral level, the valuation and the cure period are acceptable to the Bank,
(2) the Trustee or a third party acting solely as agent for the Trustee has
possession of the collateral, (3) the Trustee has a perfected first priority
security interest in the collateral, (4) the collateral is free and clear of
third party Liens, and (5) failure to maintain the requisite collateral
percentage in (1) above will require the Trustee to liquidate the collateral,
(I) obligations of any state or political subdivision thereof which bear an
investment grade rating from Standard & Poor's or Moody's, (J) any money market
funds customarily invested in by the Trustee, or (K) any other investment with
the prior written consent of the Bank.
"Authorized Representative" shall mean the Person or Persons at the time
designated to act in behalf of the Issuer, the Bank or the Company, as the case
may be, by written certificate furnished to the Trustee containing the specimen
signature of each such Person and signed on behalf of (A) the Issuer by its
Chairman or Vice-Chairman, or such other person as may be authorized by
resolution of the Issuer, (B) the Bank by a Vice President or an Assistant Vice
President, or such other person as may be authorized by the Bank, and (C) the
Company by its President or any Vice President, or such other person as may be
authorized by the Company.
"Bank" shall mean (A) KeyBank National Assocation, a national banking
association having an office for the transaction of business located at 66
South Pearl Street, Albany, New York, as issuer of the Letter of Credit, and
(B) any Substitute Bank.
"Bank Documents" shall mean the Letter of Credit, the Reimbursement Agreement,
the Mortgage, the Building Loan Contract and the Pledge and Security Agreement
and any other document now or hereafter executed by the Issuer, the Company in
favor of the Bank which affects the rights of the Bank in or to the Project
Facility, in whole or in part, or which secures or guarantees any sum due under
any Bank Document.
"Bank Rate" shall mean, as the case may be, (A) the rate of interest being
charged the Company by the Bank under Section 2 of the Reimbursement Agreement
or (B) the applicable rate of interest being charged the Company by a
Substitute Bank in connection with the issuance by a Substitute Bank of a
Substitute Letter of Credit under a Substitute Reimbursement Agreement.
"Bill of Sale to Company" shall mean the bill of sale from the Issuer to the
Company conveying the Issuer's interest in the Equipment to the Company and
being substantially in the form attached as Exhibit D to the Installment Sale
Agreement.
"Bill of Sale to Issuer" shall mean the bill of sale dated as of the Closing
Date from the Company to the Issuer conveying the Company's interest in the
Equipment to the Issuer.
"Bond" shall mean the Issuer's $6,000,000 aggregate principal amount of Taxable
Industrial Development Revenue Bonds (Mechanical Technology Incorporated
Project - Letter of Credit Secured), Series 1998A, issued pursuant to the
Resolution and Article II of the Indenture and sold to the Underwriter pursuant
to the Bond Purchase Agreement, and any Bonds issued in exchange or
substitution thereof.
"Bond Counsel" shall mean the law firm of Hodgson, Russ, Andrews, Woods &
Goodyear, LLP, Albany, New York or such other attorney or firm of attorneys
located in the State whose experience in matters relating to the issuance of
obligations by states and their political subdivisions is nationally recognized
and who are acceptable to the Issuer.
"Bond Fund" shall mean the fund so designated established pursuant to Section
401(A)(2) of the Indenture.
"Bond Fund Non-Preference Moneys Subaccount" shall mean the account so
designated within the Bond Fund established pursuant to Section 401 of the
Indenture.
"Bond Payment Date" shall mean each Interest Payment Date and each date on
which principal, interest or premium shall be payable on the Bonds according to
their terms and the Indenture, including without limitation, scheduled
mandatory redemption dates, unscheduled mandatory redemption dates, optional
redemption dates and stated maturity, so long as any Bonds shall be
Outstanding.
"Bond Purchase Agreement" shall mean the bond purchase agreement dated December
16, 1998 by and among the Issuer, the Company and the Underwriter, as original
purchaser of the Bonds, as the same may be supplemented or amended from time to
time.
"Bond Rate" shall mean with respect to any Bond, the applicable rate of
interest on such Bond, as set forth in such Bond.
"Bond Registrar" shall mean the Trustee.
"Bond Resolution" shall mean the Resolution.
"Bond Year" shall mean each one (1) year period ending on the anniversary of
the Closing Date.
"Bondholder" or "holder" or "owner of the Bonds" shall mean the registered
owner of any Bond as indicated on the bond register maintained by the Bond
Registrar.
"Book Entry Bonds" shall mean the Bonds with respect to which the procedures
set forth in Section 213 of the Indenture shall apply.
"Building Loan Contract" shall mean the building loan contract dated as of
December 1, 1998 by and among the Issuer, the Company and the Bank, as said
building loan contract may be supplemented or amended from time to time.
"Business Day" shall mean any day of the year other than a Saturday or Sunday
or a day on which banking institutions located in the city in which the Office
of the Trustee is located are authorized by law, regulation or executive order
to remain closed.
"Certificate of Authentication" shall mean the certificate of authentication in
substantially the form attached to the forms of Bond attached as Exhibits A and
B to the Indenture.
"Closing Date" shall mean (A) with respect to the Bonds, the date on which
authenticated Bonds are delivered to or upon the order of the Underwriter and
payment is received therefor by the Trustee on behalf of the Issuer, and (B)
with respect to any Additional Bonds, the date on which Bonds are authenticated
and delivered to the purchaser thereof and payment therefor is received by the
Trustee on behalf of the Issuer.
"Code" shall mean the Internal Revenue Code of 1986, as amended, including,
when appropriate, the statutory predecessor of said Code, and the applicable
regulations (whether proposed, temporary or final) of the United States
Treasury Department promulgated under said Code and the statutory predecessor
of said Code.
"Company" shall mean Mechanical Technology Incorporated, a business corporation
organized and existing under the laws of the State of New York having an office
for the transaction of business located at 968 Albany-Shaker Road, Latham, New
York and its successors and assigns, to the extent permitted by Section 8.4 of
the Installment Sale Agreement.
"Completion Date" shall mean the earlier of (A) April 30, 1999 or (B) the date
of substantial completion of the Project Facility as evidenced in the manner
provided in Section 4.4 of the Installment Sale Agreement.
"Condemnation" shall mean the taking of title to, or the use of, Property under
the exercise of the power of eminent domain by any Governmental Authority.
"Construction Contract" shall mean the contract by and between the Contractor
and the Company for the construction of the Facility.
"Construction Period" shall mean the period (A) beginning on May 25, 1998 and
(B) ending on the Completion Date.
"Contractor" shall mean such Person with whom the Company contracts from time
to time for the acquisition, construction and/or installation of the Project
Facility.
"Conversion Date" shall mean the Fixed Rate Conversion Date.
"Conversion Option" shall mean the option to convert the interest rate on the
Bonds from the Adjustable Rate to the Fixed Rate on a Fixed Rate Conversion
Date.
"Corporate Guarantor" shall mean Ling Electronics, Inc.
"Cost of the Project" shall mean all those costs and items of expense
enumerated in Section 4.3 of the Installment Sale Agreement.
"Debt Service Payment" shall mean, with respect to any Bond Payment Date, (A)
the interest payable on the Bonds on such Bond Payment Date, plus (B) the
principal, if any, payable on the Bonds on such Bond Payment Date, plus (C) the
premium, if any, payable on the Bonds on such Bond Payment Date.
"Defaulted Payments" shall have the meaning ascribed to such term in Section
207(C) of the Indenture.
"Demand Purchase Option" shall mean the option granted to the owners of the
Bonds to require that Bonds be purchased in accordance with Section 305 of this
Indenture.
"Depository" shall mean The Depository Trust Company, New York, New York, a
limited purpose trust company organized under the laws of the State, or its
nominee, or any other Person designated in any supplemental resolution of the
Issuer to serve as securities depository for the Bonds.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Equipment" shall mean all materials, machinery, equipment, fixtures or
furnishings intended to be acquired with the proceeds of the Bonds or any
payment made by the Company pursuant to Section 4.5 of the Installment Sale
Agreement, and such substitutions and replacements therefor as may be made from
time to time pursuant to the Installment Sale Agreement, including, without
limitation, all the Property described in Exhibit B attached to the Installment
Sale Agreement.
"Event of Default" shall mean (A) with respect to the Indenture, any of those
events defined as Events of Default by the terms of Article VI of the
Indenture; (B) with respect to the Installment Sale Agreement, any of those
events defined as Events of Default by the terms of Article X of the
Installment Sale Agreement; (C) with respect to the Mortgage, any of those
events defined as Events of Default by the terms of Article VI of the Mortgage;
and (D) with respect to any other Financing Document, any of those Events of
Default defined therein.
"Existing Facility" shall mean the three existing buildings containing, in the
aggregate, approximately 98,000 square feet of space and located at 968
Albany-Shaker Road in the Town of Colonie, New York.
"Extraordinary Services" and "Extraordinary Expenses" shall mean all services
rendered and all expenses incurred by the Trustee or any paying agent under the
Indenture, other than Ordinary Services and Ordinary Expenses, including, but
not limited to, reasonable attorneys fees and any services rendered and any
expenses incurred with respect to an Event of Default or with respect to the
occurrence of an event which upon the giving of notice or the passage of time
would ripen into an Event of Default under any of the Financing Documents.
"Facility" shall mean, collectively, the Existing Facility and the New
Facility, and any other buildings, improvements, structures and other related
facilities (A) affixed to or attached to the Land, (B) financed with the
proceeds of the sale of the Bonds or any payment made by the Company pursuant
to Section 4.5 of the Installment Sale Agreement, and (C) not constituting a
part of the Equipment, all as they may exist from time to time.
"Financial Institution" shall mean (A) any national bank, or banking
institution, whether acting in its individual or fiduciary capacity, organized
under the laws of the United States, any state, any territory or the District
of Columbia, the business of which is substantially confined to banking and is
supervised by the Comptroller of the Currency or a comparable state or
territorial official or agency; banking commission or similar official; (B) an
insurance company which is organized as an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies and which is subject to supervision
by the insurance commissioner or a similar official or agency of a state or a
territory or the District of Columbia; (C) an investment company registered
under the Investment Company Act of 1940 or a business development company as
described in Section 2(a)(48) of that Act; (D) an employee benefit plan,
including an individual retirement account, which is subject to the provisions
of the Employee Retirement Income Security Act of 1974, if the investment
decision is made by a plan fiduciary, as defined in Section 3(21) of such Act,
which is either a bank, insurance company or registered investment company; or
(E) institutional investors or other entities who customarily purchase
commercial paper or tax-exempt securities in large denominations.
"Financing Documents" shall mean the Bonds, the Indenture, the Installment Sale
Agreement, the Mortgage, the Bond Purchase Agreement, the Bank Documents, the
Remarketing Agreement and any other document now or hereafter executed by the
Issuer, the Company or the Bank in favor of the Bondholders, the Trustee or the
Bank which affects the rights of the Bondholders, the Trustee or the Bank in or
to the Project Facility, in whole or in part, or which secures or guarantees
any sum due under the Bonds or any other Financing Document, each as amended
from time to time, and all documents related thereto and executed in connection
therewith.
"Fixed Rate" shall mean the fixed interest rate on the Bonds as determined in
accordance with the Indenture, from and including the Fixed Rate Conversion
Date.
"Fixed Rate Conversion" shall mean the conversion of the interest rate on the
Bonds from an Adjustable Rate to a Fixed Interest Rate.
"Fixed Rate Conversion Date" shall mean the date on which the Bonds shall
commence to bear interest at the Fixed Rate as provided in the Indenture,
provided that if any such date shall not be a Business Day, such date shall be
the next succeeding Business Day.
"Fixed Rate Period" shall mean that period during which the Bonds shall bear
interest at the Fixed Rate.
"Government Obligations" shall mean direct obligations of, or obligations the
principal of and interest on which are fully and unconditionally guaranteed as
full faith and credit obligations by, the United States of America which are
not subject to redemption by the issuer thereof prior to their stated maturity.
"Governmental Authority" shall mean the United States, the State, any other
state and any political subdivision thereof, and any agency, department,
commission, board, bureau or instrumentality of any of them.
"Gross Proceeds" shall mean one hundred percent (100%) of the proceeds of the
transaction in question, including, but not limited to, the settlement of any
insurance claim or Condemnation award.
"Guaranty" shall mean the guaranty dated as of December 1, 1998 from the
Corporate Guarantor to the Trustee, as said guaranty may be supplemented or
amended from time to time.
"Hazardous Materials" shall mean all hazardous materials including, without
limitation, any flammable explosives, radioactive materials, radon, asbestos,
urea formaldehyde foam insulation, polychlorinated byphenyls, petroleum,
petroleum products, methane, hazardous materials, hazardous wastes, hazardous
or toxic substances, or related materials as set forth in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. Sections 6901, et seq.), the Hazardous Materials Transportation Act, as
amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and
Recovery Act, as amended (42 U.S.C. Sections 9601, et seq.), Articles 15 or 27
of the State Environmental Conservation Law, or in the regulations adopted and
publications promulgated pursuant thereto, or any other Federal, state or local
environmental law, ordinance, rule or regulation.
"Immediate Notice" shall mean same-day notice by telephone, telecopy or telex,
followed by prompt written confirmation sent by overnight delivery.
"Indebtedness" shall have the meaning assigned to such term in Section 2.01 of
the Mortgage.
"Indenture" shall mean the trust indenture dated as of December 1, 1998 by and
between the Issuer and the Trustee, as said trust indenture may be supplemented
or amended from time to time.
"Independent Counsel" shall mean an attorney or firm of attorneys duly admitted
to practice law before the highest court of any state and approved by the Bank
and not a full-time employee of the Company or the Issuer.
"Installment Sale Agreement" shall mean the installment sale agreement dated as
of December 1, 1998 by and between the Issuer and the Company, as said
installment sale agreement may be supplemented or amended from time to time.
"Insurance and Condemnation Fund" shall mean the fund so designated established
pursuant to Section 401(A) of the Indenture.
"Insurance and Condemnation Fund Non-Preference Moneys Subaccount" shall mean
the account so designated within the Insurance and Condemnation Fund
established pursuant to Section 401(A) of the Indenture.
"Interest Payment Date" shall mean (A) prior to the Conversion Date, the first
(1st) Thursday of each month, and (B) after the Conversion Date, such dates as
may be determined in accordance with Section 209(B)(2)(e)(ii)(B) of the
Indenture.
"Issuer" shall mean (A) Town of Colonie Industrial Development Agency and its
successors and assigns, and (B) any public benefit corporation or political
subdivision resulting from or surviving any consolidation or merger to which
Town of Colonie Industrial Development Agency or its successors or assigns may
be a party.
"Land" shall mean the parcel of land containing approximately 35.6 acres and
located at 968 Albany-Shaker Road in the Town of Colonie, Albany County, New
York.
"Lease to Issuer" shall mean the lease agreement dated the Closing Date from
the Company to the Issuer conveying a leasehold interest in a portion of the
Land and the Facility to the Issuer.
"Letter of Credit" shall mean (A) the irrevocable transferable direct-pay
letter of credit dated the Closing Date, issued by the Bank in favor of the
Trustee, in a maximum amount (which shall decline at fixed intervals) equal to
the principal of the Bonds Outstanding, and sixty-five (65) days' interest on
all Outstanding Bonds (computed at the maximum interest rate equal to 15%) and
(B) any Substitute Letter of Credit.
"Lien" shall mean any interest in Property securing an obligation owed to a
Person, whether such interest is based on the common law, statute or contract,
and including but not limited to a security interest arising from a mortgage,
encumbrance, pledge, conditional sale or trust receipt or a lease, consignment
or bailment for security purposes. The term "Lien" includes reservations,
exceptions, encroachments, projections, easements, rights of way, covenants,
conditions, restrictions, leases and other similar title exceptions and
encumbrances, including but not limited to mechanics', materialmen's,
warehousemen's and carriers' liens and other similar encumbrances affecting
real property. For purposes hereof, a Person shall be deemed to be the owner of
any Property which it has acquired or holds subject to a conditional sale
agreement or other arrangement pursuant to which title to the Property has been
retained by or vested in some other Person for security purposes.
"Lien Law" shall mean the Lien Law of the State.
"Local Authority" shall mean any Governmental Authority which exercises
jurisdiction over the Land or the acquisition, construction or installation of
the Project Facility.
"Mandatory Tender" shall mean the mandatory tender of Bonds by the owner
thereof upon (A) the Company's exercise of the Conversion Option pursuant to
Section 209 of the Indenture, or (B) the delivery by the Company of an
Alternate Letter of Credit pursuant to Section 304 of the Indenture.
"Maturity Date" shall mean, with respect to any Bond, the final Stated Maturity
of the principal of such Bond.
"Moody's" shall mean Moody's Investors Service, Inc., and its successors and
assigns.
"Mortgage" shall mean the mortgage dated as of December 1, 1998 from the Issuer
and the Company to the Bank, as said mortgage may be supplemented or amended
from time to time.
"Mortgaged Property" shall mean all Property which may from time to time be
subject to the Lien of the Mortgage.
"Net Proceeds" shall mean so much of the Gross Proceeds with respect to which
that term is used as remain after payment of all fees for services, expenses,
costs and taxes (including attorneys' fees) incurred in obtaining such Gross
Proceeds.
"Non-Preference Moneys" shall mean (A) proceeds of the Bonds deposited on the
Closing Date in the Bond Fund, (B) (1) proceeds from the issuance and sale of
bonds issued to refund the Bonds, which proceeds (a) are deposited directly
with the Trustee upon the issuance of such refunding bonds, and (b) are at all
times after their receipt by the Trustee held separately and not commingled
with other moneys, and (2) proceeds from the investment thereof (provided,
however, that proceeds of bonds issued to refund the Bonds shall not be
considered "Non-Preference Moneys" unless the Trustee shall receive an opinion
of nationally recognized counsel acceptable to it and experienced in bankruptcy
matters to the effect that the payment of such proceeds to an owner of Bonds
would not constitute a "preferential payment" subject to avoidance under the
United States Bankruptcy Code in the event of a filing by or against the
Company or Related Person to either the Company as debtor under Title 11 of the
United States Code), (C) moneys paid by the Bank under the Letter of Credit,
(D) moneys or Authorized Investments derived directly or indirectly from the
Company or a Related Person to either the Company, but only if such moneys or
Authorized Investments have been on deposit with the Trustee for a period of
not less than three hundred sixty-seven (367) days; provided, however, that if
on the date in question a petition had previously been filed by or against the
Company, or a Related Person to either the Company in a case under Title 11 of
the United States Code and such case has not been dismissed, "Non-Preference
Moneys" will not include any moneys or Authorized Investments derived directly
or indirectly from the Person against or by whom such petition was filed that
were deposited with the Trustee fewer than three hundred sixty-seven (367) days
prior to the date such petition was filed, and (E) moneys on deposit in the
Project Fund or in the Insurance and Condemnation Fund, provided that such
moneys shall have been on deposit with the Trustee for three hundred and
sixty-seven (367) days following the date on which the Company shall have no
further right to draw on the same, and provided further that during such period
there shall not have occurred a filing by or against the Company or Related
Person to either the Company as debtor under Title 11 of the United States
Code.
"Office of the Trustee" shall mean the principal corporate trust office of the
Trustee, presently located at One M & T Plaza, 7th Floor, Buffalo, New York
14203.
"Optional Redemption Premium" shall mean the maximum applicable premium payable
upon an optional redemption of the Bonds after the Conversion Date, as
determined by the Remarketing Agent pursuant to Section 301(D)(2) of the
Indenture.
"Ordinary Services" and "Ordinary Expenses" shall mean those services normally
rendered with those expenses, including reasonable attorneys' fees, normally
incurred by a trustee or a paying agent, as the case may be, under instruments
similar to the Indenture.
"Outstanding" shall mean, when used with reference to the Bonds as of any date,
all Bonds which have been duly authenticated and delivered by the Trustee under
the Indenture, except:
(A) Bonds theretofore cancelled or deemed cancelled by the Trustee or
theretofore delivered to the Trustee for cancellation;
(B) Bonds the payment or redemption of which moneys or Government
Obligations shall have been theretofore deposited with the Trustee (whether
upon or prior to the maturity or redemption date of any such Bonds); provided
that such moneys or obligations are Non-Preference Moneys; and provided that if
such Bonds are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given or arrangements satisfactory to the Trustee
shall have been made therefor, or waiver of such notice satisfactory in form to
the Trustee shall have been filed with the Trustee; and
(C) Bonds in lieu of or in substitution for which other Bonds have been
authenticated and delivered under the Indenture.
If the Indenture shall be discharged pursuant to Article X thereof, no Bonds
shall be deemed to be Outstanding within the meaning of this provision.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established under
Title IV of ERISA, or any other governmental agency, department or
instrumentally succeeding to the functions of said corporation.
"Permitted Encumbrances" shall mean (A) utility, access and other easements,
rights of way, restrictions, encroachments and exceptions that benefit or do
not materially impair the utility or the value of the Property affected thereby
for the purposes for which it is intended, (B) mechanics', materialmen's,
warehousemen's, carriers' and other similar Liens to the extent permitted by
Section 8.8(B) of the Installment Sale Agreement, (C) Liens for taxes,
assessments and utility charges (1) to the extent permitted by Section 6.2(B)
of the Installment Sale Agreement, or (2) at the time not delinquent, (D) any
Lien on the Project Facility obtained through any Financing Document, (E) any
Lien on the Project Facility in favor of the Trustee or the Bank, and (F) any
Lien which is subordinate to the Lien of the Mortgage.
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization or Governmental Authority.
"PILOT Agreement" shall mean the payment in lieu of tax agreement dated as of
December 1, 1998 by and among the Issuer and the Company, as said agreement may
be supplemented or amended from time to time.
"Plans and Specifications" shall mean the plans and specifications for the
construction of the Facility prepared by the Company and approved by the Bank,
and all amendments and modifications thereof made by approved change orders;
and, if an item for the construction of the Facility is not specifically
detailed in the aforementioned plans and specifications, but rather is
described by way of manufacturer's or supplier's or contractor's shop drawings,
catalog references or similar descriptions, the term also includes such shop
drawings, catalog references and descriptions, all to be approved as required
by the Building Loan Agreement.
"Pledged Bonds" shall mean any Bonds at any time purchased, in whole or in
part, with the proceeds of a draw on the Letter of Credit upon tender of each
such Bond and held by the Trustee as nominee for the Bank pursuant to the
Pledge and Security Agreement.
"Predecessor Bonds" of any particular Bond shall mean every previous Bond
evidencing all or a portion of the same debt as that evidenced by such
particular Bond; and, for purposes of this definition, any Bond authenticated
and delivered under Section 205 of the Indenture in lieu of a lost, destroyed
or stolen Bond shall be deemed to evidence the same debt as the lost, destroyed
or stolen Bond.
"Principal Payment Date" shall mean, after the Conversion Date, the annual
payment date for the payment of principal on the Bonds, the first such payment
date being the second Interest Payment Date following the Fixed Rate Conversion
Date, and on the same day annually thereafter.
"Project" shall mean the project undertaken by the Issuer consisting of the
following: (A) (1) the acquisition of a leasehold interest in a parcel of land
containing approximately 35.6 acres located at 968 Albany-Shaker Road in the
Town of Colonie, Albany County, New York (the "Land"), together with the
existing buildings located thereon which contain approximately 98,000 square
feet in the aggregate (such buildings known individually as Building I,
Building II and Building III and hereinafter collectively referred to as the
"Existing Facility"), (2) the demolition of Building I which contains
approximately 14,105 square feet of space, (3) the construction of a new
building to replace Building I and which will contain approximately 32,000
square feet of space (the "New Facility") (the Existing Facility and the New
Facility hereinafter collectively referred to as the "Facility"), (4) the
renovation of Building III and (5) the acquisition of and installation therein
and thereon of certain machinery and equipment (the "Equipment") (the Land, the
Facility and the Equipment being hereinafter collectively referred to as the
"Project Facility"), all of the foregoing to be occupied by Mechanical
Technology Incorporated (the "Company") and operated as a manufacturing
facility, a portion of which will be leased by the Company to Plug Power, LLC
and operated as a facility for the manufacture, research and development of
fuel cells for residential and automotive applications and related products and
any other related activities; (B) the financing of all or a portion of the
costs of the foregoing by the issuance of the Bonds; (C) the granting of
certain other "financial assistance" (within the meaning of Section 854(14) of
the Act) with respect to the foregoing, including exemption from certain sales
taxes, deed transfer taxes, mortgage recording taxes and real property taxes
(collectively with the Bonds, the "Financial Assistance"); and (D) the lease
(with an obligation to purchase) or sale of the Project Facility to the Company
or such other person as may be designated by the Company and agreed upon by the
Agency.
"Project Facility" shall mean, collectively, the Land, the Facility and the
Equipment.
"Project Fund" shall mean the fund so designated established pursuant to
Section 401(A) of the Indenture.
"Project Fund Non-Preference Moneys Subaccount" shall mean the account so
designated within the Project Fund established pursuant to Section 401(A) of
the Indenture.
"Property" shall mean any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Purchase Date" shall mean (A) the Repurchase Closing Date, (B) the Conversion
Date, and (C) the Alternate Security Date, in each case a date on which Bonds
tendered or deemed tendered for purchase are to be purchased at the Purchase
Price pursuant to the Indenture.
"Purchase Price" shall mean an amount equal to one hundred percent (100%) of
the principal amount of any Bond tendered or deemed tendered pursuant to
Section 304 of the Indenture, plus accrued and unpaid interest thereon to the
Purchase Date.
"Record Date" shall mean either a Regular Record Date or a Special Record Date.
"Redemption Price" shall mean, when used with respect to a Bond, the principal
amount thereof plus the applicable premium, if any, payable upon the prior
redemption thereof pursuant to the provisions of the Indenture and such Bond.
"Regular Record Date" shall mean, with respect to the interest and any Sinking
Fund Payment or principal payment due on the Bonds prior to maturity payable on
any Bond payable on any Interest Payment Date, (A) prior to the Conversion
Date, the Business Day next preceding any Interest Payment Date, and (B) after
the Conversion Date, the fifteenth (15th) day (whether or not a Business Day)
of the calendar month next preceding an Interest Payment Date.
"Reimbursement Agreement" shall mean (A) the irrevocable letter of credit
reimbursement agreement dated as of December 1, 1998 by and between the Company
and the Bank, pursuant to which, among other things, the Bank agrees to issue
the Letter of Credit and the Company agrees to reimburse the Bank for amounts
drawn under the Letter of Credit, and (B) any agreement by and between the
Company and a Substitute Bank pursuant to which a Substitute Letter of Credit
shall be issued, in each case as said reimbursement agreement may be
supplemented or amended from time to time.
"Related Person" shall mean any Person constituting a "related person" within
the meaning ascribed to such quoted term in Section 144(a)(3) of the Code,
except when used in connection with the phrase "substantial user", in which
case the phrase "Related Person" shall have the meaning set forth in Section
147(a) of the Code.
"Remarketing Agent" shall mean First Albany Corporation, having an office at 30
South Pearl Street, Albany, New York 12207.
"Remarketing Agreement" shall mean the remarketing agreement dated as of
December 1, 1998 by and between the Company and the Remarketing Agent, as said
agreement may be further amended or supplemented from time to time.
"Repurchase Closing Date" shall mean the Business Day on which the owner of any
Tendered Bond demands purchase of such Tendered Bond, which shall be not prior
to seven (7) calendar days following receipt by the Tender Agent or the Trustee
of a Tender Notice.
"Request for Disbursement" shall mean a request from the Company, as agent of
the Issuer, stating the amount of disbursement sought and containing the
statements, representations and other items required by Section 4.3 of the
Installment Sale Agreement and the Building Loan Agreement, in substantially
the form of Exhibit F attached to the Indenture.
"Requirement" or "Local Requirement" shall mean any law, ordinance, order, rule
or regulation of a Governmental Authority or a Local Authority, respectively.
"Resolution" shall mean the resolution of the Issuer adopted on November 23,
1998 authorizing the Issuer to undertake the Project, to issue and sell the
Bonds and to execute and deliver the Financing Documents to which the Issuer is
a party.
"Sinking Fund Payments" shall mean (A) with respect to the Bonds, the sinking
fund redemption payments due on the Bonds pursuant to Section 301(E) of the
Indenture and (B) with respect to any Additional Bonds, the sinking fund
redemption payments (if any) required pursuant to the supplemental Issuer
Indenture authorizing issuance of such Additional Bonds.
"Special Record Date" shall mean a date for the payment of any Defaulted
Payments on the Bonds fixed by the Trustee pursuant to Section 207(C) of the
Indenture.
"Standard & Poor's" shall mean Standard & Poor's, and its successors and
assigns.
"State" shall mean the State of New York.
"Stated Maturity" shall mean, when used with respect to any Bond or any
installment of interest thereon, the date specified in such Bond as the fixed
date on which the principal of such Bond or such installment of interest on
such Bond is due and payable.
"Substitute Bank" shall mean a commercial bank or savings and loan association
which has issued a Substitute Letter of Credit.
"Substitute Letter of Credit" shall mean a letter of credit, delivered to the
Trustee in accordance with Section 5.8 of the Installment Sale Agreement, (A)
issued by the Bank or a Substitute Bank, (B) replacing any existing Letter of
Credit, (C) dated as of a date prior to the expiration date of the Letter of
Credit for which the same is to be substituted, (D) which shall have a term of
at least one year and expire on a date which is at least fifteen (15) days
after an Interest Payment Date, and (E) issued on substantially identical terms
and conditions as the then existing Letter of Credit, except that the stated
amount of the Substitute Letter of Credit shall equal the sum of (1) the
aggregate principal amount of Bonds at the time Outstanding, plus (2) an amount
equal to (i) prior to the Conversion Date, at least sixty-five (65) days'
interest on the Bonds at the time Outstanding computed at a rate of fifteen
percent (15%) and (ii) after the Conversion Date, at least 210 days' interest
on the Bonds, computed at the Fixed Rate in effect, together with the Optional
Redemption Premium.
"Substitute Reimbursement Agreement" shall mean a substitute reimbursement
agreement by and between the Company and a Substitute Bank providing for the
issuance by the Substitute Bank of a Substitute Letter of Credit.
"Tender Agent" shall mean the Trustee or any successor Tender Agent under the
Indenture.
"Tender Notice" shall mean the notice, in substantially the form attached as
Exhibit C-5 to the Indenture and complying with the requirements of Section 305
of the Indenture, pursuant to the delivery of which a Bondholder shall demand
redemption of a Tendered Bond. A notice shall not be considered a validly
delivered notice unless it complies with the requirements of the Indenture.
"Tender Notice Date" shall mean the date on which the Tender Agent receives a
Tender Notice.
"Tendered Bond" shall mean any Bond or a portion thereof which has been the
subject of (A) a Demand Purchase Option under Section 305 of the Indenture or
(B) a Mandatory Tender under Section 304 of the Indenture.
"Title Insurer" shall mean the issuer of the title insurance policy required by
Section 210 of the Indenture.
"Trust Estate" shall mean all Property which may from time to time be subject
to a Lien in favor of the Trustee created by the Indenture or any other
Financing Document.
"Trust Revenues" shall mean (A) all payments of installment purchase payments
made or to be made under the Installment Sale Agreement (except payments made
with respect to the Unassigned Rights), (B) all other amounts pledged to the
Trustee by the Issuer or the Company to secure the Bonds or performance of
their respective obligations under the Installment Sale Agreement and the
Indenture, (C) the Net Proceeds (except proceeds with respect to the Unassigned
Rights) of insurance settlements and Condemnation awards with respect to the
Project Facility, (D) the Net Proceeds (except proceeds with respect to the
Unassigned Rights) from the disposition of the Project Facility upon
foreclosure of the Lien of the Mortgage, (E) all payments received by the
Trustee under the Letter of Credit, (F) moneys and investments held from time
to time in each fund and account established under the Indenture and all
investment income thereon, except (1) moneys deposited with or paid to the
Trustee for the redemption of Bonds, notice of which has been duly given, (2)
moneys deposited with the Trustee or the Tender Agent for the purchase of
Tendered Bonds, and (3) as specifically otherwise provided, and (G) all other
moneys received or held by the Trustee for the benefit of the Bondholders
pursuant to the Indenture.
"Trustee" shall mean Manufacturers and Traders Trust Company, a trust company
organized and existing under the laws of the State of New York having an office
for the transaction of business located at One M & T Plaza, 7th Floor, Buffalo,
New York 14203, or any successor trustee or co-trustee, acting as trustee under
the Indenture.
"Unassigned Rights" shall mean (A) the rights of the Issuer granted pursuant to
Sections 2.2, 3.1, 3.2, 3.3, 4.1(A), 4.1(B), 4.1(D), 4.1(E)(2), 4.1(F), 4.1(G),
4.4, 4.5, 4.6, 5.2(A), 5.3(B)(2), 5.3(B)(3), 5.4(B), 6.1(A), 6.1(B), 6.2, 6.3,
6.4, 6.5, 6.6, 7.1, 7.2, 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, 8.9, 8.15,
9.1, 9.3, 9.4, 11.1, 11.4, 11.6, 11.8 and 11.10 of the Installment Sale
Agreement, (B) the moneys due and to become due to the Issuer for its own
account or the members, officers, agents and employees of the Issuer for their
own account pursuant to Sections 2.2(F), 3.1, 3.3, 4.1(F), 5.3(B)(2),
5.3(B)(3), 5.3(C), 6.4(B), 8.2, 10.2 and 10.4 of the Installment Sale Agreement
and the moneys due as payments in lieu of taxes under Section 6.6 of the
Installment Sale Agreement and the PILOT Agreement, (C) the rights of the
Issuer under Section 6.6 of the Installment Sale Agreement, and (D) the right
to enforce the foregoing pursuant to Article X of the Installment Sale
Agreement. Notwithstanding the preceding sentence, to the extent the
obligations of the Company under the Sections of the Installment Sale Agreement
listed in (A), (C) and (D) above do not relate to the payment of moneys to the
Issuer for its own account or to the members, officers, directors, agents
(other than the Company) and employees of the Issuer for their own account,
such obligations, upon assignment of the Installment Sale Agreement by the
Issuer to the Trustee pursuant to the Pledge and Assignment, shall be deemed to
and shall constitute obligations of the Company to the Issuer and the Trustee,
jointly and severally, and either the Issuer or the Trustee may commence an
action to enforce the Company's obligations under the Installment Sale
Agreement.
"Underwriter" shall mean First Albany Corporation, having an office for the
transaction of business located at 30 South Pearl Street, Albany, New York
12207, as original purchaser of the Bonds on the Closing Date.
SECTION 102. INTERPRETATION. (A) In this Indenture, unless the context
otherwise requires:
(1) the terms "hereby", "hereof", "hereto", "herein", "hereunder", and any
similar terms, as used in this Indenture, refer to this Indenture, and the term
"heretofore" shall mean before, and the term "hereafter" shall mean after, the
date of this Indenture;
(2) words of masculine gender shall mean and include correlative words of
the feminine and neuter genders;
(3) words importing the singular number shall mean and include the plural
number, and vice versa;
(4) any headings preceding the texts of the several Articles and Sections
of this Indenture, and any table of contents or marginal notes appended to
copies hereof, shall be solely for convenience of reference and shall neither
constitute a part of this Indenture nor affect its meaning, construction or
effect;
(5) words importing the redemption or redeeming of a Bond or the calling of
a Bond for redemption do not include or connote the payment of such Bond at its
Stated Maturity or the purchase of said Bond;
(6) all references to time in this document refer to New York City time;
and
(7) any certificates, letters or opinions required to be given pursuant to
this Indenture shall mean a signed document attesting to or acknowledging the
circumstances, representations, opinions of law or other matters therein stated
or set forth or setting forth matters to be determined pursuant to this
Indenture.
(B) Nothing in this Indenture expressed or implied is intended or shall be
construed to confer upon, or to give to, any persons, other than the Issuer,
the Trustee, the Bank and the holders of the Bonds, any right, remedy or claim
under or by any reason of this Indenture or any covenant, condition or
stipulation thereof. All the covenants, stipulations, promises and agreements
herein contained by and on behalf of the Issuer shall be for the sole and
exclusive benefit of the Issuer, the Trustee, the Bank and the holders of the
Bonds.
SECTION 103. CONDITIONS PRECEDENT SATISFIED. All acts, conditions and things
required by law to exist, happen and be performed precedent to and in
connection with the execution and entering into of this Indenture have happened
and have been performed in regular and due time, form and manner as required by
law, and the parties hereto are now duly empowered to execute and enter into
this Indenture.
ARTICLE II
THE BONDS
SECTION 201. RESTRICTION ON ISSUANCE OF BONDS. No Bonds may be authenticated
and issued under the provisions of this Indenture except in accordance with
this Article II. Except as provided in Section 205 and Section 214 hereof, the
total aggregate principal amount of Bonds that may be issued and authenticated
hereunder is expressly limited to $6,000,000.
SECTION 202. LIMITED OBLIGATIONS. (A) The Bonds, together with the premium, if
any, and the interest thereon, shall be limited obligations of the Issuer
payable, with respect to the Issuer, solely from the Trust Revenues, which
Trust Revenues are hereby pledged and assigned for the equal and ratable
payment of all sums due under the Bonds, and shall be used for no other purpose
than to pay the principal of, premium, if any, on and interest on the Bonds
except as may be otherwise expressly provided herein.
(B) THE BONDS ARE NOT AND SHALL NOT BE A DEBT OF THE STATE OR OF THE TOWN
OF COLONIE, NEW YORK AND NEITHER THE STATE NOR THE TOWN OF COLONIE, NEW YORK
SHALL BE LIABLE THEREON. THE BONDS DO NOT GIVE RISE TO A PECUNIARY LIABILITY OR
CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS OF THE STATE OR OF THE TOWN
OF COLONIE, NEW YORK.
(C) No recourse shall be had for the payment of the principal of or
premium, if any, on or the interest on any Bond or for any claim based thereon
or on this Indenture against any past, present or future member, officer,
employee or agent (other than the Company), as such, of the Issuer or of any
predecessor or successor corporation, either directly or through the Issuer or
otherwise, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty, or otherwise.
SECTION 203. EXECUTION. (A) The Bonds shall be executed on behalf of the Issuer
by the manual or facsimile signature of its Chairman or its Vice Chairman, and
the Issuer's corporate seal, or a reproduction thereof, shall be impressed,
imprinted or otherwise reproduced thereon and attested by the manual or
facsimile signature of its Secretary or its Assistant Secretary. All such
facsimile signatures shall have the same force and effect as if said officers
had manually signed the Bonds. The reproduction of the Issuer's corporate seal
on the Bonds shall have the same force and effect as if the Issuer's corporate
seal had been impressed on the Bonds.
(B) In case any Authorized Representative of the Issuer whose signature
shall appear on any Bond shall cease to be such Authorized Representative
before the delivery of such Bond or the issuance of a new Bond following a
transfer or exchange, such signature or such facsimile shall nevertheless be
valid and sufficient for all purposes, the same as if such Authorized
Representative had remained in office until delivery.
SECTION 204. AUTHENTICATION. Only such Bonds as shall have endorsed thereon the
Certificate of Authentication substantially in the forms set forth in the forms
of Bond attached hereto as Exhibits A and B duly executed by the manual
signature of an authorized officer of the Trustee shall be entitled to any
right or benefit under this Indenture. No Bonds shall be valid or obligatory
for any purpose unless and until such Certificate of Authentication shall have
been duly executed by the Trustee; and such executed Certificate of
Authentication upon any such Bond shall be conclusive evidence that such Bond
has been authenticated and delivered under this Indenture. The Trustee's
Certificate of Authentication on any Bond shall be deemed to have been executed
by it if signed by an authorized officer of the Trustee, but it shall not be
necessary that the same person sign the Certificate of Authentication on all of
the Bonds. In the event of the appointment of a Tender Agent, other than the
Trustee such Tender Agent may act as Co- Authenticating Agent with respect to
the Tendered Bonds.
SECTION 205. MUTILATED, LOST, STOLEN OR DESTROYED BONDS. (A) In the event any
Bond is mutilated, lost, stolen or destroyed, the Issuer may execute and the
Trustee may authenticate a new Bond, executed by the Issuer as provided in
Section 203 hereof, of like maturity, interest rate and denomination as the
Bond so mutilated, lost, stolen or destroyed. Any mutilated Bond shall first be
surrendered to the Trustee; and in the case of any lost, stolen or destroyed
Bond, there shall first be furnished to the Trustee evidence of such loss,
theft or destruction satisfactory to the Trustee, together with indemnity
satisfactory to the Trustee. The Issuer or the Trustee may charge the holder or
owner of such Bond a sum sufficient to cover any tax or other governmental
charge in connection with such exchange or substitution of such new Bond,
together with any other reasonable fees and expenses incurred by the Issuer or
the Trustee in connection therewith.
(B) Every Bond issued pursuant to the provisions of this Section 205 shall
be equally and proportionately entitled to the benefits of this Indenture with
all other Bonds secured by the Indenture. However, the Trustee shall not be
required to treat both the original Bond and any Bond issued in lieu thereof as
being Outstanding for purposes of determining the principal amount of Bonds
Outstanding under this Indenture or for the purpose of determining any
percentage of Bonds Outstanding hereunder, but both the original Bond and the
Bond issued in lieu thereof shall be treated as one and the same.
(C) Notwithstanding any other provision of this Section 205, in lieu of
delivering a new Bond for a Bond which has been mutilated, lost, stolen or
destroyed and which has matured, upon receipt of evidence of such mutilation,
loss, theft or destruction and indemnity satisfactory to the Trustee, the
Trustee may make payment for such Bond.
SECTION 206. TRANSFER AND EXCHANGE OF BONDS; PERSONS TREATED AS OWNERS. (A) The
Trustee is designated and agrees to act as Bond Registrar and shall cause a
bond register to be kept on behalf of the Issuer at the Office of the Trustee
for the registration and transfer of Bonds. Except as provided in Section 213
hereof, any Bond, upon the surrender of such Bond to the Bond Registrar, may be
transferred, but only upon delivery of an assignment duly executed by the
registered owner or his duly authorized legal representative in the form
imprinted on the Bond or in such other form as shall be satisfactory to the
Bond Registrar.
(B) Except as otherwise provided in Section 206(E) or Section 213 hereof,
upon receipt of such Bond and upon satisfaction of the conditions set forth in
Section 206(A) and Section 206(C) hereof, the Trustee shall immediately record
the transfer of such bond on the bond register and cause the transferee or
transferees to be the registered owner of such Bond. Upon any such registration
of transfer, the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange for such Bond one or more new Bonds, executed by the Issuer
as provided in Section 203 hereof, registered in the name of the designated
transferee thereof, of any denomination or denominations authorized by this
Indenture and for the same aggregate principal amount as the Bond or Bonds
surrendered for transfer.
(C) In the event of the appointment of a Tender Agent, other than the
Trustee, such Tender Agent may act as Co-Bond Registrar with respect to
Tendered Bonds.
(D) No service charge shall be made for any transfer or exchange of Bonds,
but in all cases in which Bonds shall be transferred or exchanged hereunder,
the Issuer or the Trustee may make a charge for every transfer or exchange of
Bonds sufficient to reimburse them for any tax, fee or other governmental
charge required to be paid with respect to such transfer or exchange, and such
charge shall be paid before any such new Bond shall be delivered.
(E) 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 the principal of, or the premium if any or interest on, any such
Bond shall be made only to or upon the order of the registered Holder thereof
or his duly authorized legal representative, subject to the terms of Section
207(C) hereof. Such registration may be changed only as provided in this
Section 206, and no other notice to the Issuer or the Trustee shall affect the
rights or obligations with respect to the transference of any Bond or be
effective to transfer any Bond. All payments to the Person in whose name any
Bond shall be registered shall be valid and effectual to satisfy and discharge
the liability upon such Bond to the extent of the sum or sums so paid.
(F) The Trustee shall not be required to make any such transfer or exchange
of (1) any Bond during the fifteen (15) days next preceding a Bond Payment Date
or (2) any Bond selected for redemption in whole or in part under Article III
hereof; provided, however, that in the event of a Bond selected for redemption
in part, nothing in this paragraph shall prohibit exchange of the remaining
portion of such Bond redeemed in part for a new Bond with a reduced principal
amount or the transfer or exchange of any such new Bond; provided, further that
the foregoing shall not apply to the registration or transfer of any Bond which
has been tendered to the Tender Agent pursuant to Section 304 hereof, and in
any such case, for purposes of selection for redemption, the Bond so tendered
and the Bond issued to the transferee thereof shall be deemed and treated as
the same Bond.
SECTION 207. PAYMENT PROVISIONS. (A) Payment of the principal of, premium, if
any, on and interest on the Bonds shall be made in lawful money of the United
States of America.
(B) Interest and any Sinking Fund Payment or principal payment due prior to
maturity on any Bond which is payable, and which is punctually paid or duly
provided for, on any Bond Payment Date shall be paid to the Person appearing on
the bond register as the registered owner of that Bond (or one or more
Predecessor Bonds) at the close of business on the Regular Record Date, by
check or draft of the Trustee mailed by the Trustee on such Bond Payment Date
to such registered owner at his address as it appears on the bond register;
provided that at the option of any Holder of Bonds in an aggregate principal
amount of $250,000 or greater, the Trustee shall cause such amounts to be
transmitted on such Interest Payment Date by wire transfer at such owner's
written request to the bank account number on file with the Trustee, provided
such owner has delivered adequate instructions regarding same to the Trustee at
least ten (10) Business Days prior to such Bond Payment Date.
(C) Any interest and any Sinking Fund Payment or principal payment due
prior to maturity on any Bond which is payable, but is not punctually paid or
duly provided for, on any Bond Payment Date (herein called "Defaulted
Payments") shall forthwith cease to be payable to the Person appearing on the
bond register as the registered owner on the relevant Regular Record Date
solely by virtue of such Person having been such registered owner; and the
Trustee shall make payment of any Defaulted Payments on Bonds to the Persons in
whose names such Bonds (or their respective Predecessor Bonds) are registered
at the close of business on a Special Record Date for the payment of such
Defaulted Payments, which shall be fixed in the following manner. The Trustee
shall determine the amount of Defaulted Payments to be paid on each Bond and
establish the date of the proposed payment (which date shall be such as will
enable the Trustee to comply with the next sentence hereof), and money in the
aggregate amount of the proposed Defaulted Payments shall be segregated by the
Trustee to be held in trust for the benefit of the Persons entitled to such
Defaulted Payments as in this Subsection provided and not to be deemed part of
the Trust Revenues. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Payments which shall be not more than fifteen
(15) nor less than ten (10) days prior to the date of the proposed payment. The
Trustee shall promptly notify the Issuer, the Bank and the Company of such
Special Record Date and shall cause notice of the proposed payment of such
Defaulted Payments and the Special Record Date therefor to be mailed one time,
first-class postage prepaid, to each registered owner of a Bond at his address
as it appears in the bond register not less than ten (10) days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Payments
and the Special Record Date therefor having been mailed as aforesaid, such
Defaulted Payments shall be paid to the Persons in whose names the Bonds (or
their respective Predecessor Bonds) are registered on such Special Record Date.
(D) Subject to the foregoing provisions of this Section, each Bond
delivered under this Indenture upon transfer of or in exchange for or in lieu
of any other Bond shall carry all the rights to interest and any Sinking Fund
Payments or principal payments due prior to maturity accrued and unpaid, and to
accrue, which were carried by such other Bond, and each such Bond shall bear
interest from such date so that neither gain nor loss in interest shall result
from such transfer, exchange or substitution.
(E) The principal of and premium, if any, on any Bonds due at maturity
shall be payable at the Office of the Trustee, upon presentation and surrender
of such Bond by the registered owner thereof or his duly authorized legal
representative at the maturity of such Bond or such other date as such payments
become due, by redemption or otherwise. Except as provided in subsection (B)
hereof, in the event of a partial redemption of any Bond, payment of the
redemption price shall be made to the registered owner or his duly authorized
legal representative only upon surrender to the Trustee of such Bond, and upon
such surrender the Trustee shall authenticate a new Bond executed by the Issuer
as provided in Section 203 for the unredeemed portion of such Bond.
(F) In NO EVENT shall the Trustee pay any portion of the principal of,
premium, if any, or interest on any Bond from other than Non-Preference Moneys.
SECTION 208. TEMPORARY BONDS. (A) Until definitive Bonds are ready for
delivery, there may be executed, and upon the request of the Issuer the Trustee
shall authenticate and deliver in lieu of definitive Bonds, temporary printed,
lithographed or typewritten Bonds, in any authorized denomination, in
substantially the tenor set forth in Exhibits A and B attached hereto and with
such appropriate omissions, insertions and variations as may be required.
(B) If the Bonds are no longer Book Entry Bonds and if temporary Bonds
shall have been issued, the Issuer shall, at the sole cost and expense of the
Company, cause the definitive Bonds to be prepared and to be executed and
delivered to the Trustee, and the Trustee, upon presentation to it at the
Office of the Trustee of any temporary Bond, shall cancel the same and
authenticate and deliver in exchange therefor, without charge to the owner
thereof, a definitive Bond or Bonds of an equal aggregate principal amount of
the same maturity and bearing interest at the same rate as the temporary Bond
surrendered. Until so exchanged, the temporary Bonds shall in all respects be
entitled to the same benefit and security of this Indenture as the definitive
Bonds to be issued and authenticated hereunder.
SECTION 209. SPECIFIC DETAILS OF BONDS. (A) The Bonds shall be issued in the
aggregate principal amount of $6,000,000, shall be designated "Town of Colonie
Industrial Development Agency Taxable Industrial Development Revenue Bonds
(Mechanical Technology Incorporated Project - Letter of Credit Secured), Series
1998A". The Bonds shall be numbered from one upward and prefixed "R". The Bonds
shall be issued in the denomination of $100,000 or any integral multiple of
$5,000 in excess thereof. Interest on the Bonds prior to the Conversion Date
shall be payable on the first (1st) Thursday of each month, commencing January
7, 1999.
(B) (1) The Bonds shall be dated the Closing Date and shall bear
interest from the Closing Date, or from the most recent Interest Payment Date
to which interest has been paid. The Bonds shall mature on December 1, 2013.
(2) The Bonds shall bear interest as follows:
(a) From the Closing Date through and including December 23, 1998, the
Bonds shall bear interest at a rate per annum equal to five and fifty-five
hundredths percent (5.55%).
(b) Thereafter, except as provided in (e) below, the Bonds (other than
Pledged Bonds) shall bear interest at the "Adjustable Rate".
(i) The Adjustable Rate shall be the rate of interest established by the
Remarketing Agent on the first Business Day prior to each Adjustment Date,
which in the Remarketing Agent's reasonable judgment would result, as nearly as
practicable, in the market value of the Bonds on an Adjustment Date being equal
to one hundred percent (100%) of the principal amount thereof. The Adjustable
Rate so determined shall be adjusted in accordance with the directions of the
Remarketing Agent on the Adjustment Date and shall remain in effect through and
including the day prior to the next following Adjustment Date.
(ii) In determining the Adjustable Rate pursuant to the foregoing Section
209(B)(2)(b)(i), the Remarketing Agent shall take into account, to the extent
applicable, (A) the market interest rates for comparable securities held by
open-end municipal or other fixed income bond funds or other institutional or
private investors with substantial portfolios (w) with interest rate adjustment
periods and demand purchase options substantially identical to the Bonds, (x)
bearing interest at a variable rate intended to maintain par value, (y) rated
by a national credit rating agency in the same category as the Bonds or, if not
rated, secured by substantially the same level of security as the Bonds, and
(z) the interest on which is included in gross income of the holders thereof
for federal income taxation purposes; (B) other financial market rates and
indices which may have a bearing on the Adjustable Rate (including, but not
limited to rates borne by commercial paper, Treasury bills, commercial bank
prime rates, certificate of deposit rates, federal funds rates, the London
Interbank Offered Rate, indices maintained by The Bond Buyer, and other
publicly available taxable interest rate indices); (C) general financial market
conditions (including current forward supply); (D) factors particular to the
Project or the credit standing of the Company and the Bank; and (E) such other
factors which the Remarketing Agent deems appropriate.
(iii) On the Business Day prior to each Adjustment Date, the Remarketing
Agent shall notify the Trustee, by Immediate Notice, of the Adjustable Rate.
(c) If for any reason the position of Remarketing Agent is vacant or the
Remarketing Agent fails to act, the Adjustable Rate shall be determined by a
third party selected by the Company at the Company expense and shall be equal
to one hundred percent (100%) of the yield applicable to 13-week United States
Treasury bills determined by such third party on the basis of the average per
annum discount rate at which such 13- week Treasury bills shall have been sold
(1) at the most recent Treasury auction conducted during the immediately
preceding Adjustment Period, (2) if no such auction shall have been conducted
during the immediately preceding Adjustment Period, at the most recent Treasury
auction conducted prior to such preceding Adjustment Period, plus fifty (50)
basis points; provided, however, that in the event the Company notifies the
Trustee that an index (as published in The Wall Street Journal) of seven-day
yield evaluations at par of issuers of securities, the interest on which is
includable in gross income for federal income tax purposes, and of comparable
rating to the rating on the Bonds, published by any nationally recognized
municipal securities evaluation service is available, the Adjustable Rate shall
be determined by the Trustee and shall be equal to such index.
(d) The Adjustable Rate shall be calculated based on a 365 or 366- day year
for the actual number of days elapsed. Further, each determination of the
Adjustable Rate pursuant to and in accordance with the foregoing terms of the
Indenture and the terms of the Bonds shall be conclusive and binding on the
Issuer, the Trustee, the Company, the Bank, and the holders of the Bonds.
(e) (i) From and after the Conversion Date through the maturity or earlier
redemption of the Bonds, the Bonds shall bear interest at the Fixed Rate, which
shall be a fixed rate (or rates) of interest established by the Remarketing
Agent at least fifteen (15), but not more than thirty (30) days prior to the
Conversion Date, which in the reasonable judgment of the Remarketing Agent
would result, as nearly as practicable, in the market value of the Bonds on the
Conversion Date being equal to one hundred percent (100%) of the principal
amount thereof.
(ii) (A) At the Remarketing Agent's discretion, after the exercise of
the Conversion Option, the Bonds may be converted into serial bonds, with a
principal amount of Bonds maturing on a Principal Payment Date each year equal
to the principal amount required to be redeemed as set forth in Section 301(E)
hereof. In such event, each maturity of Bonds may bear a different interest
rate, each of which shall be determined by the Remarketing Agent in the same
manner as the Fixed Rate (for convenience each such rate shall be referred to
as the Fixed Rate); provided, however, that in no event shall the Remarketing
Agent be permitted to convert the Bonds into serial bonds as described above
without delivering to the Trustee an opinion of Bond Counsel that such
conversion is lawful under the Act and permitted under the Indenture.
(B) The Interest Payment Dates after the exercise of the Conversion Option
shall be semi-annual, with one Interest Payment Date being the first day of the
month preceding the Fixed Rate Conversion Date and the other Interest Payment
Date being the first day of the month six (6) months later. Principal shall be
payable annually thereafter in the amounts and the years set forth in Section
301(E) hereof on the Principal Payment Dates.
(iii) In determining the Fixed Rate, the Remarketing Agent shall take into
account, to the extent applicable, (A) market interest rates for comparable
securities which are held by open-end municipal or other fixed income bond
funds or other institutional or private investors with substantial portfolios
(w) with a term equal to the period to maturity remaining on the Bonds, (x) the
interest on which is includable in the gross income of the holders thereof for
federal income tax purposes, (y) rated by a national credit rating agency in
the same rating category as the Bonds, or, if not rated, secured by
substantially the same level of security as the Bonds, and (z) with redemption
provisions similar to those which have bearing on the Fixed Rate; (B) other
financial market rates and indices (including but not limited to rates borne by
taxable industrial development bonds, other taxable revenue bonds, Treasury
obligations, commercial bank prime rates, certificate of deposit rates, federal
funds rates, indices maintained by The Bond Buyer and other publicly available
taxable interest rates and indices); (C) general financial market conditions
(including current forward supply); (D) factors particular to the Project or
the credit standing of the Company and the Bank; and (E) such other factors
which the Remarketing Agent deems appropriate.
(iv) The Fixed Rate shall be calculated based on a 360-day year of twelve
30-day months. The determination of the Fixed Rate by the Remarketing Agent
pursuant to and in accordance with the terms of the Indenture and the terms of
the Bonds shall be conclusive and binding on the Issuer, the Trustee, the
Company, the Bank and the Holders of the Bonds.
(v) To exercise the Conversion Option, the Company shall deliver at least
sixty (60) days prior to the Conversion Date, written notice to the Trustee,
the Issuer and the Bank of its election of the Conversion Option. On the
Conversion Date, the Bonds shall be subject to a Mandatory Tender for purchase
as provided in Section 304 of the Indenture. Notwithstanding anything to the
contrary contained herein, such notice shall not be effective unless the Bank
shall have consented thereto in writing and such notice is accompanied by:
(A) a Substitute Letter of Credit with an expiration date of not earlier
than fifteen (15) days following the Principal Payment Date which is at least
three (3) years after the next succeeding Principal Payment Date and in an
amount equal to the sum of the aggregate principal amount of the Bonds then
Outstanding, 210 days' interest thereon computed at the Fixed Rate, together
with the Optional Redemption Premium; provided, however, that if the Letter of
Credit then in place has an expiration date of not earlier than fifteen (15)
days following the Principal Payment Date which is at least three (3) years
after the next succeeding Principal Payment Date and in an amount equal to the
aggregate principal amount of the Bonds then Outstanding, 210 days' interest
thereon computed at the Fixed Rate, together with the Optional Premium, no
Substitute Letter of Credit need be obtained;
(B) a statement as to whether the Bonds shall be serial bonds as set forth
in Section 209(B)(2)(e)(ii) above; and
(C) an opinion of Bond Counsel reasonably satisfactory to the Trustee, the
Issuer and the Bank to the effect that the exercise of the Conversion Option is
lawful under the Act and permitted by the Indenture.
(f) Notwithstanding anything herein to the contrary, any Pledged Bond shall
bear interest at a rate equal to the Bank Rate, as such rate shall change from
time to time; provided, however, that at no time shall the interest rate in
effect for any Pledged Bond exceed the maximum rate permitted by applicable
usury laws.
(g) Notwithstanding anything herein to the contrary, in no event will the
rate of interest borne by any Bond (except any Bond constituting a Pledged
Bond) exceed fifteen percent (15%) per annum.
(h) The Issuer hereby appoints the Company to act as agent of the Issuer
for purposes of exercising the Conversion Option, all as set forth in this
Indenture, and subject to compliance with the terms and provisions of this
Indenture.
SECTION 210. DELIVERY OF THE BONDS. Upon the execution and delivery of this
Indenture, the Issuer shall execute and deliver the Bonds (including a number
of additional Bonds to be retained by the Trustee for authentication and
delivery upon transfer or exchange of any Bond) to the Trustee, and the Trustee
shall authenticate and deliver the Bonds to the purchasers thereof against
payment of the purchase price therefor, plus accrued interest to the day
preceding the date of delivery, upon receipt by the Trustee of the following:
(A) a certified copy of the Resolution;
(B) the executed original Letter of Credit;
(C) executed counterparts of the Indenture and the other Financing
Documents;
(D) a request and authorization to the Trustee on behalf of the Issuer
signed by an Authorized Representative of the Issuer to deliver the Bonds to
the purchasers thereof upon payment to the Trustee for the account of the
Issuer of the purchase price therefor;
(E) signed copies of the opinions of counsel to the Issuer, the Company and
the Bank, and of Bond Counsel, as required by the Bond Purchase Agreement;
(F) the certificates and policies, if available, of the insurance required
by the Installment Sale Agreement;
(G) a current survey of the Land certified to the Issuer and the Trustee;
(H) proof of compliance with the State Environmental Quality Review Act;
(I) evidence that the Project Facility is not an area of special flood
hazards, or a certificate and a policy, if available, of the insurance required
by Section 6.3(D) of the Installment Sale Agreement; and
(J) such other documents as the Trustee, the Bank or Bond Counsel may
reasonably require.
SECTION 211. CANCELLATION OF BONDS. All Bonds surrendered to the Trustee for
payment, redemption, transfer or exchange shall be promptly cancelled by the
Trustee. No Bond shall be authenticated in lieu of or in exchange for any Bond
cancelled as provided in this Section 211, except as expressly provided by this
Indenture. All Bonds cancelled by the Trustee shall be destroyed by the Trustee
and shall not be reissued. At the request of the Company, certificates of
destruction evidencing such destruction shall be furnished by the Trustee to
the Issuer and the Company.
SECTION 212. PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS. In any case where
the date of maturity of interest or a Sinking Fund Payment on or the principal
of any Bond or the date fixed for redemption of any Bond shall not be a
Business Day, then payment of interest on or principal or Redemption Price of
such Bond 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 no interest shall accrue for the period after such date.
SECTION 213. BOOK ENTRY BONDS. (A) Notwithstanding any other provision of this
Indenture, the Bonds are hereby authorized to be issued in book entry form as
Book Entry Bonds, with respect to which the following procedures shall apply.
(B) For all purposes of this Indenture, the Depository shall be deemed to
be holder of a Book Entry Bond and neither the Issuer, nor the Trustee shall
have any responsibility or obligation to the beneficial owner of such Bond or
to any direct or indirect participant in such Depository. Without limiting the
generality of the foregoing, neither the Issuer nor the Trustee shall have any
responsibility or obligation to any such participant or to the beneficial owner
of a Book Entry Bond with respect to (1) the accuracy of the records of the
Depository or any participant with respect to any beneficial ownership interest
in such Book Entry Bond, (2) the delivery to any participant of the Depository,
the beneficial owner of such Book Entry Bond or any other person, other than
the Depository, of any notice with respect to such Book Entry Bond, including
any notice of the redemption thereof, (3) the payment to any participant of the
Depository, the beneficial owner of such obligation or any other person, other
than the Depository, of any amount with respect to the principal or Redemption
Price of, or interest or Sinking Fund Payments on, such Book Entry Bond or (4)
any consent given or any other action taken by the Depository as Holder of the
Book Entry Bonds.
(C) The Issuer and the Trustee may treat the Depository of a Book Entry
Bond as the absolute owner of such Book Entry Bond for purpose of (1) payment
of the principal of, premium, if any, and interest on such Book Entry Bond, (2)
giving notices of redemption and of other matters with respect to such Book
Entry Bond, (3) registering transfers with respect to such Book Entry Bond, and
(4) for all other purposes whatsoever. The Trustee shall pay all principal of,
premium, if any, and interest and Sinking Fund Payments on, such Book Entry
Bond only to or upon the order of the Depository, and all such payments shall
be valid and effective to fully satisfy and discharge the Book Entry Bonds with
respect to such principal of, premium, if any, Sinking Fund Payments and
interest to the extent of the sum or sums so paid. No person other than the
Depository shall receive a Book Entry Bond or other instrument evidencing the
Issuer's obligation to make payments of the principal of, premium, if any,
Sinking Fund Payments and interest thereon.
(D) The Issuer, in its sole discretion, upon thirty (30) days prior written
notice to the Trustee and without the consent of the Trustee or the beneficial
owner of a Book Entry Bond or any other person, may terminate the services of
the Depository with respect to a Book Entry Bond if the Issuer determines that
(1) the Depository is unable to discharge its responsibilities with respect to
such Book Entry Bond or (2) a continuation of the requirement that all of the
Outstanding Bonds issued in book entry form be registered in the registration
books of the Issuer in the name of the Depository, is not in the best interest
of the beneficial owners of such Bonds, and the Issuer shall terminate the
services of the Depository upon receipt by the Issuer and the Trustee of
written notice from the Depository that it has received written requests that
such Depository be removed from its participants having beneficial interests,
as shown in the records of the Depository, in an aggregate amount of not less
than fifty percent in principal amount of the then Outstanding Book Entry
Bonds.
(E) Upon the termination of the services of a Depository with respect to a
Book Entry Bond, or upon the resignation of a Depository with respect to a Book
Entry Bond, after which no substitute securities depository willing to
undertake the functions of such Depository can be found which, in the opinion
of the Issuer, is able to undertake such functions upon reasonable and
customary terms, such Bonds shall no longer be registered in the registration
books kept by the Trustee in the name of a Depository, but may be registered in
the name of the beneficial owners of such Bonds, and such beneficial owners,
upon registration of such Bonds in their names, shall become the holders of
such Bonds.
(F) Notwithstanding any other provisions of the Indenture, the Trustee
shall have no liability for any inconsistency, if any, between a letter of
representations that may be executed and delivered by the Issuer and/or the
Trustee with the Depository and the provisions hereof, and with respect to any
such inconsistency, the provisions of such letter of representations shall
control.
SECTION 214. ADDITIONAL BONDS. (A) So long as the Installment Sale Agreement is
in effect and no Event of Default exists thereunder or hereunder (and no event
exists which upon notice or lapse of time or both, would become an Event of
Default thereunder), the Issuer may, upon request from the Company, issue one
or more series of Additional Bonds to provide funds to pay any one or more of
the following: (1) costs of completion of the Project Facility in excess of the
amount in the Project Fund; (2) costs of refunding or advance refunding any or
all of the Bonds previously issued; (3) costs of making any modifications,
additions or improvements to the Project Facility; or (4) costs of the issuance
and sale of the Additional Bonds, capitalized interest, funding debt service
reserves, and other costs reasonably related to any of the foregoing.
Additional Bonds may mature at different times, bear interest at different
rates and otherwise vary from the Bonds as authorized under Article II of the
Indenture, all as may be provided in the supplemental Indenture authorizing the
issuance of such Additional Bonds.
(B) Prior to the execution of a supplemental Indenture authorizing the
issuance of Additional Bonds, the Issuer must deliver certain documents set
forth in this Indenture to the Trustee, including:
(1) an amendment to the Reimbursement Agreement and the Letter of Credit
providing for issuance by the Bank of a Substitute Letter of Credit in the
aggregate principal amount of all Bonds then Outstanding plus the principal
amount of the proposed Additional Bonds, together with sixty-five (65) days'
interest thereon and a written opinion of counsel to the Bank which shall state
that the execution and delivery of each such Substitute Letter of Credit by the
Bank has been duly authorized, executed and delivered by the Bank and that the
Letter of Credit, as amended, constitutes the legal, valid and binding
obligation of the Bank enforceable against the Bank in accordance with its
terms, subject to the standard exceptions with respect to bankruptcy laws,
equitable remedies and specific performance, or (b) a Substitute Letter of
Credit issued by a Substitute Bank in the aggregate principal amount of all
Bonds then Outstanding plus the principal amount of the proposed Additional
Bonds, together with sixty-five (65) days' interest thereon and a written
opinion of counsel to the Substitute Bank which shall state that the execution
and delivery of such Substitute Letter of Credit by the Substitute Bank has
been duly authorized, executed and delivered by the Substitute Bank and the
Substitute Letter of Credit constitutes the legal, valid and binding obligation
of the Substitute Bank enforceable against the Substitute Bank in accordance
with its terms, subject to the standard exceptions with respect to bankruptcy
laws, equitable remedies and specific performance;
(2) a written opinion of counsel to the Bank which shall state that the
execution and delivery of such Substitute Letter of Credit by the Bank has been
duly authorized, executed and delivered by the Bank and that the Letter of
Credit, as amended, constitutes the legal, valid and binding obligation of the
Bank enforceable against the Bank in accordance with its terms, subject to the
standard exceptions with respect to bankruptcy laws, equitable remedies and
specific performance;
(3) evidence that the Financing Documents, as amended or supplemented in
connection with the issuance of the Additional Bonds, provide that (a) the
Bonds referred to therein shall mean and include the Additional Bonds being
issued as well as the Bonds originally issued under the Indenture and any
Additional Bonds theretofore issued, and (b) the Project Facility referred to
in the Financing Documents includes any Additional Facilities being financed;
(4) a copy of the resolution of the Board of Directors of the Company, duly
certified by the Secretary or Assistant Treasurer of the Company, which
approves the issuance of the Additional Bonds and authorizes the execution and
delivery by the Company of the amendments to the Financing Documents described
in paragraph (3) above;
(5) a written opinion of counsel to the Company which shall state that the
execution and delivery of the amendments to the Financing Documents by the
Company have been duly authorized, executed and delivered by the Company and
that the Financing Documents, as amended, constitute legal, valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms, subject to the standard exceptions with respect to
bankruptcy laws, equitable remedies and specific performance;
(6) a copy of the resolution, duly certified by the secretary or assistant
secretary of the Issuer, authorizing the issuance of the Additional Bonds and
the execution and delivery by the Issuer of any amendments to the Financing
Documents to be executed in connection therewith;
(7) an opinion of counsel to the Issuer stating that the supplements and
amendments to the Financing Documents described above have been duly authorized
and lawfully executed and delivered on behalf of the Issuer; that such
amendments to the Financing Documents are in full force and effect and are
valid and binding upon the Issuer; and that all conditions precedent provided
for in the Indenture to the issuance, execution and delivery of the Additional
Bonds have been complied with;
(8) an opinion of Bond Counsel stating that, in the opinion of such Bond
Counsel, the Issuer is duly authorized and entitled to issue such Additional
Bonds and that, upon the execution, authentication and delivery thereof, such
Additional Bonds will be duly and validly issued and will constitute valid and
binding special obligations of the Issuer, subject to the standard exceptions
with respect to bankruptcy laws, equitable remedies and specific performance;
and that the issuance of the Additional Bonds will not, in and of itself,
adversely affect the validity of the Bonds originally issued under the
Indenture or any Additional Bonds theretofore issued;
(9) written evidence from each rating agency, if any, by which the Bonds
are then rated to the effect that the issuance of such Additional Bonds will
not, by itself, result in a reduction of the rating(s) on the Outstanding Bonds
applicable immediately prior to the issuance of the Additional Bonds;
(10) a written order to the Trustee executed by an Authorized Officer of the
Issuer requesting the Trustee to authenticate and deliver the Additional Bonds
to the purchasers therein identified; and
(11) such other documents as the Trustee may reasonably request.
(C) Each series of Additional Bonds shall be equally and ratably secured
under the Indenture with the Bonds issued on the Closing Date and with all
other series of Additional Bonds, if any, previously issued under the
Indenture, without preference, priority or distinction of any Bond over any
other.
(D) The consent of the Bondholders shall not be required prior to the
issuance of Additional Bonds, or to the execution and delivery of any
amendments to the Financing Documents required in connection therewith. The
Trustee shall, however, notify in writing the Bondholders and each rating
agency of the issuance of the Additional Bonds, detailing, at least, the
aggregate principal amount of such Bonds, and summarizing the nature of the
amendments to the Financing Documents proposed to be executed in connection
therewith.
ARTICLE III
REDEMPTION OF BONDS PRIOR TO MATURITY
SECTION 301. REDEMPTION OF BONDS PRIOR TO MATURITY. (A) The Bonds are subject
to redemption prior to maturity (1) as a whole, without premium, as provided in
Section 406 hereof, in the event of (a) a taking in Condemnation of, or failure
of title to, all or substantially all of the Project Facility, (b) damage to or
destruction of part or all of the Project Facility and election by the Company
to redeem the Bonds in accordance with Section 7.1 of the Installment Sale
Agreement, or (c) a taking in Condemnation of part of the Project Facility and
election by the Company to redeem the Bonds in accordance with Section 7.2 of
the Installment Sale Agreement, or (2) in part, without premium, (a) as
provided in Section 406(G) hereof, in the event that (i) to the extent excess
moneys remain in the Insurance and Condemnation Fund following damage or
condemnation of a portion of the Project Facility and completion of the repair,
rebuilding or restoration of the Project Facility by the Company, and (ii) such
moneys are not paid to the Company pursuant to Section 406(G) hereof, or (b) as
provided in Section 403 hereof, in the event that excess moneys remain in the
Project Fund after the Completion Date. In any such event, the Bonds shall be
redeemed, as a whole or in part, as the case may be, in the manner provided in
this Article III, at such time as the Trustee determines, at a redemption price
equal to the principal amount thereof, plus accrued interest to the redemption
date, without premium.
(B) The Bonds are also subject to redemption prior to maturity in the event
of failure by the Company to provide a Substitute Letter of Credit at least
forty-five (45) days prior to the Interest Payment Date immediately preceding
the expiration date of the Letter of Credit then in effect. In any such event,
the Bonds shall be redeemed, as a whole, on such Interest Payment Date at a
redemption price equal to the principal amount to be redeemed, plus accrued
interest to the redemption date, without premium.
(C) The Bonds are also subject to redemption prior to maturity upon receipt
by the Trustee of a written notice from the Bank of the occurrence and
continuance of a default by the Company under the Reimbursement Agreement and
the Bank's election to compel redemption of the Bonds. In either such event,
the Bonds shall be redeemed, as a whole, in the manner provided in this Article
III, on the earliest date for which the Trustee can give notice of redemption
pursuant to Section 303 hereof, at a redemption price equal to the principal
amount thereof, plus accrued interest to the redemption date, without premium.
(D) (1) On or prior to the Conversion Date, the Bonds are also subject to
redemption prior to maturity in denominations of $5,000 or any integral
multiple of $5,000 in excess thereof at the option of the Company by exercise
of its right to prepay the installment purchase payments payable under the
Installment Sale Agreement as provided in Section 5.5 of the Installment Sale
Agreement, on any Interest Payment Date, in the manner provided in this Article
III, at a redemption price equal to the principal amount thereof, plus accrued
interest to the redemption date, without premium.
(2) After the Conversion Date, the Bonds are subject to redemption, at the
option of the Company by exercise of its right to prepay the installment
purchase payments under the Installment Sale Agreement as provided in Section
5.5 thereof, as a whole or in part on any Interest Payment Date occurring after
the end of the applicable call protection period at the redemption prices,
expressed as percentages of unpaid principal amount to be redeemed, plus
accrued interest to the redemption date, determined as follows: the call
protection period and redemption prices shall be determined by the Remarketing
Agent, after taking into account the factors described in Section 209(B)(2)(e)
hereof and such other factors which the Remarketing Agent deems appropriate.
The determination of the call protection period and redemption prices by the
Remarketing Agent pursuant to and in accordance with the terms of the Indenture
shall be conclusive and binding on the Issuer, the Trustee, the Company, the
Bank and the Holders of the Bonds.
(E) The Bonds will also be subject to scheduled mandatory redemption, by lot in
such manner as the Trustee shall deem fair and appropriate for random
selection, prior to maturity, commencing December 1, 1999 and on each December
1 thereafter, by the application of Sinking Fund Payments at a redemption price
equal to one hundred percent (100%) the principal amount thereof, plus accrued
interest to the redemption date, without premium, on December 1 of the years
and in the principal amounts set forth below:
YEAR SINKING FUND PAYMENT YEAR SINKING FUND PAYMENT
1999 $285,000 2006 $385,000
2000 $275,000 2007 $410,000
2001 $290,000 2008 $435,000
2002 $310,000 2009 $460,000
2003 $325,000 2010 $485,000
2004 $345,000 2011 $515,000
2005 $365,000 2012 $540,000
Following retirement by mandatory sinking fund redemption prior to their Stated
Maturity, there will remain $575,000 principal amount of the Bonds maturing on
December 1, 2013 to be paid at maturity.
(F) In no event shall the Trustee, in connection with any redemption of
Bonds under this Section 301, pay any portion of the principal of, premium, if
any, or interest on any Bond from other than Non-Preference Moneys.
Furthermore, the Trustee shall make such payments by first drawing on the
Letter of Credit pursuant to Section 408 hereof.
(G) In the event of any partial redemption, the particular Bonds or
portions thereof to be redeemed shall be selected by the Trustee not more than
sixty (60) days prior to the redemption date by lot. The Trustee shall apply
any partial redemption payments (other than a scheduled mandatory redemption)
to the schedule of mandatory redemption in inverse order of maturity. After the
Conversion Date, if the Bonds are serial bonds as provided in Section
209(B)(2)(e)(ii) hereof, the Bonds shall be redeemed in inverse order of
maturity selected by lot. Further, the Trustee may provide for the selection
for redemption of portions (equal to $5,000 or any whole multiple thereof) of
Bonds of a denomination larger than $5,000. In no event shall the principal
amount of Bonds subject to any partial redemption be other than a whole
multiple of $5,000; provided, however, that no $5,000 portion of a Bond shall
be redeemed if it results in the unredeemed portion of the Bond being less than
$100,000.
SECTION 302. COMPANY'S ELECTION TO REDEEM. (A) The Company shall give written
notice to the Trustee, the Bank and the Issuer of its election to cause
redemption of Bonds prior to maturity pursuant to subsections (A) and (D) of
Section 301 hereof and of the redemption date.
(B) In the event of an election by the Company to redeem the Bonds pursuant
to Section 301(D) hereof, such notice shall be given at the time the Company
delivers to the Trustee either (1) the prepayment of installment purchase
payments with which the Bonds are to be redeemed, or (2) the assurance from the
Bank that the Letter of Credit may be drawn upon to pay the redemption price of
the Bonds, described in Section 5.5 of the Installment Sale Agreement, and the
redemption date specified in such notice shall be deemed to be (notwithstanding
the actual date set forth therein) the first Interest Payment Date more than
thirty (30) days after such payment or assurance, as the case may be, is
received by the Trustee and on which any moneys delivered to the Trustee by the
Company for such purpose shall be Non-Preference Moneys.
SECTION 303. NOTICE OF REDEMPTION; PAYMENT OF REDEEMED BONDS. (A) Notice of the
intended redemption of each Bond subject to redemption shall be given by the
Trustee one time by first class mail postage prepaid to the registered Owner of
such Bond at the address of such Owner shown on the Trustee's bond register and
to the Bank at its address set forth of in Section 1103 hereof. All such
redemption notices shall be given not less than thirty (30) days prior nor more
than forty-five (45) days prior to the date fixed for redemption. A follow-up
notice shall be given by the Trustee by registered or certified mail to each
registered owner who has not submitted a Bond subject to redemption within
ninety (90) to one hundred twenty (120) days following the redemption date.
Each notice shall specify the redemption price, the principal amount of the
Bonds to be redeemed, the numbers of the Bonds to be redeemed if less than all
of the Bonds are to be redeemed, the redemption date and the place or places
where amounts due upon such redemption will be payable. Such notice shall
further state that payment of the applicable redemption price plus accrued
interest to the redemption date will be made upon presentation and surrender of
the Bonds or portions thereof to be redeemed; that upon presentation and
surrender to the Trustee of any Bond being redeemed in part, a new Bond in the
principal amount of the unredeemed portion of such Bond will be issued; and
that the Bonds or portions thereof so called for redemption will be deemed
redeemed and will cease to bear interest on the specified redemption date,
provided Non-Preference Moneys for their redemption have been duly deposited in
the Bond Fund and, except for the purpose of payment, that such Bonds will no
longer be protected by this Indenture. The failure to give any such notice, or
any defect therein, shall not affect the validity of any proceeding for the
redemption of any Bond with respect to which no such failure to give notice, or
defect therein, has occurred. Notwithstanding anything herein to the contrary,
the Trustee shall not give any notice under this Section 303 in the case of an
optional redemption pursuant to Section 301(D) hereof requiring the payment of
a premium upon such redemption unless the Company shall have complied with the
provisions of Section 302(B) hereof.
(B) After notice shall have been given in the manner provided in Subsection
(A) above, the Bonds or portions thereof called for redemption shall become due
and payable on the redemption date so designated. Upon presentation and
surrender of such Bonds at the Office of the Trustee, such Bonds shall be paid
at the Redemption Price, plus accrued interest to the redemption date. If there
shall be selected for redemption less than all of a Bond, the Issuer shall,
upon the surrender of such Bond and with no charge to the Owner thereof, (1)
pay the Redemption Price of the principal amount called for redemption, and (2)
cause the Trustee to authenticate and deliver for the unredeemed balance of the
principal amount of such Bond so surrendered a fully registered Bond of like
maturity in any of the authorized denominations.
(C) If, on the redemption date, moneys for the redemption of all Bonds or
portions thereof to be redeemed, in an amount equal to the principal of such
Bonds or portions thereof to be redeemed, together with any premium due thereon
and interest thereon to the redemption date, shall be held by the Trustee so as
to be available therefor on such date, the Bonds or portions thereof so called
for redemption shall cease to bear interest, and such Bonds or portions thereof
shall no longer be Outstanding hereunder or be secured by or be entitled to the
benefits of this Indenture. If such moneys shall not be so available on the
redemption date, such Bonds or portions thereof shall continue to bear interest
until paid at the same rate as they would have borne had they not been called
for redemption and shall continue to be secured by and be entitled to the
benefits of this Indenture.
SECTION 304. MANDATORY TENDER; NOTICE. (A) The Bonds are subject to Mandatory
Tender upon the exercise by the Company of the Conversion Option or the
delivery by the Company of an Alternate Letter of Credit.
(B) Upon the exercise by the Company of the Conversion Option with respect
to the Bonds, all such Bonds which have not been called for redemption shall be
subject to Mandatory Tender by the owner thereof on the Conversion Date.
Notwithstanding the foregoing, each Bondholder may, by delivery to the Trustee
for receipt at least by twenty (20) days immediately preceding the Conversion
Date of an irrevocable election not to tender, elect to continue to hold its
Bonds (or portions thereof) past the Conversion Date at a Fixed Rate to be in
effect at such time. Such notice shall be in substantially the form of Exhibit
C-2 attached hereto.
(C) Not earlier than sixty (60) days prior to the Conversion Date or later
than thirty (30) days prior to the Conversion Date, the Trustee shall send a
notice to the owners of all Outstanding Bonds which have not been called for
redemption, in substantially the form of Exhibit C-1 attached hereto. Such
notice shall describe (1) the terms of the Mandatory Tender, (2) the right of
the owner to elect not to tender, (3) the Letter of Credit to be in effect
following the Mandatory Tender, (4) the right of the owner of Bonds in an
aggregate amount of $200,000 or more to elect not to tender the total principal
amount and to continue to hold a portion of its Bonds (but in no event may
either the amount tendered or the amount not tendered be any amount other than
$100,000, or any integral multiple of $5,000 in excess thereof) and (5) that
the rating then in effect with respect to the Bonds, if any, may be withdrawn
or lowered.
(D) In the event that prior to the Conversion Date of the Bonds the Company
shall deliver notice to the Trustee at least sixty (60) days prior to the
expiration of the Letter of Credit or Substitute Letter of Credit securing such
Bonds of its intent to deliver an Alternate Letter of Credit pursuant to the
terms of Section 5.8(A)(2) of the Installment Sale Agreement in substitution
for such Letter of Credit or Substitute Letter of Credit, all Bonds secured by
such Letter of Credit which have not been called for redemption shall be
subject to Mandatory Tender by the owner thereof on the Alternate Security
Date. Notwithstanding the foregoing, each Bondholder may, by delivery to the
Trustee for receipt at least twenty (20) days immediately preceding any
Alternate Security Date of an irrevocable election not to tender, elect to
continue to hold its Bonds past the respective Alternate Security Date. Such
notice shall be in substantially the form of Exhibit C-4 attached hereto.
(E) Not earlier than sixty (60) days prior to the Alternate Security Date
or later than thirty (30) days prior to the Alternate Security Date, the
Trustee shall send a notice to the owners of all Outstanding Bonds which have
not been called for redemption, in substantially the form of Exhibit C-3
attached hereto. Such notice shall describe (1) the terms of the Mandatory
Tender, (2) the right of the owner to elect not to tender, (3) a brief
description of the Alternate Letter of Credit and the identity of the
Substitute Bank issuing the Alternate Letter of Credit, (4) the right of the
owner of Bonds in an aggregate amount of $200,000 or more to elect not to
tender the total principal amount and to continue to hold a portion of its
Bonds (but in no event may either the amount tendered or the amount not
tendered be any amount other than $100,000 or any integral multiple of $5,000
in excess thereof) and (5) that the rating then in effect with respect to the
Bonds secured by such Alternate Letter of Credit will be withdrawn or lowered.
(F) Owners of Bonds required to be tendered who do not provide the Trustee
with the notice of their election not to tender as described in Section 304
hereof shall be required to deliver their Bonds to the Trustee for purchase at
the Purchase Price on the Conversion Date or the Alternative Security Date, as
the case may be, with an appropriate endorsement for transfer or accompanied by
a bond power endorsed in blank. Any such Bonds not so delivered on such
Conversion Date or the Alternate Security Date, as the case may be
("Undelivered Bonds"), for which there has been irrevocably deposited in trust
with the Trustee an amount of moneys sufficient to pay the Purchase Price of
the Undelivered Bonds, shall be deemed to have been purchased pursuant to this
Section 304.
IN THE EVENT OF A FAILURE BY AN OWNER OF BONDS REQUIRED TO BE TENDERED (OTHER
THAN AN OWNER OF BONDS WHO HAS GIVEN NOTICE OF ITS ELECTION NOT TO TENDER AS
PROVIDED ABOVE) TO DELIVER ITS BONDS ON OR PRIOR TO THE CONVERSION DATE OR THE
ALTERNATE SECURITY DATE, SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT
(INCLUDING ANY INTEREST TO ACCRUE ON OR SUBSEQUENT TO THE CONVERSION DATE OR
THE ALTERNATE SECURITY DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNDELIVERED
BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFITS OF
THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE
THEREFOR.
SECTION 305. DEMAND PURCHASE OPTION. (A) Prior to the Conversion Date, any Bond
shall be purchased at the Purchase Price from the Owner thereof upon:
(1) delivery to, and receipt by, the Tender Agent or the Trustee at the
addresses set forth in Section 1103 hereof on a Business Day of a Tender Notice
which requests the purchase of the Bond. The Tender Notice shall be in
substantially the form of Exhibit C-5 attached hereto. Such Tender Notice shall
provide the following information: (a) the principal amount of the Tendered
Bond or portion thereof to be purchased, which portion shall be $100,000 or an
integral multiple of $5,000 in excess thereof; provided, however, that no
portion of a Tendered Bond shall be purchased if it results in the unpurchased
portion of the Tendered Bond being less than $100,000, (b) the number of the
Tendered Bond, (c) the date on which the Tendered Bond shall be purchased,
which date shall be a Business Day at least seven (7) calendar days following
the receipt by the Trustee or the Tender Agent of the Bondholder's Tender
Notice (the "Repurchase Closing Date"), (d) the name and address of the
Bondholder, (e) an irrevocable request of such purchase, and (f) an undertaking
of the Bondholder to deliver the Bond to the Tender Agent or the Trustee in
accordance with Section 305(A)(2) of the Indenture;
(2) delivery of the Tendered Bond, at the office of the Trustee or Tender
Agent at or prior to 10:00 a.m., New York City time on the Repurchase Closing
Date with an appropriate endorsement for transfer or accompanied by a bond
power endorsed in blank; provided, however, the Tendered Bond shall only be
deemed properly tendered hereunder if the Tendered Bond delivered to the Tender
Agent or the Trustee conforms in all respects to the description thereof in the
Bondholder's Tender Notice; and
(3) in the event the Tender Agent or the Trustee, as the case may be,
determines that the Bondholder's Tender Notice is defective in any respect
whatsoever, the Tender Agent or the Trustee, as the case may be, shall
immediately notify the Bondholder tendering the Bond.
(B) Immediately upon receipt of a Bondholder's Tender Notice, the Tender
Agent or the Trustee, as the case may be, shall notify the Company, the
Remarketing Agent, the Bank and the Trustee or the Tender Agent, as the case
may be, by Immediate Notice and shall promptly send a copy of such Bondholder's
Tender Notice to the Company, the Remarketing Agent and the Trustee or the
Tender Agent, as the case may be.
(C) (1) Bonds which are the subject of a Bondholder's Tender Notice
described in (A)(1) above, but which are not tendered in accordance with (A)(2)
above, shall be deemed tendered and all rights of the holder thereof shall be
satisfied from the deposit with the Tender Agent or the Trustee of the Purchase
Price thereof and the Tender Agent or the Trustee, as the case may be, shall
hold such Purchase Price in trust for the benefit of such holder until the
Bonds purchased with such moneys shall have been delivered to or for the
account of such holder; and
(2) Holders of Tendered Bonds which are not delivered to the Tender Agent
or the Trustee by the holder thereof shall have no further rights with respect
to such Bonds except to receive payment of the Purchase Price therefor upon
surrender of such Bonds to the Tender Agent or the Trustee.
(D) Notwithstanding the foregoing, the Bondholders shall have no Demand
Purchase Option described in Section 305 hereof if (1) there shall have
occurred and be continuing an Event of Default hereunder, except for an Event
of Default under Section 601(I) hereof, or (2) the Fixed Rate is in effect for
the Bonds being held by such Bondholder.
(E) Furthermore, no Bondholder shall have the right to exercise a Demand
Purchase Option pursuant to Section 305 hereof with respect to those Bonds for
which a notice of redemption has been mailed by the Trustee.
SECTION 306. FUNDS FOR PURCHASE OF BONDS. On any Purchase Date, the Tendered
Bonds shall be purchased by the Trustee at the Purchase Price only from the
funds listed below. Funds for payment of the Purchase Price of the Tendered
Bonds shall be derived from the following sources in order of priority
indicated:
(A) The cash proceeds actually on hand with the Trustee from the sale of
such Bonds which have been remarketed by the Remarketing Agent prior to 10:00
a.m. New York time, on the Business Day preceding the date such Bonds are to be
purchased, to any entity other than the Company, the Issuer or the Corporate
Guarantor, or a Related Person to any of the foregoing;
(B) Moneys drawn by the Trustee under the Letter of Credit;
(C) Any other Non-Preference Moneys (except amounts drawn under the Letter
of Credit) held by the Trustee and available for such purpose; and
(D) Any other moneys furnished to the Trustee and available for such
purpose.
SECTION 307. DELIVERY OF PURCHASED BONDS. (A) Bonds purchased with moneys
described in Section 306(A) hereof shall be delivered by the Trustee, at its
principal office, to or upon the order of the Remarketing Agent.
(B) Bonds purchased with moneys described in Section 306(B) hereof shall be
held by the Trustee as nominee for the Bank pursuant to the Pledge and Security
Agreement.
(C) Bonds purchased with moneys described in Section 306(C) and Section
306(D) hereof shall, at the direction of the Company, be (1) delivered as
instructed by the Company or (2) delivered to the Trustee for cancellation;
provided, however, that any Bonds so purchased after selection thereof by the
Trustee for redemption shall be delivered to the Trustee for cancellation.
(D) Bonds delivered as provided in Section 307 shall be registered in the
manner directed by the recipient thereof (or the Remarketing Agent on the
recipient's behalf).
SECTION 308. DUTIES OF TRUSTEE AND TENDER AGENT WITH RESPECT TO PURCHASE OF
BONDS. (A) The Tender Agent and the Trustee shall hold all Bonds delivered to
them pursuant to Sections 304 or 305 hereof in trust for the benefit of the
respective Bondholders delivering such Bonds until moneys representing the
Purchase Price of such Bonds shall have been delivered to or for the account of
or to the order of such Bondholders.
(B) The Trustee and the Tender Agent shall hold all moneys delivered to
them pursuant to this Indenture for the purchase of Bonds in a separate
account, in trust for the benefit of the Person which shall have so delivered
such moneys until the Bonds purchased with such moneys shall have been
delivered to or for the account of such Person.
(C) The Trustee shall, not later than 10:00 a.m., New York time, on the
tenth (10th) day preceding a Conversion Date (or, if such tenth (10th) day is
not a Business Day, on the next following Business Day) advise the Remarketing
Agent by telephone of the principal amount of Bonds for which Bondholders
delivered proper notice of election not to tender their Bonds and promptly
thereafter deliver to the Company, the Bank and the Remarketing Agent a copy of
each notice of a Bondholder's election not to tender delivered to it in
accordance with Section 304(A) hereof.
(D) The Trustee shall draw moneys under the Letter of Credit in accordance
with the terms thereof to the extent required by Sections 306 and 408 hereof on
the Business Day immediately preceding the Purchase Date to provide for timely
payment of the Purchase Price of Bonds.
(E) The Trustee shall cause arrangements satisfactory to it to be made and
thereafter continued whereby funds from the sources described in Section 306
hereof will be available to the Trustee for the timely payment of the Purchase
Price of Bonds.
(F) The Trustee as nominee for the Bank under the Pledge and Security
Agreement shall not release or deliver any Pledged Bonds unless the Trustee has
received prior written notice from the Bank that the Letter of Credit has been
reinstated for the amount drawn on the Letter of Credit at the time such Bonds
became Pledged Bonds.
ARTICLE IV
FUNDS AND APPLICATION OF PROCEEDS OF BONDS AND REVENUES
SECTION 401. ESTABLISHMENT OF FUNDS. (A) The Issuer hereby establishes and
creates the following special separate trust funds:
(1) Town of Colonie Industrial Development Agency - Mechanical Technology
Incorporated Project - Project Fund (the "Project Fund") and, within the
Project Fund, the following special account:
Project Fund Non-Preference Moneys Subaccount;
(2) Town of Colonie Industrial Development Agency - Mechanical Technology
Incorporated Project - Bond Fund (the "Bond Fund") and, within the Bond Fund,
the following special account:
Bond Fund Non-Preference Moneys Subaccount;
and
(3) Town of Colonie Industrial Development Agency - Mechanical Technology
Incorporated Project - Insurance and Condemnation Fund (the "Insurance and
Condemnation Fund") and, within the Insurance and Condemnation Fund, the
following special account:
Insurance and Condemnation Fund Non-Preference Moneys Subaccount.
(B) The funds created under the Indenture shall be maintained by the
Trustee and shall be held in the custody of the Trustee. The Issuer authorizes
and directs the Trustee to withdraw moneys from said funds for the purposes
specified herein, which authorization and direction the Trustee hereby accepts.
All moneys required to be deposited with or paid to the Trustee under any
provision of the Indenture (1) shall be held by the Trustee in trust, and (2)
except for moneys held by the Trustee (a) for the redemption of Bonds, notice
of redemption of which has been duly given, or (b) for the purchase of Tendered
Bonds, shall, while held by the Trustee constitute part of the Trust Revenues
and be subject to the Lien hereof. Moneys which have been deposited with, paid
to or received by the Trustee for the redemption of a portion of the Bonds or
for the payment of Bonds or interest thereon due and payable otherwise than
upon acceleration by declaration, shall be held in trust for and be subject to
a Lien in favor of only the Holders of such Bonds so redeemed or so due and
payable.
SECTION 402. APPLICATION OF PROCEEDS OF BONDS. (A) The Issuer shall deposit
with the Trustee all of the proceeds from the sale of the Bonds, including
accrued interest payable on the Bonds. The Trustee shall deposit the proceeds
from the sale of the Bonds as follows: (1) the portion of the proceeds of the
Bonds representing accrued interest on the Bonds into the Bond Fund, and (2)
the Trustee shall deposit the remainder of such proceeds into the Project Fund.
(B) The proceeds of any Additional Bonds shall be deposited as provided in
the supplement to this Indenture authorizing the issuance of such Additional
Bonds. Any such proceeds required to be deposited in the Project Fund shall be
deposited in the appropriate subaccount relating to such Additional Bonds
within the Project Fund.
SECTION 403. PROJECT FUND. (A) In addition to moneys deposited in the Project
Fund from the proceeds of the Bonds pursuant to Section 402 hereof, there shall
be deposited into the Project Fund all other moneys received by the Trustee
under or pursuant to the Indenture or the other Financing Documents which, by
the terms hereof or thereof, are to be deposited in the Project Fund. Moneys on
deposit in the Project Fund shall be disbursed and applied by the Trustee to
pay the Cost of the Project pursuant to the provisions of Section 4.3 of the
Installment Sale Agreement, this Section 403, and the applicable provisions of
the Building Loan Agreement.
(B) The Trustee is hereby authorized and directed to disburse moneys from
the Project Fund upon receipt by the Trustee of a Request for Disbursement, in
substantially the form attached hereto as Exhibit F, certified to by an
Authorized Representative of the Company.
(C) (1) All earnings on amounts held in the Project Fund shall be
deposited by the Trustee into the Project Fund.
(2) All moneys which remain in the Project Fund for three hundred and
sixty- seven (367) days following the date on which the Company shall have no
further right to draw on the same shall be transferred to the Project Fund
Non-Preference Moneys Subaccount. Any moneys in the Project Fund Non-Preference
Moneys Subaccount which are transferred to the Bond Fund pursuant to Section
403(D) hereof shall be placed in the Bond Fund Non-Preference Moneys
Subaccount.
(D) (1) Except for any amount retained for the payment of incurred and
unpaid items of the Cost of the Project, after the Completion Date, all moneys
in the Project Fund, shall be transferred from the Project Fund to the Bond
Fund and, to the extent such moneys constitute Non-Preference Moneys, applied
as soon as possible to the redemption of Bonds in accordance with Article III
hereof.
(2) In the event the unpaid principal amount of the Bonds shall be
accelerated upon the occurrence of an Event of Default, the balance in the
Project Fund shall be transferred from the Project Fund to the Bond Fund as
soon as possible and, to the extent such moneys constitute Non-Preference
Moneys, shall be used to pay the principal of, premium, if any, on and interest
on the Bonds.
(E) The Trustee shall maintain adequate records pertaining to the Project
Fund and all disbursements therefrom, and shall, upon request and within sixty
(60) days after the Completion Date, file an accounting thereof with the
Issuer, the Company and the Bank.
SECTION 404. TRANSFERS OF TRUST REVENUES TO FUNDS. (A) Commencing the first
date on which installment purchase payments are received from the Company
pursuant to the Installment Sale Agreement, and from month to month thereafter,
the Trustee shall deposit such payments, upon the receipt thereof, in the Bond
Fund.
(B) The Net Proceeds of any insurance settlement or Condemnation award
received by the Trustee shall, upon receipt thereof, be deposited in the
Insurance and Condemnation Fund.
SECTION 405. BOND FUND. (A) In addition to the moneys deposited to the Bond
Fund (1) from the proceeds of the Bonds pursuant to Section 402 hereof and (2)
pursuant to Sections 403 and 404 hereof, there shall be deposited into the Bond
Fund (a) all installment purchase payments received from the Company under the
Installment Sale Agreement (except payments made with respect to the Unassigned
Rights), (b) any amount in the Insurance and Condemnation Fund directed to be
paid into the Bond Fund under Section 406 hereof, (c) all prepayments by the
Company in accordance with Section 5.5 of the Installment Sale Agreement in
connection with which notice has been given to the Trustee pursuant to Section
302 hereof, (d) any amounts received by the Trustee under the Letter of Credit,
and (e) all other moneys received by the Trustee under and pursuant to the
Indenture or the other Financing Documents which by the terms hereof or thereof
are to be deposited to the Bond Fund, or are accompanied by directions from the
Company or the Issuer that such moneys are to be paid into the Bond Fund.
(B) (1) Moneys on deposit in the Bond Fund shall be invested in
Authorized Investments in accordance with Section 410 hereof. All interest and
other income accrued and earned on moneys on deposit in the Bond Fund shall be
deposited by the Trustee into the Bond Fund. Any payment of interest due on the
Bonds shall be made from amounts on deposit in the Bond Fund Non-Preference
Moneys Subaccount.
(2) All moneys in the Bond Fund which constitute or become Non- Preference
Moneys shall be deposited by the Trustee into the Bond Fund Non-Preference
Moneys Subaccount. Any drawings on the Letter of Credit will be deposited into
the Bond Fund Non-Preference Moneys Subaccount. Moneys on deposit in the Bond
Fund Non-Preference Moneys Subaccount shall be applied by the Trustee to pay
the principal of, premium, if any, and interest on the Bonds as the same become
due, whether at Stated Maturity, upon acceleration of the Bonds or upon
redemption of the Bonds, except as provided in Section 411 and Section 408(E)
hereof.
(C) In NO EVENT shall the Trustee pay any portion of the principal of,
premium, if any, on or interest on any Bond from other than Non-Preference
Moneys. Furthermore, the Trustee shall make such payments by first drawing on
the Letter of Credit pursuant to Section 408 hereof.
SECTION 406. INSURANCE AND CONDEMNATION FUND. (A) The Net Proceeds of any
insurance settlement or Condemnation award received by the Trustee in
connection with damage to or destruction of or the taking of part or all of the
Project Facility shall be deposited into the Insurance and Condemnation Fund.
(B) If, pursuant to Sections 7.1(B) or 7.2(B) of the Installment Sale
Agreement, the Company exercises its option not to repair, rebuild or restore
the Project Facility and to require the redemption of the Bonds, or if a taking
in Condemnation as described in Section 7.2(C) of the Installment Sale
Agreement occurs, the Trustee shall transfer all moneys held in the Insurance
and Condemnation Fund to the Bond Fund to be applied to the redemption of the
Bonds then Outstanding pursuant to Section 301(A) hereof, except as provided in
Section 411 and Section 408(E) hereof.
(C) If the Company elects to repair, rebuild or restore the Project
Facility, and provided no Event of Default has occurred and is continuing,
moneys held in the Insurance and Condemnation Fund and attributable to the
damage to or destruction of or the taking of the Project Facility shall be
applied to pay the costs of such repairs, rebuilding or restoration in
accordance with the terms and conditions set forth in Section 406(D) hereof.
(D) The Trustee is hereby authorized to and shall make such disbursements,
at the Company's request, either upon the completion of such repairs,
rebuilding or restoration or periodically as such repairs, rebuilding or
restoration progress, upon receipt by the Trustee of a certificate of an
Authorized Representative of the Company, approved by the Bank, stating, with
respect to each payment to be made: (1) the amount or amounts to be paid, the
Person or Persons (which may include the Company for reimbursement of such
costs) to whom an amount is to be paid and the total sum of all such amounts;
(2) that the Company has expended, or is expending, concurrently with the
delivery of such certificate, such amount or amounts on account of costs
incurred in connection with the repair, rebuilding or restoration of the
Project Facility; (3) that all contractors, workmen and suppliers have been or
will be paid through the date of such certificate from the funds to be
disbursed; (4) that there exists no Event of Default and no condition, event or
act which, with notice or the lapse of time or both, would constitute an Event
of Default; (5) that such Authorized Representative of the Company has no
knowledge, after diligent inquiry and after searching the records of the
appropriate state and local filing offices, of any vendor's Lien, mechanic's
Lien or security interest which should be satisfied, discharged or bonded
before the payment as requisitioned is made or which will not be discharged by
such payment; (6) that no certificate with respect to such expenditures has
previously been delivered to the Trustee; and (7) that there remain sufficient
moneys in the Insurance and Condemnation Fund attributable to the damage to,
destruction of, or taking of the Project Facility to complete the repair,
rebuilding or restoration of the Project Facility. Each such requisition shall
be accompanied by bills, invoices or other evidences reasonably satisfactory to
the Bank. The Trustee shall be entitled to rely on such requisition.
(E) Upon completion of the repair, rebuilding or restoration of the Project
Facility, an Authorized Representative of the Company shall deliver to the
Issuer, the Trustee and the Bank a certificate stating (1) the date of such
completion, (2) that all labor, services, materials and supplies used therefor
and all costs and expenses in connection therewith have been paid, (3) that the
Project Facility has been restored to substantially its condition immediately
prior to the damage or Condemnation thereof, or to a condition of at least
equivalent value, operating efficiency and function, (4) that the Issuer or the
Company has good and valid title to all Property constituting part of the
restored Project Facility, and that the Project Facility is subject to the
Installment Sale Agreement and the Liens and security interests of the
Indenture and the Mortgage, and (5) that the restored Project Facility is ready
for occupancy, use and operation for its intended purposes. Notwithstanding the
foregoing, such certificate may state (a) that it is given without prejudice to
any rights of the Company against third parties which exist at the date of such
certificate or which may subsequently come into being, (b) that it is given
only for the purposes of this Section 406, and (c) that no Person other than
the Issuer, the Bank or the Trustee may benefit therefrom. Such certificate
shall be accompanied by (i) a certificate of occupancy, if required, and any
and all permissions, licenses or consents required of Governmental Authorities
for the occupancy, operation and use of the Project Facility for its intended
purposes, and (ii) an opinion of counsel to the Company addressed to the
Issuer, the Trustee and the Bank that the Mortgage constitutes a valid first
mortgage Lien on and a valid first perfected security interest in the Project
Facility, subject only to Permitted Encumbrances.
(F) (1) All earnings on amounts held in the Insurance and Condemnation
Proceeds Fund shall be transferred by the Trustee to the Insurance and
Condemnation Fund.
(2) All moneys which remain in the Insurance and Condemnation Fund for
three hundred and sixty-seven (367) days following the date on which the
Company shall have no further right to draw on the same shall be transferred to
the Insurance and Condemnation Fund Non-Preference Moneys Subaccount. Any
moneys in the Insurance and Condemnation Fund Non-Preference Moneys Subaccount
which are transferred to the Bond Fund pursuant to Section 406(G) hereof shall
be placed in the Bond Fund Non- Preference Moneys Subaccount.
(G) If the cost of the repairs, rebuilding or restoration of the Project
Facility effected by the Company shall be less than the amount in the Insurance
and Condemnation Fund, then on the completion of such repairs, rebuilding or
restoration, the Trustee shall transfer such difference to the Company for its
purposes if (1) the Company so requests, and (2) the Company obtains the prior
written consent of the Bank; otherwise such difference shall be deposited by
the Trustee in the Bond Fund and applied to redeem the Bonds in accordance with
Article III hereof.
(H) If the cost of the repair, rebuilding or restoration of the Project
Facility shall be in excess of the moneys held in the Insurance and
Condemnation Fund, the Company shall deposit such additional moneys in the
Insurance and Condemnation Fund as are necessary to pay the cost of completing
such repair, rebuilding or restoration.
SECTION 407. [INTENTIONALLY OMITTED].
SECTION 408. DRAWING BY THE TRUSTEE ON THE LETTER OF CREDIT. (A) (1) The
Trustee shall, without any further authorization or direction, timely present
in person, by facsimile transmission or by tested telex on or before 11:00
o'clock a.m. on the Business Day immediately preceding a Bond Payment Date to
the Bank a sight draft, together with all accompanying documentation as is
required by the Letter of Credit by the terms thereof, in order to draw funds
on the Letter of Credit in an amount which will be sufficient to pay in full
when due (whether by reason of interest payment, maturity, redemption or
otherwise) the principal of, premium, if any, and interest on the Bonds.
(2) In addition, immediately upon a declaration under Section 602 hereof
that the principal of and accrued interest on all the Bonds then Outstanding
has become due and payable by virtue of acceleration, the Trustee shall,
without any further authorization or direction, present to the Bank a sight
draft, together with all accompanying documentation as is required under the
Letter of Credit by the terms thereof, in order to draw funds under the Letter
of Credit in an amount which shall be necessary to pay the principal of,
premium, if any, and accrued interest on the Bonds then Outstanding due by
virtue of such acceleration.
(3) In addition, on or before 11:00 o'clock a.m. on the Business Day
immediately preceding any Purchase Date, the Trustee shall, without any further
authorization or direction, present to the Bank a sight draft, together with
all accompanying documentation as is required under the Letter of Credit by the
terms thereof, in order to draw funds under the Letter of Credit to the extent
moneys described in Section 306(A) hereof are not available to pay when due the
Purchase Price of Bonds tendered pursuant to Sections 304 and 305 hereof.
(B) (1) The Trustee shall exercise any and all rights under the Letter
of Credit, regardless of whether the Bank is in default under the Letter of
Credit, in the manner provided therein and in the Indenture, and the Trustee
shall bring such actions and proceedings under the Letter of Credit as shall be
required for the enforcement thereof in accordance with its terms and the terms
of the Indenture.
(2) All funds received by the Trustee under the Letter of Credit shall be
deposited by the Trustee in the Bond Fund Non-Preference Moneys Subaccount and
used solely to pay the principal of, premium, if any, and interest on the
Bonds.
(C) Contemporaneously with the presentation of the sight draft required for
a drawing on the Letter of Credit described in Section 408(A)(2) hereof, the
Trustee shall transfer to the Bond Fund Non-Preference Moneys Subaccount all
Non-Preference Moneys held by the Trustee under the Indenture as part of the
Trust Revenues.
(D) Except as provided below, any obligations of the Issuer under the
Indenture and the Bonds or of the Company under the Installment Sale Agreement
which are satisfied from the exercise of the Trustee's rights under the Letter
of Credit or under this Section 408 shall be deemed to be satisfied, and no
claim therefor shall be made by the Bondholders against the Issuer, the Trustee
or the Company or by the Issuer, the Trustee or the Bondholders against the
Company in respect of such obligations; provided, however, that to the extent
the Bank has not been reimbursed for amounts paid under the Letter of Credit or
under any other Financing Document, such obligations shall not be deemed
satisfied, and the Bank shall be subrogated to the rights of the Issuer under
the Installment Sale Agreement (except the Unassigned Rights) and the rights of
the Trustee hereunder and under the other Financing Documents (except the
rights of the Trustee to receive payments for fees, expenses, indemnifications
or other amounts which are payable to the Trustee individually under the
Financing Documents and are not to be subsequently delivered to the
Bondholders), and, further, such subrogation shall not release the Company from
its obligations under the Reimbursement Agreement or under the other Financing
Documents or release the Company from its obligations under the Guaranty.
(E) (1) After a drawing on the Letter of Credit described in Section
408(A)(1), any and all moneys held by the Trustee in the Bond Fund shall be
paid to the Bank to be applied against the Company's obligations under the
Reimbursement Agreement.
(2) After a drawing on the Letter of Credit described in Section 408(A)(2),
any and all moneys held by the Trustee in any fund or account established by
the Indenture shall be paid to the Bank to be applied against the Company's
obligations under the Reimbursement Agreement within three (3) days following
such Bond Payment Date.
SECTION 409. NON-PRESENTMENT OF BONDS. (A) Subject to the provisions of
Sections 206 and 207 hereof, in the event any Bond shall not be presented for
payment when the principal thereof becomes due, either at maturity or at the
date fixed for redemption thereof or otherwise, if Non-Preference Moneys
sufficient to pay such Bond shall have been deposited with the Trustee for the
benefit of the Holder thereof, such Bond shall be deemed cancelled, redeemed or
retired on such date even if not presented on such date and all liability of
the Issuer to the Holder thereof for the payment of such Bond shall forthwith
cease, determine and be completely discharged; and thereupon it shall be the
duty of the Trustee to hold such funds, without liability for interest thereon,
for the benefit of the Holder of such Bond who shall thereafter be restricted
exclusively to such funds for any claim of whatever nature on his part under
the Indenture or with respect to such Bond.
(B) If any Bond shall not be presented for payment prior to the earlier of
(1) two (2) years following the date when such Bond becomes due, either at
maturity or at the date fixed for redemption or otherwise, or (2) the date on
which such moneys would escheat to the State, such amounts shall be paid by the
Trustee first to the Bank to the extent any amounts remain unpaid by the
Company under the Reimbursement Agreement, with any balance to be paid to the
Company. Thereafter, Bondholders shall be entitled to look only to the Company
and/or the Bank, as the case may be, for payment, and then only to the extent
of the amount so repaid to the respective parties, who shall not be liable for
any interest thereon and shall not be regarded as trustees of such money. The
Trustee shall, at least sixty (60) days prior to the expiration of the above
described period, give notice to any Owner who has not presented any Bond for
payment that any moneys held for the payment of any such Bond will be returned
as provided in this Section 409 at the expiration of such period. The failure
of the Trustee to give any such notice shall not affect the validity of any
transfer of funds pursuant to this Section 409.
SECTION 410. INVESTMENT OF FUNDS. Any moneys held as part of any fund created
herein shall be continuously invested and reinvested, from time to time, by the
Trustee in Authorized Investments at the written or oral direction of the
Company, but, if oral, to be promptly confirmed in writing by the Company, or,
in the absence of such direction, in Authorized Investments with the shortest
available maturities. The Company shall direct that any moneys held in any fund
shall be invested so that (1) all investments shall mature or be subject to
mandatory redemption by the holder of such investments (at not less than the
principal amount thereof, or the cost of acquisition, whichever is lower), and
all deposits in time accounts shall be subject to withdrawal, without penalty,
not later than the date when the amounts will foreseeably be needed for
purposes of the Indenture, (2) investments of moneys on deposit in the Bond
Fund shall mature or be subject to mandatory redemption by the holder (at not
less than the principal amount thereof) not more than ninety (90) days from the
date of acquisition, and in no event shall moneys on deposit in the Bond Fund
be invested in investments described in clause (J) of the definition of
Authorized Investments and (3) moneys received pursuant to a draw on the Letter
of Credit and moneys in the Bond Fund Non-Preference Moneys Subaccount shall
only be invested in cash or investments described in clause (A) of the
definition of Authorized Investments which mature in not more than 30 days or
as needed; provided, however, in the event moneys on deposit in the Bond Fund
Non-Preference Moneys Subaccount are invested in investments described in
clause (A) of the definition of Authorized Investments, such investments shall
be non-callable. The investments so purchased shall be held by the Trustee and
shall be deemed at all times to be a part of the fund in which such moneys were
held. The Trustee is directed to sell and reduce to cash a sufficient amount of
such investments whenever the cash balance in said fund shall be insufficient
to cover a proper disbursement from said fund. The Trustee may make any
investment permitted by this Section 410 through its own investment department.
The Trustee shall not be liable (except for gross negligence or willful
misconduct) for any depreciation in the value of any investment made pursuant
to this Section 410 or for any loss arising from such investment.
SECTION 411. FINAL DISPOSITION OF MONEYS. In the event there are no Bonds
Outstanding, and subject to any applicable law to the contrary, after payment
of all fees, charges and expenses, including, but not limited to reasonable
attorney's fees, of the Issuer, the Trustee, the Company and the Bank and all
other amounts required to be paid hereunder and under the other Financing
Documents, all amounts remaining in any fund established under the Indenture
shall be transferred to the Company (except amounts held with respect to the
Unassigned Rights, which amounts shall be paid to the Issuer); provided,
however, that, in the event that the Bonds are retired or redeemed, in whole or
in part, from amounts drawn on the Letter of Credit and the Bank remains
unreimbursed for such amounts, such remaining amounts shall be transferred to
the Bank to be applied against the obligation of the Company to repay the Bank
for amounts paid under the Letter of Credit or any other Financing Document,
and any amounts in excess thereof shall be paid to the Company.
SECTION 412. PERIODIC REPORTS BY TRUSTEE. Within fifteen (15) days after each
January 1 and July 1, the Trustee shall furnish to the Issuer, the Company and
the Bank, commencing on or before the fifteenth day of the first such date
following the date in which the Bonds are delivered, a report on the status of
each of the funds established under this Article IV, showing at least the
balance in such fund as of the final day of the period with respect to which
the last such report described (or, if such report is to first such report, as
of the Closing Date), the total of deposits into (including interest on
investments) and the total of disbursements from such fund, the dates of such
deposits and disbursements, and the balance in such fund on the last day of the
period to which such report relates (which date shall be not earlier than the
last day of the calendar month preceding the date of such report).
ARTICLE V
GENERAL COVENANTS
SECTION 501. AUTHORITY OF ISSUER; VALIDITY OF INDENTURE AND BONDS. The Issuer
hereby represents, warrants and covenants that it is duly authorized under the
Constitution and laws of the State, including particularly and without
limitation the Act, to issue the Bonds authorized hereby, to execute this
Indenture and to pledge the revenues and receipts in the manner necessary for
the issuance of the Bonds authorized hereby; that the execution and delivery of
this Indenture has been duly and effectively authorized; and that such Bonds in
the hands of the owners thereof are and will be valid and enforceable special
obligations of the Issuer according to the import thereof.
SECTION 502. PAYMENT OF PRINCIPAL AND INTEREST. The Issuer covenants that it
shall promptly pay the principal of, premium, if any, and interest on every
Bond issued under the Indenture at the place, on the dates and in the manner
provided herein and in the Bonds, according to the true intent and meaning
thereof, subject to the provisions of Section 202 and Section 1109 hereof.
SECTION 503. PROCESSING OF TRANSFERS. Subject to the provisions of Section
206(D) hereof, the Trustee represents to and covenants with the Issuer and the
Bondholders that it will take all reasonable action required and capable of
performance on its part to process transfers of Bonds within three (3) Business
Days hours of receipt of a request therefor.
SECTION 504. PERFORMANCE OF COVENANTS; AUTHORITY OF ISSUER. The Issuer
covenants, and the Trustee by executing this Indenture covenants, that each
will faithfully perform at all times any and all covenants, undertakings,
stipulations and provisions contained in the Indenture, in any and every Bond
executed, authenticated and delivered hereunder and in all proceedings
pertaining thereto. The Issuer covenants and represents that it is duly
authorized under the laws of the State to issue the Bonds authorized hereby and
to execute and deliver the Indenture, to convey the interests described herein
and conveyed hereby, to pledge the revenues, receipts and other moneys hereby
pledged in the manner and to the extent herein set forth and to execute and
deliver the Financing Documents to which it is a party; that all action on its
part for the issuance of the Bonds and the execution and delivery of the
Financing Documents to which it is a party has been duly and effectively taken;
and that the Bonds in the hands of the holders and owners thereof are and will
be valid and enforceable special obligations of the Issuer according to the
import thereof.
SECTION 505. PRIORITY OF LIEN OF INDENTURE. The Issuer hereby represents,
warrants and covenants that this Indenture is and will be a first Lien upon the
Trust Revenues and the Issuer agrees not to create or suffer to be created any
Lien having priority or preference over the Lien of this Indenture upon the
Trust Revenues or any part thereof, except as otherwise specifically provided
herein.
SECTION 506. INSTRUMENTS OF FURTHER ASSURANCE. The Issuer covenants that it
will do, execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered such indentures supplemental hereto, and such
further acts, instruments and transfers as the Trustee may reasonably require
for the better assuring, transferring, conveying, pledging, assigning and
confirming unto the Trustee all and singular its interest in all Property
purported to be made subject to the Lien hereof by the Granting Clauses hereof,
and in the Trust Estate herein described and pledged hereby to the payment of
the principal of, premium, if any, and interest on the Bonds. Any and all
interest in the Trust Estate or any other Property hereafter acquired which is
of any kind or nature herein provided to be and become subject to the Lien
hereof shall, without any further conveyance, assignment or act on the part of
the Issuer or the Trustee, become and be subject to the Lien of the Indenture
as fully and completely as though specifically described herein, but nothing in
this sentence contained shall be deemed to modify or change the obligations of
the Issuer under this Section. The Issuer covenants and agrees that, except as
herein otherwise provided, it has not and will not sell, convey, mortgage,
encumber or otherwise dispose of any part of its interest in the Trust
Revenues.
SECTION 507. INSPECTION OF PROJECT BOOKS. The Issuer covenants and agrees that
all books and documents in its possession relating to the Project shall at all
times be open to inspection by such accountants or other agencies as the
Trustee or the Bank may from time to time reasonably designate.
SECTION 508. NO MODIFICATION OF SECURITY; LIMITATION ON LIENS. The Issuer
covenants that it will not, without the written consent of the Trustee and the
Bank, alter, modify or cancel, or agree to alter, modify or cancel, the
Installment Sale Agreement or any other Financing Document to which the Issuer
is a party, or which has been assigned to the Issuer, and which relates to or
affects the security for the Bonds, except as contemplated hereby or pursuant
to the terms of such document. The Issuer further covenants that, except for
the Financing Documents and other Permitted Encumbrances, the Issuer will not
incur any mortgage, Lien, charge or encumbrance on or pledge of any of the
Trust Revenues prior to or on a parity with the Lien of the Indenture.
SECTION 509. DAMAGE OR DESTRUCTION. The rights and obligations of the Company,
the Issuer, the Trustee and the Bank in the event of damage or destruction of
the Project Facility or part thereof shall be determined by reference to
Section 7.1 of the Installment Sale Agreement.
SECTION 510. CONDEMNATION. The rights and obligations of the Company, the
Issuer, the Trustee and the Bank in the event of a taking of part or all of the
Project Facility by Condemnation shall be determined by reference to Section
7.2 of the Installment Sale Agreement and this Indenture.
SECTION 511. ACCOUNTS AND AUDITS. The Trustee shall keep proper books of record
and account (separate from all other records and accounts) in which complete
and correct entries shall be made of its transactions relating to the Project
Facility or any part thereof, and which, together with all other books and
papers of the Trustee in connection with the Project Facility, shall at all
reasonable times be subject to the inspection of the Company, the Bank and the
Issuer, or the holder or holders of not less than five percent (5%) in
aggregate principal amount of the Bonds then Outstanding or their
representatives duly authorized in writing.
SECTION 512. RECORDATION; FINANCING STATEMENTS. The Lien on the Project
Facility created by the Mortgage and the other Financing Documents shall be
perfected by the recording by the Issuer of the Mortgage and the other
Financing Documents in the office of the County Clerk of Albany County, New
York. The security interests of the Trustee created by the Indenture and the
other Financing Documents and the security interests of the Issuer assigned to
the Trustee shall be perfected by the filing by the Company in the office of
the County Clerk of Albany County, New York, and the office of the New York
State Department of State, Uniform Commercial Code Unit of financing and
continuation statements required to be filed pursuant to the Uniform Commercial
Code of the State in order to perfect and to maintain the perfection of the
security interests created by this Indenture and the Financing Documents. The
Company shall furnish, from time to time as reasonably requested by the
Trustee, satisfactory evidence to the Trustee of the recording and filing of
all financing statements, continuation statements and other instruments
necessary to preserve, perfect and maintain the perfection of the Liens of the
Mortgage and the other Financing Documents. The Issuer and the Company
irrevocably appoint the Trustee as their lawful attorneys and agents to execute
and file such financing statements and continuation statements on their behalf
(and without their signature where allowed by law).
SECTION 513. [INTENTIONALLY OMITTED].
SECTION 514. COVENANT REGARDING ADJUSTMENT OF DEBTS. In any case under Chapter
9 of Title 11 of the United States Code involving the Issuer as debtor, the
Issuer, unless compelled by a court of competent jurisdiction, shall neither
list the Trust Revenues or any part thereof or the Project Facility or any part
thereof as an asset or property of the Issuer nor list any amounts owed upon
the Bonds Outstanding as a debt of or claim against the Issuer.
SECTION 515. [INTENTIONALLY OMITTED].
SECTION 516. LIMITATION ON OBLIGATIONS OF THE ISSUER. Notwithstanding any
provision of this Indenture to the contrary, no order or decree of specific
performance with respect to any of the obligations of the Issuer hereunder
shall be sought or enforced against the Issuer unless (A) the party seeking
such order or decree shall first have requested the Issuer in writing to take
the action sought in such order or decree of specific performance, and ten (10)
days shall have elapsed from the date of receipt of such request, and the
Issuer shall have refused to comply with such request (or, if compliance
therewith would reasonably be expected to take longer than ten [10] days, shall
have failed to institute and diligently pursue action to cause compliance with
such request within such ten [10] day period) or failed to respond within such
notice period, (B) if the Issuer refuses to comply with such request and the
Issuer's refusal to comply is based on its reasonable expectation that it will
incur fees and expenses, the party seeking such order or decree shall have
placed in an account with the Issuer an amount or undertaking sufficient to
cover such reasonable fees and expenses, and (C) if the Issuer refuses to
comply with such request and the Issuer's refusal to comply is based on its
reasonable expectation that it or any of its members, directors, officers,
agents or employees shall be subject to potential liability, the party seeking
such order or decree shall (1) agree to indemnify and hold harmless the Issuer
and its members, directors, officers, agents and employees against any
liability incurred as a result of its compliance with such demand, and (2) if
requested by the Issuer, furnish to the Issuer satisfactory security to protect
the Issuer and its members, directors, officers, agents and employees against
all liability expected to be incurred as a result of compliance with such
request; provided, however, that no limitation on the obligations of the Issuer
contained in this Section 516 by virtue of any lack of assurance provided in
(B) or (C) hereof shall be deemed to prevent the occurrence and full force and
effect of any Event of Default hereunder.
SECTION 517. AGREEMENT TO PROVIDE INFORMATION. The Trustee agrees, whenever
requested in writing by the Issuer or the Company, to provide such information
that is known to the Trustee relating to the Bonds as the Issuer or the Company
from time to time may reasonably request, including, but not limited to, such
information as may be necessary to enable the Issuer or the Company to make any
reports required by any Federal, state or local law or regulation.
ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES OF TRUSTEE AND BONDHOLDERS
SECTION 601. EVENTS OF DEFAULT. The following shall be "Events of Default"
under this Indenture, and the terms "Event of Default" shall mean, when they
are used in this Indenture, any one or more of the following events:
(A) failure by the Issuer to make due and punctual payment of the interest
or premium on any Bond;
(B) failure by the Issuer to make due and punctual payment of the principal
of any Bond, whether at the Stated Maturity thereof, or upon proceedings for
the redemption thereof, or upon the maturity thereof by declaration;
(C) failure of the Trustee to have on hand by 12:00 noon on a Purchase Date
moneys sufficient to pay the Purchase Price of a Bond properly tendered for
purchase on such date;
(D) failure by the Bank to make any payment required to be made by the Bank
under the Letter of Credit;
(E) after a draw has been made under the Letter of Credit pursuant to the
Interest Draft (as defined in the Letter of Credit), receipt by the Trustee of
a written notice from the Bank that the Bank has not been reimbursed for such
draw;
(F) a decree or order of a court or agency or Governmental Authority having
jurisdiction in the premises for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceeding, or for the winding-up or liquidation of
its affairs, shall have been entered against the Bank;
(G) the Bank shall consent to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceeding of or relating to the Bank or of or
relating to all or substantially all of its Property;
(H) the Bank shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations; or
(I) default in the performance or observance of any other covenant,
agreement or condition on the part of the Issuer in the Indenture or in any
Bond to be performed or observed and the continuance thereof for a period of
thirty (30) days after written notice thereof is given to the Issuer and the
Company by the Trustee or by the holders of at least twenty- five percent (25%)
in the aggregate principal amount of the Bonds then Outstanding.
SECTION 602. ACCELERATION. (A) Upon (1) the occurrence of an Event of Default
under Section 601(A) through (H), the Trustee shall, or (2) the occurrence of
an Event of Default under Section 601(I) hereof and so long as such Event of
Default is continuing, the Trustee may, and upon the written request of the
holders of not less than twenty-five percent (25%) in aggregate principal
amount of Bonds then Outstanding the Trustee shall, by notice in writing
delivered to the Company, with copies of such notice being sent to the Issuer
and the Bank, declare the entire principal amount of all Bonds then Outstanding
and the interest accrued thereon to be immediately due and payable, and such
principal and interest shall thereupon become and be immediately due and
payable. Upon any such declaration, the Trustee shall immediately declare an
amount equal to all amounts then due and payable on the Bonds to be immediately
due and payable under the Installment Sale Agreement.
(B) Upon the occurrence of any declaration by the Trustee under this
Section 602, the principal of the Bonds then Outstanding and the interest
accrued thereon shall thereupon become and be immediately due and payable, and
interest shall cease to accrue thereon, and the Trustee shall immediately draw
upon the Letter of Credit to the extent and in the manner provided in Section
408 hereof.
SECTION 603. ENFORCEMENT OF REMEDIES. (A) Upon the occurrence and continuance
of any Event of Default, the Trustee shall exercise such of the rights and
powers vested in the Trustee by the 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 own affairs. In considering what actions
are or are not prudent in the circumstances, the Trustee shall consider whether
or not to take such action as may be permitted to be taken by the Trustee under
any of the Financing Documents.
(B) Upon the occurrence and continuance of any Event of Default, the
Trustee shall give such notices and take all actions necessary to cause
payments to be made under the Letter of Credit and may proceed forthwith to
protect and enforce its rights under the Act, the Letter of Credit, the
Installment Sale Agreement and the other Financing Documents by such suits,
actions or proceedings as the Trustee, being advised by counsel, shall deem
expedient.
(C) Upon the occurrence and continuance of any Event of Default, the
Trustee may pursue any available remedy at law or in equity by suit, action,
mandamus or other proceeding to enforce payment of and receive any amounts due
or becoming due from the Issuer, the Bank or the Company under any of the
provisions of this Indenture, the Installment Sale Agreement and the other
Financing Documents, without prejudice to any other right or remedy of the
Trustee or the Bondholders.
(D) Regardless of the happening of an Event of Default, the Trustee may
institute and maintain such suits and proceedings as it may be advised shall be
necessary or expedient to prevent any impairment of the security under this
Indenture and the other Financing Documents by any acts which may be unlawful
or in violation of the Indenture or of any other Financing Document or of any
resolution authorizing the Bonds, or to preserve or protect the interest of the
Trustee and/or the Bondholders.
(E) Notwithstanding anything to the contrary herein, so long as the Letter
of Credit is in effect and the Bank is making all required payments with
respect to the Letter of Credit in accordance with the terms of the Letter of
Credit, the Trustee shall not exercise any remedies under this Article VI and
the Trustee shall not, without the prior written consent of the Bank, take any
actions which the Trustee is required or entitled to take under this Article VI
unless and until the Trustee shall have accelerated the Bonds and drawn upon
the Letter of Credit in accordance with Section 602 hereof and the Bank shall
have defaulted in the performance of its obligations under the Letter of
Credit, in which case the Bank shall have no authority to exercise any further
rights hereunder.
(F) In the event of a default by the Bank in the performance of its
obligations under the Letter of Credit, notwithstanding the provisions of
subparagraph (E) above, the Bank shall have no authority to exercise any
further rights hereunder, unless and until said default shall have been cured
by the Bank to the satisfaction of the Trustee.
(G) Notwithstanding any other provision of this Indenture, failure of the
Company or the Trustee to comply with the Continuing Disclosure Agreement shall
not be considered an Event of Default; however, the Trustee may (and, at the
request of any Underwriter or the Holders of at least twenty-five percent (25)%
aggregate principal amount of Outstanding Bonds, shall) or any Bondholder may
take such actions as may be necessary and appropriate, including seeking
mandatory or specific performance by court order, to cause the Company to
comply with its obligations under Section 8.5(B) of the Installment Sale
Agreement or to cause the Trustee to comply with its obligations under Section
517(B) hereof.
SECTION 604. APPOINTMENT OF RECEIVERS. Upon the occurrence and continuance of
an Event of Default and upon the filing of a suit or commencement of other
judicial proceedings to enforce the rights of the Trustee under the Indenture
and the other Financing Documents, the Trustee shall be entitled, as a matter
of right, to the appointment of a receiver or receivers of the Project Facility
and of the revenues and receipts thereof, pending such proceedings, with such
powers as the court making such appointment shall confer.
SECTION 605. RIGHTS OF BONDHOLDERS TO OBLIGATE TRUSTEE TO PROTECT BONDHOLDERS.
If an Event of Default shall have happened, and if requested so to do by the
holders of not less than twenty-five percent (25%) in aggregate principal
amount of Bonds then Outstanding, and if secured and indemnified as provided in
Section 701(I) herein, the Trustee shall be obligated to proceed to protect its
rights and the rights of the Bondholders under applicable law, the Installment
Sale Agreement, the Bonds, the Letter of Credit, the Indenture and the other
Financing Documents, as the Trustee, being advised by Independent Counsel,
shall deem most expedient in the interest of the Bondholders.
SECTION 606. REMEDIES NOT EXCLUSIVE; WAIVER AND NON-WAIVER OF EVENT OF DEFAULT.
(A) No remedy by the terms of the Indenture conferred upon or reserved to the
Trustee or to the Bondholders 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 Bondholders hereunder or now or
hereafter existing at law or in equity or by statute.
(B) No delay or omission to exercise any right or power accruing upon any
Event of Default shall impair any such right or power or shall be construed to
be a waiver of any such 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.
(C) No waiver of any Event of Default hereunder, whether by the Trustee or
by the Bondholders, shall extend to or shall affect any subsequent or
concurrent Event of Default or shall impair any rights or remedies consequent
thereto.
SECTION 607. RIGHTS OF BONDHOLDERS TO DIRECT PROCEEDINGS. Anything in the
Indenture to the contrary notwithstanding, the Holders of a majority in
aggregate principal amount of Bonds then Outstanding shall have the right at
any time, by an instrument in writing executed and delivered to the Trustee and
upon offering the Trustee the security and indemnity provided for in Section
701(I) herein, to direct the time, method and place of conducting all
proceedings to be taken in connection with the enforcement of the terms and
conditions of the Indenture, the Letter of Credit, the Installment Sale
Agreement or the other Financing Documents, or for the appointment of a
receiver or any other proceedings hereunder, provided that such direction is in
accordance with the provisions of law, and is not unduly prejudicial to the
interests of the Bondholder not joining such direction.
SECTION 608. WAIVER BY ISSUER. Upon the occurrence of an Event of Default, to
the extent that such right may then lawfully be waived, neither the Issuer, nor
anyone claiming through or under it, shall set up, claim or seek to take
advantage of any appraisal, valuation, stay, extension or redemption laws now
or hereafter in force, in order to prevent or hinder the enforcement of the
Indenture or the foreclosure of the mortgage Lien on the Project Facility
created by the Mortgage; and the Issuer, for itself and all who may claim
through or under it, hereby waives, to the extent that it may lawfully do so,
the benefit of all such laws and all rights of appraisal and redemption to
which it may be entitled under the laws of the State.
SECTION 609. APPLICATION OF MONEYS. (A) Except as provided in subsection (C)
below, all moneys received by the Trustee pursuant to any right given or action
taken under the provisions of this Article VI shall, after payment of the cost
and expenses of the proceedings resulting in the collection of such moneys and
of the fees, expenses, liabilities and advances incurred or made by the
Trustee, be deposited into the Bond Fund; and all moneys in the Bond Fund shall
be applied, together with the other moneys held by the Trustee hereunder, as
follows:
(1) Unless the principal of all the Bonds shall have become due or shall
have been declared due and payable, all such moneys shall be applied:
FIRST - to the payment to the Persons entitled thereto of all installments of
interest then due on the Bonds, in the order of the maturity of the
installments of such interest and, if the amount available shall not be
sufficient to pay in full any particular installment, then to the payment
ratably, according to the amounts due on such installment, to the Persons
entitled thereto, without any discrimination or privilege;
SECOND - to the payment to the Persons entitled thereto of the unpaid principal
of and any premium on the Bonds (other than Bonds called for redemption for the
payment of which moneys shall be held pursuant to the provisions of the
Indenture) which shall have become due, in order of their maturities, with
interest from the date upon which they became due and, if the amount available
shall not be sufficient to pay in full the principal of and premium, if any,
and interest on the Bonds due on any particular date, then to the payment
ratably, according to amounts due respectively for principal, interest and
premium, if any, to the Persons entitled thereto, without any discrimination or
privilege;
THIRD - to the payment to the Persons entitled thereto of the principal of,
premium, if any, on, or interest on the Bonds which may thereafter become due
and payable, and, if the amount available shall not be sufficient to pay in
full Bonds due on any particular date, together with interest and premium, if
any, then due and owing thereon, payment shall be made ratably according to the
amount of interest, principal and premium, if any, due on such date to the
Persons entitled thereto, without any discrimination or privilege; and
FOURTH - to the Bank.
(2) If the principal of all the Bonds shall have become due or shall have
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, without preference or priority of principal and premium over interest or
of interest over principal and premium, or of any installment of interest over
any other installment of interest, or of any Bonds over any other Bonds,
ratably, according to the amounts due respectively for principal, premium, if
any, and interest, to the Persons entitled thereto without any discrimination
or privilege.
(3) If the principal of all the Bonds shall have been declared due and
payable, and if such declaration shall thereafter have been rescinded and
annulled under the provisions of paragraph (A)(2) of this Section 609 in the
event that the principal of all the Bonds shall later become due or be declared
due and payable, the moneys shall be applied in accordance with the provisions
of paragraph (A)(1) of this Section.
(B) Whenever moneys are to be applied pursuant to the provisions of Section
609(A)(1) hereof, such moneys shall be applied at such times, and from time to
time, as the Trustee shall determine, having due regard to the amount of such
moneys available for such application and the likelihood of additional moneys
becoming available in the future. Whenever the Trustee shall apply such moneys
under Section 609(A)(1), it shall fix the date (which shall be an Interest
Payment Date unless it shall deem another date more suitable) upon which such
application is to be made, and upon such date interest on the amounts of
principal to be paid on such date shall cease to accrue. Whenever moneys are to
be applied pursuant to the provisions of Section 609(A)(2), such moneys shall
be applied immediately upon receipt thereof. In either case, 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, and shall not be required to make
payment to the holder of any Bond until such Bond shall be presented to the
Trustee and a new Bond is issued or the Bond is cancelled if fully paid.
(C) Any moneys received by the Trustee from the Bank pursuant to the
exercise of any rights granted hereunder or under the Letter of Credit shall
first be applied in accordance with Section 408 hereof.
SECTION 610. REMEDIES VESTED IN TRUSTEE. All rights of action, including the
right to file proof of claims, under the Indenture or under any of the Bonds
may be enforced by the Trustee without the possession of any of the Bonds or
the production thereof in any trial or other proceedings relating thereto, and
any such suit or proceeding instituted by the Trustee shall be brought in its
name as Trustee without the necessity of joining as plaintiffs or defendants
any holders of the Bonds. Subject to the provisions of Section 609 hereof and
any recovery or judgment shall be for the equal benefit of the holders of the
Outstanding Bonds.
SECTION 611. RIGHTS AND REMEDIES OF BONDHOLDERS. No holder of any Bond shall
have any right to institute any suit, action or proceeding in equity or at law
for the enforcement of the Indenture or for the execution of any trust under
the Indenture or for the appointment to the extent permitted by law of a
receiver or any other remedy hereunder, unless an Event of Default under
Section 601(A) through (H) hereof has occurred or a default under Section
601(I) hereof has occurred of which the Trustee has been notified as provided
in Section 614 hereof; nor unless also (A) such default, in the case of a
default under Section 601(I), shall have become an Event of Default, and (B)
the holders of at least twenty-five percent (25%) in aggregate principal amount
of Bonds then Outstanding shall have made written request to the Trustee and
shall have offered reasonable opportunity either to proceed to exercise the
powers hereinbefore granted or to institute such action, suit or proceeding in
its own name; nor unless also they have offered to the Trustee indemnity as
provided in Section 701(I) hereof; nor unless the Trustee shall thereafter fail
or refuse to exercise the powers hereinbefore granted, or to institute such
action, suit or proceeding; and such notification, request and offer of
indemnity are hereby declared in every case at the option of the Trustee to be
conditions precedent to the execution of the powers and trusts of the
Indenture, and to any action or cause of action for the enforcement of the
Indenture, or for the appointment to the extent permitted by law of a receiver
or for any other remedy hereunder; it being understood and intended that no one
or more holders of the Bonds shall have any right in any manner whatsoever to
affect, disturb, or prejudice the Lien of the Indenture by any action or to
enforce any right hereunder except in the manner herein provided, and that all
proceedings at law or in equity shall be instituted, had and maintained in the
manner herein provided and for the equal benefit of the holders of all Bonds
then Outstanding. Nothing in the Indenture shall, however, affect or impair the
right of any Bondholder to enforce the payment of the principal of and interest
on any Bond at and after the maturity thereof, or the obligation of the Issuer
to pay the principal of and interest on each of the Bonds issued hereunder to
the respective holders thereof, at the time and place and from the source and
in the manner in the Bonds expressed.
SECTION 612. TERMINATION OF PROCEEDINGS. In case the Trustee shall have
undertaken any proceedings to enforce any right under the Indenture 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 Issuer, the
Company, the Bank and the Trustee shall be restored to their former positions
and rights hereunder, and all rights, remedies and powers of the Trustee shall
continue as if no such proceedings had been taken.
SECTION 613. WAIVERS OF EVENTS OF DEFAULT. The Trustee, with the prior written
consent of the Bank, shall waive any Event of Default hereunder and its
consequences and rescind any declaration of maturity of principal of and
interest on the Bonds upon the written request of the holders of a majority of
the aggregate principal amount of all the Bonds then Outstanding; provided,
however, that there shall not be waived (A) any default in the payment of the
principal of any Outstanding Bond at the date of maturity specified therein, or
upon proceedings for mandatory redemption, (B) any Event of Default requiring a
draw under the Letter of Credit unless the Trustee shall have received written
notice from the Bank that the Letter of Credit has been reinstated to its full
stated amount, if there has been a reduction thereon, or (C) any default in the
payment when due of the interest or premium on any such Bonds, unless prior to
such waiver or rescission all arrears of interest, with interest (to the extent
permitted by law) at the rate borne by the Bonds in respect of which such
default shall have occurred on overdue installments of interest or all arrears
of payments of principal when due (whether at the stated maturity thereof or
upon proceedings for redemption) as the case may be, shall have been paid or
provided for, and no such waiver or rescission shall extend to any subsequent
or other default, or impair any right consequent thereto. The Trustee shall not
grant any waiver or rescission hereunder unless all ordinary and extraordinary
fees and expenses of the Trustee, including, but not limited to, reasonable
attorneys' fees, incurred in connection with said default have been paid or
provided for, and in case of any such waiver or rescission, or in case any
proceeding taken by the Trustee on account of any such default shall have been
discontinued or abandoned or determined adversely, then, and in every such
case, the Issuer, the Trustee, the Bank and the Bondholders, respectively,
shall be restored to their former positions and rights hereunder.
SECTION 614. NOTICE OF DEFAULTS; OPPORTUNITY TO CURE. (A) Anything herein to
the contrary notwithstanding, no default under Section 601(I) hereof shall
constitute an Event of Default until the Trustee shall have received written
notice thereof or shall have actual notice thereof and until actual notice of
such default by registered or certified mail shall be given by the Trustee or
by the holders of not less than twenty-five (25%) percent of the aggregate
principal amount of Bonds then Outstanding to the Issuer, the Bank and the
Company, and the Issuer, the Bank and the Company shall have had thirty (30)
days after receipt of such notice to correct said default or cause said default
to be corrected, and shall not have corrected said default or caused said
default to be corrected within the applicable period; provided, however, if
said default be such that it cannot be corrected within the applicable period,
it shall not constitute an Event of Default if corrective action is instituted
by the Issuer, the Bank or the Company within the applicable period and
diligently pursued until the default is corrected.
(B) The Trustee shall immediately notify the Issuer, the Company and the
Bank of any Event of Default known to the Trustee.
SECTION 615. STATEMENT OF INCOME AND EXPENDITURES. Upon the occurrence and
continuance of an Event of Default, the Trustee shall render annually to the
Bondholders a summarized statement of income and expenditures in connection
with the Project Facility, but only to the extent, if any, that the Trustee can
obtain such information without unreasonable effort or expense.
ARTICLE VII
THE TRUSTEE
SECTION 701. ACCEPTANCE OF TRUSTS. The Trustee hereby accepts the trusts
imposed upon it by the Indenture and agrees to perform said trusts upon the
following terms and conditions:
(A) The Trustee may execute any of the trusts or powers hereof and perform
any of its duties hereunder by or through attorneys, agents, receivers or
employees, but shall not be answerable for the conduct of the same if appointed
with due care, and shall be entitled to advice of counsel concerning all
matters of the trusts hereof and the duties hereunder, and may in all cases pay
such reasonable compensation to all such attorneys, agents, receivers and
employees as may be reasonably employed in connection with the trusts hereof.
The Trustee may act upon the opinion or advice of any attorney, who may be the
attorney or attorneys for the Issuer, and shall not be responsible for any loss
or damage resulting from any action or nonaction in reliance upon any such
opinion or advice.
(B) Except as expressly provided herein, the Trustee shall not be
responsible for any recital herein or in the Bonds (except in respect to the
authentication certificate of the Trustee endorsed on the Bonds), or for the
validity of the execution by the Issuer of the Indenture or of any supplements
thereto or instruments of further assurance, or for the sufficiency of the
security for the Bonds issued hereunder or intended to be secured hereby, or
for insuring the Property subject to the Lien of the Financing Documents, or
for the value or title of any of the Property subject to the Lien of the
Financing Documents, or for the payment of, or for minimizing taxes, charges,
assessments or Liens upon the same, or otherwise as to the maintenance of the
security hereof, except as to the safekeeping of the pledged collateral and
except that, in the event the Trustee enters into possession of part or all of
the Property subject to the Lien of the Financing Documents pursuant to any
provision thereof, it shall use due diligence in preserving the same, and the
Trustee shall not be bound to ascertain or inquire as to the performance or
observance of any covenant, condition or agreement on the part of the Issuer or
the Company, but the Trustee may require of the Issuer and the Company full
information and advice as to the performance of the covenants, conditions and
agreements aforesaid and as to the condition of the Property subject to the
Lien of the Financing Documents.
(C) The Trustee may become the owner of Bonds secured hereby with the same
rights which it would have if not the Trustee.
(D) The Trustee shall be protected in acting upon any notice, request,
consent, certificate, order, affidavit, letter, telegram or other paper or
document reasonably 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 the 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 owner of any Bond shall be conclusive and binding upon all
future owners of the same Bond and of any Bond or Bonds issued in exchange
therefore or in place thereof.
(E) The Trustee may accept a certificate of the Secretary or Assistant
Secretary of the Issuer under its corporate seal to the effect that a
resolution in the form therein set forth has been adopted by the Issuer as
conclusive evidence that such resolution has been duly adopted and is in full
force and effect. As to the existence or nonexistence of any fact or as to the
sufficiency or validity of any instrument, paper or proceeding, the Trustee
shall be entitled to rely upon a certificate of the Company or the Bank signed
by an Authorized Representative of the Company or the Bank, as the case may be,
or a certificate of an Authorized Representative of the Issuer under seal, as
sufficient evidence of the facts therein contained and, prior to the occurrence
of a default of which it has been notified as provided in paragraph (M) of this
Section or of which by said paragraph it is deemed to have notice, shall also
be at liberty to accept a similar certificate to the effect that any particular
dealing, transaction or action is or is not necessary or expedient, but may at
its discretion, at the reasonable expense of the Company, in every case secure
such further evidence as it may think necessary or advisable, but shall in no
case be bound to secure the same.
(F) The permissive right of the Trustee to do things enumerated in the
Indenture shall not be construed as a duty unless so specified herein, and in
doing or not doing so the Trustee shall not be answerable for other than its
own gross negligence or willful misconduct.
(G) At any and all reasonable times, the Trustee, and its duly authorized
agents, attorneys, experts, accountants and representatives, shall have the
right fully to inspect all books, papers and records of the Issuer pertaining
to the Project Facility and the Bonds, and to take such memoranda from and in
regard thereto as may be desired.
(H) Notwithstanding anything elsewhere in the Indenture, the Trustee shall
have the right, but shall not be required, to demand, in respect of the
authentication of any Bonds, the withdrawal of any moneys, the release of any
interest in Property or any action whatsoever, within the purview of the
Indenture, any showings, certificates, opinions, appraisals or other
information, or corporate action or evidence thereof, in addition to those
required herein.
(I) Before taking any action hereunder (except declaring an Event of
Default or drawing under the Letter of Credit on an Interest Payment Date or a
Bond Payment Date), the Trustee may require that a security and indemnity
reasonably satisfactory to it be deposited with it for the reimbursement of all
fees, costs and expenses including, but not limited to, reasonable attorney's
fees to which it may be put and to protect it against all liability, except
liability which is adjudicated to have resulted from its gross negligence or
willful misconduct by reason of any action so taken.
(J) All moneys received by the Trustee or any paying agent shall, until
used or applied or invested as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law or by the Indenture. Neither the
Trustee nor any paying agent shall be under any liability for interest on any
moneys received hereunder except such as may be agreed upon with the Issuer.
(K) The Trustee, prior to an Event of Default hereunder and after curing
all Events of Default which may have occurred, undertakes to perform only such
duties as are specifically set forth in the Indenture. In case an Event of
Default has happened which has not been cured, the Trustee shall exercise the
rights, duties and powers vested in it by the Indenture in good faith and with
that degree of diligence, care and skill which ordinarily prudent persons would
exercise under similar circumstances in handling their own affairs.
(L) The Trustee shall furnish to the Issuer during the term of this
Indenture upon the written request of the Issuer any reports or other account
of the use of any of the Issuer's funds held by the Trustee that may be
required by any governmental body.
(M) The Trustee shall not be required to take notice or be deemed to have
notice of the occurrence of any Event of Default other than an Event of Default
under Section 601(A) through (H), unless the Trustee shall have actual notice
of such Event of Default or unless the Trustee shall be specifically notified
in writing of such Event of Default by the Issuer, the Bank or the Company or
by the owners of at least twenty-five percent (25%) in aggregate principal
amount of Bonds Outstanding hereunder, and all notices or other instruments
required by this Indenture to be delivered to the Trustee must, in order to be
effective, be delivered at the main office of the Trustee, and, in the absence
of such notice so delivered, the Trustee may conclusively assume there is no
Event of Default, except as aforesaid.
(N) The Trustee shall not be personally liable for any debts contracted or
for damages to Persons or to personal Property injured or damaged, or for
salaries or nonfulfillment of contracts, during any period in which it may be
in the possession of or managing any Property subject to the Lien of the
Financing Documents as in this Indenture provided.
(O) The Trustee shall not be required to give any bond or surety in respect
of the execution of the said trusts and powers or otherwise in respect of the
premises.
(P) There shall be no additional fee charged by the Trustee for a draw
under the Letter of Credit as contemplated by Section 408 hereof or by the
terms of the Letter of Credit. Nothing in the foregoing sentence, however,
shall limit the Trustee's right to charge additional fees in the event it is
required to perform Extraordinary Services hereunder.
(Q) Before taking any action hereunder, or under the Mortgage or any other
Financing Document, which would result in the Trustee acquiring title to or
taking possession of any portion or all of the Project Facility, the Trustee
may require such environmental inspections and tests of the Project Facility
and other environmental reviews as the Trustee deems necessary and if the
Trustee determines that the taking of title or possession of all or any portion
of the Project Facility will expose it to claims or damages resulting from
environmental or ecological conditions in any way relating to the Project
Facility or any activities at the Project Facility, the Trustee may decline to
take title to or possession of the Project Facility.
SECTION 702. FEES, CHARGES AND EXPENSES OF TRUSTEE. The Trustee shall be
entitled to payment for its Ordinary Services and Ordinary Expenses, including,
but not limited to, reasonable attorney's fees, rendered or incurred hereunder
and, in the event that it should become necessary for the Trustee to perform
Extraordinary Services, it shall be entitled to reasonable extra compensation
therefor, and to reimbursement for reasonable and necessary Extraordinary
Expenses, including, but not limited to, reasonable attorney's fees, in
connection therewith; provided that, if such Extraordinary Services or
Extraordinary Expenses are occasioned by the gross negligence or willful
misconduct of the Trustee, it shall not be entitled to compensation or
reimbursement therefor.
SECTION 703. NOTICE TO BONDHOLDERS OF DEFAULT. If an Event of Default occurs of
which the Trustee is, by Section 614 or paragraph (M) of Section 701 hereof,
required to take notice or if notice of an Event of Default has been given to
it as in said Section 614 or paragraph (M) provided, then the Trustee shall
give written notice thereof by mail to all owners of Bonds then Outstanding as
shown on the bond register maintained by the Trustee.
SECTION 704. INTERVENTION BY TRUSTEE. In any judicial proceeding to which the
Issuer is a party and which in the opinion of the Trustee and its counsel has a
substantial bearing on the interests of Bondholders, the Trustee may intervene
on behalf of Bondholders and shall do so if requested in writing by the owners
of at least twenty-five percent (25%) in aggregate principal amount of all
Bonds then Outstanding if offered the security and indemnity provided for in
Section 701(I). The rights and obligations of the Trustee under this Section
704 are subject to the approval of a court of competent jurisdiction.
SECTION 705. SUCCESSOR TRUSTEE. Any corporation or association into which the
Trustee may be converted or merged, or with which it may be consolidated, or to
which it may sell or transfer its trust business and assets as a whole or
substantially as a whole, or any corporation or association resulting from any
such conversion, sale, merger, consolidation or transfer to which it is a
party, shall, ipso facto, be and become successor Trustee hereunder and vested
with all of the title to the Trust Revenues and all the trusts, powers,
discretions, immunities, privileges and all other matters as was its
predecessor, without the execution or filing of any instruments or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION 706. RESIGNATION BY TRUSTEE. The Trustee and any successor Trustee may
at any time resign from the trusts hereby created by giving sixty (60) days'
written notice to the Issuer, the Bank and the Company and by registered or
certified mail to each owner of Bonds then Outstanding and such resignation
shall take effect at the end of such sixty (60) days, but not prior to the
acceptance of appointment by a successor Trustee under Section 709 hereof. Such
notice to the Issuer, the Bank and the Company may be served personally or sent
by registered mail. If an instrument of acceptance by a successor Trustee shall
not be delivered to the Trustee within sixty (60) days after the giving of such
notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
SECTION 707. REMOVAL OF TRUSTEE. (A) The Trustee may be removed at any time, by
an instrument or concurrent instruments in writing delivered to the Trustee,
the Issuer, the Bank and the Company, and signed by the owners of a majority in
aggregate principal amount of all Bonds then Outstanding. Such notice shall
specify the date that such removal shall take effect.
(B) No removal of the Trustee under this Section 707 shall be effective
until a successor Trustee shall have been appointed and shall have accepted the
terms and conditions imposed hereby.
SECTION 708. APPOINTMENT OF SUCCESSOR TRUSTEE BY BONDHOLDERS; TEMPORARY
TRUSTEE. In case the Trustee hereunder shall resign or be removed, or be
dissolved, or shall be in course of dissolution or liquidation, or otherwise
become incapable of acting hereunder, or in case it shall be taken under the
control of any public officer or officers, or of a receiver appointed by a
court, a successor may be appointed by the owners of a majority in aggregate
principal amount of Bonds then Outstanding, by an instrument or concurrent
instruments in writing signed by such owners, or by their duly authorized
attorneys; provided, nevertheless, that in case of vacancy, the Issuer by an
instrument executed and signed by the Chairman or Vice Chairman and attested by
the Secretary or Assistant Secretary of the Issuer under its seal, may appoint
a temporary Trustee to fill such vacancy until a successor Trustee shall be
appointed by such Bondholders in the manner above provided; and any such
temporary Trustee so appointed by the Issuer shall immediately and without
further act be superseded by the Trustee so appointed by such Bondholders.
Every such successor or temporary Trustee appointed pursuant to the provisions
of this Section 708 shall (A) be a trust company or bank organized under the
laws of the United States of America or any state thereof and which is in good
standing, (B) be located within or outside the State, (C) be duly authorized to
exercise trust powers in the State, and (D) maintain a reported capital and
surplus of not less than $5,000,000, or be a subsidiary of a bank holding
company with such capital and surplus.
SECTION 709. CONCERNING ANY SUCCESSOR TRUSTEE. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer an instrument in writing accepting such appointment
hereunder, and thereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all the estates, Properties, rights,
powers, trusts, duties and obligations of its predecessor; but such predecessor
shall, nevertheless, on the written request of the Issuer, or of its successor,
and upon payment of all amounts due such predecessor, execute and deliver an
instrument transferring to such successor Trustee all the estates, Properties,
rights, powers and trusts of such predecessor hereunder; and every predecessor
Trustee shall deliver all securities and moneys held by it as Trustee hereunder
to its successor. Should any instrument in writing from the Issuer be required
by a successor Trustee for more fully and certainly vesting in such successor
the estates, Properties, rights, powers and duties hereby vested or intended to
be vested in the predecessor, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Issuer. The resignation
of any Trustee and the instrument or instruments removing any Trustee and
appointing a successor hereunder, together with all other instruments provided
for in this Article VII, shall be filed and/or recorded by the successor
Trustee in each recording office where the Indenture shall have been filed
and/or recorded.
SECTION 710. TRUSTEE PROTECTED IN RELYING UPON RESOLUTIONS, ETC. The
resolutions, opinions, certificates and other instruments provided for in the
Indenture may be accepted by the Trustee as conclusive evidence of the facts
and conclusions stated therein and shall be full warrant, protection and
authority to the Trustee for the release of property and the withdrawal of
moneys hereunder.
SECTION 711. SUCCESSOR TRUSTEE AS TRUSTEE, PAYING AGENT AND BOND REGISTRAR. In
the event of a change in the office of Trustee, the predecessor Trustee which
has resigned or has been removed shall cease to be Trustee and paying agent on
the Bonds and Bond Registrar, and the successor Trustee shall become such
Trustee and paying agent and Bond Registrar.
SECTION 712. TRUST MAY BE VESTED IN SEPARATE OR CO-TRUSTEE. (A) It is the
purpose of the Indenture that there shall be no violation of any law of any
jurisdiction, including particularly the law of the State, denying or
restricting the right of banking corporations or associations to transact
business as trustee in such jurisdiction. It is recognized that in case of
litigation under the Indenture, and in particular in case of the enforcement of
any such instrument on default, or in case the Trustee deems that by reason of
any present or future law of any jurisdiction it may not exercise any of the
powers, rights or remedies herein granted to the Trustee or hold title to the
trust herein created, or take any other action which may be desirable or
necessary in connection therewith, it may be necessary that the Trustee appoint
an additional individual or institution as a separate or co-trustee.
(B) In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by the Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest
in such separate or co-trustee, but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies; and every
covenant and obligation necessary to the exercise thereof by such separate or
co-trustee shall run to and be enforceable by either of them.
(C) Should any deed, conveyance or instrument in writing from the Issuer be
required by the separate trustee or co-trustee so appointed by the Trustee for
more fully and certainly vesting in and confirming to him or it such
Properties, rights, powers, trusts, duties and obligations, any and all such
deeds, conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Issuer. In case any separate trustee or
co-trustee, or a successor to either, shall die, become incapable of acting,
resign or be removed, all the estates, Properties, rights, powers, trusts,
duties and obligations of such separate trustee or co- trustee, so far as
permitted by law, shall vest in and be exercised by the Trustee until the
appointment of a new trustee or successor to such separate trustee or co-
trustee.
SECTION 713. TRUSTEE TO EXERCISE POWERS OF STATUTORY TRUSTEE. The Trustee shall
be and is hereby vested with all of the rights, powers and duties of a Trustee
which could be appointed by the Bondholders pursuant to Section 878 of the Act,
and the right of the Bondholders to appoint a Trustee pursuant to Section 878
of the Act is hereby abrogated in accordance with the provisions of the Act.
SECTION 714. NEW YORK REAL PROPERTY LAW. (A) To the extent, if any, that
Article 4-a of the New York Real Property Law, as in effect from time to time,
may apply to this Indenture or the transactions contemplated hereby, then and
in such event, notwithstanding any provision of this Indenture to the contrary,
the following provisions of this Section 714 shall apply to this Indenture.
(B) The Trustee shall have, without limitation, the following additional
powers and duties:
(1) To receive and collect directly and without the intervention or
assistance of any fiscal agent or other intermediary all payments of monies
required to be made under this Indenture and to disburse the same pursuant to
the terms hereof.
(2) To act as tax withholding agent, and to receive, collect and pay the
necessary taxes and hold the surplus, if any, in trust for the rightful owner
thereof.
(3) In the event of a default in the payment or deposit of interest,
amortization, taxes, assessments or principal (without any request from the
Bondholders or any of them) with due diligence, prudence and care in its
discretion:
(a) to take such action as may be necessary or proper to sequester the
rents and income from the Project Facility and otherwise from the Trust Estate;
(b) to procure from the owner of the Project Facility and/or of the Trust
Estate an assignment of rents and/or a consent to enter into possession of the
Project Facility and/or the Trust Estate and to collect the rents and income
therefrom;
(c) to apply to any court of competent jurisdiction for the appointment of
a receiver of the rents and income from the Project Facility and the Trust
Estate;
(d) to declare due and payable forthwith any principal amount remaining due
and unpaid and commence an action to foreclose any Lien on the Project Facility
and/or the Trust Estate;
(e) to apply the moneys received as rents and income from the Project
Facility and/or the Trust Estate as well as moneys received by the Trustee from
any receiver appointed for the Project Facility and/or the Trust Estate in his
discretion, to the maintenance and operation of such Trust Estate, the payment
of taxes, water rents and assessments levied thereon and any arrears thereof,
to the payment of underlying Liens, and to the creation and maintenance of a
reserve or sinking fund, and after the commencement of an action to foreclose
any Lien on the Project Facility and/or the Trust Estate, to distribute ratably
among the Bondholders any moneys remaining in its hands; and
(f) to render annually to the Bondholders, after the occurrence of an Event
of Default, unless such Event of Default be previously cured, a summarized
statement of income and expenditures in connection with the Trust Estate.
(4) To permit the Issuer or other Person in possession or control of the
Project Facility and/or the Trust Estate, or its successors in interest, to be
free to select the insurance broker or agent through whom any insurance of any
kind is to be placed or written on any property affected or covered by a
mortgage held by such Trustee.
(C) The powers and duties conferred and imposed in subsection (B) of this
Section 714 shall be in addition to those conferred and imposed by other
provisions of this Indenture and, in case of a conflict, the provisions of said
subsection (B) shall prevail; provided, however, that if Article 4-A of the
Real Property Law of the State (or any successor provision) or any portion
thereof should at any time be repealed or should be construed by a non-
appealable judicial decision of a State or Federal court specifically to be
inapplicable to this Indenture, said subsection (B) or the corresponding
provisions of said subsection (B), as the case may be, shall cease to have any
further force and effect; provided, further, that any modification of the
powers and duties of a trustee pursuant to Article 4-A of the Real Property Law
of the State shall be incorporated by reference herein as part of said
subsection (B).
SECTION 715. CONFLICTS OF INTEREST. (A) To the extent, if any, that Article 4-
A of the New York Real Property Law, as in effect from time to time, may apply
to this Indenture or the transactions contemplated hereby, then and in such
event, notwithstanding any provision of this Indenture to the contrary, the
following provisions of this Section 715 shall apply to this Indenture. If the
Trustee has or shall acquire any conflicting interest as hereinafter defined:
(1) the Trustee shall, within ninety (90) days after ascertaining that it
has such conflicting interest, either eliminate such conflicting interest or
resign, such resignation to become effective upon the appointment of a
successor trustee and such successor's acceptance of such appointment; and the
Issuer shall take prompt steps to have a successor appointed in the manner
provided in this Indenture;
(2) in the event that the Trustee shall fail to comply with the provisions
of paragraph (1) of this subsection (A), the Trustee shall, within ten (10)
days after the expiration of such ninety-day period, transmit notice of such
failure by mail (a) to all registered Holders of Bonds, as the names and
addresses of such Holders appear upon the registration books of the Issuer, (b)
to such Holders of Bonds as have, within the two (2) years preceding such
transmission, filed their names and addresses with the Trustee for the purpose
of receiving notices or reports to Holders of Bonds and (c) to all Holders of
Bonds whose names and addresses are contained in information currently
preserved by the Trustee for such purpose in accordance with subsection (G) of
this Section 715; and
(3) any Holder of Bonds who has been a bona fide Holder thereof for at
least six (6) months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee, and the appointment of a successor, if the Trustee fails, after
written request therefor by such Holder, to comply with the provisions of
paragraph (1) of this subsection (A).
(B) For purposes of subsection (A) of this Section 715, the Trustee shall
be deemed to have a conflicting interest if:
(1) the Trustee is trustee under another mortgage, deed of trust, trust
indenture or other similar instrument (hereinafter in this Section 715 referred
to as an "indenture") under which any other securities, or certificates of
interest or participation in any other securities, of an obligor upon the Bonds
are outstanding unless (1) such other indenture is a collateral trust indenture
under which the only collateral consists of Bonds issued under this Indenture,
or (2) such obligor has no substantial unmortgaged assets and is engaged
primarily in the business of owning, or of owning and developing or operating,
real estate, and this Indenture and such other indenture are secured by wholly
separate and distinct parcels of real estate; provided, however, that there
shall be excluded from the operation of this paragraph any other indenture or
indentures which shall have been qualified with the United States Securities
and Exchange Commission pursuant to the provisions of the Trust Indenture Act
of 1939, as from time to time amended and in force;
(2) the Trustee or any of its directors or executive officers is an obligor
upon the Bonds or an underwriter for such an obligor;
(3) the Trustee directly or indirectly controls, or is directly or
indirectly controlled by or is under direct or indirect common control with, an
obligor upon the Bonds or an underwriter for such an obligor;
(4) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee or representative of an obligor
upon the Bonds, or of an underwriter (other than the Trustee itself) for such
an obligor who is currently engaged in the business of underwriting, except
that (a) one individual may be a director or an executive officer of the
Trustee and a director or an executive officer of such obligor, but may not be
at the same time an executive officer of both the Trustee and of such obligor,
and (b) if and so long as the number of directors of the Trustee in office is
more than nine, one additional individual may be a director or an executive
officer of the Trustee and a director of such obligor, and (c) the Trustee may
be designated by any such obligor or by any underwriter for any such obligor to
act in the capacity of transfer agent, registrar, custodian, paying agent,
fiscal agent, escrow agent or depositary, or in any other similar capacity, or,
subject to the provisions of paragraph (1) of this subsection (B), to act as
trustee, whether under an indenture or otherwise;
(5) ten per centum or more of the voting securities of the Trustee is
beneficially owned either by an obligor upon the Bonds or by any director,
partner or executive officer thereof, or twenty percentum or more of such
voting securities is beneficially owned, collectively, by any two or more of
such persons; or ten per centum or more of the voting securities of the Trustee
is beneficially owned either by an underwriter for any such obligor or by any
director, partner or executive officer thereof, or is beneficially owned,
collectively, by any two or more such persons;
(6) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default as hereinafter defined, (a) five per
centum or more of the voting securities, or ten per centum or more of any other
class of security, of an obligor upon the Bonds, not including the Bonds and
securities issued under any other indenture under which the Trustee is also
such trustee, or (b) ten per centum or more of any class of securities of an
underwriter for any such obligor;
(7) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default as hereinafter defined, five per centum
or more of the voting securities of any person who, to the knowledge of the
Trustee, owns ten per centum or more of the voting securities of, or controls
directly or indirectly or is under direct or indirect control with, an obligor
upon the Bonds;
(8) the Trustee is the beneficial owner of, or holds as collateral security
for an obligation which is in default as hereinafter defined, ten per centum or
more of any class of securities of any person who, to the knowledge of the
Trustee, owns fifty per centum or more of the voting securities of an obligor
upon the Bonds; or
(9) the Trustee owns, on May fifteenth in any calendar year, in the
capacity of executor, administrator, testamentary or inter vivos trustee,
guardian, committee or conservator, or in any other similar capacity, an
aggregate of twenty-five per centum or more of the voting securities, or of any
class of securities, of any person, the beneficial ownership of a specified
percentage of which would have constituted a conflicting interest under
paragraph (6), (7) or (8) of this subsection (B). As to any such securities of
which the Trustee acquired ownership through becoming executor, administrator
or testamentary trustee of an estate which included them, the provisions of the
preceding sentence shall not apply, for a period of not more than two (2) years
from the date of such acquisition, to the extent that such securities included
in such estate do not exceed twenty-five per centum of such voting securities
or twenty-five per centum of any such class of securities. Promptly after May
fifteenth in each calendar year, the Trustee shall make a check of its holdings
of such securities in any of the above-mentioned capacities as of such May
fifteenth. If the Issuer fails to make payment in full of principal or interest
under this Indenture when and as the same becomes due and payable, and such
failure continues for thirty (30) days thereafter, the Trustee shall make a
prompt check of its holdings of such securities in any of the above-mentioned
capacities as of the date of the expiration of such thirty-day period, and
after such date, notwithstanding the foregoing provisions of this paragraph,
all such securities so held by the Trustee, with sole or joint control over
such securities vested in it, shall be considered as though beneficially owned
by the Trustee, for the purposes of paragraphs (6), (7) and (8) of this
subsection (B).
(C) The specification of percentages of paragraphs (5) through (9),
inclusive, of subsection (B) of this Section 715 shall not be construed as
indicating that the ownership of such percentages of the securities of a Person
is or is not necessary or sufficient to constitute direct or indirect control
for the purposes of paragraph (3) or (7) of subsection (B) of this Section 715.
(D) For the purposes of paragraphs (6), (7), (8) and (9) of paragraph (B)
of this Section 715, (1) the terms "security" and "securities" shall include
only such securities as are generally known as corporate securities, but shall
not include any note or other evidence of indebtedness issued to evidence an
obligation to repay monies lent to a Person by one or more banks, trust
companies or banking firms, or any certificate of interest or participation in
any such note or evidence of indebtedness; (2) an obligation shall be deemed to
be "in default" when a default in payment of principal shall have continued for
thirty (30) days or more, and shall not have been cured; and (3) the Trustee
shall not be deemed the owner or holder of (a) any security which it holds as
collateral security (as trustee or otherwise) for an obligation which is not in
default as above defined, or (b) any security which it holds as collateral
security under this Indenture, irrespective of any default thereunder, or (c)
any security which it holds as agent for collection, or as custodian, escrow
agent or depositary, or in any similar representative capacity.
(E) For the purposes of subsection (B) of this Section 715, the term
"underwriter", when used with reference to an obligor upon the Bonds, means
every Person who, within three (3) years prior to the time as of which the
determination is made, was an underwriter of any security of such obligor
outstanding at such time.
(F) When used in subsections (B) through (E), inclusive, of this Section
715, unless the context otherwise requires:
(1) The term "underwriter" means any Person who has purchased from an
issuer with a view to, or offers or sells for an issuer in connection with, the
distribution of any security, or participates or has a direct or indirect
participation in any such undertaking, or participates or has a participation
in the direct or indirect underwriting of any such undertaking; but such term
shall not include a Person whose interest is limited to a commission from an
underwriter or dealer not in excess of the usual and customary distributors' or
sellers' commission.
(2) The term "director" means any director of a corporation or any
individual performing similar functions with respect to any organization,
whether incorporated or unincorporated.
(3) The term "executive officer" means the president, every vice president,
every trust officer, the cashier, the secretary, and the treasurer of a
corporation, and any individual customarily performing similar functions with
respect to any organization, whether incorporated or unincorporated, but shall
not include the chairman of the board of directors.
(4) The term "obligor", when used with respect to the Bonds, means every
person who is liable thereon.
(5) The term "voting security" means any security presently entitling the
owner or holder thereof to vote in the direction or management of the affairs
of a person, or any security issued under or pursuant to any trust, agreement
or arrangement whereby a trustee or trustees or agent or agents for the owner
or holder of such security are presently entitled to vote in the direction or
management of the affairs of a Person; and a specified percentage of the voting
securities of a Person means such amount of the outstanding voting securities
of such Person as entitles the holder or holders thereof to cast such specified
percentage of the aggregate votes which the holders of all the outstanding
voting securities of such Person are entitled to cast in the direction or
management of the affairs of such Person.
(G) The Issuer agrees that it will furnish or cause to be furnished to the
Trustee as soon as reasonably practicable after receipt thereof and at such
other times as the Trustee may request in writing all information in the
possession or control of the Issuer as to the names and addresses of the
Holders of the Bonds. The Trustee shall preserve, in as current a form as is
reasonably practicable, all such information so furnished to it.
SECTION 716. DESIGNATION AND SUCCESSION OF TENDER AGENTS. (A) (1) In the event
a Tender Agent, other than the Trustee, is required in connection with the
remarketing of the Bonds, the Company is hereby authorized to appoint a Tender
Agent meeting the requirements set forth in Section 717 hereof.
(2) Upon the appointment of a Tender Agent pursuant to Section 717 hereof,
the Tender Agent shall agree to provide, as soon as practicable, the Trustee
with copies of all written notices it receives in connection with its duties as
Tender Agent.
(B) Any corporation or association into which a Tender Agent may be merged,
or with which it may be consolidated, or to which it may sell, lease or
transfer its investment banking business and assets as a whole or substantially
as a whole, shall be and become successor hereunder and shall be vested with
all the powers, rights, obligations and duties hereunder as was its
predecessor, without the execution or filing of any instrument by any party
hereto. Any Tender Agent may at any time resign and be discharged of the duties
and obligations created by this Indenture by giving at least sixty (60) days
notice to the Issuer, the Company, the Bank and the Trustee; provided, that
such resignation shall not take effect until a successor Tender Agent shall
have accepted its duties and obligations hereunder. The Tender Agent may be
removed at any time upon at least sixty (60) days' notice by an instrument,
signed by the Issuer at the direction of the Company and delivered to the
Tender Agent and filed with the Trustee.
(C) In the event of the resignation or removal of a Tender Agent, or in the
event the Tender Agent shall be dissolved, or if the property or affairs of a
Tender Agent shall be taken under the control of any state or federal court or
administrative body by reason of insolvency or bankruptcy, the Issuer shall, or
for any other reason the Issuer may, with the consent of the Bank and the
Company, appoint a successor Tender Agent, meeting the requirements set forth
in Section 717 hereof. The former Tender Agent shall pay over, assign and
deliver any moneys and Bonds held by it in such capacity to the successor
Tender Agent when appointed, or, if there be no successor Tender Agent
appointed with thirty (30) days, to the Trustee. In the event that (1) the
Issuer shall fail to propose for the consent of the Bank and the Company a
successor Tender Agent hereunder or, (2) the position of Tender Agent shall be
vacant for any other reason, the Trustee, shall accept the assignment and
delivery of the moneys and Bonds held by the former Tender Agent and shall hold
and dispose of them as set forth in this Section. It is expressly understood
hereunder that if in the event the position of Tender Agent is vacant for any
reason, the Trustee shall assume the duties of Tender Agent hereunder. If the
Issuer shall fail to propose a successor Tender Agent for the consent of the
Bank and the Company within thirty (30) days after request, the Trustee may
appoint a successor Tender Agent with the consent of the Bank and the Company.
Neither the Issuer nor the Trustee shall incur any liability as a result of any
appointment or failure to appoint the Tender Agent or a successor Tender Agent.
SECTION 717. QUALIFICATIONS OF TENDER AGENT. Each Tender Agent shall be a bank
or a trust company.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 801. SUPPLEMENTAL INDENTURES NOT REQUIRING CONSENT OF BONDHOLDERS. (A)
The Issuer and the Trustee, without the consent of, or notice to, any of the
Bondholders, may enter into an indenture or indentures supplemental to the
Indenture and not inconsistent with the terms and provisions hereof or
materially adverse to the holders of the Bonds or to the Bank for any one or
more of the following purposes:
(1) to cure any ambiguity or formal defect or omission in the Indenture;
(2) to grant to or confer upon the Trustee for the benefit of the
Bondholders any additional rights, remedies, powers or authority that may
lawfully be granted to or conferred upon the Bondholders or the Trustee or
either of them;
(3) to subject additional rights and revenues to the Lien of this
Indenture, or to identify more precisely the Trust Estate;
(4) to obtain or maintain a rating on the Bonds from Moody's or Standard &
Poor's; or
(5) to modify, amend or supplement the Indenture or any indenture
supplemental hereto in such manner as to permit the qualification hereof and
thereof under the Trust Indenture Act of 1939 or any similar Federal statute
hereafter in effect or under any state Blue Sky Law.
(B) The Issuer and the Trustee may rely on an opinion of Independent
Counsel as conclusive evidence that the execution and delivery of any amendment
or supplemental indenture has been effected in compliance with this Section
801.
SECTION 802. SUPPLEMENTAL INDENTURES REQUIRING CONSENT OF BONDHOLDERS. (A)
Except for supplemental indentures as provided in Section 801 hereof, the
holders of not less than two-thirds in aggregate principal amount of the Bonds
then Outstanding shall have the right, from time to time, anything in the
Indenture to the contrary notwithstanding, to consent to and approve the
execution by the Issuer and the Trustee of such indenture or indentures
supplemental hereto as shall be deemed necessary and desirable by the Issuer or
the Trustee for the purpose of modifying, altering, amending, adding to or
rescinding, in any particular, any of the terms or provisions contained in the
Indenture or in any supplemental indenture; provided, however, that nothing
contained in this Section 802 shall permit or be construed as permitting (1)
without the consent of the holder of such Bond, (a) a reduction in the rate, or
extension of the time of payment, of interest on any Bond, (b) a reduction of
any premium payable on the redemption of any Bond, or an extension of time for
such payment, or (c) a reduction in the principal amount payable on any Bond,
or an extension of time in which the principal amount of any Bond is payable,
whether at the stated or declared maturity or redemption thereof, (2) the
creation of any Lien prior to or on a parity with the Lien of this Indenture
(other than that parity Lien created to secure the Additional Bonds), (3) a
reduction in the aforesaid aggregate principal amount of Bonds, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of all the Bonds at the time Outstanding which would be
affected by the action to be taken, (4) the modification of the rights, duties
or immunities of the Trustee, without the written consent of the Trustee, or
(5) a privilege or priority of any Bond or Bonds over any other Bond or Bonds.
(B) If at any time the Issuer and the Trustee propose to enter into any
such supplemental indenture for any of the purposes specified in this Section
802, the Trustee shall, upon being satisfactorily secured and indemnified as
provided in Section 701(I) hereof with respect to fees, costs and expenses,
including, but not limited to, reasonable attorneys' fees, cause notice of the
proposed execution of such supplemental indenture to be mailed to each
Bondholder. Such notice shall briefly set forth the nature of the proposed
supplemental indenture and shall state that copies thereof are on file at the
Office of the Trustee for inspection by all Bondholders. 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 not less than two- thirds in aggregate
principal amount of the Bonds Outstanding at the time of the execution of any
such supplemental indenture shall have consented to and approved the execution
thereof as herein provided, no holder of any Bond shall have any right to
object to any of the terms and provisions contained therein, or the operation
thereof, or in any manner to question the propriety of the execution thereof,
or to enjoin or restrain the Trustee or the Issuer from executing the same or
from taking any action pursuant to the provisions thereof. Upon the execution
of any such supplemental indenture as in this Section 802 permitted and
provided, the Indenture shall be and be deemed to be modified and amended in
accordance therewith.
(C) The Issuer and the Trustee may rely upon an opinion of Independent
Counsel as conclusive evidence that the execution and delivery of a
supplemental indenture has been effected in compliance with the provisions of
this Section 802.
SECTION 803. SUPPLEMENTAL INDENTURES; CONSENT OF BANK. Notwithstanding anything
to the contrary herein contained, the Issuer and the Trustee shall in no event
enter into any indenture supplemental to the Indenture under Section 802 hereof
without the prior written consent of the Bank and such other assurance from the
Bank as counsel to the Trustee may require that the Bank's obligations under
the Letter of Credit have not been diminished or otherwise affected by such
supplemental indenture. The Issuer and the Trustee shall be entitled to rely
upon such certificates or opinions delivered by the Bank or its counsel to such
effect.
SECTION 804. SUPPLEMENTAL INDENTURES; CONSENT OF COMPANY. Notwithstanding
anything contained in this Indenture to the contrary, no supplemental indenture
which affects any rights or liabilities of the Company shall become effective
unless or until the Company shall have consented in writing to the execution
and delivery of such supplemental indenture. In this regard, the Trustee shall
cause notice of the proposed execution and delivery of any such supplemental
indenture to be mailed by certified or registered mail to the Company at least
fifteen (15) days prior to the proposed date of execution and delivery of any
supplemental indenture. The Company shall be deemed to have consented to the
execution and delivery of any supplemental indenture if the Trustee has not
received a letter of protest or objection signed by the Company within fifteen
(15) days after the mailing of said notice and a copy of the supplemental
indenture. The Trustee may rely upon the opinion of Independent Counsel whether
or not a supplemental indenture affects any rights or liabilities of the
Company within the meaning of, and for the purposes of this Section 804.
SECTION 805. EFFECT OF SUPPLEMENTAL INDENTURES. Any supplemental indenture
executed in accordance with the provisions of this Article VIII shall
thereafter form part of the terms and conditions of this Indenture for any and
all purposes.
ARTICLE IX
AMENDMENT TO INSTALLMENT SALE AGREEMENT, LETTER OF CREDIT, MORTGAGE, OR OTHER
FINANCING DOCUMENTS
SECTION 901. AMENDMENTS TO INSTALLMENT SALE AGREEMENT, MORTGAGE, OR OTHER
FINANCING DOCUMENTS NOT REQUIRING CONSENT OF BONDHOLDERS. (A) The Issuer, the
Company and the Trustee may, without the consent of or notice to the
Bondholders, consent to any amendment, change or modification of the
Installment Sale Agreement or any other Financing Document (other than the
Indenture) as may be required (1) by the provisions of any Financing Document,
(2) for the purpose of curing any ambiguity or formal defect or omission
therein, (3) so as to identify more precisely the Project Facility described in
the Installment Sale Agreement, (4) in connection with any supplemental
indenture entered into pursuant to Section 801 hereof, (5) to obtain or
maintain a rating on the Bonds from Moody's or Standard & Poor's, (6) in
connection with any other supplemental indenture, but only if any such
amendment, change or modification, in the judgment of the Trustee, is not to
the prejudice of the Trustee or the Bondholders, or (7) as may be requested by
the Bank pursuant to Section 905 hereof.
(B) The Trustee may rely upon an opinion of Independent Counsel as
conclusive evidence that the execution and delivery of any amendment, change or
modification to the Installment Sale Agreement or any other Financing Document
has been effected in compliance with the provisions of this Section 901.
SECTION 902. AMENDMENTS TO INSTALLMENT SALE AGREEMENT, MORTGAGE OR OTHER
FINANCING DOCUMENTS REQUIRING CONSENT OF BONDHOLDERS. (A) Except for the
amendments, changes or modifications as provided in Section 901 hereof, neither
the Issuer, the Company nor the Trustee shall consent to any other amendment,
change or modification of the Installment Sale Agreement or any other Financing
Document (other than the Indenture) without mailing of notice and the written
approval or consent of the holders of not less than two-thirds in aggregate
principal amount of the Bonds at the time Outstanding given as in this Section
902 provided.
(B) If at any time the Issuer and the Company shall request the consent of
the Trustee to any such proposed amendment, change or modification of the
Installment Sale Agreement or any other Financing Document (other than the
Indenture) not authorized by Section 901 hereof, the Trustee shall, upon being
satisfactorily secured and indemnified as provided in Section 701(I) hereof
with respect to fees, costs and expenses including, but not limited to,
reasonable attorney's fees, cause notice of such proposed amendment, change or
modification to be given in the same manner as provided by Section 702 hereof
with respect to supplemental indentures. Such notice shall briefly set forth
the nature of such proposed amendment, change or modification and shall state
that copies of the instrument embodying the same are on file at the Office of
the Trustee for inspection by all Bondholders.
SECTION 903. AMENDMENTS TO INSTALLMENT SALE AGREEMENT, MORTGAGE OR OTHER
FINANCING DOCUMENTS; CONSENT OF BANK. Notwithstanding anything to the contrary
herein contained, the Issuer and the Trustee shall in no event consent to any
amendment, change or modification of the Installment Sale Agreement or any
other Financing Document (other than the Indenture) without the prior written
consent of the Bank and such other assurance from the Bank as counsel to the
Trustee may require that the Bank's obligations under the Letter of Credit have
not been diminished or otherwise affected by such amendment, change or
modification of the Installment Sale Agreement. The Issuer and the Trustee
shall be entitled to rely upon such certificates or opinions delivered by the
Bank or its counsel to such effect.
SECTION 904. AMENDMENTS TO LETTER OF CREDIT. The Trustee shall not consent or
agree to the amendment to or substitution of any provision of the Letter of
Credit which alters, to the detriment of the Bondholders, the security intended
to be provided thereby to the Bondholders, and shall strictly enforce all of
the provisions thereof.
SECTION 905. AMENDMENTS REQUESTED BY BANK. The Issuer, the Company and the
Trustee may, without the consent of or notice to the Bondholders, consent to
any amendment, change or modification of the Installment Sale Agreement, the
Mortgage or any other Financing Document (other than the Indenture) requested
by the Bank, but only if such amendment, change or modification is requested in
writing by the Bank, the Bank has not failed to make any payment required to be
made by it under the Letter of Credit and the Trustee shall receive such
assurance from the Bank as counsel to the Trustee may require that the Bank's
obligations under the Letter of Credit have not been diminished or otherwise
affected by such amendment, change or modification.
ARTICLE X
SATISFACTION AND DISCHARGE OR ASSIGNMENT OF INDENTURE
SECTION 1001. SATISFACTION AND DISCHARGE OR ASSIGNMENT OF LIEN. (A) If the
Issuer (1) shall pay or cause to be paid, from sources other than the proceeds
of a draw under the Letter of Credit, but in all events in Non-Preference
Moneys, to the holders and owners of the Bonds, the principal of the Bonds and
premium, if any, due on the Bonds, at the times and in the manner stipulated
therein and herein, (2) shall pay or cause to be paid from any source, but in
all events in Non-Preference Moneys, to the holders and owners of Bonds, the
interest to become due on the Bonds at the times and in the manner stipulated
therein and herein, (3) shall have paid all fees, costs and expenses including,
but not limited to, reasonable attorney's fees of the Trustee and each paying
agent, and (4) shall pay or cause to be paid to the Bank any and all sums due
under the Reimbursement Agreement, then these presents and the trust and rights
hereby granted shall cease, determine and be void, and thereupon the Trustee
shall (a) cancel and discharge the Lien of the Indenture upon the Trust Estate
and the Trustee's rights under the other Financing Documents and execute and
deliver to the Issuer such instruments in writing as shall be requisite to
satisfy same, (b) reconvey to the Issuer the Installment Sale Agreement and the
trust hereby conveyed, (c) assign and deliver to the Company any interest in
Property at the time subject to the Lien of the Indenture which may then be in
its possession, except amounts held by the Trustee for the payment of principal
of, interest and premium, if any, on the Bonds, and (d) deliver to the Bank the
Letter of Credit for cancellation.
(B) If the Trustee draws on the Letter of Credit for payment of the entire
principal of, premium, if any, and interest on the Bonds Outstanding in
accordance with the provisions of the Indenture, then, simultaneously with the
delivery to the Bank of a sight draft and required accompanying documentation,
the Trustee shall deliver to the Bank, in escrow, an instrument or instruments
in form for recording, executed by the Trustee evidencing the assignment to the
Bank without recourse of the Lien of the Indenture and the rights of the
Trustee under the other Financing Documents, together with instructions to the
Bank that such instrument or instruments be released from escrow upon
confirmation from a member bank of the Federal Reserve wire system that same
day funds in the amount of the Trustee's draw on the Letter of Credit have been
transmitted for the account of the Trustee, and the amount paid by the Bank
under the Letter of Credit and any additional sums due the Bank pursuant to the
Reimbursement Agreement shall thereafter constitute the debt secured by the
Indenture.
(C) All Outstanding Bonds shall, prior to the maturity or redemption date
thereof and after the Bonds have been converted to the Fixed Rate, be deemed to
have been paid within the meaning and with the effect expressed in Section
1001(A) if, the following conditions shall have been fulfilled: (1) in case any
of the Bonds are to be redeemed on any date prior to their maturity, the
provisions in Article III hereof relating to such redemption shall have been
satisfied; and (2) there shall be on deposit with the Trustee Non-Preference
Moneys, which shall be either cash or Government Obligations, in an amount
sufficient, without the need for further investment or reinvestment, but
including any scheduled interest on or increment to such obligations, to pay
when due the principal, premium, if any, and interest due and to become due on
the Bonds on and prior to the redemption date or maturity date thereof, as the
case may be, and to pay the Trustee for its Ordinary Services and Ordinary
Expenses and for its Extraordinary Services and Extraordinary Expenses. The
Trustee may rely upon an opinion of an Accountant as to the sufficiency of the
cash or such Government Obligations on deposit.
ARTICLE XI
MISCELLANEOUS
SECTION 1101. CONSENTS AND OTHER INSTRUMENTS OF BONDHOLDERS. Any consent,
request, direction, approval, waiver, objection, appointment or other
instrument required by the Indenture to be signed and executed by the
Bondholders may be signed and executed in any number of concurrent writings of
similar tenor and may be signed or executed by such Bondholders in person or by
agent appointed in writing. Proof of the execution of any such instrument, if
made in the following manner, shall be sufficient for any of the purposes of
the Indenture, and shall be conclusive in favor of the Trustee with regard to
any action taken under such instrument, namely:
(A) The fact and date of the execution by any Person of any such instrument
may be proved by the affidavit of a witness of such execution or by the
certificate of any notary public or other officer of any jurisdiction,
authorized by the laws thereof to take acknowledgements of deeds, certifying to
the execution thereof. Where such execution is by an officer of a corporation
or association or a member of a partnership on behalf of such corporation,
association or partnership, such affidavit or certificate shall also constitute
sufficient proof of his authority.
(B) The ownership of Bonds shall be proven by the bond register.
(C) Any request, consent or vote of the holder of any Bond shall bind every
future holder of the same Bond and the holder of every Bond issued in exchange
therefor or in lieu thereof, in respect of anything done or permitted to be
done by the Trustee or the Issuer pursuant to such request, consent or vote.
(D) In determining whether the holders of the requisite aggregate principal
amount of Bonds have concurred in any demand, request, direction, consent or
waiver under the Indenture, Bonds which are owned by the Issuer, the Company,
the Bank or by any Person directly or indirectly controlling or controlled by
or under direct or indirect common control with the Issuer, the Bank or the
Company shall be disregarded and deemed not to be Outstanding for the purposes
of determining whether the Trustee shall be protected in relying on any such
demand, request, direction, consent or waiver. Only Bonds which the Trustee
knows to be so owned shall be disregarded. Bonds so owned which have been
pledged in good faith may be regarded as Outstanding for the purposes of this
Section 1101 if the pledgee shall establish to the satisfaction of the Trustee
the pledgee's right to vote such Bonds. In case of a dispute as to such right,
any decision by the Trustee taken upon the advice of counsel shall be full
protection to the Trustee.
SECTION 1102. LIMITATION OF RIGHTS. With the exception of rights herein
expressly conferred, nothing expressed or to be implied from the Indenture or
the Bonds is intended or shall be construed to give to any person other than
the parties hereto and the holders of the Bonds, any legal or equitable right,
remedy or claim under or in respect to the Indenture or any covenants,
conditions and provisions hereof.
SECTION 1103. NOTICES. (A) All notices, certificates or other communications
hereunder shall be in writing and shall be sufficiently given and shall be
deemed given when (1) delivered to the applicable address stated below by
registered or certified mail, return receipt requested, or by such other means
as shall provide the sender with documentary evidence of such delivery, or (2)
delivery is refused by the addressee, as evidenced by the Person who attempted
to effect such delivery. The addresses to which notices, certificates and other
communications hereunder shall be delivered are as follows:
IF TO THE ISSUER:
Town of Colonie Industrial Development Agency 347 Old Niskayuna Road Latham,
New York 12110 Attention: Chairman
WITH A COPY TO:
Robert L. Sweeney, Esq. Shanley, Sweeney, Reilly & Allen, PC The Castle at Ten
Thurlow Terrace Albany, New York 12203
IF TO THE COMPANY:
Cynthia Scheuer, Vice President Mechanical Technology Incorporated 968
Albany-Shaker Road Latham, New York 12110
WITH A COPY TO:
Harry D'Agostino, Esq. D'Agostino, Hoblock, Greisler & Siegal 39 North Pearl
Street Albany, New York 12207
IF TO THE TRUSTEE:
Leslie A. Boynton, Vice President Manufacturers and Traders Trust Company One M
& T Plaza, 7th Floor Buffalo, New York 14203
WITH A COPY TO:
Timothy R. McGill, Esq. St. John & Curtin, LLC 1530 First Federal Plaza
Rochester, New York 14614
IF TO THE BANK:
William B. Palmer, Vice President KeyBank National Association 66 South Pearl
Street Albany, New York 12207
(B) A duplicate copy of each notice, certificate and other communication
given hereunder by (1) the Company or the Issuer shall also be given to the
Trustee, and (2) the Company, the Issuer or the Trustee shall also be given to
the Bank. The Issuer, the Company, the Bank and the Trustee may, by notice
given hereunder, designate any further or different addresses to which
subsequent notices, certificate or other communications shall be sent.
SECTION 1104. TRUSTEE AS PAYING AGENT AND BOND REGISTRAR. The Trustee is hereby
designated and agrees to act as paying agent and the Bond Registrar for and in
respect to the Bonds.
SECTION 1105. COUNTERPARTS. The Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
SECTION 1106. SUCCESSORS AND ASSIGNS. All the covenants and representations
contained in the Indenture, by or on behalf of the Issuer, shall bind and inure
to the benefit of its successors and assigns, whether so expressed or not.
SECTION 1107. INFORMATION UNDER UNIFORM COMMERCIAL CODE. The Issuer is the
Debtor. The Trustee is the Secured Party. The address of the Trustee from which
information concerning the security interest may be obtained and the address of
the Issuer are set forth in Section 1103 of this Indenture.
SECTION 1108. APPLICABLE LAW. The Indenture shall be governed exclusively by
the applicable laws of the State.
SECTION 1109. NO RECOURSE; SPECIAL OBLIGATION. (A) The obligations and
agreements of the Issuer contained herein and in the other Financing Documents
and any other instrument or document executed in connection therewith, and any
other instrument or document supplemental hereto or thereto, shall be deemed
the obligations and agreements of the Issuer, and not of any member, officer,
director, agent (other than the Company) or employee of the Issuer in his
individual capacity, and the members, officers, directors, agents (other than
the Company) and employees of the Issuer shall not be liable personally hereon
or be subject to any personal liability or accountability based upon or in
respect hereof or thereof or of any transaction contemplated hereby or thereby.
(B) The obligations and agreements of the Issuer contained herein shall not
constitute or give rise to any obligations of the Town of Colonie, New York or
the State and neither the Town of Colonie, New York nor the State shall be
liable thereon, and further, such obligations and agreements shall not
constitute or give rise to a general obligation of the Issuer, but rather shall
constitute limited obligations of the Issuer payable solely from the revenues
of the Issuer derived and to be derived from the sale or other disposition of
the Project Facility (except for revenues derived by the Issuer with respect to
the Unassigned Rights).
(C) No order or decree of specific performance with respect to any of the
obligations of the Issuer hereunder (other than pursuant to Section 602 hereof,
and then only to the extent of the Issuer's obligations thereunder) shall be
sought or enforced against the Issuer unless the party seeking such order or
decree shall first have complied with Section 516 hereof.
(D) The Issuer shall be entitled to the advice of counsel (who may be
counsel to any party or to any Bondholder) and shall be wholly protected as to
any action taken or omitted to be taken in good faith in reliance on such
advice. The Issuer may rely conclusively on any notice, certificate or other
document furnished to it under any Financing Document and reasonably believed
by it to be genuine. The Issuer shall not be liable for any action taken by it
in good faith and reasonably believed by it to be within the discretion or
power conferred upon it, or in good faith omitted to be taken by it and
reasonably believed to be beyond such discretion or power, or taken by it
pursuant to any direction or instruction by which it is governed under any
Financing Document, or omitted to be taken by it by reason of the lack of
direction or instruction required for such action under any Financing Document,
and shall not be responsible for the consequences of any error of judgment
reasonably made by it. When any payment, consent or other action by the Issuer
is called for by the Indenture, the Issuer may defer such action pending an
investigation or inquiry or receipt of such evidence, if any, as it may require
in support thereof. A permissive right or power to act shall not be construed
as a requirement to act, and no delay in the exercise of a right or power shall
affect the subsequent exercise thereof. The Issuer shall in no event be liable
for the application or misapplication of funds or for other acts or defaults by
any Person except by its own members, officers and employees.
(E) In approving, concurring in or consenting to any action or in
exercising any discretion or in making any determination under the Indenture,
the Issuer may consider the interests of the public, which shall include the
anticipated effect of any transaction on tax revenues and employment, as well
as the interests of the other parties hereto and the Bondholders; provided,
however, that nothing herein shall be construed as conferring on any Person
other than the Trustee, the Bank and the Bondholders any right to notice,
hearing or participation in the Issuer's consideration, and nothing in this
Section 1109 shall be construed as conferring on any of them any right
additional to those conferred elsewhere herein. Subject to the foregoing, the
Issuer shall not unreasonably withhold any approval or consent to be given by
it hereunder.
SECTION 1110. ASSIGNMENT TO BANK. In the event the Trustee receives moneys
drawn under the Letter of Credit in an amount sufficient to pay in full the
principal of, premium, if any, and interest on the Bonds then Outstanding, the
Trustee shall execute and deliver to the Bank an instrument assigning the Bank
all of its right, title and interest to, in and under the Financing Documents.
SECTION 1111. NOTICES TO RATING AGENCY.
(A) The Trustee shall immediately notify Standard & Poor's if any of the
following events occur:
(1) any expiration, termination, substitution or extension relating to the
Letter of Credit or any Substitute Letter of Credit;
(2) any redemption or purchase of all Outstanding Bonds;
(3) any amendment to any Financing Document entered into or consented to by
the Trustee pursuant to Article VIII or Article IX hereof; or
(4) the exercise by the Company of the Conversion Option.
(B) All notices to Standard & Poor's required by this Section 1111 shall be
sent to the following address:
Standard & Poor's 25 Broadway, 13th Floor New York, New York 10004 Attention:
LOC Surveillance Group
Standard & Poor's may, by notice in writing to the Trustee, designate any
further or different address to which subsequent notices under this Section
1111 shall be sent.
IN WITNESS WHEREOF, the Issuer has caused these presents to be signed in its
name and behalf by its Chairman, and to evidence its acceptance of the trusts
hereby created, the Trustee has caused these presents to be signed in its name
and behalf by one of its duly authorized trust officers, all as of the day and
year first hereinabove written.
TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY
BY: (Vice) Chairman
MANUFACTURERS AND TRADERS TRUST COMPANY, as Trustee
BY: Authorized Officer
The Company hereby approves, consents to and agrees to be bound by all of the
terms and provisions of the Indenture insofar as such terms or provisions,
directly or indirectly, relate to, apply to, require or prohibit action by or
deal with the Company, or Property of the Company, including, without
limitation, the Project Facility, and including, but not limited to, all
provisions for the deposit or payment of moneys to funds held by the Trustee
under the Indenture. The Company hereby agrees, at its own expense, to do all
things and take all actions as shall be necessary to enable the Issuer to
perform its obligations under the Indenture. This paragraph shall bind the
Company and its successors and assigns.
MECHANICAL TECHNOLOGY INCORPORATED
BY: Authorized Representative
STATE OF NEW YORK ) ) ss: COUNTY OF ALBANY )
On the 14th day of December in the year 1998 before me, the undersigned, a
notary public in and for said state, personally appeared PETER J. HESS,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual or the person upon behalf of which
the individual acted, executed the instrument.
____________________________________ Notary Public
STATE OF NEW YORK ) ) ss: COUNTY OF ALBANY )
On the 16th day of December in the year 1998 before me, the undersigned, a
notary public in and for said state, personally appeared NANCY L. GEORGE,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that she executed the same in her capacity, and that by her
signature on the instrument, the individual or the person upon behalf of which
the individual acted, executed the instrument.
____________________________________ Notary Public
STATE OF NEW YORK ) ) ss: COUNTY OF ALBANY )
On the 16th day of December in the year 1998 before me, the undersigned, a
notary public in and for said state, personally appeared CYNTHIA A. SCHEUER,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual or the person upon behalf of which
the individual acted, executed the instrument.
____________________________________ Notary Public
TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY (a public benefit corporation of
the State of New York)
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(MECHANICAL TECNOLOGY INCORPORATED PROJECT - LETTER OF CREDIT SECURED), SERIES
1998A
NO.: R-1 $6,000,000
MATURITY DATE: December 1, 2013
DATED: December 17, 1998 CUSIP: 196210 GN2
Town of Colonie Industrial Development Agency, a public benefit corporation of
the State of New York (the "Issuer"), for value received, hereby promises to
pay, solely from the sources hereinafter described, to Cede & Co. or registered
assigns, on the Maturity Date identified above (subject to any right of prior
redemption hereinafter provided for), the principal sum of Six Million Dollars
(subject to reduction as hereinafter provided) and interest thereon (computed
on the basis of a 365 or 366-day year for the actual number of days elapsed)
from the date set forth above, or from the most recent Interest Payment Date to
which interest has been paid, to the Maturity Date identified above (or such
earlier date on which the principal hereof has been paid or duly provided for),
at the rate described below, on the first Thursday of each month (each an
"Interest Payment Date"), commencing January 7, 1999. The principal of this
Bond shall be paid on the Maturity Date upon presentation and surrender hereof
at the Office of Manufacturers and Traders Trust Company, as trustee (together
with its successors in trust, the "Trustee") under the trust indenture dated as
of December 1, 1998 (from time to time, as amended or supplemented, the
"Indenture") by and between the Issuer and the Trustee, or at the duly
designated office of any successor trustee under the Indenture. The
installments of interest described above shall, as provided in the Indenture,
be paid to the Person in whose name this Bond (or one or more Predecessor
Bonds, as defined in the Indenture) is registered at the close of business on
the Business Day next preceding any Interest Payment Date (the "Regular Record
Date"), and shall be paid by check or draft of the Trustee mailed by the
Trustee on such Interest Payment Date to such registered owner at his address
appearing on the registration books of the Issuer, or at the option of any
holder of Bonds in an aggregate principal amount of $250,000 or greater be
transmitted on such Interest Payment Date by wire transfer at such owner's
written request to the bank account number on file with the Trustee. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the registered owner on such Regular Record Date, and may be paid
to the Person in whose name this Bond (or one or more Predecessor Bonds) is
registered at the close of business on a date for the payment of such defaulted
interest to be fixed by the Trustee (the "Special Record Date"), notice whereof
being given to registered owners of the Bonds not less than ten (10) days prior
to such Special Record Date, or may be paid in any other lawful manner as shall
be determined by the Trustee. The principal of, premium, if any, on and
interest on this Bond are payable in lawful money of the United States of
America.
(Calculation of Interest)
This Bond shall bear interest as follows:
(a) From the Closing Date through and including December 23, 1998, the
Bonds shall bear interest at a rate per annum equal to five and fifty-five
hundredths percent (5.55%).
(b) Thereafter, except as provided in (e) below, this Bond (other than
Pledged Bonds) shall bear interest at the "Adjustable Rate".
(i) The Adjustable Rate shall be the rate of interest established by the
Remarketing Agent on the first Business Day prior to each Adjustment Date,
which in the Remarketing Agent's reasonable judgment would result, as nearly as
practicable, in the market value of this Bond on an Adjustment Date being equal
to one hundred percent (100%) of the principal amount thereof. The Adjustable
Rate so determined shall be adjusted in accordance with the directions of the
Remarketing Agent on the Adjustment Date and shall remain in effect through and
including the day prior to the next following Adjustment Date.
(ii) In determining the Adjustable Rate pursuant to the foregoing paragraph
(b)(i), the Remarketing Agent shall take into account, to the extent
applicable, (A) the market interest rates for comparable securities held by
open-end municipal or other fixed income bond funds or other institutional or
private investors with substantial portfolios (w) with interest rate adjustment
periods and demand purchase options substantially identical to the Bonds, (x)
bearing interest at a variable rate intended to maintain par value, (y) rated
by a national credit rating agency in the same category as the Bonds or, if not
rated, secured by substantially the same level of security as the Bonds, and
(z) the interest on which is included in gross income of the holders thereof
for federal income taxation purposes; (B) other financial market rates and
indices which may have a bearing on the Adjustable Rate (including, but not
limited to rates borne by commercial paper, commercial paper, Treasury bills,
commercial bank prime rates, certificate of deposit rates, federal funds rates,
the London Interbank Offered Rate, indices maintained by The Bond Buyer, and
other publicly available taxable interest rate indices); (C) general financial
market conditions (including current forward supply); (D) factors particular to
the Project or the credit standing of the Company and the Bank; and (E) such
other factors which the Remarketing Agent deems appropriate.
(iii) On the Business Day prior to each Adjustment Date, the Remarketing
Agent shall notify the Trustee, by Immediate Notice, of the Adjustable Rate.
(c) If for any reason the position of Remarketing Agent is vacant or the
Remarketing Agent fails to act, the Adjustable Rate shall be determined by a
third party selected by the Company at the Company expense and shall be equal
to one hundred percent (100%) of the yield applicable to 13 week United States
Treasury bills determined by such third party on the basis of the average per
annum discount rate at which such 13- week Treasury bills shall have been sold
(1) at the most recent Treasury auction conducted during the immediately
preceding Adjustment Period, (2) if no such auction shall have been conducted
during the immediately preceding Adjustment Period, at the most recent Treasury
auction conducted prior to such preceding Adjustment Period, plus fifty (50)
basis points; provided, however, that in the event the Company notifies the
Trustee that an index (as published in The Wall Street Journal) of seven-day
yield evaluations at par of issuers of securities, the interest on which is
includable in gross income for federal income tax purposes, and of comparable
rating to the rating on the Bonds, published by any nationally recognized
municipal securities evaluation service is available, the Adjustable Rate shall
be determined by the Trustee and shall be equal to such index.
(d) The Adjustable Rate shall be calculated based on a 365 or 366- day year
for the actual number of days elapsed. Further, each determination of the
Adjustable Rate pursuant to and in accordance with the foregoing terms of the
Indenture and the terms of this Bond shall be conclusive and binding on the
Issuer, the Trustee, the Company, the Bank, and the holder of this Bond.
(e) (i) From and after the Conversion Date through the maturity or earlier
redemption of the Bonds, this Bond shall bear interest at the Fixed Rate, which
shall be a fixed rate (or rates) of interest established by the Remarketing
Agent at least fifteen (15), but not more than thirty (30) days prior to the
Conversion Date, which in the reasonable judgment of the Remarketing Agent
would result, as nearly as practicable, in the market value of this Bond on the
Conversion Date being equal to one hundred percent (100%) of the principal
amount thereof.
(ii) (A) At the Remarketing Agent's discretion, after the exercise of the
Conversion Option, the Bonds may be converted into serial bonds, with a
principal amount of Bonds maturing on a Principal Payment Date each year equal
to the principal amount required to be redeemed as set forth in Section 301(E)
of the Indenture. In such event, each maturity of Bonds may bear a different
interest rate, each of which shall be determined by the Remarketing Agent in
the same manner as the Fixed Rate (for convenience each such rate shall be
referred to as the Fixed Rate); provided, however, that in no event shall the
Remarketing Agent be permitted to convert the Bonds into serial bonds as
described above without delivering to the Trustee an opinion of Bond Counsel
that such conversion is lawful under the Act and permitted under the Indenture.
(B) The Interest Payment Dates after the exercise of the Conversion Option
shall be semi-annual, with one Interest Payment Date being the first day of the
month preceding the Fixed Rate Conversion Date and the other Interest Payment
Date being the first day of the month six (6) months later. Principal shall be
payable annually thereafter in the amounts and the years set forth in Section
301(E) hereof on the Principal Payment Dates.
(iii) In determining the Fixed Rate, the Remarketing Agent shall take into
account, to the extent applicable, (A) market interest rates for comparable
securities which are held by open-end municipal or other fixed income bond
funds or other institutional or private investors with substantial portfolios
(w) with a term equal to the period to maturity remaining on the Bonds, (x) the
interest on which is included in the gross income of the holders thereof for
federal income tax purposes, (y) rated by a national credit rating agency in
the same rating category as the Bonds, or, if not rated, secured by
substantially the same level of security as the Bonds, and (z) with redemption
provisions similar to those which have bearing on the Fixed Rate; (B) other
financial market rates and indices (including but not limited to rates borne by
industrial development bonds, other taxable revenue bonds, Treasury
obligations, commercial bank prime rates, certificate of deposit rates, federal
funds rates, indices maintained by The Bond Buyer and other publicly available
taxable interest rates and indices); (C) general financial market conditions
(including current forward supply); (D) factors particular to the Project or
the credit standing of the Company and the Bank; and (E) such other factors
which the Remarketing Agent deems appropriate.
(iv) The Fixed Rate shall be calculated based on a 360-day year of twelve
30-day months. The determination of the Fixed Rate by the Remarketing Agent
pursuant to and in accordance with the terms of the Indenture and the terms of
this Bond shall be conclusive and binding on the Issuer, the Trustee, the
Company, the Bank and the holder of this Bond.
(v) To exercise the Conversion Option, the Company shall deliver at least
sixty (60) days prior to the Conversion Date, written notice to the Trustee,
the Issuer and the Bank of its election of the Conversion Option. On the
Conversion Date, this Bond shall be subject to a Mandatory Tender for purchase
as provided in Section 304 of the Indenture. Notwithstanding anything to the
contrary contained herein, such notice shall not be effective unless the Bank
shall have consented thereto in writing and such notice is accompanied by:
(A) a Substitute Letter of Credit with an expiration date of not earlier
than fifteen (15) days following the Principal Payment Date which is at least
three (3) years after the next succeeding Principal Payment Date and in an
amount equal to the sum of the aggregate principal amount of the Bonds then
Outstanding, 210 days' interest thereon computed at the Fixed Rate, together
with the Optional Redemption Premium; provided, however, that if the Letter of
Credit then in place has an expiration date of not earlier than fifteen (15)
days following the Principal Payment Date which is at least three (3) years
after the next succeeding Principal Payment Date and in an amount equal to the
aggregate principal amount of the Bonds then Outstanding, 210 days' interest
thereon computed at the Fixed Rate, together with the Optional Premium, no
Substitute Letter of Credit need be obtained;
(B) a statement as to whether the Bonds shall be serial bonds as set forth
in paragraph (e)(ii) above; and
(C) an opinion of Bond Counsel reasonably satisfactory to the Trustee, the
Issuer and the Bank to the effect that the exercise of the Conversion Option is
lawful under the Act and permitted by the Indenture.
(f) Notwithstanding anything herein to the contrary, any Pledged Bond shall
bear interest at a rate equal to the Bank Rate, as such rate shall change from
time to time; provided, however, that at no time shall the interest rate in
effect for any Pledged Bond exceed the maximum rate permitted by applicable
usury laws.
(g) Notwithstanding anything herein to the contrary, in no event will the
rate of interest borne by any Bond (except any Bond constituting a Pledged
Bond) exceed fifteen percent (15%) per annum.
(h) The Issuer hereby appoints the Company to act as agent of the Issuer
for purposes of exercising the Conversion Option, all as set forth in the
Indenture, and subject to compliance with the terms and provisions of the
Indenture.
(Conversion Option)
In the event the Company exercises the Conversion Option with respect to the
Bonds, on the Conversion Date all Bonds which have not been called for
redemption shall be subject to Mandatory Tender by the owners thereof on the
Conversion Date. Notwithstanding the foregoing, each Bondholder may, by
delivery to the Trustee for receipt at least twenty (20) days immediately
preceding the Conversion Date of an irrevocable election not to tender, elect
to continue to hold its Bonds (or portions thereof) past the Conversion Date at
a Fixed Rate to be in effect at such time. Such notice shall be in
substantially the form of Exhibit C-2 attached to the Indenture. Not earlier
than sixty (60) days prior to the Conversion Date or later than thirty (30)
days prior to the Conversion Date, the Trustee shall send a notice to the
owners of all Outstanding Bonds which have not been called for redemption, in
substantially the form of Exhibit C-1 attached to the Indenture. Such notice
shall describe (a) the terms of the Mandatory Tender, (b) the right of the
owner to elect not to tender, (c) the Letter of Credit to be in effect
following the Mandatory Tender, (d) the right of the owner of Bonds in an
aggregate amount of $200,000 or more to elect not to tender the total principal
amount and to continue to hold a portion of its Bonds (but in no event may
either the amount tendered or the amount not tendered be any amount other than
$100,000, or any integral multiple of $5,000 in excess thereof), and (e) that
the rating then in effect with respect to the Bonds, if any, may be withdrawn
or lowered.
In the event that prior to the Conversion Date of the Bonds the Company shall
deliver notice to the Trustee at least sixty (60) days prior to the expiration
of the Letter of Credit or Substitute Letter of Credit securing such Bonds of
its intent to deliver an Alternate Letter of Credit in substitution for such
Letter of Credit or Substitute Letter of Credit, all Bonds secured by such
Letter of Credit which have not been called for redemption shall be subject to
Mandatory Tender by the owner thereof on the Alternate Security Date.
Notwithstanding the foregoing, each Bondholder may, by delivery to the Trustee
for receipt at least twenty (20) days immediately preceding any Alternate
Security Date of an irrevocable election not to tender, elect to continue to
hold its Bonds past the respective Alternate Security Date. Such notice shall
be in substantially the form of Exhibit C-4 attached to the Indenture.
Not earlier than sixty (60) days prior to the Alternate Security Date or later
than thirty (30) days prior to the Alternate Security Date, the Trustee shall
send a notice to the owners of all Outstanding Bonds which have not been called
for redemption, in substantially the form of Exhibit C-3 attached to the
Indenture. Such notice shall describe (1) the terms of the Mandatory Tender,
(2) the right of the owner to elect not to tender, (3) a brief description of
the Alternate Letter of Credit and the identity of the Substitute Bank issuing
the Alternate Letter of Credit, (4) the right of the owner of Bonds in an
aggregate amount of $200,000 or more to elect not to tender the total principal
amount and to continue to hold a portion of its Bonds (but in no event may
either the amount tendered or the amount not tendered be any amount other than
$100,000, or any integral multiple of $5,000 in excess thereof) and (5) that
the rating then in effect with respect to the Bonds secured by such Alternate
Letter of Credit will be withdrawn or lowered.
Owners of Bonds required to be tendered who do not provide the Trustee with the
notice of their election not to tender as described above shall be required to
deliver their Bonds to the Trustee for purchase at the Purchase Price on the
Conversion Date or the Alternate Security Date, as the case may be, with an
appropriate endorsement for transfer or accompanied by a bond power endorsed in
blank. Any such Bonds not so delivered on such Conversion Date or the Alternate
Security Date, as the case may be ("Undelivered Bonds"), for which there has
been irrevocably deposited in trust with the Trustee an amount of moneys
sufficient to pay the Purchase Price of the Undelivered Bonds, shall be deemed
to have been purchased.
IN THE EVENT OF A FAILURE BY AN OWNER OF BONDS REQUIRED TO BE TENDERED (OTHER
THAN AN OWNER OF BONDS WHO HAS GIVEN NOTICE OF ITS ELECTION NOT TO TENDER AS
PROVIDED ABOVE) TO DELIVER ITS BONDS ON OR PRIOR TO THE CONVERSION DATE OR THE
ALTERNATE SECURITY DATE, SAID OWNER SHALL NOT BE ENTITLED TO ANY PAYMENT
(INCLUDING ANY INTEREST TO ACCRUE ON OR SUBSEQUENT TO SUCH CONVERSION DATE OR
THE ALTERNATE SECURITY DATE) OTHER THAN THE PURCHASE PRICE FOR SUCH UNDELIVERED
BONDS, AND ANY UNDELIVERED BONDS SHALL NO LONGER BE ENTITLED TO THE BENEFITS OF
THE INDENTURE, EXCEPT FOR THE PURPOSE OF PAYMENT OF THE PURCHASE PRICE
THEREFOR.
(Demand Purchase Option)
This Bond shall be purchased, at the option ("Demand Purchase Option") of the
Owner hereof, at a price (the "Purchase Price") equal to one hundred percent
(100%) of the principal amount hereof plus accrued and unpaid interest hereon
to the Repurchase Closing Date (as hereinafter defined), upon:
(A) Delivery to, and receipt by, the Tender Agent at its designated
address, or the Trustee at the address set forth herein on a Business Day of a
written notice ("Bondholder's Tender Notice") which requests the purchase of
the Bond. The Tender Notice shall be in substantially the form of Exhibit C-5
to the Indenture. Such Tender Notice shall provide the following information:
(1) the principal amount of such Bond or portion thereof to be purchased (the
"Tendered Bond"), which portion shall be $100,000 or an integral multiple of
$5,000 in excess thereof; provided, however, that no portion of a Tendered Bond
shall be purchased if it results in the unpurchased portion of the Tendered
Bond being less than $100,000, (2) the number of the Tendered Bond, (3) the
date on which the Tendered Bond shall be purchased, which date shall be a
Business Day at least seven (7) calendar days following the receipt by the
Trustee or the Tender Agent of the Bondholder's Tender Notice (the "Repurchase
Closing Date"), (4) the name and address of the Bondholder, (5) an irrevocable
request of such purchase, and (6) an undertaking of the Bondholder to deliver
the Bond to the Tender Agent or the Trustee in accordance with (B) below; and
(B) Delivery of the Tendered Bond, at the office of the Trustee or Tender
Agent at or prior to 10:00 a.m., New York City time, on the Repurchase Closing
Date with an appropriate endorsement for transfer or accompanied by a bond
power endorsed in blank; provided, however, the Tendered Bond shall only be
deemed properly tendered hereunder if the Tendered Bond delivered to the Tender
Agent or the Trustee conforms in all respects to the description thereof in the
Bondholder's Tender Notice; and
(C) In the event the Tender Agent or the Trustee, as the case may be,
determines that the Bondholder's Tender Notice is defective in any respect
whatsoever, the Tender Agent or the Trustee, as the case may be, shall
immediately notify the Bondholder tendering the Bond; and
(D) Bonds which are the subject of a Bondholder's Tender Notice described
in (A) above, but which are not tendered in accordance with (B) above, shall be
deemed tendered and all rights of the holder thereof shall be satisfied from
the deposit with the Tender Agent or the Trustee of the Purchase Price thereof
and the Tender Agent or the Trustee, as the case may be, shall hold such
Purchase Price in trust for the benefit of such holder until the Bonds
purchased with such moneys shall have been delivered to or for the account of
such Holder. Holders of Tendered Bonds to be tendered which are not delivered
to the Tender Agent or the Trustee by the holder thereof shall have no further
rights with respect to such Bonds except to receive payment of the Purchase
Price therefor upon surrender of such Bonds to the Tender Agent or the Trustee.
Notwithstanding the foregoing, the Bondholders shall have no Demand Purchase
Option described herein if (A) there shall have occurred and be continuing an
Event of Default under the Indenture, except for an Event of Default under
Section 601(I) of the Indenture or (B) the Fixed Rate is in effect for the
Bonds being held by such Bondholder.
Furthermore, no Bondholder shall have the right to exercise a Demand Purchase
Option with respect to those Bonds for which a notice of redemption has been
mailed by the Trustee.
(Project Description)
This Bond is one of a duly authorized issue of bonds of the Issuer designated
"Town of Colonie Industrial Development Agency Taxable Industrial Development
Revenue Bonds (Mechanical Technology Incorporated Project - Letter of Credit
Secured), Series 1998A" in the aggregate principal amount of $6,000,000 (the
"Bonds"). The Bonds are issued for the purpose of assisting in providing
financing to the Issuer for a project (the "Project") consisting of the
following: (A) (1) the acquisition of a leasehold interest in a parcel of land
containing approximately 35.6 acres located at 968 Albany-Shaker Road in the
Town of Colonie, Albany County, New York (the "Land"), together with the
existing buildings located thereon which contain approximately 98,000 square
feet in the aggregate (such buildings known individually as Building I,
Building II and Building III and hereinafter collectively referred to as the
"Existing Facility"), (2) the demolition of Building I which contains
approximately 14,105 square feet of space, (3) the construction of a new
building to replace Building I and which will contain approximately 32,000
square feet of space (the "New Facility") (the Existing Facility and the New
Facility hereinafter collectively referred to as the "Facility"), (4) the
renovation of Building III and (5) the acquisition of and installation therein
and thereon of certain machinery and equipment (the "Equipment") (the Land, the
Facility and the Equipment being hereinafter collectively referred to as the
"Project Facility"), all of the foregoing to be occupied by Mechanical
Technology Incorporated (the "Company") and operated as a manufacturing
facility, a portion of which will be leased by the Company to Plug Power, LLC
and operated as a facility for the manufacture, research and development of
fuel cells for residential and automotive applications and related products and
any other related activities; (B) the financing of all or a portion of the
costs of the foregoing by the issuance of the Bonds; (C) the granting of
certain other "financial assistance" (within the meaning of Section 854(14) of
the Act) with respect to the foregoing, including exemption from certain sales
taxes, deed transfer taxes, mortgage recording taxes and real property taxes
(collectively with the Bonds, the "Financial Assistance"); and (D) the lease
(with an obligation to purchase) or sale of the Project Facility to the Company
or such other person as may be designated by the Company and agreed upon by the
Agency. The Project Facility is to be sold by the Issuer to the Company
pursuant to the provisions of an installment sale agreement dated as of
December 1, 1998 (the "Installment Sale Agreement") by and between the Issuer
and the Company.
The Bonds are issued under and are equally and ratably secured by the
Indenture. The Indenture grants the Trustee a first security interest in the
Trust Revenues (as defined in the Indenture).
In order to provide additional security for the Bonds, the Company has entered
into an irrevocable letter of credit and reimbursement agreement dated as of
December 1, 1998 (the "Reimbursement Agreement") with KeyBank National
Assocation (the "Bank"), pursuant to which the Bank has issued in favor of the
Trustee an irrevocable transferable direct pay letter of credit (the "Letter of
Credit"), issued in an amount equal to the Credit Amount (as defined in the
Reimbursement Agreement). Under the Letter of Credit, the Bank is obligated to
pay to the Trustee, upon presentation of a sight draft and required
accompanying documentation, the amount necessary to pay, the principal of, and
interest on the Bonds then due and payable (whether by mandatory redemption or
by maturity due to acceleration or otherwise). On each Bond Payment Date and
immediately upon (1) a declaration that all the Bonds have become due and
payable by acceleration, or (2) a mandatory redemption of all the Bonds
Outstanding, the Trustee shall present to the Bank a sight draft and required
accompanying documentation and draw upon the Letter of Credit for the principal
amount, if any and accrued interest then due on the Bonds. The Letter of Credit
provides that it shall expire on December 15, 2013 or earlier under certain
circumstances. The Company may provide for delivery to the Trustee of a
Substitute Letter of Credit or an Alternate Letter of Credit issued by another
banking institution as provided in the Installment Sale Agreement.
As additional security for the payment of principal of and interest on the
Bonds, the Issuer has assigned to the Trustee all of the Issuer's rights and
remedies under the Installment Sale Agreement (except the Unassigned Rights, as
therein defined), including the right to receive installment purchase payments
and other amounts payable thereunder pursuant to a pledge and assignment dated
as of December 1, 1998 (the "Pledge and Assignment") from the Issuer to the
Trustee. Further security for the payment of principal of and interest on the
Bonds is provided by a guaranty dated as of December 1, 1998 (the "Guaranty")
from Ling Electronics, Inc. (the "Corporate Guarantor") to the Trustee. The
Assignment of Rents, the Pledge and Assignment and a memorandum relating to the
Installment Sale Agreement are to be recorded in the office of the County Clerk
of Albany County, New York.
Reference is hereby made to the Indenture, the Installment Sale Agreement, the
Reimbursement Agreement, the Pledge and Assignment, the Guaranty and the Letter
of Credit, and to all amendments and supplements thereto, for a description of
the nature and extent of the security for the Bonds, the terms and conditions
upon which the Bonds are issued and secured and the rights, duties and
obligations of the Issuer, the Trustee, the Company, the Bank and the
Bondholders. Copies of such documents are on file in the Office of the Trustee.
THE BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY FROM PAYMENTS
MADE BY THE BANK UNDER THE LETTER OF CREDIT AND BY THE COMPANY UNDER THE
INSTALLMENT SALE AGREEMENT, MONEYS AND SECURITIES HELD BY THE TRUSTEE UNDER THE
INDENTURE, AND THE SECURITY PROVIDED BY THE PLEDGE AND ASSIGNMENT AND THE
GUARANTY.
(Extraordinary Redemption Without Premium)
The Bonds are subject to redemption prior to maturity (1) as a whole, without
premium, in the event of (a) a taking in Condemnation of, or failure of title
to, all or substantially all of the Project Facility, (b) damage to or
destruction of part or all of the Project Facility and election by the Company
to redeem the Bonds, or (c) a taking in Condemnation of part of the Project
Facility and election by the Company to redeem the Bonds, or (2) in part,
without premium in the event that (a) to the extent excess moneys remain in the
Insurance and Condemnation Fund following damage or condemnation of a portion
of the Project Facility and completion of the repair, rebuilding or restoration
of the Project Facility by the Company and, pursuant to the Indenture, such
excess moneys are not paid to the Company or (b) in the event that excess
moneys remain in the Project Fund after the Completion Date. In any such event,
the Bonds shall be redeemed, as a whole or in part, at such time as the Trustee
determines, at a redemption price equal to the principal amount thereof, plus
accrued interest to the redemption date, without premium.
(Redemption Without Premium for Failure to Obtain a Substitute Letter of
Credit)
The Bonds are also subject to redemption prior to maturity in the event of
failure by the Company to provide a Substitute Letter of Credit at least
forty-five (45) days prior to the Interest Payment Date immediately preceding
the expiration date of the Letter of Credit then in effect. In any such event,
the Bonds shall be redeemed, as a whole, on such Interest Payment Date, at a
redemption price equal to the principal amount to be redeemed, plus accrued
interest to the redemption date, without premium.
(Extraordinary Redemption Without Premium at Election of Bank)
The Bonds are also subject to redemption prior to maturity upon receipt by the
Trustee of a written notice from the Bank of the occurrence and continuance of
a default by the Company under the Reimbursement Agreement and the Bank's
election to compel redemption of the Bonds. In such event, the Bonds shall be
redeemed, as a whole, in the manner provided in Article III of the Indenture,
on the earliest date for which the Trustee can give notice of redemption
pursuant to Section 303 of the Indenture, at a redemption price equal to the
principal amount thereof, plus accrued interest to the redemption date, without
premium.
(Redemption at Company's Option)
The Bonds are also subject to redemption prior to maturity in denominations of
$5,000 or any integral multiple of $5,000 in excess thereof at the option of
the Company by exercise of its right to prepay the installment purchase
payments payable under the Installment Sale Agreement as provided in Section
5.5 of the Installment Sale Agreement, on any Interest Payment Date, in the
manner provided in this Article III, at a redemption price equal to the
principal amount thereof, plus accrued interest to the redemption date, without
premium.
(Scheduled Mandatory Redemption Without Premium)
The Bonds are also subject to scheduled mandatory redemption prior to maturity,
commencing December 1, 1999 and on each December 1 thereafter, by the
application of Sinking Fund Payments at a redemption price equal to the
principal amount thereof, plus accrued interest to the redemption date, without
premium, on December 1 of the years and in the principal amounts set forth
below:
YEAR SINKING FUND PAYMENT YEAR SINKING FUND PAYMENT
1999 $285,000 2006 $385,000
2000 $275,000 2007 $410,000
2001 $290,000 2008 $435,000
2002 $310,000 2009 $460,000
2003 $325,000 2010 $485,000
2004 $345,000 2011 $515,000
2005 $365,000 2012 $540,000
Following retirement by mandatory sinking fund redemption prior to their Stated
Maturity, there will remain $575,000 principal amount of the Bonds maturing on
December 1, 2013 to be paid at maturity.
(Procedures for Redemption)
Notice of the intended redemption of each Bond subject to redemption shall be
given not less than thirty (30) days nor more than forty-five (45) days prior
to the redemption date by the Trustee one time by first class mail postage
prepaid to the registered owner at the address of such owner shown on the
Trustee's bond register. The failure to give any such notice, or any defect
therein, shall not affect the validity of any proceeding for the redemption of
any Bond with respect to which no such failure to give notice, or defect
therein, has occurred.
In the event of any partial redemption, the particular Bonds or portions
thereof to be redeemed shall be selected by the Trustee not more than sixty
(60) days prior to the redemption date in order of maturity, and within each
maturity by lot or by such other such method as the Trustee shall deem fair and
appropriate. The Trustee may provide for the redemption of portions (equal to
$5,000 or any whole multiple thereof) of Outstanding Bonds. In no event shall
the principal amount of Bonds subject to any partial redemption be other than a
whole multiple of $5,000; provided, however, that no $5,000 portion of a Bond
shall be redeemed if it results in the unredeemed portion of the Bond being
less than $100,000.
Bonds (or portions thereof as aforesaid) for whose redemption and payment
provision is made in accordance with the Indenture shall thereupon cease to be
entitled to the Lien of the Indenture and shall cease to bear interest from and
after the date fixed for redemption.
The owner of this Bond shall have no right to enforce the provisions of the
Indenture or to institute action to enforce the covenants therein, or to take
any action with respect to any Event of Default under the Indenture, or to
institute, appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Indenture.
Modifications or alterations of the Indenture or of any indenture supplemental
thereto may be made only to the extent and in the circumstances permitted by
the Indenture.
The principal hereof may be declared or may become due on the conditions and in
the manner and at the time set forth in the Indenture upon the occurrence of an
Event of Default as provided in the Indenture.
The Bonds are issuable in the denomination of $100,000 or any multiple of
$5,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, this Bond, upon surrender for transfer at the
principal office of the Trustee as Bond Registrar, is transferable upon an
assignment duly executed by the registered owner hereof or his duly authorized
legal representative, and, upon such transfer, one or more new Bonds of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
No service charge shall be made for any transfer or exchange of Bonds, but the
Issuer or the Trustee may make a charge for transfer or exchange of Bonds
sufficient to reimburse them for any tax, fee or other governmental charge
required to be paid with respect to such transfer or exchange, and such charge
shall be paid before any new Bond shall be delivered.
NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF THE PRINCIPAL OF OR REDEMPTION
PRICE OF OR THE INTEREST ON THIS BOND OR FOR ANY CLAIM BASED HEREON OR ON THE
INDENTURE, AGAINST ANY PAST, PRESENT OR FUTURE MEMBER, OFFICER, DIRECTOR,
EMPLOYEE OR AGENT (EXCEPT THE COMPANY), AS SUCH, OF THE ISSUER OR OF ANY
PREDECESSOR OR SUCCESSOR CORPORATION, EITHER DIRECTLY OR THROUGH THE ISSUER OR
OTHERWISE, WHETHER BY VIRTUE OF ANY CONSTITUTION, STATUTE OR RULE OF LAW, OR BY
THE ENFORCEMENT OF ANY ASSESSMENT OR PENALTY, OR OTHERWISE, ALL SUCH LIABILITY
BEING, BY THE ACCEPTANCE HEREOF, EXPRESSLY WAIVED AND RELEASED.
Capitalized terms used in this Bond and not defined herein shall have the
meaning ascribed to such terms in the Indenture.
This Bond shall not be entitled to any benefit under the Indenture or become
valid or obligatory for any purpose until the certificate of the Trustee shall
be endorsed hereon.
THE BONDS DO NOT CONSTITUTE AND SHALL NOT BE A DEBT OF THE STATE OF NEW YORK OR
THE TOWN OF COLONIE, NEW YORK AND NEITHER THE STATE OF NEW YORK NOR THE TOWN OF
COLONIE, NEW YORK SHALL BE LIABLE THEREON. THE BONDS DO NOT GIVE RISE TO A
PECUNIARY LIABILITY OR CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS OF
THE STATE OF NEW YORK OR THE TOWN OF COLONIE, NEW YORK.
It is hereby certified, recited and declared that all acts, conditions and
things required to exist, happen and be performed precedent to and in the
execution and delivery of the Indenture, and the issuance of this Bond, do
exist, have happened and have been performed in the time, form and manner as
required by law, and that the issuance of the Bonds does not violate any
constitutional or statutory limitation.
IN WITNESS WHEREOF, Town of Colonie Industrial Development Agency has caused
this Bond to be duly executed in its name by the manual or facsimile signature
of its Chairman and its corporate seal to be impressed or reproduced hereon,
attested by the manual or facsimile signature of its Secretary, all as of the
date identified above.
TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY
BY: (Vice) Chairman
(SEAL)
ATTEST:
______________________________ Secretary
Certificate of Authentication
This Bond is one of the Bonds of the issue described in the within- mentioned
Indenture.
MANUFACTURERS AND TRADERS TRUST COMPANY, as Trustee
BY: Authorized Officer
______________________ Date of Authentication
[Form of Assignment for Transfer]
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto (please
insert name, address and social security or tax identification number of
assignee):
the within Bond and does hereby irrevocably constitute and appoint to transfer
the said Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ____________________
NOTICE: The signature(s) on this assignment must correspond with the name(s) as
it (they) appear(s) on the face of the within Bond in every particular.
In the presence of:
______________________________
EXHIBIT B
FORM OF BOND AFTER CONVERSION DATE
TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY (a public benefit corporation of
the State of New York)
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BOND
(MECHANICAL TECHNOLOGY INCORPORATED PROJECT - LETTER OF CREDIT SECURED), SERIES
1998A
NO.: R-__ $_________
RATE: ___% per annum MATURITY DATE: December 1, ____
DATED: __________________ CUSIP: __________
Town of Colonie Industrial Development Agency, a public benefit corporation of
the State of New York (the "Issuer"), for value received, hereby promises to
pay, solely from the sources hereinafter described, to ________________ or
registered assigns, on the Maturity Date identified above (subject to any right
of prior redemption hereinafter provided for), the principal sum of Six Million
Dollars (subject to reduction as hereinafter provided) and interest thereon
(computed on the basis of a 360-day year of twelve 30-day months) from the date
set forth above, or from the most recent Interest Payment Date to which
interest has been paid, to the Maturity Date identified above (or such earlier
date on which the principal hereof has been paid or duly provided for), at the
rate identified above, on the first days of June and December of each year
(each an "Interest Payment Date"), commencing _______________. The principal of
this Bond shall be paid on the Maturity Date upon presentation and surrender
hereof at the Office of Manufacturers and Traders Trust Company, as trustee
(together with its successors in trust, the "Trustee") under the trust
indenture dated as of December 1, 1998 (from time to time, as amended or
supplemented, the "Indenture") by and between the Issuer and the Trustee, or at
the duly designated office of any successor trustee under the Indenture. The
installments of interest described above shall, as provided in the Indenture,
be paid to the Person in whose name this Bond (or one or more Predecessor
Bonds, as defined in the Indenture) is registered at the close of business on
the Business Day next preceding any Interest Payment Date (the "Regular Record
Date"), and shall be paid by check or draft of the Trustee mailed by the
Trustee on such Interest Payment Date to such registered owner at his address
appearing on the registration books of the Issuer, or at the option of any
holder of Bonds in an aggregate principal amount of $250,000 or greater be
transmitted on such Interest Payment Date by wire transfer at such owner's
written request to the bank account number on file with the Trustee. Any such
interest not so punctually paid or duly provided for shall forthwith cease to
be payable to the registered owner on such Regular Record Date, and may be paid
to the Person in whose name this Bond (or one or more Predecessor Bonds) is
registered at the close of business on a date for the payment of such defaulted
interest to be fixed by the Trustee (the "Special Record Date"), notice whereof
being given to registered owners of the Bonds not less than ten (10) days prior
to such Special Record Date, or may be paid in any other lawful manner as shall
be determined by the Trustee. The principal of, premium, if any, on and
interest on this Bond are payable in lawful money of the United States of
America.
(Project Description)
This Bond is one of a duly authorized issue of bonds of the Issuer designated
"Town of Colonie Industrial Development Agency Taxable Industrial Development
Revenue Bonds (Mechanical Technology Incorporated Project - Letter of Credit
Secured), Series 1998A" in the aggregate principal amount of $6,000,000 (the
"Bonds"). The Bonds are issued for the purpose of assisting in providing
financing to the Issuer for a project (the "Project") consisting of the
following: (A) (1) the acquisition of a leasehold interest in a parcel of land
containing approximately 35.6 acres located at 968 Albany-Shaker Road in the
Town of Colonie, Albany County, New York (the "Land"), together with the
existing buildings located thereon which contain approximately 98,000 square
feet in the aggregate (such buildings known individually as Building I,
Building II and Building III and hereinafter collectively referred to as the
"Existing Facility"), (2) the demolition of Building I which contains
approximately 14,105 square feet of space, (3) the construction of a new
building to replace Building I and which will contain approximately 32,000
square feet of space (the "New Facility") (the Existing Facility and the New
Facility hereinafter collectively referred to as the "Facility"), (4) the
renovation of Building III and (5) the acquisition of and installation therein
and thereon of certain machinery and equipment (the "Equipment") (the Land, the
Facility and the Equipment being hereinafter collectively referred to as the
"Project Facility"), all of the foregoing to be occupied by Mechanical
Technology Incorporated (the "Company") and operated as a manufacturing
facility, a portion of which will be leased by the Company to Plug Power, LLC
and operated as a facility for the manufacture, research and development of
fuel cells for residential and automotive applications and related products and
any other related activities; (B) the financing of all or a portion of the
costs of the foregoing by the issuance of the Bonds; (C) the granting of
certain other "financial assistance" (within the meaning of Section 854(14) of
the Act) with respect to the foregoing, including exemption from certain sales
taxes, deed transfer taxes, mortgage recording taxes and real property taxes
(collectively with the Bonds, the "Financial Assistance"); and (D) the lease
(with an obligation to purchase) or sale of the Project Facility to the Company
or such other person as may be designated by the Company and agreed upon by the
Agency. The Project Facility is to be sold by the Issuer to the Company
pursuant to the provisions of an installment sale agreement dated as of
December 1, 1998 (the "Installment Sale Agreement") by and between the Issuer
and the Company.
The Bonds are issued under and are equally and ratably secured by the
Indenture. The Indenture grants the Trustee a first security interest in the
Trust Revenues (as defined in the Indenture).
In order to provide additional security for the Bonds, the Company has entered
into an irrevocable letter of credit and reimbursement agreement dated as of
________________ (the "Reimbursement Agreement") with
___________________________ (the "Bank"), pursuant to which the Bank has issued
in favor of the Trustee an irrevocable transferable direct pay letter of credit
(the "Letter of Credit"), issued in an amount equal to the aggregate principal
amount of the Bonds Outstanding, plus at least 210 days' interest on the Bonds,
computed at the Fixed Rate in effect, together with the Optional Redemption
Premium. Under the Letter of Credit, the Bank is obligated to pay to the
Trustee, upon presentation of a sight draft and required accompanying
documentation, the amount necessary to pay, the principal of, and interest on
the Bonds then due and payable (whether by mandatory redemption or by maturity
due to acceleration or otherwise). On each Bond Payment Date and immediately
upon (1) a declaration that all the Bonds have become due and payable by
acceleration, or (2) a mandatory redemption of all the Bonds Outstanding, the
Trustee shall present to the Bank a sight draft and required accompanying
documentation and draw upon the Letter of Credit for the principal amount, if
any and accrued interest then due on the Bonds. The Letter of Credit provides
that it shall expire on _____________ or earlier under certain circumstances.
The Company may provide for delivery to the Trustee of a Substitute Letter of
Credit or an Alternate Letter of Credit issued by another banking institution
as provided in the Installment Sale Agreement.
As additional security for the payment of principal of and interest on the
Bonds, the Issuer has assigned to the Trustee all of the Issuer's rights and
remedies under the Installment Sale Agreement (except the Unassigned Rights, as
therein defined), including the right to receive installment purchase payments
and other amounts payable thereunder pursuant to a pledge and assignment dated
as of December 1, 1998 (the "Pledge and Assignment") from the Issuer to the
Trustee. Further security for the payment of principal of and interest on the
Bonds is provided by a guaranty dated as of December 1, 1998 (the "Guaranty")
from _______________ (the "Corporate Guarantor") to the Trustee. The Assignment
of Rents, the Pledge and Assignment and a memorandum relating to the
Installment Sale Agreement are to be recorded in the office of the County Clerk
of Albany County, New York.
Reference is hereby made to the Indenture, the Installment Sale Agreement, the
Reimbursement Agreement, the Pledge and Assignment, the Guaranty and the Letter
of Credit, and to all amendments and supplements thereto, for a description of
the nature and extent of the security for the Bonds, the terms and conditions
upon which the Bonds are issued and secured and the rights, duties and
obligations of the Issuer, the Trustee, the Company, the Bank and the
Bondholders. Copies of such documents are on file in the Office of the Trustee.
THE BONDS ARE LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY FROM PAYMENTS
MADE BY THE BANK UNDER THE LETTER OF CREDIT AND BY THE COMPANY UNDER THE
INSTALLMENT SALE AGREEMENT, MONEYS AND SECURITIES HELD BY THE TRUSTEE UNDER THE
INDENTURE, AND THE SECURITY PROVIDED BY THE PLEDGE AND ASSIGNMENT AND THE
GUARANTY.
(Extraordinary Redemption Without Premium)
The Bonds are subject to redemption prior to maturity (1) as a whole, without
premium, in the event of (a) a taking in Condemnation of, or failure of title
to, all or substantially all of the Project Facility, (b) damage to or
destruction of part or all of the Project Facility and election by the Company
to redeem the Bonds, or (c) a taking in Condemnation of part of the Project
Facility and election by the Company to redeem the Bonds, or (2) in part,
without premium in the event that (a) to the extent excess moneys remain in the
Insurance and Condemnation Fund following damage or condemnation of a portion
of the Project Facility and completion of the repair, rebuilding or restoration
of the Project Facility by the Company and, pursuant to the Indenture, such
excess moneys are not paid to the Company or (b) in the event that excess
moneys remain in the Project Fund after the Completion Date. In any such event,
the Bonds shall be redeemed, as a whole or in part, at such time as the Trustee
determines, at a redemption price equal to the principal amount thereof, plus
accrued interest to the redemption date, without premium.
(Redemption Without Premium for Failure to Obtain a Substitute Letter of
Credit)
The Bonds are also subject to redemption prior to maturity in the event of
failure by the Company to provide a Substitute Letter of Credit at least
forty-five (45) days prior to the Interest Payment Date immediately preceding
the expiration date of the Letter of Credit then in effect. In any such event,
the Bonds shall be redeemed, as a whole, on such Interest Payment Date, at a
redemption price equal to the principal amount to be redeemed, plus accrued
interest to the redemption date, without premium.
(Extraordinary Redemption Without Premium at Election of Bank)
The Bonds are also subject to redemption prior to maturity upon receipt by the
Trustee of a written notice from the Bank of the occurrence and continuance of
a default by the Company under the Reimbursement Agreement and the Bank's
election to compel redemption of the Bonds. In such event, the Bonds shall be
redeemed, as a whole, in the manner provided in Article III of the Indenture,
on the earliest date for which the Trustee can give notice of redemption
pursuant to Section 303 of the Indenture, at a redemption price equal to the
principal amount thereof, plus accrued interest to the redemption date, without
premium.
(Redemption at Company's Option)
The Bonds are subject to redemption, at the option of the Company by exercise
of its right to prepay the installment purchase payments under the Installment
Sale Agreement as provided in Section 5.5 of the Installment Sale Agreement, as
a whole or in part on any Interest Payment Date occurring after the end of the
applicable call protection period at the redemption prices, expressed as
percentages of unpaid principal amount to be redeemed, plus accrued interest to
the redemption date. The call protection period and redemption prices shall be
determined by the Remarketing Agent, after taking into account the factors
described in Section 209(B)(2)(e) of the Indenture and such other factors which
the Remarketing Agent deems appropriate. The determination of the call
protection period and redemption prices by the Remarketing Agent pursuant to
and in accordance with the terms of the Indenture shall be conclusive and
binding on the Issuer, the Trustee, the Company, the Bank and the Holders of
the Bonds.
(Scheduled Mandatory Redemption Without Premium)
The Bonds are also subject to scheduled mandatory redemption prior to maturity,
commencing December 1, 1999 and on each December 1 thereafter, by the
application of Sinking Fund Payments at a redemption price equal to the
principal amount thereof, plus accrued interest to the redemption date, without
premium, on December 1 of the years and in the principal amounts set forth
below:
YEAR SINKING FUND PAYMENT YEAR SINNKING FUND PAYMENT
1999 $285,000 2006 $385,000
2000 $275,000 2007 $410,000
2001 $290,000 2008 $435,000
2002 $310,000 2009 $460,000
2003 $325,000 2010 $485,000
2004 $345,000 2011 $515,000
2005 $365,000 2012 $540,000
Following retirement by mandatory sinking fund redemption prior to their Stated
Maturity, there will remain $575,000 principal amount of the Bonds maturing on
December 1, 2013 to be paid at maturity.
(Procedures for Redemption)
Notice of the intended redemption of each Bond subject to redemption shall be
given not less than thirty (30) days nor more than forty-five (45) days prior
to the redemption date by the Trustee one time by first class mail postage
prepaid to the registered owner at the address of such owner shown on the
Trustee's bond register. The failure to give any such notice, or any defect
therein, shall not affect the validity of any proceeding for the redemption of
any Bond with respect to which no such failure to give notice, or defect
therein, has occurred.
In the event of any partial redemption, the particular Bonds or portions
thereof to be redeemed shall be selected by the Trustee not more than sixty
(60) days prior to the redemption date in order of maturity, and within each
maturity by lot or by such other such method as the Trustee shall deem fair and
appropriate. The Trustee may provide for the redemption of portions (equal to
$5,000 or any whole multiple thereof) of Outstanding Bonds. In no event shall
the principal amount of Bonds subject to any partial redemption be other than a
whole multiple of $5,000; provided, however, that no $5,000 portion of a Bond
shall be redeemed if it results in the unredeemed portion of the Bond being
less than $100,000.
Bonds (or portions thereof as aforesaid) for whose redemption and payment
provision is made in accordance with the Indenture shall thereupon cease to be
entitled to the Lien of the Indenture and shall cease to bear interest from and
after the date fixed for redemption.
The owner of this Bond shall have no right to enforce the provisions of the
Indenture or to institute action to enforce the covenants therein, or to take
any action with respect to any Event of Default under the Indenture, or to
institute, appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Indenture.
Modifications or alterations of the Indenture or of any indenture supplemental
thereto may be made only to the extent and in the circumstances permitted by
the Indenture.
The principal hereof may be declared or may become due on the conditions and in
the manner and at the time set forth in the Indenture upon the occurrence of an
Event of Default as provided in the Indenture.
The Bonds are issuable in the denomination of $100,000 or any multiple of
$5,000 in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, this Bond, upon surrender for transfer at the
principal office of the Trustee as Bond Registrar, is transferable upon an
assignment duly executed by the registered owner hereof or his duly authorized
legal representative, and, upon such transfer, one or more new Bonds of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees.
No service charge shall be made for any transfer or exchange of Bonds, but the
Issuer or the Trustee may make a charge for transfer or exchange of Bonds
sufficient to reimburse them for any tax, fee or other governmental charge
required to be paid with respect to such transfer or exchange, and such charge
shall be paid before any new Bond shall be delivered.
NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF THE PRINCIPAL OF OR REDEMPTION
PRICE OF OR THE INTEREST ON THIS BOND OR FOR ANY CLAIM BASED HEREON OR ON THE
INDENTURE, AGAINST ANY PAST, PRESENT OR FUTURE MEMBER, OFFICER, DIRECTOR,
EMPLOYEE OR AGENT (EXCEPT THE COMPANY), AS SUCH, OF THE ISSUER OR OF ANY
PREDECESSOR OR SUCCESSOR CORPORATION, EITHER DIRECTLY OR THROUGH THE ISSUER OR
OTHERWISE, WHETHER BY VIRTUE OF ANY CONSTITUTION, STATUTE OR RULE OF LAW, OR BY
THE ENFORCEMENT OF ANY ASSESSMENT OR PENALTY, OR OTHERWISE, ALL SUCH LIABILITY
BEING, BY THE ACCEPTANCE HEREOF, EXPRESSLY WAIVED AND RELEASED.
Capitalized terms used in this Bond and not defined herein shall have the
meaning ascribed to such terms in the Indenture.
This Bond shall not be entitled to any benefit under the Indenture or become
valid or obligatory for any purpose until the certificate of the Trustee shall
be endorsed hereon.
THE BONDS DO NOT CONSTITUTE AND SHALL NOT BE A DEBT OF THE STATE OF NEW YORK OR
THE TOWN OF COLONIE, NEW YORK AND NEITHER THE STATE OF NEW YORK NOR THE TOWN OF
COLONIE, NEW YORK SHALL BE LIABLE THEREON. THE BONDS DO NOT GIVE RISE TO A
PECUNIARY LIABILITY OR CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWERS OF
THE STATE OF NEW YORK OR THE TOWN OF COLONIE, NEW YORK.
It is hereby certified, recited and declared that all acts, conditions and
things required to exist, happen and be performed precedent to and in the
execution and delivery of the Indenture, and the issuance of this Bond, do
exist, have happened and have been performed in the time, form and manner as
required by law, and that the issuance of the Bonds does not violate any
constitutional or statutory limitation.
IN WITNESS WHEREOF, Town of Colonie Industrial Development Agency has caused
this Bond to be duly executed in its name by the manual or facsimile signature
of its Chairman and its corporate seal to be impressed or reproduced hereon,
attested by the manual or facsimile signature of its Secretary, all as of the
date identified above.
TOWN OF COLONIE INDUSTRIAL DEVELOPMENT AGENCY
BY: (Vice) Chairman
(SEAL)
ATTEST:
______________________________ Secretary
Certificate of Authentication
This Bond is one of the Bonds of the issue described in the within- mentioned
Indenture.
MANUFACTURERS AND TRADERS TRUST COMPANY, as Trustee
BY: Authorized Officer
______________________ Date of Authentication
[Form of Assignment for Transfer]
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto (please
insert name, address and social security or tax identification number of
assignee):
the within Bond and does hereby irrevocably constitute and appoint to transfer
the said Bond on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: ____________________
NOTICE: The signature(s) on this assignment must correspond with the name(s) as
it (they) appear(s) on the face of the within Bond in every particular.
In the presence of:
______________________________
EXHIBIT C-1
(Form of Notice of Mandatory Tender on Conversion Date)
NOTICE OF MANDATORY TENDER WITH RESPECT TO TOWN OF COLONIE INDUSTRIAL
DEVELOPMENT AGENCY TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS (MECHANICAL
TECHNOLOGY INCORPORATED PROJECT - LETTER OF CREDIT SECURED), SERIES 1998A
DATE:_________________
TO: ________________________
FROM: MANUFACTURERS AND TRADERS TRUST COMPANY, as trustee (the "Trustee")
under the trust indenture dated as of December 1, 1998 by and between Town of
Colonie Industrial Development Agency (the "Issuer") and the Trustee, securing
the Issuer's $6,000,000 aggregate principal amount Taxable Industrial
Development Revenue Bonds (Mechanical Technology Incorporated Project - Letter
of Credit Secured), Series 1998A (the "Bonds")
Notice is hereby given in accordance with Section 304 of the Indenture that the
Bonds with respect to which you are the registered owner are subject to
mandatory tender as a result of the exercise by the Company (as defined in the
Indenture) of the Conversion Option (as defined in the Indenture) to convert
the interest rate on the Bonds to a fixed rate, and must be presented to the
undersigned trustee for purchase at its office at _________________,
__________________, on or before [Conversion Date], UNLESS, on or before
[Twenty (20) days prior to the Conversion Date] at 5:00 p.m., New York time, we
receive written notice of your election not to tender and to continue holding
such Bonds using the form attached to this notice.
If you own one or more Bonds having an aggregate total principal amount of
$200,000 or more, you may elect not to tender the total principal amount of
your Bonds and to continue to hold only a portion of your Bonds (but in no
event any amount other than $100,000, or any integral multiple of $5,000 in
excess thereof).
If you elect not to tender and to continue to hold your Bonds, the interest
rate on the Bonds is subject to change on [Conversion Date].
Pursuant to the terms of the Indenture, the Conversion Option has been elected.
The rate established on the Bonds on [Conversion Date] will remain in effect
from such date through the maturity of the Bonds. THE HOLDERS OF THE BONDS WILL
NO LONGER HAVE THE RIGHT TO DEMAND PURCHASE OF THEIR BONDS.
Pursuant to the terms of the Bonds and the Indenture, at least fifteen (15)
days prior to [Conversion Date] the Remarketing Agent (as defined in the
Indenture) will establish the rate of interest on the Bonds for the period
beginning [Conversion Date] and ending on the Maturity Date (the "Fixed Rate").
The Fixed Rate to be established will be that rate which in the reasonable
judgment of the Remarketing Agent is the minimum interest rate necessary to
sell the Bonds at a price of 100% of the principal amount thereof, plus accrued
interest.
The determination of the Fixed Rate by the Remarketing Agent pursuant to and in
accordance with the terms of the Indenture shall be conclusive and binding on
the Bondholders.
Pursuant to Section 5.8 of the Installment Sale Agreement, the Company has
delivered a Substitute Letter of Credit issued by ____________________ which
has an expiration date of ______________________________, [the existing rating
on the Bonds has been withdrawn, however, [Standard & Poor's Corporation or
Moody's Investors Service, Inc.] has delivered a notice to the Trustee
indicating that such Letter of Credit would cause the Bonds to have a rating of
__________.]
MANUFACTURERS AND TRADERS TRUST COMPANY, as trustee
BY: Authorized Representative
EXHIBIT C-2
(Form of Notice of Bondholder's Election Regarding Conversion Date)
TO: MANUFACTURERS AND TRADERS TRUST COMPANY, as trustee (the "Trustee")
under the trust indenture dated as of December 1, 1998 by and between Town of
Colonie Industrial Development Agency (the "Issuer") and the Trustee, securing
the Issuer's $6,000,000 aggregate principal amount Taxable Industrial
Development Revenue Bonds (Mechanical Technology Incorporated Project - Letter
of Credit Secured), Series 1998A (the "Bonds")
The undersigned hereby gives notice to you of its intention to tender on
[Repurchase Closing Date] the following Bonds:
Column Column Column (1) (2) (3)
Total Principal Total Principal Amount Amount Not To Be To Be Bond No.
Tendered Tendered
(Please note that, if you wish to tender all of your Bonds, you must show the
full principal amount of each Bond under column (2) above.)
In making this election to tender the Bonds described above, the undersigned
certifies the following:
(1) the current interest rate on the Bonds is subject to adjustment on
[Conversion Date];
(2) twenty (20) days prior to [Conversion Date], the Remarketing Agent will
establish the interest rate on the Bonds for the period from [Conversion Date]
through the maturity of the Bonds, as the interest rate at which the Bonds
could be sold at 100% of the principal amount thereof, plus accrued interest.
THE HOLDERS OF THE BONDS WILL NO LONGER HAVE THE RIGHT TO DEMAND PURCHASE OF
THEIR BONDS AND THE RATE ESTABLISHED AS DESCRIBED IN THE PREVIOUS SENTENCE WILL
REMAIN IN EFFECT THROUGH THE MATURITY OF THE BOND;
(3) the determination of the Remarketing Agent as to the interest rate on
the Bonds during such period shall be conclusive and binding upon the
undersigned; and
(4) that the rating then in effect with respect to the Bonds, if any, may
be withdrawn or lowered.
Dated: ______________________ ____________________________________
____________________________________ NOTICE: The signature(s) on this notice
must correspond with the name(s) as it (they) appear(s) on the face of the
Bonds in every particular.
EXHIBIT C-3
(Form of Notice of Mandatory Tender on Alternate Security Date)
NOTICE OF MANDATORY TENDER WITH RESPECT TO TOWN OF COLONIE INDUSTRIAL
DEVELOPMENT AGENCY TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS (MECHANICAL
TECHNOLOGY INCORPORATED PROJECT - LETTER OF CREDIT SECURED), SERIES 1998A
DATE:_________________
TO: ________________________
FROM: MANUFACTURERS AND TRADERS TRUST COMPANY, as trustee (the "Trustee")
under the trust indenture dated as of December 1, 1998 by and between Town of
Colonie Industrial Development Agency (the "Issuer") and the Trustee, securing
the Issuer's $6,000,000 aggregate principal amount Taxable Industrial
Development Revenue Bonds (Mechanical Technology Incorporated Project - Letter
of Credit Secured), Series 1998A (the "Bonds")
Notice is hereby given in accordance with Section 304 of the Indenture that the
Bonds with respect to which you are the registered owner are subject to
mandatory tender as a result of the delivery by the Company (as defined in the
Indenture) of an Alternate Letter of Credit (as defined in the Indenture)
pursuant to Section 5.8 of the Installment Sale Agreement (as defined in the
Indenture) and must be presented to the undersigned trustee for purchase at its
office at _________________, __________________, on or before [Alternate
Security Date], UNLESS, on or before [Twenty (20) days prior to the Conversion
Date] at 5:00 p.m., New York time, we receive written notice of your election
not to tender and to continue holding such Bonds using the form attached to
this notice.
If you own one or more Bonds having an aggregate total principal amount of
$__________ or more, you may elect not to tender the total principal amount of
your Bonds and to continue to hold only a portion of your Bonds (but in no
event any amount other than $100,000, or any integral multiple of $5,000 in
excess thereof).
If you elect not to tender and to continue to hold your Bonds, the credit
rating on the Bonds is subject to change on [Alternate Security Date].
Pursuant to Section 5.8 of the Installment Sale Agreement, the Company has
delivered a Alternate Letter of Credit issued by ____________________ which has
an expiration date of ______________________________. [The existing rating on
the Bonds has been withdrawn.] [Standard & Poor's Corporation or Moody's
Investors Service, Inc.] has delivered a notice to the Trustee indicating that
such Alternate Letter of Credit would cause the Bonds to have a rating of
__________.]
MANUFACTURERS AND TRADERS TRUST COMPANY, as trustee
BY: Authorized Representative
EXHIBIT C-4
(Form of Notice of Bondholder's Election Regarding Alternate Letter of Credit)
TO: MANUFACTURERS AND TRADERS TRUST COMPANY, as trustee (the "Trustee")
under the trust indenture dated as of December 1, 1998 by and between Town of
Colonie Industrial Development Agency (the "Issuer") and the Trustee, securing
the Issuer's $6,000,000 aggregate principal amount Taxable Industrial
Development Revenue Bonds (Mechanical Technology Incorporated Project - Letter
of Credit Secured), Series 1998A (the "Bonds")
The undersigned hereby gives notice to you of its intention not to tender on
[Alternate Security Date] and to continue to hold beyond that date, the
following Bonds:
Column Column Column (1) (2) (3)
Total Principal Total Principal Amount Amount Not To Be To Be Bond No.
Tendered Tendered
(Please note that, if you wish not to tender and to continue to hold all or a
portion of your Bonds, you must show the full principal amount of each Bond
under column (3) above.)
In making this election not to tender and to continue to hold the Bonds
described above, the undersigned recognizes that:
(1) the current interest rate on the Bonds is subject to adjustment on
[Alternate Security Date]; and
(2) that the rating then in effect with respect to the Bonds, if any, will
be withdrawn or lowered.
Dated: ______________________ _____________________________________
_____________________________________ NOTICE: The signature(s) on this notice
must correspond with the name(s) as it (they) appear(s) on the face of the
Bonds in every particular.
IMPORTANT: To be effective, this notice must be received by the Trustee no
later than 5:00 p.m., New York time, on _____________ (or, if ___________ is
not a Business Day, on the next following Business Day).
EXHIBIT C-5
(Form of Tender Notice)
TO: MANUFACTURERS AND TRADERS TRUST COMPANY, as trustee (the "Trustee")
under the trust indenture dated as of December 1, 1998 by and between Town of
Colonie Industrial Development Agency (the "Issuer") and the Trustee, securing
the Issuer's $6,000,000 aggregate principal amount Taxable Industrial
Development Revenue Bonds (Mechanical Technology Incorporated Project - Letter
of Credit Secured), Series 1998A (the "Bonds")
The undersigned hereby gives notice to you of its intention to tender on
[Repurchase Closing Date] the following Bonds:
Column Column Column (1) (2) (3)
Total Principal Total Principal Amount Amount Not To Be To Be Bond No.
Tendered Tendered
(Please note that, if you wish to tender all of your Bonds, you must show the
full principal amount of each Bond under column (2) above.)
In making this election to tender the Bonds described above, the undersigned
certifies the following:
(1) the principal amount of the Bonds to be tendered, the number of the
Bonds to be tendered, and the Repurchase Closing Date are as described above;
(2) the name and address of the Bondholder is described as follows:
;
(3) the undersigned by delivery of this notice irrevocably requests the
purchase of the Bonds described above; and
(4) the undersigned undertakes to deliver the Bonds described above to the
Tender Agent (as defined in the Indenture) or the Trustee in accordance with
Section 305(A) of the Indenture.
Dated: ______________________ ____________________________________
____________________________________ NOTICE: The signature(s) on this notice
must correspond with the name(s) as it (they) appear(s) on the face of the
Bonds in every particular.
EXHIBIT D
DESCRIPTION OF LAND
EXHIBIT E
DESCRIPTION OF EQUIPMENT
All articles of personal property and all appurtenances acquired with the
proceeds of the Bonds or any payment made by Mechanical Technology Incorported
(the "Company") pursuant to Section 4.5 of the installment sale agreement dated
as of December 1, 1998 (the "Installment Sale Agreement") by and between Town
of Colonie Industrial Development Agency and the Company and now or hereafter
attached to, contained in or used in connection with the Land (as defined in
the Installment Sale Agreement) or placed on any part thereof, though not
attached thereto, including, but not limited to, pipes, screens, fixtures,
heating, lighting, plumbing, ventilation, air conditioning, compacting and
elevator plants, call systems, stoves, ranges, refrigerators and other lunch
room facilities, rugs, movable partitions, cleaning equipment, maintenance
equipment, shelving, flagpoles, signs, waste containers, outdoor benches,
drapes, blinds and accessories, sprinkler systems and other fire prevention and
extinguishing apparatus and materials, motors, machinery; and together with any
and all products of any of the above, all substitutions, replacements,
additions or accessions therefor, and any and all cash proceeds or non-cash
proceeds realized from the sale, transfer or conversion of any of the above.
EXHIBIT F
FORM OF REQUEST FOR DISBURSEMENT
To: Manufacturers and Traders Trust Company, as Trustee One M&T Plaza
Buffalo, New York 14203 Attention: Corporate Trust Department
Re: The Mechanical Technology Incorporated - Letter of Credit Secured
Project
Requisition Number: _______
Dated: _____________
You are hereby authorized and directed to make the following disbursement from
the Project Fund as defined in the trust indenture dated as of December 1, 1998
(the "Indenture") by and between Town of Colonie Industrial Development Agency
(the "Issuer") and Manufacturers and Traders Trust Company, as trustee:
(A) (i) Name and address of the person to whom disbursement is to be
made, and the amount to be paid:
See Schedule A attached.
(ii) Description of purpose for which the requested disbursement from the
Project Fund is to be made.
See Schedule A attached.
(B) The disbursement is for a proper expenditure of moneys in the Project
Fund under Section 4.3 of the Installment Sale Agreement (as defined in the
Indenture);
(C) With respect to the item(s) for which payment is to be made, the
undersigned has no knowledge of any Lien (as defined in the Indenture) which
should be satisfied or discharged before the payment as requested is made;
(D) _______ percent of the work on the construction of the Facility (as
defined in the Indenture) and the acquisition and installation of the Equipment
(as defined in the Indenture) has been completed, and such percentage exceeds
the percentage which all advances made to the date hereof represent of the
total of Bond proceeds which can be disbursed from the Project Fund (as defined
in the Indenture);
(E) If the amount requested is to reimburse to the Company for costs or
expenses of the Company incurred by reason of work performed or supervised by
officers or employees of the Company, (1) such officers or employees were
specifically employed or designated by the Company for such purpose, (2) the
amount to be paid does not exceed the actual cost thereof to the Company, and
(3) such costs or expenses will be treated by the Company on its books as
capital expenditures in conformity with generally accepted accounting
principles applied on a consistent basis (or would have been so treated either
with an election by the Company or but for an election by the Company to deduct
the amount of such payment);
(F) No item(s) for which payment is requested has (have) been the basis for
any prior disbursement from the Project Fund (requests for disbursement of
retainage amounts under any contract relating to the construction of the
Facility shall not be deemed made for an item which has been the basis of a
prior disbursement by virtue of requests for disbursement of amounts covering
the cost of such construction, less the retainage amounts);
(G) All of the conditions set forth in the Indenture and the Reimbursement
Agreement have been satisfied;
(H) As of the date of this Request for Disbursement, the representations
and covenants made in Section 2.2 of the Installment Sale Agreement are true
and correct, there is no Event of Default (as defined in the Indenture) under
any of the Financing Documents (as defined in the Indenture), nor any event,
condition or act that, with the passage of time or the giving of notice or
both, would ripen into such an event of default;
(I) The Facility (as defined in the Indenture) has not been materially
injured or damaged by fire or other casualty;
(J) All sums due workmen and materialmen have been paid or will be paid
from the proceeds of this disbursement; and
(K) None of the items for which requisition is made constitutes personal
property (including, without limitation, fixtures and equipment) other than
that listed on all accompanying schedules sufficient for identification
purposes in connection with the filing of UCC-1 and/or UCC-3 financing
statements.
MECHANICAL TECHNOLOGY INCORPORATED
BY: Authorized Representative
APPROVAL BY KEYBANK NATIONAL ASSOCIATION
_________________________________
BY:______________________________ Authorized Representative
SCHEDULE A
Name and Address of Person to Whom Disbursement is Description to be Made
Amount of Purpose
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