EXHIBIT 4.2
Indenture of Trust
by and between
Grapevine Industrial Development Corporation
and
Bank One, Texas, NA, as Trustee
Dated as of April 1, 1994
$8,000,000 Industrial Development Revenue Bonds,
Series 1994 (Trencor Jetco, Inc. Project)
INDENTURE OF TRUST
This Indenture of Trust is made and entered into as of April 1, 1994,
by and between the Grapevine Industrial Development Corporation (the
Issuer), and Bank One, Texas, NA, a national banking association having its
corporate trust office in Fort Worth, Texas (the Trustee), as trustee.
Witnesseth:
Whereas, the Issuer is a constituted authority and
instrumentality acting on behalf of the City of Grapevine, Texas (the "Unit"),
organized and existing under the Development Corporation Act of 1979,
Article 5190.6, TEX. REV. CIV. STAT. ann, as amended (the "Act"), and is
authorized under the Act to issue and sell its bonds and to lend the proceeds
thereof to assist the Unit in its economic development and to carry out the
public purposes of the Act, including the financing of manufacturing and
industrial facilities located within the corporate limits of the Unit; and
Whereas, Trencor Jetco, Inc. (the "Company"), a Texas
corporation and a wholly owned subsidiary of Astec Industries, Inc., a
Tennessee corporation (the "Guarantor"), has requested financial assistance
from the Issuer to finance a project (the "Project"); and
Whereas, the Issuer is authorized by the Act to finance the
Project for the Company by issuing its bonds and loaning the proceeds
thereof to the Company, and, to that end, the Issuer has adopted a resolution
(the "Bond Resolution") duly authorizing and directing the issuance, sale, and
delivery of its industrial development revenue bonds, to be known
generally as Grapevine Industrial Development Corporation Industrial
Development Revenue Bonds, Series 1994 (Trencor Jetco, Inc. Project) (the
"Series 1994 Bonds"), to be issued as fully registered bonds (all bonds,
including the Series 1994 Bonds, at any time outstanding under terms of this
Indenture, hereinafter being called the "Bonds") and to secure payment of the
principal thereof and of the interest and premium, if any, thereon and the
performance and observance of the covenants and conditions herein
contained, the Issuer has authorized the execution and delivery of this
Indenture; and
Whereas, the Issuer will loan the proceeds of the Series
1994 Bonds to the Company by entering into a Loan Agreement dated as of
April 1, 1994 (the "Agreement"), between the Issuer and the Company; and
Whereas, pursuant to the Agreement, the Company has
agreed, among other things, to pay to or for the account of the Issuer an
amount equal to the principal of and redemption premium and interest on the
Series 1994 Bonds, as the same become due, all as set forth in the Agreement;
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 obligations of the Issuer according to the import
thereof, and to constitute this Indenture a valid assignment and pledge of the
security pledged hereunder, have been done and performed, and the
creation, execution, and delivery of this Indenture of Trust, and the creation,
execution, and issuance of the Bonds, subject to the terms hereof, have in all
respects been duly authorized;
Now, Therefore, This Indenture of Trust Witnesseth:
Granting Clause
To secure the timely payment of the principal of premium if
any, and interest on the Bonds according to their tenor and effect and to
secure the performance and observance by the Issuer of
all of the covenants set forth herein and in the Bonds, the Issuer
hereby assigns to the Trustee and grants to the Trustee a security interest in
all right, title, and interest of the Issuer in and to (a) the Agreement,
including the current and continuing right to claim, collect, receive, and give
receipts for all amounts payable by or receivable from the Company under the
Agreement, to bring actions and proceedings under the Agreement or for the
enforcement of the Agreement and to do all things that the Issuer is entitled
to under the Agreement, but excluding the Unassigned Rights, and (b) all
moneys and securities held from time to time by the Trustee under
this Indenture as provided in this Indenture (other than moneys and securities
held in the Purchase Fund or the Rebate Fund), all for the equal and
proportionate benefit of all owners of the Bonds without priority or
distinction as to lien or otherwise of any Bonds over any other Bonds.
To secure the obligation of the Company to reimburse to the
Bank amounts owed under the Reimbursement Agreement, the Issuer assigns
and grants to the Trustee for the benefit of the Bank a security interest in
all right, title, and interest of the Issuer in and to the moneys held in the
Bond Proceeds Fund until such moneys are applied for their intended
purpose as provided in Section 5.01 hereof, provided, however, the said
security interest shall be subordinate to the security interest in
and to such moneys granted to the Trustee in the preceding
paragraph for the benefit of the owners of the Bonds.
To Have And To Hold all and singular the Trust Estate (as
defined below) whether now owned or hereafter acquired, to the Trustee and
its respective successors in trust and assigns forever;
In Trust Nevertheless, upon the terms and trusts herein set
forth for the equal and proportionate benefit, security and protection of all
present and future 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 of the other Bonds;
Provided, However, that if the Issuer, its successors, or
assigns, shall pay, or cause to be paid, the principal of, premium, if any,
and interest on the Bonds due or to become due thereon, at the times and in
the manner mentioned in the Bonds and as provided in Section 4.01 hereof
according to the true intent and meaning thereof, or shall provide,
as permitted hereby, for the payment thereof in accordance with Article X
hereof, and shall keep, perform, and observe all the covenants and conditions
pursuant to the terms of this Indenture to be kept, performed, and observed
by it, and shall pay or cause to be paid to the Trustee all sums of
money due or to become due in accordance with the terms and provisions
hereof, then upon such final payments or deposits as provided in Article X
hereof including payment of all amounts due and payable to the Bank under
the Reimbursement Agreement and surrender of the Letter of Credit to the
Bank for cancellation, this Indenture and the rights hereby granted shall
cease, terminate, and be void and the Trustee shall thereupon cancel and
discharge this Indenture and execute and deliver to the Issuer and the
Company such instruments in writing as shall be requisite to
evidence the discharge hereof.
This Trust Indenture Further Witnesseth, and it is expressly
declared, that all Bonds issued and secured hereunder are to be issued,
authenticated, and delivered and all of the Trust Estate is to be dealt with\
and disposed of, under, upon, and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses, and purposes
hereinafter expressed and the Issuer has agreed and covenanted, and does
hereby agree and covenant, with the Trustee and with the respective Owners,
from time to time, of the Bonds or any part thereof, as follows:
Article I
Definitions and Interpretation
Section 1.01. Definitions. Each of the following terms
shall have the meaning assigned to it in this Section 1.01 whenever it is used
in this Indenture, unless the context in which it is used
clearly requires otherwise:
"Adequate Interest Coverage" shall have the meaning set
forth in Section 2.02(f)(iii) hereof.
"Adjustable Rate" shall mean the interest rate per annum
from time to time borne by the
Bonds when in the Adjustable Rate Mode, as established in
accordance with Section 2.02(e) hereof.
"Adjustable Rate Conversion Date" shall mean each Interest
Payment Date on which the Bonds, upon having been converted to the
Adjustable Rate Mode from another Mode, shall first begin to bear interest at
an Adjustable Rate in accordance with the terms hereof, and each subsequent
Adjustable Rate Reset Date.
"Adjustable Rate Interest Payment Date" shall mean (i) with
respect to an Adjustable Rate Period which extends over a period covering all
or part of at least six calendar months, the first day of the sixth calendar
month following the Adjustable Rate Conversion Date, and the first day of
each successive sixth calendar month, if any, of such Adjustable Rate
Period; provided, however, the final Adjustable Rate Interest Payment Date
with respect to any such Adjustable Rate Period shall be the
first Business Day of the calendar month immediately following the
expiration of such Adjustable Rate Period, or the maturity date of the Bonds
(if such Adjustable Rate Period extends to the final maturity of the Bonds),
and (ii) with respect to an Adjustable Rate Period which extends over a
period covering all or part of less than six calendar months, the
first Business Day of the calendar month immediately following the
expiration of such Adjustable Rate Period or the maturity date of
the Bonds (if such Adjustable Rate Period extends to the final
maturity of the Bonds).
"Adjustable Rate Mode" shall mean the Mode in which the
Bonds bear interest at an Adjustable Rate.
"Adjustable Rate Period" shall mean any period selected in
accordance with Section 2.01(e) of not less than one month in duration,
commencing on an Adjustable Rate Conversion Date or an
Adjustable Rate Reset Date, as appropriate, and ending on the day
preceding a subsequent Conversion Date or Adjustable Rate Reset Date, as
appropriate.
"Adjustable Rate Reset Date" shall mean an Adjustable Rate
Interest Payment Date on which the Bonds begin to bear interest at a new
Adjustable Rate in accordance with the terms hereof.
"Agreement" shall mean the Loan Agreement, dated as of
April 1, 1994, between the Issuer and the Company, as amended and
supplemented.
"Alternate Credit Facility" shall mean an irrevocable letter
of credit or other credit facility described in Section 5.03(b) hereof
delivered pursuant to such Section in substitution for a Letter of Credit.
"Authorized Company Representative" shall mean the
President or Vice President of the Company or any other person designated by
the Company to act on behalf of the Company pursuant to a written
instrument filed with the Trustee, the Issuer, and the Bank containing the
specimen signature of such person. Such instrument may designate an
alternate or alternates.
"Authorized Denomination" shall mean $100,000 and any
integral multiple thereof.
"Available Moneys" shall mean
(1) During any period the Letter of Credit is in effect:
(a) proceeds from the remarketing of any Bonds, tendered for
purchase pursuant to this Indenture, to any person other than the Issuer, the
Company, the Guarantor, or any "insider" (as defined in the Bankruptcy
Code) of the Issuer, the Company, or the Guarantor;
(b) moneys derived from any draw on the Letter of Credit;
(c) any other moneys or securities, if there is delivered
to the Trustee an opinion of an attorney-at-law, duly admitted to practice
before the highest court of the jurisdiction in which such attorney maintains
an office, who is not a full-time employee of the Company, the Bank, the
Issuer, or the Remarketing Agent, having expertise in bankruptcy matters
(who, for purposes of such opinion, may assume that no Owner is an
"insider," as defined in the Bankruptcy Code) to the effect that the use of
such moneys or securities to pay the principal or purchase price of, premium,
if any, or interest on the Bonds would not be avoidable as preferential
payments under Section 547 of the Bankruptcy Code recoverable under Section 550
of the Bankruptcy Code should the Company become a debtor in a proceeding
commenced thereunder, which opinion shall also be addressed
to and acceptable to any Rating Agency then rating the Bonds; and
(d) earnings derived from the investment of any of the
foregoing; and
(2) During any period the Letter of Credit is not in effect, any
moneys held by the Trustee in any Fund or Account under this Indenture and
available, pursuant to the provisions hereof, to be used to pay principal of,
premium, if any, or interest on, or the purchase price of, the Bonds.
"Bank" shall mean the issuer of the Letter of Credit then in
effect. All references to "Bank" shall be of no effect at any time that no
Letter of Credit is issued and secures the Bonds, except with respect to
rights of any Bank established hereunder which do not, by their terms, expire
upon the expiration of the Letter of Credit issued by such Bank. "Bankruptcy
Code" shall mean the United States Bankruptcy Reform Act of 1978, as amended
from time to time, or any substitute or replacement legislation.
"Beneficial Owner" means the person in whose name a
Bond is recorded as beneficial Owner of such Bond by the Securities
Depository or a Participant or an Indirect Participant on the records
of such Securities Depository, Participant or Indirect Participant, as
the case may be, or such Person's subrogee.
"Bond Counsel" shall mean, with respect to the original
issuance of the Bonds, Hutchison Boyle Brooks & Fisher, and thereafter, any
firm of attorneys of nationally recognized expertise with respect to the tax-
exempt obligations of political subdivisions, selected by the Company and
acceptable to the Remarketing Agent, the Trustee, and the Issuer.
"Bond Fund" shall mean the Fund by that name established by
Section 5.02 of this Indenture.
"Bond Owner," or "Owner of the Bonds," when used
with respect to a Bond, shall mean the person or entity in whose name such
Bond shall be registered.
"Bond Proceeds Fund" shall mean the Fund by that name
established by Section 5.01 of this Indenture.
"Bonds" shall mean the $8,000,000 Industrial Development Revenue
Bonds, Series 1994 (Trencor Jetco, Inc. Project) issued pursuant to this
Indenture.
"Bond Year" means each one-year period that ends on the
day selected by the Issuer. The first and last Bond Years may be short
periods. If no day is selected by the Issuer before the date the Bonds are
retired or the date that is five years after the Closing Date, Bond Years end
on each anniversary of the Closing Date and the date the Bonds are retired.
"Book-Entry System" means a book-entry system established and
operated for the recordation of Beneficial Owners of the Bonds pursuant to
Section 2.12 hereof.
"Business Day" or "business day" shall mean any day
which is not (i) a Saturday or a Sunday, (ii) a day on which banking
institutions in the cities of New York, New York, or Fort Worth, Texas
(or, if different, in the cities in which the corporate trust office of
the Trustee and the office of the Bank at which drawings under the Letter of
Credit are to be honored are located), are authorized or required by law or
executive order to close, or (iii) a day on which the New York Stock
Exchange is closed.
"Closing Date" shall mean the date of initial issuance and
delivery of the Bonds to the purchasers thereof.
"Code" shall mean the Internal Revenue Code of 1986, as
amended. Each citation to a section of the Code shall include the Regulations
applicable to such Section.
"Company" shall mean Trencor Jetco, Inc., a Texas corporation and
a wholly owned subsidiary of the Guarantor, its successors and assigns.
"Company Bonds" shall mean Bonds purchased with moneys
described in Section 3.09(c) hereof.
"Completion Date" shall mean the date the acquisition, construction,
and equipping of the Project is certified to be complete in accordance with
the provisions of Section 3.3 of the Agreement.
"Construction Period" shall mean the period between the
beginning of construction or the date on which Bonds are first delivered to
the purchasers thereof, whichever is earlier, and the Completion Date.
"Conversion Date" shall mean an Adjustable Rate
Conversion Date, a Weekly Rate Conversion Date, a Daily Rate Conversion
Date or a CP Rate Conversion Date, as appropriate.
"Cost of the Project" shall mean the sum of the items authorized to
be paid from the Project Account pursuant to the provisions of Section 4.2 of
the Agreement.
"CP Rate" shall mean the interest rate per annum on the Bonds
established in accordance with Section 2.02(d) hereof.
"CP Rate Conversion Date" shall mean each Interest
Payment Date on which the Bonds, having been converted to the CP Rate
Mode from another Mode, first begin to bear interest at a CP Rate in
accordance with the terms hereof.
"CP Rate Interest Payment Date" shall mean the Business
Day which immediately succeeds the last date of any CP Rate Period.
"CP Rate Mode" shall mean the interest rate Mode in which Bonds
bear interest at the CP Rate.
"CP Rate Period" shall mean, while the Bonds are in the CP Rate
Mode, the period (a) which begins on a CP Rate Conversion Date or a CP
Rate Reset Date, as appropriate, and (b) has a duration which shall have been
set by the Remarketing Agent as provided in Section 2.02(d), but shall never
be shorter than 30 days nor longer than 270 days, and (c) which ends on a
day which immediately precedes a Business Day and which falls on or prior
to the maturity date of the Bonds.
"CP Rate Reset Date" shall mean each CP Rate Interest
Payment Date on which commences a new CP Rate Period, whereon a new
CP Rate which shall have been set pursuant to Section 2.02(d) shall first
become effective.
"Daily Interest Period" shall mean, while the Bonds are in the Daily
Rate Mode, the period from and including each day which is a Business Day
to but excluding the next succeeding day which is a Business Day.
"Daily Rate" shall mean the interest rate per annum on
the Bonds established in accordance with Section 2.02(c) hereof.
"Daily Rate Conversion Date" shall mean each date on
which the Bonds, having been converted to the Daily Rate Mode from another
Mode, first begin to bear interest at a Daily Rate in accordance with the
terms hereof.
"Daily Rate Interest Payment Date" shall mean the first Business
Day of each month during which the Bonds shall be in the Daily Rate Mode,
commencing with the first Business Day of the month next succeeding each
Daily Rate Conversion Date or, if applicable, the Closing Date.
"Daily Rate Mode" shall mean the Mode in which the
Bonds bear interest at a Daily Rate.
"Daily Rate Period" shall mean the period from the Daily
Rate Conversion Date to the earlier to occur of the following Conversion Date
or the date on which principal of the Bonds is paid in full.
"Determination of Taxability" shall mean the receipt by
the Trustee of evidence of a judgment or order of a court of competent
jurisdiction, or a final ruling, technical advice, or decision of the internal
Revenue Service to the effect that the interest on the Bonds (other than
interest on any Bond for any period during which such Bond is held by a
"substantial user" of the Project or a "related person," as such terms are
used in section 147(a) of the Code) is includable for federal income tax
purposes in the gross incomes of recipients thereof; provided, however, that in
no event shall a Determination of Taxability be based upon the inclusion of
interest in any minimum tax or indirect tax. For purposes of this definition,
a ruling or decision of the Internal Revenue Service shall be considered final
if no appeal or action for a judicial review has been filed and the time for
filing of such appeal or action has expired.
"Event of Default," used with respect to this Indenture,
shall mean any event specified in Section 6.01 of this Indenture.
"Government obligations" shall mean direct obligations of, or
obligations the timely payment of the principal of, and interest on, which are
fully and unconditionally guaranteed by the United States of America, which,
at the time of investment, are not subject to prepayment or redemption
prior to maturity and are legal investments under the laws of the State for
the moneys proposed to be invested therein.
"Guarantor" shall means Astec Industries, Inc., a Tennessee
corporation, its successors and assigns.
"Guaranty" shall mean the Guaranty Agreement dated as of
April 1, 1994, between the Guarantor and the Trustee, as the same is
supplemented and amended.
"Indenture" shall mean this Indenture of Trust, as
amended and supplemented.
"Indirect Participant" means a broker-dealer, bank, or
other financial institution for which the Securities Depository holds Bonds as
a securities depository through a Participant.
"Initial Letter of Credit" shall mean the Letter of Credit
delivered on the Closing Date by the Bank for the purpose of securing the
Bonds, as extended or amended from time to time.
"Interest Payment Date" shall mean an Adjustable Rate
Interest Payment Date, a Weekly Rate Interest Payment Date, a Daily Rate
Interest Payment Date, a CP Rate Interest Payment Date, each date upon
which the Bonds shall be subject to mandatory tender for purchase pursuant
to Section 2.04 hereof, and any date upon which the outstanding principal
amount of the Bonds becomes due.
"Issuer" shall mean Grapevine Industrial Development
Corporation, and its successors and assigns.
"Letter of Credit" shall mean the Initial Letter of Credit
and, if an Alternate Credit Facility is issued, each Alternate Credit Facility,
as extended or amended from time to time. All references to the "Letter of
Credit" shall be of no effect at any time that no Letter of Credit secures the
Bonds, except with respect to rights of any Bank created hereunder which
do not, by their terms, expire upon the termination of the Letter of Credit
issued by such Bank.
"Maintenance of Rating" shall have the meaning set forth in Section
5.03(b) hereof. "Maximum Rate" shall mean the rate per annum equal to
the lesser of (a) 15% per annum, or (b) if a Letter of Credit is then in
effect, the maximum interest rate stated in such Letter of Credit for purposes
of calculating the interest portion of the stated amount of such Letter of
Credit.
"Mode" shall mean any of the interest rate modes which may exist
from time to time with respect to the Bonds, including the Adjustable Rate
Mode, the Weekly Rate Mode, the Daily Rate Mode, or the CP Rate Mode, as
appropriate.
"Offering Agreement" shall mean the Offering Agreement, dated as
of April 1, 1994, among the Issuer, the Company, the Guarantor, and the
Offering Agent, including all amendments thereof and supplements thereto.
"Offering Agent" shall mean The First National Bank of
Chicago, Chicago, Illinois.
"Outstanding" or "Bonds outstanding" or "Bonds
then outstanding," at the time in question, shall mean all Bonds which have
been executed and delivered by the Issuer and authenticated by the Trustee or
the Tender Agent under this Indenture, except:
(i) Bonds theretofore canceled by the Trustee or surrendered to
the Trustee for cancellation;
(ii) Bonds paid or deemed to be paid pursuant to Article X
hereof;
(iii) Bonds in lieu of or in exchange for which other Bonds shall
have been executed and delivered by the Issuer and authenticated by the
Trustee or the Tender Agent pursuant to Sections 2.07, 2.08, 2.10, or 3.06
hereof; and
(iv) Undelivered Bonds. "Participant" shall mean a broker-
dealer, bank, or other financial institution for which the Securities
Depository holds Bonds as a securities depository.
"Pledged Bonds" shall mean Bonds purchased with moneys provided
to the Tender Agent pursuant to Section 3.09(b) hereof.
"Principal Office" shall have the respective meaning as stated in the
definitions of the Remarketing Agent and Tender Agent set forth herein.
"Project" shall mean the project as described in Exhibit A to the
Agreement.
"Purchase Fund" shall mean the fund by that name established
pursuant to Section 3.07(b) of this Indenture.
"Qualified Costs of Construction" shall mean that portion of the Cost
of the Project which constitutes land costs or costs of property of a
character
subject to the allowance for depreciation for federal income tax purposes and
which were incurred and paid, or are to be incurred and paid, after January
17, 1994.
"Qualified Investments" shall mean, subject to any restrictions
imposed by State law, (i) Government Obligations, (ii) obligations of the
Federal National Mortgage Association, the Government National Mortgage
Association or the Federal Home Loan Mortgage Corporation, (iii)
commercial paper or finance company paper rated not less than "P-l" by
Moody's Investors Service or "A-1+" by Standard & Poor's Corporation, (iv)
certificates of deposit or other time or demand deposits of banks (including,
without limitation, the Trustee and the Bank) that are fully insured by the
Federal Deposit Insurance Corporation or fully secured by obligations
described in (i) or (ii) above, (v) repurchase agreements secured by
obligations described in (i) or (ii) above or bonds or obligations which are
authorized by law as security for public deposits, provided that no
proceeding
under any applicable insolvency or reorganization law has been commenced
by or against the issuer of such bonds or obligations, and provided, further,
that such bonds or obligations and debt of the issuer of the repurchase
agreement bear one of the three highest full credit ratings assigned by
Moody's Investors Service and Standard & Poor's Corporation, (vi) any
investment fund or other investment pooling arrangement which purchases
and holds exclusively Government Obligations or repurchase agreements
meeting the requirements of (v) above, (vii) Tax-Exempt Obligations (as
defined in the Tax Agreement) rated in one of the two highest full rating
categories by either of the Rating Agencies, and (viii) any other investment
approved in writing by the Bank.
"Rating Agencies" shall mean S&P and/or Moody's Investors
Service, according to which of such rating agencies then rates the Bonds; and
provided that if neither of such rating agencies then rates the Bonds, the
term "Rating Agencies" shall refer to any national rating agency (if any)
which provides such rating. If only one Rating Agency then rates the Bonds,
Rating Agencies" shall at that time mean only such Rating Agency.
"Rebate Fund" shall mean the fund by that name created
pursuant to Section 5.10 of this Indenture.
"Record Date" shall mean (a) with respect to any Weekly
Rate Interest Payment Date, Daily Rate Interest Payment Date, CP Rate
Interest Payment Date, or Adjustable Rate Interest Payment Date for an
Adjustable Rate Period of less than six months in duration, the close of
business on the Business Day next preceding such Interest Payment Date, and
(b) with respect to any Adjustable Rate Interest Payment Date for an
adjustable Rate Period of greater than or equal to six months in duration, the
close of business on the fifteenth day of the calendar month next preceding
such Interest Payment Date.
"Regulations" shall mean the temporary and permanent Income Tax
Regulations promulgated or proposed by the Department of the Treasury
pursuant to the Code, as applicable to the Bonds.
"Reimbursement Agreement" shall mean with respect to each
Letter of Credit, the agreement pursuant to which such Letter of Credit is
issued. All references to "Reimbursement Agreement" shall be of no effect at
any time that no Letter of Credit is issued and secures the Bonds, except with
respect to rights of any Bank which do not, by their terms, expire upon the
expiration of the Letter of Credit issued by such Bank.
"Remarketing Agent" shall mean the Remarketing Agent appointed
in accordance with Section 7.10 hereof, and shall mean initially The First
National Bank of Chicago, Chicago, Illinois. "Principal Office" of the
Remarketing Agent shall mean the office thereof designated in writing to
the Issuer, the Trustee, the Bank, and the Company, and shall mean initially
the office of the Remarketing Agent located at One First National Plaza, Suite
0463, Chicago, Illinois 60670-0463, Attention: Municipal Bond
department/Short Term Trading.
"Remarketing Agreement" shall mean the Remarketing Agreement
dated as of April 1, 1994 among the Company, the Guarantor, and the
Remarketing Agent.
"S&P" shall mean Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., its successors and assigns.
"Securities Depository" means The Depository Trust Company and
any substitute for or successor to such securities depository that shall
maintain a Book Entry System with respect to the Bonds.
"Securities Depository Nominee" means the Securities
Depository or the nominee of such Securities Depository in whose name there
shall be registered on the registration books of the Issuer the Bonds to be
delivered to such Securities Depository during the continuation with such
Securities Depository of participation in its Book Entry System.
"State" shall mean the State of Texas.
"Tax Agreement" shall mean the Tax Exemption Certificate and
Agreement dated the Closing Date among the Company, the Issuer, and the
Trustee, as amended and supplemented.
"Tender Agent" shall mean the Tender Agent appointed
in accordance with Section 7.11 hereof if the Bonds are not then in a Book-
Entry System. "Principal Office" of the Tender Agent shall mean the office
thereof designated in writing to the Issuer, the Trustee, the Bank, the
Remarketing Agent and the Company.
"Trustee" shall mean Bank One, Texas, NA, or any successor trustee
or co-trustee serving as such under this Indenture.
"Trust Estate" shall mean the property conveyed to the
Trustee pursuant to the Granting Clause of this Indenture.
"Unassigned Rights" shall mean the rights of the Issuer
under Sections 5.2, 7.2, and 9.3 of the Agreement, the Issuer"s rights to
consent to amendments to the Agreement and its rights to receive
notices thereunder.
"Undelivered Bonds" shall mean, during any period the
Bonds are not in the Book-Entry System, Bonds for which notice of optional
tender shall have been given pursuant to Section 2.03 and Bonds subject to
mandatory tender pursuant to Section 2.04, for which Available Moneys
sufficient to pay the purchase price have been deposited with the Tender
Agent on or before the purchase date of such Bonds, but which Bonds were
not delivered to the Tender Agent on or before such purchase date.
"Weekly Interest Period" shall mean, while the Bonds are
in the Weekly Rate Mode, each period from and including Wednesday of each
week (and, if the first day of any Weekly Rate Period is not a Wednesday, the
Weekly Rate Conversion Date on which such Weekly Rate Period
commences) through and including the following Tuesday, whether
or not such days are Business Days. In addition, and notwithstanding the
foregoing, the initial Weekly Interest Period shall commence on the Closing
Date and shall end on the following Tuesday.
"Weekly Rate" shall mean the interest rate per annum on
the Bonds established in accordance with Section 2.02(b) hereof.
"Weekly Rate Conversion Date" shall mean each date on
which the Bonds, having been converted to the Weekly Rate Mode from
another Mode, first begin to bear interest at a Weekly Rate in accordance with
the terms hereof.
"Weekly Rate Interest Payment Date" shall mean the first Business
Day of each month during which the Bonds are in the Weekly Rate Mode,
commencing with the first Business Day of the month following the Weekly
Rate Conversion Date or, if applicable, the Closing Date.
"Weekly Rate Mode" shall mean the Mode in which the
Bonds bear interest at a Weekly Rate.
"Weekly Rate Period" shall mean the period from the
Closing Date or any Weekly Rate Conversion Date to the earlier of the next
following Conversion Date or the maturity date of the Bonds.
Section 1.02 Article and Section Headings. The headings or titles
of the several Articles and Sections of this Indenture, and the Table of
Contents appended hereto, are solely for convenience of reference and shall
not affect the meaning or construction of the provisions hereof.
Section 1.03. Interpretation. The singular form of any word
used herein shall include plural, and vice versa, if applicable. The use of a
word of any gender shall include all genders, if applicable. Any reference to
a particular Article or Section shall be to such Article or Section of this
Indenture unless the context shall otherwise require. Any reference to any
time of day on any date shall be to prevailing time in New York City, New
York, on such date unless otherwise specified herein.
Article II
Authorization and Issuance of the Bonds
Section 2.01. Authorization of Bonds; No Additional Bonds. (a)
The Bonds are hereby authorized to be issued in a single series, which shall
be designated as Grapevine Industrial Development Corporation Industrial
Development Revenue Bonds, Series 1994 (Trencor Jetco, Inc. Project) (the
"Bonds"). The Bonds shall be issued in the aggregate principal amount of
$8,000,000.
(b) The Bonds shall be issued for the purpose of providing
funds to pay costs of the Project and certain costs of issuance of the Bonds.
No Bonds may be issued pursuant to this Indenture in addition to those
authorized by this Section 2.01, except Bonds issued upon transfer or
exchange pursuant to Section 2.07 hereof, temporary Bonds issued
pursuant to Section 2.10 hereof, replacement Bonds issued pursuant to
Section 2.08 hereof, Bonds issued pursuant to Section 3.06 hereof, and Bonds
delivered pursuant to Section 3.10 hereof.
Section 2.02. Issuance of Bonds; Terms of Bonds. (a) General
Provisions.
The Bonds shall: (i) be dated as provided in Section 2.02(i) below,
(ii) bear interest initially in the Weekly Rate Mode
and, thereafter, as set forth in paragraphs (b) through (f) of this Section,
until paid, at the rates therein provided (computed, while the Bonds are in
the Weekly Rate Mode, the CP Rate Mode or the Daily Rate Mode, on the basis
of a 365- or 366-day year, for the actual number of days elapsed and,
while the Bonds are in the Adjustable Rate Mode, on the basis
of a 360-day year, composed of twelve 30-day months), payable on each
Interest Payment Date,
(iii) all be in the same Mode at the same time, and
(iv) mature on April 1, 2019.
(b) Weekly Rate Provisions.
(i) The Bonds shall bear interest at
a Weekly Rate from the Closing Date (if applicable) and from each
Weekly Rate Conversion Date to the earlier of their redemption, the following
Conversion Date or their maturity date. The Weekly Rate for each Weekly
Interest Period shall be the lowest rate of interest which will, in the sole
judgment of the Remarketing Agent, having due regard for prevailing
financial market conditions, permit the Bonds to be remarketed at par on the
first day of such Weekly Interest Period. Notwithstanding the foregoing, the
Weekly Rate so established shall be not more than the Maximum Rate. Each
determination of a Weekly Rate by the Remarketing Agent shall be conclusive
and binding.
Notwithstanding the foregoing, if at any time the Remarketing
Agent shall fail to determine a Weekly Rate as set forth above, then, until the
Remarketing Agent shall next determine the Weekly Rate in such fashion, the
Weekly Rate shall be the rate from time to time established as the J.J.
Kenney index rate for high grade tax-exempt obligations having maturities
of 30 days. If such index rate is not available, the Weekly Rate shall be the
rate from time to time established by the Public Securities Association
Municipal Swap Index, and if such index is not available, the Weekly Rate
shall be the rate from time to time established by such other comparable index
as may be selected by the Company upon notice to the Trustee. In no event
however may the interest rate on the Bonds exceed the Maximum Rate.
(ii) On Tuesday (unless Tuesday is not a Business Day,
then on the next preceding Monday; unless Monday and Tuesday are not
Business Days, then on the next subsequent Wednesday, whether or not a
Business Day) of each calendar week during a Weekly Rate Period,
with respect to each Weekly Interest Period, the Remarketing Agent shall
determine and furnish to the Trustee, the Company, the Bank, and the Tender
Agent, if any, the Weekly Rate for the ensuing Weekly Interest Period. On
the Business Day preceding each Weekly Rate Interest Payment Date,
the Trustee shall furnish to the Company, the Bank and, if the Bonds are not
in a Book-Entry System, to the Tender Agent, the Weekly Rates applicable to
the Bonds from the time of the prior notice of such rates. Should any Owner
or Beneficial Owner request such in writing, the Remarketing Agent shall
also furnish (by first class mail, postage prepaid) the Weekly Rate to such
requesting Owner or Beneficial Owner.
(c) Daily Rate Provisions. (i) The Bonds shall bear interest at a Daily
Rate from the Closing Date (if applicable) and from each Daily Rate Conversion
Date to the earlier of their redemption, the following Conversion Date or their
maturity date. The Daily Rate for each Daily Interest Period shall be the
interest rate determined by the Remarketing Agent on the first day of such
Daily Interest Period (by not later than 11:00 a.m.), which
shall be the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent having due regard for prevailing financial market
conditions, permit the Bonds to be remarketed at par on the said first day of
such Daily Interest Period. Notwithstanding the foregoing, the Daily Rate so
established shall be not more than the Maximum Rate. In the event no Daily
Rate is determined by the Remarketing Agent for a Daily Interest Period, then
the Bonds shall automatically bear interest at the last Daily Rate previously
determined pursuant to this Indenture. Each determination of a Daily Rate by
the Remarketing Agent shall be conclusive and binding.
(ii) On the Business Day preceding each Interest
Payment Date during each Daily Rate Period, the Remarketing Agent will
furnish to the Trustee, and the Trustee will furnish to the Bank,
the Company, and the Tender Agent, if any, the Daily Rates applicable to the
Bonds during such Daily Rate Period. Should any Owner or Beneficial
Owner request in writing the Daily Rate applicable to the Bonds for any
particular day, the Remarketing Agent will furnish such Daily Rate
to such requesting Owner or Beneficial Owner.
(d) CP Rate Provisions. (i) The Bonds shall bear interest at a CP Rate from
each CP Rate Conversion Date or CP Rate Reset Date, as appropriate, to the
earlier of their redemption, the following Conversion Date or the following
CP Rate Reset Date. In the case of each CP Rate Period, on the first day
thereof, the Remarketing Agent shall determine (i) the duration of the CP
Rate Period and (ii) the CP Rate which shall apply during such CP
Rate Period. The duration of the CP Rate Period so determined shall be that
which, in the sole judgment of the Remarketing Agent will provide the lowest
overall interest cost with respect to the Bonds, with due regard to prevailing
financial market conditions, foreseeable changes in such conditions, the
anticipated duration of the period the Bonds may remain in the CP Rate
Mode, and such other factors which the Remarketing Agent, in its sole
judgment, shall deem relevant and economically advantageous to
consider. Upon determination of the duration of the CP Rate Period, the
Remarketing Agent shall determine the CP Rate which shall be in effect
during such CP Rate Period, which shall be the lowest rate of interest which,
in the sole judgment of the Remarketing Agent, having due regard to
prevailing financial market conditions, will permit the Bonds to be
sold at par on the first day of such CP Rate Period. Notwithstanding the
foregoing, the CP Rate so determined shall not be more than the Maximum
Rate. Unless and until the Company elects to effect a conversion of the Bonds
from the CP Rate Mode to another Mode, the Remarketing Agent shall
continually redetermine the duration of, and the CP Rate to be effective
during, each new CP Rate Period, which will commence, without further
action on the part of the Company, on each CP Rate Reset Date. If on any CP
Rate Reset Date, the Remarketing Agent shall fail to determine either
the duration of, or the CP Rate to be effective during, the CP Rate Period
which commences on such date, then, without further action on the part of
any person, the Bonds shall automatically convert to the Weekly Rate Mode
upon such date, and the Bonds shall thereupon bear interest of the
Weekly Rate. Upon such event the Trustee shall promptly notify the Owners,
the Company, the Tender Agent, if any, and the Bank of such automatic
conversion. Each determination by the Remarketing Agent pursuant to this
paragraph shall be conclusive and binding.
(ii) On the first day of each CP Rate Period, the Remarketing Agent shall
furnish to the Trustee, the Bank, the Company, and, if the Bonds are not in a
Book-Entry System, the Tender Agent, notice of the duration of such CP Rate
Period and the CP Rate to be effective during such
CP Rate Period. Should any Owner or Beneficial Owner request
notice of such items in writing, the Remarketing Agent shall provide such
notice (by first class mail, postage prepaid) to such requesting Owner or
Beneficial Owner.
(e) Adjustable Rate Provisions. The Bonds shall bear
interest at an Adjustable Rate from each Adjustable Rate Conversion Date or
each Adjustable Rate Reset Date, as appropriate, to the earlier of their
redemption, the following Conversion Date, the following Adjustable Rate
Reset Date, or the following date on which the Bonds shall be subject to
mandatory tender for purchase pursuant to Section 2.04 hereof. Upon a
conversion of the Bonds to the Adjustable Rate Mode, the duration of the
initial Adjustable Rate Period shall be that period specified in the Company's
conversion notice delivered pursuant to Section 2.02(f)(i) for the
purpose of effecting such conversion. An Adjustable Rate Period shall be of
at least one month's duration and shall end on the day preceding the first
Business Day of a calendar month or, if such Adjustable Rate Period
extends to the final maturity of the Bonds, such final maturity date.
The Bonds thereupon shall remain in the Adjustable Rate Mode for as long as
the Company shall continue to deliver timely notices pursuant to Section
2.02(f)(i) specifying the duration of the next subsequent Adjustable Rate
Period which is to commence on the expiration of any current Adjustable Rate
Period. The Remarketing Agent, on or prior to the commencement of each
Adjustable Rate Period, shalldetermine the Adjustable Rate to be borne by the
Bonds during such Adjustable Rate Period, which
shall be the lowest rate which, in its sole judgment having due
regard for prevailing financial market conditions, will permit the Bonds to be
sold at par on the first day of such Adjustable Rate Period.
Notwithstanding the foregoing, the Adjustable Rate shall not be
more than the Maximum Rate. If, during any period the Bonds shall be in
the Adjustable Rate Mode, either (i) the Company shall not
deliver a timely conversion notice specifying the duration of the
next subsequent Adjustable Rate Period, or (ii) on or prior to any Adjustable
Rate Reset Date the Remarketing Agent shall fail to determine the
Adjustable Rate to be borne by the Bonds during such Adjustable Rate Period,
then, any other provision hereof notwithstanding, the Bonds, without
further action on the part of any other person, shall automatically convert to
the Weekly Rate Mode on the date which otherwise would have been the
Adjustable Rate Reset Date and, the Bonds shall thereupon bear interest at
the Weekly Rate determined pursuant to Section 2.02(b)(i). Upon
such event, the Trustee shall promptly notify the Owners, the Company, the
Tender Agent, if any, and the Bank of such automatic
conversion. Each determination of an Adjustable Rate by the
Remarketing Agent shall be conclusive and binding.
(f) Conversion Options. (i) In General. The interest
rate Mode of the Bonds shall be converted from one Mode to another, and an
Adjustable Rate Period of one duration shall be converted to an Adjustable
Rate Period of the same or another duration, if the Company shall notify
the Trustee, the Tender Agent, the Bank, and the Remarketing
Agent of its election to effect such a conversion and each other condition to
any such conversion set forth herein shall have been satisfied. The
Company"s conversion notice shall specify the date on which the Conversion
Date will occur (which date shall be not sooner than 25 days after the date
such notice is given) and if the conversion is to an Adjustable Rate Period,
shall specify the Interest Payment Date which shall be the day following the
last day of such Adjustable Rate Period. Notwithstanding the foregoing, no
conversion from a Short Term Mode to a Long Term Mode or from
a Long Term Mode to a Short Term Mode (as such terms are defined in
Section 5.03(d) below), and no conversion effected in connection with either a
change in the Bank issuing the Letter of Credit supporting payment of the
Bonds, a change in the security for the Bonds, or an amendment to
this Indenture or the Agreement, shall be effective unless the Company has
delivered with such notice an opinion of Bond Counsel
(which opinion must be confirmed on the Conversion Date) stating
that such conversion will not adversely affect the excludability from gross
income of interest on the Bonds for federal income tax purposes. The
Conversion Date shall be the date specified in the Company notice; provided
that no conversion from the Adjustable Rate Mode or the CP Rate Mode
shall be effective prior to the Business Day following the last day of the
Adjustable Rate Period or CP Rate Period, as the case may be, which is then
in effect. In the event any condition precedent to conversion (including, but
not limited to, the establishment by the Remarketing Agent of the
initial interest rate to be in effect after the Conversion Date or, if required,
the
delivery of the Bond Counsel opinion described above) is not satisfied on or
prior to the Conversion Date, the Bonds shall nonetheless be subject to
mandatory tender on the Conversion Date and, upon such date, the
Bonds, without any further action on the part of any person, shall
automatically convert to the Weekly Mode, and the Bonds shall
thereupon bear interest at the Weekly Rate determined pursuant to
Section 2.02(b)(i).
(ii) Conversion Notice. At least 20 days prior to each
Conversion Date, the Trustee shall give to each Owner notice by certified
mail stating: (A) the Conversion Date, (B) that on the
Conversion Date, the Bonds are subject to mandatory tender and
purchase, (C) that, subject to clause (E) below, all Owners who fail to tender
their Bonds for purchase on the mandatory tender date will
nonetheless be deemed to have tendered their Bonds for purchase
on such date, (D) that, subject to clause (E) below, any Bonds not delivered
to the Tender Agent on or prior to the mandatory tender date, for which
there has been irrevocably deposited in trust with the Trustee or the Tender
Agent on or prior to the mandatory tender date Available Moneys
sufficient to pay the purchase price of such Undelivered Bonds on the
mandatory tender date, shall be deemed to have been so purchased at the
purchase price, and such Bonds shall no longer be considered to be
outstanding for purposes of this Indenture and shall no longer be entitled to
the benefits of this Indenture, except for the payment of the purchase price
thereof (and no interest shall accrue thereon subsequent to the mandatory
tender date), and (E) that notwithstanding the foregoing, while the Bonds are
held in the Book-Entry System, Bonds need not be physically tendered
on the mandatory tender date, and transfers of beneficial Ownership interests
will be effected by the Securities Depository in accordance with its rules and
procedures.
(iii) Letter of Credit Interest Coverage. The interest
component of each Letter of Credit in effect during any Mode shall be
sufficient to provide Adequate Interest Coverage (as defined below). With
respect to the Weekly Rate Mode, the Daily Rate Mode, or the CP Rate
Mode, "Adequate Interest Coverage" shall mean the aggregate amount
of interest which would accrue on all Outstanding Bonds (other than Pledged
Bonds and Company Bonds) at a rate equal to 10% per annum, computed on
the basis of a 365-day year, (1) for a period of forty-eight (48) days, in the
case of Bonds in the Weekly Rate Mode or the Daily Rate Mode, and (2)
for a period of two hundred ninety (290) days, in the case of Bonds in the CP
Rate Mode or such shorter period acceptable to the Rating Agencies and
which will not result in a withdrawal or lowering of any rating on the Bonds
from that which would otherwise accrue from a longer interest
coverage period. Notwithstanding the foregoing, Adequate Interest Coverage
during the Weekly Rate Mode, the Daily Rate Mode, or the CP Rate Mode
may cover interest on Bonds at a rate other than 10% per annum if, (1) the
Company provides the Trustee with an opinion of Bond Counsel to the effect
that such coverage and the effect of such coverage upon clause (b) of the
definition of "Maximum Rate" herein will not adversely affect the exclusion
from gross income of interest on the Bonds for federal income tax purposes,
and (2) if the applicable rate is to be less than 10% per annum, such
lower rate will not result in a withdrawal or lowering of any rating on the
Bonds from that which would otherwise accrue from
maintaining coverage at the 10% rate. With respect to the
Adjustable Rate Mode, "Adequate Interest Coverage" shall mean the
aggregate amount of interest which would accrue on all Outstanding Bonds
(other than Pledged Bonds and Company Bonds) at a rate equal to the
Adjustable Rate to be borne by the Bonds during such Mode,
computed on the basis of a 360-day year composed of twelve 30-day months,
for a period of two hundred (200) days or with respect to
an Adjustable Rate Period of less than six months' duration, for a
period equal to the number of days in such Adjustable Rate Period plus
twenty, or in either such case, such shorter period acceptable
to the Rating Agencies and which will not result in a withdrawal,
or lowering of any rating on the Bonds from that which would otherwise
accrue from a longer interest coverage period.
(g) Denominations; Numbering. The Bonds are
issuable only as registered Bonds without coupons in Authorized
Denominations. The Bonds shall be numbered from 1 upwards, provided that
the number assigned to each definitive Bond shall be prefixed by
the letter "R." Temporary Bonds shall be prefixed by the letters "TR." The
Initial Bond hereinafter described shall be numbered T-1.
(h) Payment Terms. Principal of, and premium, if any,
on, the Bonds shall be payable by the Trustee from moneys held by the
Trustee in the Bond Fund to the Owners upon presentation
and surrender of the Bonds as the same become due at the corporate
trust office of the Trustee. Interest on the Bonds shall be paid by the
Trustee
by check drawn upon the Trustee and mailed by first class mail on the
respective Interest Payment Dates to the Owners at their addresses shown on
the registration books of the Trustee, or such other addresses as are
furnished to the Trustee (in form satisfactory to the Trustee) by such Owners,
as of the close of business on the Record Date with respect to such Interest
Payment Date; provided that payment of interest shall be made by the
Trustee by wire transfer to any Owner of $1,000,000 or more in
aggregate principal amount of Bonds upon such Owner providing the Trustee
with written wire transfer instructions acceptable to the Trustee before the
applicable Record Date. If and to the extent there shall be a default in the
payment of the interest due on an Interest Payment Date, such
defaulted interest shall be paid to the Owners in whose names any such Bonds
(or any Bond or Bonds issued upon registration of transfer or exchange
thereof) are registered at the close of business on the Business Day next
preceding the date of payment of such defaulted interest. Payment of the
principal or purchase price of, and the premium, if any, and interest on, the
Bonds shall be made in such lawful money of the United States
of America as, at the respective times of payment, shall be legal
tender for the payment of public and private debts.
(i) Dating. The Bonds shall be dated April 1, 1994
and initially bear interest from the Closing Date, and thereafter shall bear
interest from the Interest Payment Date next preceding the
date of authentication, unless (i) authenticated prior to the first
Interest Payment Date, in which event such Bonds shall bear interest from
the Closing Date, (ii) authenticated on an Interest Payment
Date, in which event such Bonds shall bear interest from the date of
authentication, or (iii) authenticated after a Record Date and before the
following Interest Payment Date, in which event such Bonds shall bear
interest from the following Interest Payment Date. If, as shown by the
records of the Trustee, interest on the Bonds is in default, Bonds issued in
exchange for Bonds surrendered for registration of transfer or exchange shall
bear interest from the date to which interest has been paid in full on the
Bonds, or, if no interest has been paid on the Bonds, from the Closing Date.
Section 2.03. Optional Tender. (a) While the Bonds are in
the Weekly Rate Mode, any Outstanding Bond or portion thereof in an
Authorized Denomination (except any Pledged Bond or Company ond) shall
be purchased on the demand of the registered Owner thereof on any Business
Day at a price equal to 100% of the principal amount thereof, plus
accrued and unpaid interest thereon to the date of purchase, upon delivery
(by telecopy or otherwise) to the Tender Agent at its Principal Office on any
Business Day, of the following:
(i) a written irrevocable notice, which will be effective
upon receipt, which (A) states the name and address of the registered Owner,
the principal amount of such Bond (and the portion thereof to be tendered, if
less than the full principal amount is to be tendered) and the Bond number,
and (B) states the date on which such Bond shall be so purchased,
which date shall be a Business Day not prior to the seventh day next
succeeding the date of the delivery of such notice to the Tender
Agent; and
(ii) such Bond (with all necessary endorsements and
guarantee of signature) attached to such notice; provided, however, that the
purchase price of such Bond shall be paid only upon the
delivery of the Bond to the Tender Agent and provided such Bond
shall conform in all material respects to the description thereof in such
notice; and provided, further, that if the registered Owner
of the tendered Bond is an open-ended diversified management
investment company (registered under the Investment Company Act of 1940,
as amended), the delivery required under this paragraph (ii) need not be
made until 11:00 a.m., New York City time, on the date such Bond is to be
purchased from such registered Owner. Undelivered Bonds shall be
deemed to have been delivered at the time and on the date required, and as of
such date and time shall no longer be deemed to be Outstanding under this
Indenture. The registered Owner of any Undelivered Bond shall be entitled
only to the purchase price payable for such Bond on the required
delivery date thereof, and such purchase price shall be paid to such registered
Owner only upon surrender of such Bond to the Tender Agent.
Notwithstanding the foregoing, if the Bonds in the Weekly
Rate Mode are held in a Book-Entry System, a Beneficial Owner shall have
the right to optionally tender for purchase its beneficial interest in any
Outstanding Bonds (or portion thereof in an Authorized Denomination) at
the purchase price set forth above, which right may be exercised as
follows. Such right shall be exercised by delivery by the Beneficial Owner to
the Remarketing Agent at its Principal Office of a notice identifying the
name and address of such Beneficial Owner and stating that such Beneficial
Owner will cause its beneficial interest (or portion thereof in an
Authorized Denomination) to be purchased, the amount of such interest to be
purchased, the date on which such interest will be purchased (which date
shall be a Business Day at least seven days after delivery of such notice to
the Remarketing Agent) and specifying the Remarketing Agent as the
Participant through which the Beneficial Owner maintains its interest. Upon
delivery of such notice, the Beneficial Owner shall cause its beneficial
Ownership interest in the Bonds (or the portion thereof specified in the
foregoing notice) being purchased to be transferred to the Remarketing
Agent at or prior to 11:00 a.m., on the optional tender date, in accordance
with the rules and procedures of the applicable Securities Depository.
(b) While the Bonds are in the Daily Rate Mode, any
Outstanding Bond or portion thereof in an Authorized Denomination (except
any Pledged Bond or Company Bond) shall be purchased on the demand of
the registered Owner thereof on any Business Day at a price equal to
100% of the principal amount thereof, plus accrued and unpaid
interest thereon to the date of purchase, upon delivery (by telecopy or
otherwise) to the Tender Agent at its Principal Office (i) no later than 10:30
a.m. on such Business Day, of a written irrevocable notice, which will be
effective upon receipt, which states the name and address of the registered
Owner, the principal amount of such Bond (and the portion thereof to be
tendered, if less than the full principal amount is to be tendered) on such
Business Day and the Bond number, and (ii) no later than 11:00 a.m. on
such Business Day such Bond (with all necessary endorsements and
guarantees of signature); provided, however, that the purchase price of such
Bond shall be paid only upon the delivery of the Bond to
the Tender Agent and provided such Bond shall conform in all
material respects to the description thereof in such notice. Undelivered Bonds
shall be deemed to have been delivered at the time and on the date required,
and as of such date and time shall no longer be deemed to be Outstanding
under this Indenture. The registered Owner of any Undelivered
Bond shall be entitled only to the purchase price payable for such Bond on the
required delivery date thereof, and such purchase price
shall be paid to such registered Owner only upon surrender of such
Bond to the Tender Agent.
Notwithstanding the foregoing, if the Bonds in the Daily
Rate Mode are held in a Book-Entry System, a Beneficial Owner shall have
the right to optionally tender for purchase its beneficial
interest in any Outstanding Bonds (or portion thereof in an
Authorized Denomination) at the purchase price set forth above, which right
may be exercised as follows. Such right shall be exercised by delivery, by the
Beneficial Owner to the Remarketing Agent at its Principal Office no later
than 10:30 a.m., on the date on which the beneficial interest of such
Beneficial Owner is to be purchased, of a notice identifying the name and
address of such Beneficial Owner and stating that such
Beneficial Owner will cause its beneficial interest (or portion
thereof in an Authorized Denomination) to be purchased, the amount of such
interest to be purchased, and specifying the
Remarketing Agent as the Participant through which the Beneficial
Owner maintains its interest. Upon delivery of such notice, the Beneficial
Owner shall cause its beneficial Ownership interest in
the Bonds (or the portion thereof specified in the foregoing notice)
being purchased to be transferred to the Remarketing Agent at or prior to
11:00 a.m., on the optional tender date, in accordance with
the rules and procedures of the applicable Securities Depository.
Section 2.04. Mandatory Tenders. All Outstanding Bonds
are subject to mandatory tender in whole by the Owners to the Tender Agent
at its Principal Office on each date described below:
(a) On each Conversion Date;
(b) On each CP Rate Reset Date;
(c) On the second Business Day prior to the expiration
or termination of the Letter of Credit (except for a termination because of
the occurrence of a "default" or an "event of default" under the Reimbursement
Agreement), if the Trustee has not received evidence satisfactory to it as
required by Section 5.03(b) hereof by the 25th day preceding the
scheduled Letter of Credit expiration or termination date of
either an extension of the then existing Letter of Credit or the issuance of
an Alternate Credit Facility meeting the requirements set forth therefor in
the Agreement, including the Maintenance of Rating requirement (as defined in
Section 5.03(b) of this Indenture);
(d) On the date of substitution of an Alternate Credit
Facility for the then existing Letter of Credit if the Trustee has not
received evidence of a Maintenance of Rating with respect thereto by the 25th
day preceding such substitution date; and
(e) On each optional redemption date pursuant to
Section 3.01 hereof for which the Company has elected to purchase Bonds in
lieu of an optional redemption pursuant to Section 3.01(c) hereof; and
(f) On any date on which the Guaranty is released as
provided in Section 9.05 hereof.
The purchase price of Bonds subject to mandatory tender
shall be 100% of the principal amount thereof (except in the case of a
mandatory tender described in paragraphs (c), (d), (e) or (f)
above, during, but prior to the expiration date of, an Adjustable
Rate Period in which case the purchase price shall include a premium equal
to the then applicable optional redemption premium,
if any, on the Bonds), plus accrued interest, if any, to the
mandatory tender date. Not later than 20 days prior to a mandatory tender
date described in clauses (b), (c), (d), or (f) above, the Trustee shall
mail notice to all Owners of Bonds stating that (l) due to the
occurrence of one of the events described above (which event shall be
specified), such Owner"s Bonds will be subject to mandatory
tender on the mandatory tender date (which date shall be specified),
(2) that, subject to clause (4) below, all Owners who fail to tender their
Bonds for purchase on the mandatory tender date will
nonetheless be deemed to have tendered their Bonds for purchase
on such date, (3) that, subject to clause (4) below, any Bonds not delivered
to the Tender Agent on or prior to the mandatory tender
date, for which there has been irrevocably deposited in trust with
the Trustee or the Tender Agent on or prior to the mandatory tender date
Available Moneys sufficient to pay the purchase price of
such Undelivered Bonds on the mandatory tender date, shall be
deemed to have been so purchased at the purchase price, and such Bonds
shall no longer be considered to be outstanding for purposes
of this Indenture and shall no longer be entitled to the benefits of
this Indenture, except for the payment of the purchase price thereof (and no
interest shall accrue thereon subsequent to the mandatory tender date), and
(4) that notwithstanding the foregoing, while the Bonds are held in the
Book-Entry System, Bonds need not be physically tendered on the
mandatory tender date, and transfers of beneficial Ownership interests will
be effected by the Securities Depository in accordance with its rules and
procedures. Notice of mandatory tenders described in clauses (a) and (e) of
this Section shall be given as part of the notice of conversion referenced
in Section 2.02(f)(ii) hereof or notice of redemption referenced in Section
3.04 hereof, respectively. No failure on the part of the Trustee to give such
notice shall affect the requirement that Bonds be tendered on the mandatory
tender date.
When Bonds are not in a Book-Entry System, Undelivered
Bonds shall, if Available Moneys sufficient to pay the purchase price of such
Bonds in full and available for the purchase of such
Bonds have been deposited with the Tender Agent on the
mandatory tender date, be deemed to have been tendered for purchase on the
mandatory tender date, and from
such date will no longer be
deemed to be Outstanding for purposes of this Indenture. Owners of
such Bonds shall have no rights
or benefits under this Indenture other than to receive the purchase
price for such Bonds upon
surrender of such Bonds to the Tender Agent. Notwithstanding the
foregoing, if on any mandatory
tender date the Bonds shall be in the Book-Entry System, it shall
not be necessary that Bonds be
physically tendered to the Tender Agent on the mandatory tender
date. Transfers of beneficial
Ownership interests shall be effected in accordance with the rules
and procedures established by the
Securities Depository.
Upon the occurrence of any mandatory tender described in
paragraphs (c), (d), or (e) above
during an Adjustable Rate Period, commencing on the date of such
mandatory tender the Bonds shall
bear interest in a Mode (and, in the case of the Adjustable Rate
Mode, for an Adjustable Rate
Period) to be designated by the Company by notice to the Trustee
given to the Trustee at least 25
days prior to such date, provided, however, the said designated
Mode or Adjustable Rate Period shall
be effective on the mandatory tender date only if each prerequisite
to a conversion specified in
Section 2.02(f) shall have been satisfied. If no designation is of a
Mode or an Adjustable Rate Period
made by the Company, or if the prerequisites of Section 2.02(f)
have not been satisfied, then, upon
the mandatory tender date, the Bonds shall convert automatically to
the Weekly Rate Mode, and the
Bonds thereupon shall bear interest at the Weekly Rate determined
pursuant to Section 2.02(b)(i).
Section 2.05. Form of Bonds. The Bonds and the
certificate of authentication, the provision
for registration and the form of assignment thereof shall be in
substantially the form set forth in
Exhibit A hereto, with such appropriate variations, omissions,
substitutions, insertions, notations,
legends and endorsements as may be deemed necessary or
appropriate by the officers of the Issuer
executing the same and as shall be permitted or required by the Act
and this Indenture.
Section 2.06. Execution and Authentication of Bonds;
Limited Obligations. (a) The Bonds
shall be executed on behalf of the Issuer with the manual or
facsimile signature of the President or
the Vice President of the Issuer, and attested, under a manual or
facsimile impression of the seal of
the Issuer, with the manual or facsimile signature of the Secretary
or Assistant Secretary of the Issuer.
In case any officer of the Issuer whose signature or a facsimile
thereof appears on a Bond shall cease
to be such officer before the delivery of such Bond, such signature
or such facsimile shall nevertheless
be valid and sufficient for all purposes, the same as if such officer
had remained in the office until
delivery.
(b) Except for the Initial Bond which shall be
registered by the Comptroller of Public
Accounts of the State, no Bond shall be valid or obligatory for any
purpose or be entitled to any
security or benefit under this Indenture unless and until a certificate
of authentication on such Bond
substantially in the form of Exhibit A hereto shall have been duly
executed by the Trustee, or, in the
case of purchased Bonds delivered by the Tender Agent pursuant to
Section 3.10, by the Tender
Agent. Any such executed certificate upon any such Bond shall be
conclusive evidence that such
Bond has been authenticated and delivered under this Indenture.
The Initial Bond shall be made
payable to Cede & Co., as nominee of the purchaser, pursuant to
Section 2.12(b) hereof. The
certificate of authentication on any Bond shall be deemed to have
been executed by it if signed by
an authorized officer or signatory of the Trustee, or the Tender
Agent but it shall not be necessary
that the same officer or signatory sign the certificate of
authentication on all of the Bonds issued
hereunder.
(c) The Bonds are not general obligations of the
Issuer, but are limited obligations
payable solely from Bond proceeds, the revenues of the Issuer from
the Agreement and other moneys
pledged thereto and held by the Trustee hereunder which constitute
the Trust Estate. Such proceeds,
revenues and other moneys are hereby pledged and assigned as
security for the equal and ratable
payment of the Bonds and shall be used for no other purposes than
to pay the principal of, premium,
if any, and interest on the Bonds, except as may be otherwise
expressly authorized in this Indenture
or the Agreement. The Bonds shall not be a debt of the State, or
any political subdivision of the
State within the meaning of any constitutional or statutory
provision whatsoever; and neither the
State nor any political subdivision thereof shall be liable thereon;
nor in any event shall such Bonds
or obligations be payable out of any funds or properties other than
the Trust Estate, and then only
to the extent herein provided. Neither the members of the Issuer
nor any persons executing the
Bonds shall be liable personally on the Bonds by reason of such
execution.
Section 2.07. Registration and Exchange of Bonds; Persons
Treated as Owners. (a) Bonds
may be transferred only on the registration books of the Issuer for
the Bonds, maintained by the
Trustee. Upon surrender for transfer of any Bond to the Trustee,
duly endorsed for transfer or
accompanied by an assignment duly executed by the Owner or the
Owner"s attorney duly authorized
in writing, the Trustee will authenticate a new Bond or Bonds in an
equal total principal amount and
registered in the name of the transferee.
(b) Bonds may be exchanged for an equal total
principal amount of Bonds of different
denominations. The Trustee will authenticate and deliver Bonds
that the Owner making the exchange
is entitled to receive, bearing numbers not then outstanding.
(c) The Trustee will not be required to transfer or
exchange any Bond during the period
beginning 10 Business Days before the mailing of notice calling
such Bond or any portion of such
Bond for redemption and ending on the redemption date, except as
provided in Sections 2.03 and
2.04 hereof.
(d) The Owner of a Bond shall, except as otherwise
described herein with respect to
certain rights of Beneficial Owners, be the absolute Owner of the
Bond for all purposes, and payment
of principal, interest or purchase price shall be made only to or
upon the written order of the Owner
or the Owner"s legal representative.
(e) The Trustee will require the payment by a Owner
requesting exchange or transfer of
any tax or other governmental charge required to be paid in respect
of the exchange or transfer but
will not impose any other charge on the Owner.
(f) Notwithstanding the foregoing, for so long as the
Bonds are held under the
Book-Entry System, transfers of beneficial Ownership will be
effected pursuant to rules and
procedures established by the Securities Depository.
Section 2.08. Mutilated, Lost, Stolen, or Destroyed Bonds.
If any Bond is mutilated, lost,
stolen, or destroyed, the Trustee will authenticate a new Bond of
the same denomination if any
mutilated Bond shall first be surrendered to the Trustee, and if, in
the case of any lost, stolen, or
destroyed Bond, there shall first be furnished to the Trustee for the
benefit of the Issuer, the Trustee,
the Bank, the Company, and the Guarantor evidence of such loss,
theft, or destruction, together with
an indemnity reasonably satisfactory to the Trustee to save each of
them harmless from all risks
related thereto, however remote. If the Bond has matured, instead
of issuing a duplicate Bond, the
Trustee may with the consent of the Company pay the Bond
without requiring surrender of the Bond
and make such requirements as the Trustee deems fit for its
protection, including a lost instrument
bond. The Issuer, the Company, the Guarantor, and the Trustee
may charge their reasonable fees
and expenses in this connection.
Section 2.09. Cancellation of Bonds. Whenever a Bond is
delivered to the Trustee for
cancellation (upon payment, redemption, or otherwise), or for
transfer, exchange, or replacement
pursuant to Section 2.07 or 2.08, the Trustee will promptly cancel
the Bond and deliver the canceled
Bond or a certificate of destruction as appropriate to the Company
at its request. Upon cancellation
of any tendered Bond by the Tender Agent, the Tender Agent shall
forward the canceled Bond to
the Trustee.
Section 2.10. Temporary Bonds. Until definitive Bonds are
ready for delivery, the Issuer may
execute and the Trustee or the Tender Agent will authenticate
temporary Bonds substantially in the
form of the definitive Bonds, with appropriate variations. The
Issuer will, without unreasonable delay,
prepare and the Trustee or the Tender Agent will authenticate
definitive Bonds in exchange for the
temporary Bonds. Such exchange shall be made by the Trustee or
the Tender Agent without charge.
Exchanges and transfers shall be made without charge to
the Owners; provided that in each
case the Trustee shall require the payment by the Owner requesting
exchange or transfer of any tax
or other governmental charge required to be paid with respect
thereto.
Section 2.11. Conditions Precedent to Authentication and
Delivery of Bonds. Upon the
execution and delivery of this Indenture, one initial Bond (the
"Initial Bond"), representing the
aggregate principal amount of the Bonds, payable to the initial
purchaser(s), or its (their) designee(s),
executed with the manual or facsimile signatures of the President
and Secretary of the Issuer,
approved by the Attorney General of the State, and registered and
manually signed by the
Comptroller of Public Accounts of the State, will be delivered to the
initial purchaser or its designee.
Upon payment for the Initial Bond, the Trustee shall cancel the
Initial Bond and deliver to the
Securities Depository on behalf of the purchaser one registered
definitive Bond for each year of
maturity of the Bonds, in the aggregate principal amount of all
Bonds for such maturity, registered
in the name of Cede & Co., as nominee for DTC. Prior to and as a
condition precedent to the
authentication and delivery of the Bonds there shall be filed with
and delivered to the Trustee:
(i) a copy, duly certified by an authorized
representative of the Issuer, of the
resolution adopted by the Issuer in accordance with the Act
authorizing the execution and
delivery of this Indenture and the issuance of the Bonds;
(ii) original duly executed and delivered counterparts
of this Indenture, the
Agreement, the Guaranty, and the Tax Agreement;
(iii) an opinion of Bond Counsel to the effect that
Bonds executed, authenticated
and delivered as provided in this Indenture will be duly and
validly issued and will constitute
valid and binding limited obligations of the Issuer;
(iv) the approving opinion of the Attorney General of
the State;
(v) the approval of the Texas Department of
Commerce; and
(vi) the duly executed and delivered Initial Letter of
Credit.
Section 2.12. Book-Entry System. (a) The Bonds shall be
issued pursuant to a Book-Entry
System administered by the Securities Depository with no physical
distribution of Bond certificates
to be made except as provided in this Section 2.12. Any provision
of this Indenture or the Bonds
requiring physical delivery of the Bonds shall, with respect to any
Bonds held under the Book-Entry
System, be deemed to be satisfied by a notation on the registration
books maintained by the Trustee
that such Bonds are subject to the Book-Entry System.
(b) The Book-Entry System will be maintained by the
Securities Depository and the
Participants and Indirect Participants and will evidence beneficial
Ownership of the Bonds in
Authorized Denominations, with transfers of ownership effected on
the records of the Securities
Depository, the Participants, and the Indirect Participants pursuant
to rules and procedures
established by the Securities Depository, the Participants, and the
Indirect Participants. The principal
of and any premium on each Bond shall be payable to the Securities
Depository Nominee or any
other person appearing on the registration books maintained by the
Trustee as the registered Owner
of such Bond or his registered assigns or legal representative at the
principal office of the Trustee.
So long as the Book-Entry System is in effect, the Securities
Depository will be recognized as the
Owner of the Bonds for all purposes. Transfer of principal, interest,
and any premium payments or
notices to Participants and Indirect Participants will be the
responsibility of the Securities Depository,
and transfer of principal, interest, and any premium payments or
notices to Beneficial Owners will
be the responsibility of the Participants and the Indirect
Participants. No other party will be
responsible or liable for such transfers of payments or notices or for
maintaining, supervising, or
reviewing such records maintained by the Securities Depository, the
Participants or the Indirect
Participants. While the Securities Depository Nominee or the
Securities Depository, as the case may
be, is the registered Owner of the Bonds, notwithstanding any other
provisions set forth herein,
payments of principal of, redemption premium, if any, and interest
on the Bonds shall be made to
the Securities Depository Nominee or the Securities Depository, as
the case may be, by wire transfer
in immediately available funds to the account of such Owner.
Without notice to or the consent of
the Beneficial Owners, the Trustee, with the consent of the
Company, and the Securities Depository
may agree in writing to make payments of principal, redemption
price, or purchase price and interest
in a manner different from that set out herein. In such event, the
Trustee shall make payments with
respect to the Bonds in such manner as if set forth herein.
(c) With the consent of the Remarketing Agent and
the Issuer, the Company may at any
time elect (i) to provide for the replacement of any Securities
Depository as the depository for the
Bonds with another qualified Securities Depository, or (ii) to
discontinue the maintenance of the
Bonds under a Book-Entry System. In such event, the Trustee shall
give 30 days" prior notice of such
election to the Securities Depository (or such fewer number of days
as shall be acceptable to such
Securities Depository).
(d) Upon the discontinuance of the maintenance of the
Bonds under a Book-Entry
System, the Trustee will cause Bonds to be issued directly to the
Beneficial Owners of Bonds, or their
designees, as further described below. In such event, the Trustee
shall make provisions to notify
Participants and the Beneficial Owners of the Bonds, by mailing an
appropriate notice to the
Securities Depository, or by other means deemed appropriate by the
Trustee in its discretion, that
Bonds will be directly issued to the Beneficial Owners of Bonds as
of a date set forth in such notice,
which shall be a date at least 10 days after the date of mailing of
such notice (or such fewer number
of days as shall be acceptable to the Securities Depository).
(e) In the event that Bonds are to be issued to the
Beneficial Owners of the Bonds, or
their designees, the Trustee, at the expense of the Company, shall
promptly have prepared Bonds in
certificated form registered in the names of the Beneficial Owners
of Bonds shown on the records
of the Participants provided to the Trustee, as of the date set forth
in the notice described above.
Bonds issued to the Beneficial Owners, or their designees, shall be
in fully registered form
substantially in the form set forth in Exhibit A.
(f) If any Securities Depository is replaced as the
depository for the Bonds with another
qualified Securities Depository, the Trustee, at the expense of the
Company, will issue to the
replacement Securities Depository Bonds substantially in the form
set forth in Exhibit A, registered
in the name of such replacement Securities Depository.
(g) The Issuer, the Company, the Tender Agent, the
Remarketing Agent, and the Trustee
shall have no liability for the failure of any Securities Depository to
perform its obligation to any
Participant, any Indirect Participant or any Beneficial Owner of any
Bonds, and the Issuer, the
Company, the Tender Agent, the Remarketing Agent, or the
Trustee shall not be liable for the
failure of any Participant, Indirect Participant, or other nominee of
any Beneficial Owner of any
Bonds to perform any obligation that such Participant, Indirect
Participant, or other nominee may
incur to any Beneficial Owner of the Bonds.
(h) Notwithstanding any other provision of this
Indenture, on or prior to the date of
issuance of the Bonds the Trustee, the Company, and the Issuer
shall have executed and delivered
to the initial Securities Depository a Letter of Representations
governing various matters relating to
the Securities Depository and its activities pertaining to the Bonds.
The terms and provisions of such
Letter of Representations are incorporated herein by reference and,
in the event there shall exist any
inconsistency between the substantive provisions of the said Letter
of Representations and any
provisions of this Indenture, then, for as long as the initial
Securities Depository shall serve with
respect to the Bonds, the terms of the Letter of Representations
shall govern.
Article III
Redemption of Bonds; Purchase and Remarketing of Bonds
Section 3.01. Optional Redemption. The Bonds shall be
subject to optional redemption only
as follows:
(a) Weekly Rate Mode, CP Rate Mode, or Daily Rate
Mode. While the Bonds are in
the Weekly Rate Mode or the Daily Rate Mode, the Bonds shall be
subject to optional redemption,
in whole or in part on any Business Day, and while the Bonds are
in the CP Rate Mode the Bonds
shall be subject to optional redemption in whole or in part on any
Interest Payment Date, in all cases
at the direction of the Company and with the Bank's consent if
required by the Reimbursement
Agreement, upon at least 40 days" prior written notice from the
Company to the Trustee, the Bank,
and the Remarketing Agent, at a redemption price equal to 100% of
the aggregate principal amount
of the Bonds to be redeemed, plus accrued interest thereon to the
redemption date, without
premium.
(b) Adjustable Rate Mode. While the Bonds are in the
Adjustable Rate Mode, the Bonds
shall be subject to optional redemption, after the dates specified in
the table below, in whole or in
part on any date at the direction of the Company and with the
Bank's consent if required by the
Reimbursement Agreement, upon at least 40 days" prior written
notice from the Company to the
Trustee, the Bank, and the Remarketing Agent, at the applicable
redemption price (expressed as a
percentage of the principal amount to be redeemed) set forth below,
plus accrued interest thereon
to the date of redemption:
Length of Currently Applicable Adjustable Dates After Which
Redemption Is
Rate Period (expressed in whole years) Allowed and
Redemption Prices*
greater than 10 after 10 years at 102%, declining by 1%
annually to 100%
less than or equal to 10 and greater than 7 after 5 years at 102%,
declining by 1%
annually to 100%
less than or equal to 7 and greater than 4 after 3 years at 102%,
declining by 1%
annually to 100%
less than or equal to 4 and greater than 2 after 2 years at 102%,
declining by 1%
annually to 100%
less than or equal to 2 not callable
[FN]
*measured from the start of the currently applicable Adjustable
Rate Period
The payment of any premium upon the optional redemption
of Bonds shall be made solely
from Available Moneys.
Notwithstanding the foregoing, the Bonds when in an
Adjustable Rate Period may be subject
to optional redemption upon terms different than those set forth
above if the Company delivers to
the Trustee on or before the first day of such Adjustable Rate Period
a certificate specifying different
optional redemption dates or prices to be in effect during such
period (or that the Bonds will not be
subject to optional redemption during such Period) and an opinion
of Bond Counsel to the effect that
the adoption of such optional redemption provisions would not
adversely affect the exclusion of
interest on the Bonds from the federal gross income of the Owners
thereof.
(c) Purchase in Lieu of Optional Redemption. The
Company shall have the option to
cause the Bonds to be subject to mandatory tender and purchase
pursuant to Section 2.04 hereof in
lieu of an optional redemption of Bonds pursuant to Section 3.01(a)
or (b) above. Such option may
be exercised by delivery by the Company to the Trustee and
Remarketing Agent on or prior to the
Business Day preceding the optional redemption date of a written
notice specifying that the Bonds
shall not be redeemed, but instead shall be subject to mandatory
tender and purchase pursuant to
Section 2.04 hereof. Upon delivery of such notice, the Bonds shall
not be redeemed but shall instead
be subject to mandatory tender pursuant to Section 2.04 hereof at a
tender price equal to the price
at which the Bonds would have been redeemed on the date which
would have been the optional
redemption date.
Section 3.02. Extraordinary Optional Redemption. While
the Bonds are in the Adjustable
Rate Mode or the CP Rate Mode, the Bonds are subject to
extraordinary redemption in whole on
any date at a redemption price equal to the principal amount of
outstanding Bonds plus accrued
interest to the redemption date, without premium, upon the exercise
by the Company of its option
to cause the Bonds to be redeemed as a result of the occurrence of
any of the events described
below:
(1) the Project has been damaged or destroyed to such
an extent that, in the judgment of
the Company, (i) it cannot be reasonably restored to substantially
the condition thereof immediately
preceding such damage or destruction, (ii) the Company is thereby
prevented from carrying on normal
operations at the Project for a period of nine or more consecutive
months following such damage or
destruction, or (iii) it would not be economically feasible for the
Company to replace, repair, rebuild,
or restore the same;
(2) title in and to, or the temporary use of, all or
substantially all of the Project has been
taken under the exercise of the power of eminent domain (or sold in
lieu of such a taking) by any
governmental authority, or person acting under governmental
authority and such a taking or sale, in
the judgment of the Company, may result in the Company being
prevented thereby from carrying on
normal operations at the Project for a period of nine or more
consecutive months; or
(3) as a result of any changes in the Constitution of the
State or the Constitution of the
United States of America or by legislative or administrative action
(whether State or federal) or by
final decree, judgment, decision, or order of any court or
administrative body (whether State or
federal), the Agreement has become void or unenforceable or
impossible of performance in
accordance with the intent and purposes of the parties as expressed
therein.
To exercise its option to effect an extraordinary optional
redemption, the Company must
deliver to the Trustee written notice of the occurrence of any such
event and of its election to cause
the Bonds to be redeemed as a result thereof. Such notice shall
specify the redemption date which
shall be at least 40 days after the date of delivery of such notice to
the Trustee.
Section 3.03. Mandatory Redemption. The Bonds are
subject to mandatory redemption in
whole on the earliest redemption date for which timely notice of
redemption can be given by the
Trustee after the occurrence of a Determination of Taxability at a
redemption price equal to the
aggregate outstanding principal amount of the Bonds plus accrued
interest thereon to the redemption
date, without premium. The foregoing amount shall constitute the
total amount required to be paid
to the Owners as a result of the occurrence of a Determination of
Taxability.
Section 3.04. Notice of Redemption. (a) At least 30 days
prior to the date of any redemption
of the Bonds, the Trustee shall cause notice of the call for
redemption to be sent by first class mail,
postage prepaid, to the Tender Agent, the Bank, the Remarketing
Agent, the Company, the
Guarantor, and the Owner of each Bond to be redeemed. In
addition, such notice shall also be given
(at least two Business Days before the redemption notice described
in the preceding sentence) by
registered, certified, or overnight mail, to all registered securities
depositories then in the business
of holding substantial amounts of obligations of types comprising
the Bonds and to one or more
national information services that disseminate notices of
redemption of obligations such as the Bonds.
Neither the failure to give any such notice nor any defect in any
notice so mailed shall affect the
sufficiency or the validity of any proceedings for the redemption of
the Bonds.
(b) The redemption notice shall identify the Bonds or
portions thereof to be redeemed and
shall state (l) the date of such notice and the redemption date, (2)
the redemption price, (3) the
original date of execution and delivery of the Bonds to be
redeemed, (4) the rate of interest borne
by the Bonds to be redeemed, (5) the date of maturity of the Bonds,
(6) the numbers and CUSIP
numbers of the Bonds to be redeemed, (7) that the redemption price
of any Bond payable only upon
the surrender of the Bond to be Trustee at its corporate trust office,
(8) the address at which the
Bonds must be surrendered, (9) that interest on the Bonds called for
redemption ceases to accrue
on the redemption date provided that on such date Available
Moneys are on deposit in the Bond
Fund sufficient to pay the redemption price of the Bonds in full,
and (10) such additional descriptive
information identifying the Bonds to be redeemed, including their
interest rate and stated maturity
date as may be deemed appropriate by the Trustee to effect the
redemption.
Any notice of optional redemption shall also state that the
Company may elect that the Bonds
be subject to mandatory tender and purchase in lieu of optional
redemption at a tender price equal
to the redemption price. Any notice of optional redemption may
also state (and shall state, if the
Company shall so direct) that the redemption is conditioned on
receipt of monies for such
redemption by the Trustee on or prior to the redemption date; if
such moneys are not received, the
redemption of the Bonds for which notice was given shall not be
made.
Section 3.05. Effect of Availability of Redemption Prices.
If on any redemption date Available
Moneys sufficient to pay in full the redemption price of the Bonds
called for redemption have been
deposited with the Trustee and shall be available to be utilized to
pay the redemption price of such
Bonds, such Bonds shall no longer be secured by or be deemed to
be Outstanding under the
provisions of this Indenture. Interest shall not continue to accrue on
such Bonds after the redemption
date. If Available Moneys shall not be on deposit 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.
Section 3.06. Partial Redemption. (a) Any partial
redemption of Bonds shall be made only
in Authorized Denominations. If fewer than all of the Bonds shall
be called for redemption, the
portion of Bonds to be redeemed shall be selected by lot by the
Trustee from among all Outstanding
Bonds; provided that the Trustee shall first select Pledged Bonds
and Company Bonds for
redemption. Each Bond shall be considered separate Bonds in
Authorized Denominations for
purposes of selecting the Bonds to be redeemed. Subject to the
provisions of the Bonds with respect
to the Book-Entry System, if any Bond shall be called for
redemption only in part, then the Owner
of such Bond, upon surrender of such Bond to the Trustee for
payment, shall be entitled to receive
a new Bond or Bonds in the aggregate principal amount of the
unredeemed balance of the principal
amount of such Bond, without charge therefor.
(b) If the Owner of any Bond which is called for
redemption only in part shall fail to
present such Bond to the Trustee for payment and exchange as
aforesaid, such Bond shall,
nevertheless, become due and payable on the date fixed for
redemption, to the extent called for
redemption (and to that extent only) and to such extent such Bond
shall no longer be deemed to be
Outstanding for purposes of this Indenture.
(c) Notwithstanding the foregoing, if the Bonds are
held in the Book-Entry System at the
time of a partial redemption of the Bonds, beneficial Ownership
interests in the series of Bonds shall
be selected for redemption in accordance with the rules and
procedures established by the Securities
Depository.
Section 3.07. Purchase of Tendered Bonds. (a) In
performing their duties hereunder, the
Tender Agent and the Remarketing Agent shall act as an agent of
the persons to whom purchased
Bonds are to be delivered pursuant to Section 3.10, of persons
tendering such Bonds and of the
Company and shall not be considered to be purchasing Bonds for
their own account and, in the
absence of written notification from the Trustee to the contrary,
shall be entitled to assume that any
Bond tendered or deemed tendered to the Remarketing Agent or the
Tender Agent for purchase
is entitled under the Indenture to be so purchased. No acceptance of
Bonds by the Tender Agent
hereunder shall effect any merger or discharge of the indebtedness
of the Issuer evidenced by the
Bonds. The Tender Agent and the Remarketing Agent shall accept
all Bonds properly tendered for
purchase in accordance with the provisions of the Bonds and as set
forth in this Indenture.
(b) During any period that no Book-Entry System for
the Bonds is in effect, a Tender
Agent shall be appointed as provided in Section 7.11 hereof.
Immediately upon the effectiveness of
such appointment, the Tender Agent shall establish a special trust
fund designated as the "Grapevine
Industrial Development Corporation Industrial Development
Revenue Bonds (Trencor Jetco, Inc.
Project), Series 1994--Purchase Fund" (the "Purchase Fund").
The Tender Agent shall hold all Bonds
delivered to it in trust for the exclusive benefit of the respective
Owners of Bonds tendering such
Bonds for sale until moneys representing the purchase price of such
Bonds have been delivered to
or for the account of such Owners of Bonds. The Tender Agent
shall hold all moneys delivered to
it for the purchase of Bonds in the Purchase Fund in trust, solely for
the benefit of the persons
delivering such moneys until the Bonds purchased with such
moneys have been delivered to or for
the account of such persons and thereafter solely for the benefit of
the persons entitled to such
moneys. Moneys held in the Purchase Fund shall not be invested.
The Issuer and the Trustee hereby
authorize and direct the Tender Agent to withdraw sufficient funds
from the Purchase Fund to pay
the purchase price of tendered Bonds as the same becomes due and
payable, which authorization and
direction the Tender Agent accepts.
(c) During any period the Bonds are held in a Book-
Entry System, the purchase price of
tendered Bonds, (i) if derived from the source described in Section
3.09(a), shall be paid on the
tender date by the Remarketing Agent from moneys received from
the purchaser of the remarketed
Bonds, (ii) if derived from either the source described in Section
3.09(b) or 3.09(c) shall be paid on
the tender date by the Trustee from moneys drawn on the Letter of
Credit or received from the
Company, as the case may be, and (iii) moneys paid by the
Guarantor pursuant to Section 2.1(c) of
the Guaranty.
Section 3.08. Remarketing of Tendered Bonds; Payment of
Purchase Price. (a) The
Remarketing Agent shall use its best efforts to remarket tendered
Bonds of which it has received
notice of tender from the Tender Agent (or Beneficial Owners, as
the case may be), at a price equal
to 100% of the principal amount thereof plus, accrued interest to
the purchase date. Such
remarketing shall be made in accordance with, and subject to the
conditions of, the provisions of the
Remarketing Agreement. Bonds which have been duly tendered for
purchase and which have not
been remarketed shall be purchased on the tender date with the
proceeds of an appropriate draw
under the Letter of Credit; provided, however, (i) during any period
the Bonds are not secured by
a Letter of Credit, or (ii) if the Bank shall fail to honor a draw on
the Letter of Credit to provide
for the purchase price of tendered Bonds, then such Bonds will be
purchased by the Company on the
tender date.
(b) Upon receipt of a duly tendered written notice of
an optional tender of Bonds, the
Tender Agent shall notify the Remarketing Agent, the Company,
the Guarantor, and the Trustee of
the principal amount of Bonds tendered and the date fixed for
purchase of the tendered Bonds.
During any period the Bonds are in the Book-Entry System, such
notice will be given by the
Remarketing Agent to the Company and the Trustee.
(c) Prior to 4:00 p.m. on the Business Day which
immediately precedes the purchase date
for any Bonds (or, in the case of Bonds in the Daily Rate Mode,
prior to 11:30 a.m. on the purchase
date of such Bonds), the Remarketing Agent shall give notice to the
Tender Agent, the Company,
the Guarantor, and the Trustee of the principal amount of such
Bonds which have been remarketed,
the names, addresses, and taxpayer identification numbers of the
purchasers of such Bonds and the
denominations in which the Bonds are to be purchased by and
delivered to each purchaser. If less
than all of the Bonds to be tendered on such purchase date have
been remarketed, the Remarketing
Agent shall, in addition, notify the Trustee, the Tender Agent, the
Guarantor, and the Company prior
to 10:30 a.m. (or, in the case of Bonds in the Daily Rate Mode,
11:30 a.m.) on the purchase date of
the principal amount of Bonds which have not been remarketed and
the amount of accrued interest
to be paid on such Bonds on such purchase date. Purchasers of
Bonds which have been remarketed
shall be required to deliver the purchase price thereof directly to the
Tender Agent for deposit in
the Purchase Fund (or, during any period the Bonds are in the
Book-Entry System, such moneys shall
be transferred to the account of the Remarketing Agent on the
records of the Securities Depository)
not later than 10:30 a.m. (or, in the case of Bonds in the Daily Rate
Mode, 11:30 a.m.), on the
purchase date. By 11:30 a.m., on the purchase date, the Tender
Agent shall notify (promptly
confirmed in writing) the Trustee, the Remarketing Agent, the
Company, the Guarantor, and the
Bank of the amount of remarketing proceeds which have been
deposited. During any period the
Bonds are in the Book-Entry System, such notice shall be given by
the Remarketing Agent.
(d) Prior to 12:00 noon, on any purchase date (whether
optional or mandatory), the Trustee
shall draw upon the Letter of Credit, in an amount equal to the
purchase price of all Bonds to be
purchased on such purchase date, less the amount of remarketing
proceeds of which the Trustee has
notice were deposited with the Tender Agent (or the Remarketing
Agent during any period the
Bonds are in the Book-Entry System) by 11:30 a.m., on such date.
In the event of a draw on the
Letter of Credit upon a mandatory tender due to a substitution of an
Alternate Credit Facility, the
draw shall be made upon the Letter of Credit being replaced. If the
Bonds are not then secured by
a Letter of Credit, by 1:30 p.m. on the purchase date for any Bonds,
the Tender Agent (or the
Trustee during any period the Bonds are in the Book-Entry System)
shall receive from the Company,
pursuant to Section 5.1(b) of the Agreement, an amount equal to
the purchase price of all Bonds to
be purchased on such date, less the amount of remarketing proceeds
of which the Trustee has notice
were on deposit with the Tender Agent or the Remarketing Agent,
as the case may be, by 11:30 a.m.
on such date. No draw on the Letter of Credit shall be made with
respect to Pledged Bonds or
Company Bonds.
(e) The Trustee shall, to the extent it has drawn
moneys under the Letter of Credit for the
purchase of Bonds, authorize direct payment by the Bank to the
Tender Agent (or, during any period
the Bonds are in the Book-Entry System, to the payee specified by
the Securities Depository) of the
moneys so drawn.
(f) Notices pursuant to this Section shall be by
telephone, tested telecopy (receipt
confirmed by telephone), telefacsimile transmittal, or telegram,
promptly confirmed in writing, except
that any drawing under the Letter of Credit shall be in accordance
with the terms thereof.
(g) Anything in this Indenture to the contrary
notwithstanding, there shall be no obligation
on the part of the Remarketing Agent to remarket Bonds (i) if there
shall have occurred and be
continuing an Event of Default under this Indenture or a
Determination of Taxability, or (ii) which
are subject to mandatory tender hereunder, except as the
Remarketing Agent and the Company have
otherwise agreed in the Offering Agreement.
(h) Any Bond optionally tendered for purchase after
the date on which such Bond has been
selected for redemption or the Trustee has notified the Owners of
pendency of a conversion of the
interest rate Mode of the Bonds shall not be remarketed unless the
purchaser has been notified by
the Trustee of the redemption or the interest rate Mode conversion,
as appropriate. Any purchaser
so notified must deliver a notice to the Trustee and the Tender
Agent (or, during any period the
Bonds are in the Book-Entry System, to the Remarketing Agent)
stating that such purchaser is aware
of the pendency of the redemption or of the interest rate Mode
conversion, as appropriate, and
agreeing not to resell the Bonds prior to the date of such
redemption or conversion, as the case may
be.
Section 3.09. Funds for Purchase Price of Bonds. On the
date Bonds are to be purchased
pursuant to the optional or mandatory tender provisions of this
Indenture, the Tender Agent shall
deliver the purchase price to the tendering Owner (or, if the Bonds
are in a Book-Entry System, the
Remarketing Agent or the Trustee, as appropriate, shall deliver the
purchase price to the appropriate
payee on the records of the Securities Depository), but only from
the funds listed below, in the order
of priority indicated:
(a) the proceeds of the sale of such Bonds which have
been remarketed by the
Remarketing Agent to any person other than the Company, the
Guarantor, or the Issuer (or any
"insider" of the Company, the Guarantor, or the Issuer within the
meaning of the Bankruptcy Code)
which have been delivered to the Tender Agent or the Remarketing
Agent by 11:30 a.m., on the
purchase date;
(b) moneys drawn under the Letter of Credit;
(c) moneys deposited by the Company with the Trustee
pursuant to the Agreement; and
(d) moneys paid by the Guarantor pursuant to Section
2.1(c) of the Guaranty.
Section 3.10. Delivery of Purchased Bonds. The Tender
Agent shall make available by 4:00
p.m. on the purchase date of any tendered Bonds (whether such
tender was optional or mandatory),
at its principal office in New York City, Bonds which have been
purchased with moneys described
in Section 3.09(a) for receipt by the purchaser thereof, which Bonds
shall be authenticated by the
Tender Agent. Bonds purchased with moneys described in Section
3.09(a) shall be registered in the
manner directed by the Remarketing Agent and delivered to the
Remarketing Agent for redelivery
to the purchasers thereof. Bonds purchased with moneys described
in Section 3.09(b) shall be
delivered by the Tender Agent to the Trustee, and registered by the
Trustee in the name of the
Company indicating their status as Pledged Bonds (or if the Bonds
are held in the Book-Entry
System, such Bonds shall be recorded in the books of the Securities
Depository for the account of
the Trustee and shall be deemed to be pledged to the Bank). Bonds
purchased with moneys
described in Section 3.09(c) shall be registered in the name of the
Company and delivered to the
Company. Bonds, purchased with moneys described in Section
3.09(d) hereof shall be registered in
the name of the Guarantor and delivered to the Guarantor.
Notwithstanding anything herein to the contrary, so long as
the Bonds are held under the
Book-Entry System, Bonds will not be delivered as set forth in the
preceding paragraph; rather,
transfers of beneficial ownership of the Bonds to the persons
indicated above will be effected
pursuant to its rules and procedures established by the Securities
Depository.
Section 3.11. Pledged Bonds. If any Bond is purchased
pursuant to Section 3.07 hereof with
moneys drawn under the Letter of Credit pursuant to Section
3.09(b) hereof, if no Book-Entry
System is then in effect, that Bond shall be delivered to and held by
the Trustee, registered in the
name of the Company and shall constitute a Pledged Bond until
released as herein provided. A
Pledged Bond so held by the Trustee shall be released only upon
receipt by the Trustee or the Bank
of an amount equal to the principal amount thereof plus accrued
interest, if any, thereon to the date
of purchase and receipt by the Trustee of written confirmation of
the reinstatement of the amounts
available to be drawn under the Letter of Credit to cover the full
principal amount of all Outstanding
Bonds, plus Adequate Interest Coverage. If a Book-Entry System is
then in effect, Bonds purchased
with Letter of Credit proceeds pursuant to Section 3.09(b) hereof
shall be reflected on the records
of the Securities Depository as being held for the account of the
Trustee, and the Trustee agrees that
it shall hold such Bonds solely for the benefit of the Bank. While a
Book-Entry System is in effect,
the Trustee shall cause the release of such Bonds from its account
on the records of the Securities
Depository only under the conditions for release of Pledged Bonds
previously set forth in this
paragraph.
During the Daily Rate Period, CP Rate Period, and the
Weekly Rate Period, the Remarketing
Agent shall use its best efforts to remarket Pledged Bonds in
accordance with the provisions of the
Offering Agreement. If the Remarketing Agent remarkets any
Pledged Bond, the Remarketing
Agent shall give the notice described in the first sentence of Section
3.08(c) hereof, and shall direct
the purchaser of such Pledged Bond to transfer, by 10:00 a.m. (or,
in the case of Bonds in the Daily
Rate Mode, 11:30 a.m.) on the purchase date, the purchase price of
such remarketed Pledged Bond
to the Bank, with notice thereof to the Company and the Trustee.
The Remarketing Agent shall
deliver remarketed Pledged Bonds to the purchasers thereof in
accordance with Section 3.10 hereof.
On each Interest Payment Date prior to the release of
Pledged Bonds, the Trustee shall apply
moneys in the Non-Available Moneys Account of the Bond Fund to
the payment of principal of and
interest on such Pledged Bonds, but shall not draw on the Letter of
Credit or use moneys in the
Letter of Credit Account of the Bond Fund for such purpose to any
extent whatsoever; and the
Trustee shall receive for the account of the Bank the interest and
principal paid in respect of such
Pledged Bonds, and immediately upon such receipt the Trustee
shall pay such interest and principal
over to the Bank pursuant to written wire transfer instructions
acceptable to the Trustee; provided,
however, that if at such time the Trustee has been notified in
writing by the Bank that there shall
not remain any amount owed to the Bank under the Reimbursement
Agreement, such interest and
principal payments shall be paid over to the Company.
It is recognized and agreed by the Trustee that while it
holds Pledged Bonds, such Pledged
Bonds are held by the Trustee for the benefit of the Bank as a first
priority secured creditor.
Notwithstanding anything herein to the contrary, so long as
the Bonds are held under the
Book-Entry System, Pledged Bonds shall not be delivered to and
held by the Trustee; rather transfers
of beneficial Ownership of Bonds to the persons indicated above
will be effected pursuant to the
rules and procedures established by the Securities Depository.
Article IV
General Provisions
Section 4.01. Payment of Principal, Premium, if any, and
Interest. The Issuer covenants that
it will duly and punctually pay or cause to be paid the principal of,
premium, if any, and interest on
the Bonds issued under this Indenture at the place, on the dates,
and in the manner provided herein
and therein according to the true intent and meaning hereof and
thereof, but solely from the
payments, revenues, and receipts specifically assigned herein for
such purposes as set forth in
Section 5.01 of this Indenture.
Section 4.02. Instruments of Further Assurance. (a) The
Issuer covenants that it will, at the
expense of the Company, execute and deliver such indentures
supplemental hereto and such further
acts, instruments, and transfers as the Trustee or the Bank
reasonably may require for the better and
more effectual assignment to the Trustee of all payments, revenues,
and other amounts payable under
or with respect to the Agreement, the Letter of Credit, and any
other income and other moneys
assigned hereby to the payment of the principal of, premium, if any,
and interest on the Bonds. The
Issuer further covenants that it will not create or, to its knowledge,
suffer to be created any lien,
encumbrance, or charge upon its interest in the revenues and other
amounts payable under or with
respect to the Trust Estate, except the lien and charge granted
hereby.
(b) The Trustee agrees that it will, at the expense of
the Company pursuant to the
Agreement, cause the Company to record and file financing
statements and all supplements thereto,
and such other instruments (including, but not limited to,
continuation statements) as may be required
from time to time by the Issuer, the Bank, the Guarantor, or the
Company to be recorded or filed,
in such manner and at such places as from time to time may be
required by law in order fully to
preserve and protect the security of the Owners of the Bonds and
the Bank, and the rights of the
Trustee hereunder.
Section 4.03. Tax-Exempt Status of Bonds. The Issuer and
the Trustee each covenant to
commit or suffer no act within their control that would alter the
status or character of the Bonds, or
the interest to be paid on the Bonds, for purposes of Federal income
taxation. The provisions of this
Section shall apply to the Trustee only to the extent that the Trustee
is acting hereunder in its sole
discretion. Toward that end, the Issuer and the Trustee agree that
they will comply with and take
all actions required by the Tax Agreement.
Section 4.04. Books, Records and Accounts. The Trustee
agrees to keep proper books for
the registration of, and transfer of Ownership of, each Bond, and
proper books, records, and accounts
in which complete and correct entries shall be made of all
transactions relating to the receipt,
disbursement, investment, allocation, and application of the
proceeds received from the sale of the
Bonds, the revenues received from the Agreement, the documents
executed by the Company in
connection therewith, the Letter of Credit, the funds and accounts
created pursuant to this Indenture,
and all other moneys held by the Trustee under. The Trustee shall,
during regular business hours
and upon reasonable prior written notice, make such books,
records, and accounts available for
inspection by the Issuer, the Company, the Bank, and the
Guarantor. The Trustee shall also make
such books, records, and account available for inspection by the
Bond Owners, but subject to the
following limitations:
(a) the Bond Owner provides the Trustee with at least
five (5) Business Days' prior written
notice of the proposed inspection;
(b) such notice specifies what the Bond Owner wishes
to inspect and when the inspection
is to take place;
(c) no documents other than those executed on the
Closing Date in connection with the
issuance and sale of the Bonds or documents which have been
recorded or otherwise made a part
of a public record will be made available for inspection;
(d) the Bond Owner provides evidence satisfactory to
the Trustee of registered or beneficial
ownership of Bonds;
(e) the scope of the proposed inspection is reasonably
satisfactory to the Trustee; and
(f) no copies of documents are made of the Trustee's
records, other than a copy of the
Indenture which will be made available at the Bond Owner's
expense.
Section 4.05. Notice to Rating Agencies. The Trustee shall
provide each Rating Agency then
rating the Bonds, if the Bonds are then rated, with prompt written
notice following the effective date
of (a) the appointment of any successor Trustee, Tender Agent, or
Remarketing Agent, (b) any
change in the identity of any Bank, (c) any supplements or
amendments to this Indenture or the
Agreement, (d) the termination, expiration, extension, substitution,
or amendment of the Letter of
Credit, (e) the payment in full of all of the Bonds, or (f) any
mandatory tender of the Bonds (which
notice shall be given at least 25 days prior to the mandatory tender
date). Each notice to the Rating
Agencies hereunder shall be directed to the respective addresses
provided by the Rating Agencies.
Article V
Revenues and Funds; Letter of Credit
Section 5.01. Application of Original Proceeds of Bonds.
There is hereby created and
established with the Trustee a trust fund in the name of the Issuer
to be designated the "Grapevine
Industrial Development Corporation Industrial Development
Revenue Bonds (Trencor Jetco, Inc.
Project) Series 1994"Bond Proceeds Fund" (the "Bond Proceeds
Fund"). The Bond Proceeds Fund
shall have a Project Account and a Cost of Issuance Account. The
proceeds of the sale of the Bonds
upon initial issuance thereof shall be deposited by the Trustee on
the Closing Date in the Accounts
in the Bond Proceeds Fund as directed by a certificate of the
Company. Moneys held in the Costs
of Issuance Account shall be disbursed as set forth in such
certificate of the Company. Moneys held
in the Project Account shall be disbursed pursuant to Requisitions,
a form of which is set forth at
Section 5.11 hereof. Moneys, if any, remaining in the Bond
Proceeds Fund on the Completion Date
and any moneys in the Bond Proceeds Fund on the date the
Company prepays all amounts, payable
under Section 5.1(a) of the Agreement shall be transferred on such
date to the Available Moneys
Account of the Bond Fund to be applied as provided in Section 5.02
hereof.
Section 5.02. Bond Fund. There is hereby created by the
Issuer and ordered established with
the Trustee a trust fund to be designated the "Grapevine Industrial
Development Corporation
Industrial Development Revenue Bonds (Trencor Jetco, Inc.
Project), Series 1994"Bond Fund" (the
"Bond Fund"). Within the Bond Fund there are hereby created
by the Issuer and ordered
established with the Trustee three separate and segregated trust
accounts to be designated,
respectively, (a) the "Available Moneys Account," (b) the "Non-
Available Moneys Account", and (c)
the "Letter of Credit Account".
There shall be deposited into the Bond Fund when received:
(a) all payments specified in
Section 5.1 of the Agreement or Section 2.1(a) or (b) of the
Guaranty; (b) all moneys required to
be so deposited in connection with any redemption of Bonds; (c) all
moneys drawn by the Trustee
under the Letter of Credit to pay interest, premium, if any, principal
or the redemption price of any
Bonds; (d) any amounts directed to be transferred into the Bond
Fund pursuant to any provision of
this Indenture; and (e) all other moneys when received by the
Trustee which are required to be
deposited into the Bond Fund or which are accompanied by
directions that such moneys are to be
paid into the Bond Fund. Any amounts paid to the Trustee which
do not constitute Available
Moneys shall be held in the Non-Available Moneys Account and
shall not be commingled with any
other moneys held by the Trustee. At such time as moneys in the
Non-Available Moneys Account
shall constitute Available Moneys, they shall be transferred to the
Available Moneys Account. Any
amounts drawn under the Letter of Credit shall be held in the Letter
of Credit Account and shall
not be commingled with any other moneys held by the Trustee.
Any amounts received for deposit
in the Bond Fund which constitute Available Moneys (other than
amounts drawn under the Letter
of Credit), and any amounts deposited in the Non-Available
Moneys Account which at a later date
become Available Moneys, shall be held in the Available Moneys
Account and shall not be
commingled with any other moneys held by the Trustee.
Section 5.03. Letter of Credit; Alternate Credit Facility. (a)
Initial Letter of Credit. The
Initial Letter of Credit shall be delivered to the Trustee
simultaneously with the original issuance and
delivery of the Bonds.
(b) Alternate Credit Facility. The Company may at
any time substitute an Alternate Credit
Facility for an existing Letter of Credit, subject to the limitations
set forth in this Article V. An
Alternate Credit Facility shall be an irrevocable letter of credit,
bank bond purchase agreement, bond
insurance policy, revolving credit agreement, surety bond, or other
agreement or instrument under
which any person or entity (other than the Issuer or the Company)
undertakes to make or provide
funds to make payments of the principal and purchase price of, and
interest on, the Bonds, as and
when due, provided that the Alternate Credit Facility must be
effective as of a date on or prior to
the date of expiration of the then existing Letter of Credit and must
provide coverage in an amount
at least equal to the sum of (A) the aggregate principal amount of
Bonds (other than Pledged Bonds
or Company Bonds) at the time Outstanding, plus (B) Adequate
Interest Coverage.
Pursuant to Section 2.04 of this Indenture, if an Alternate
Credit Facility is furnished, the
Bonds shall be subject to mandatory tender unless the Company
furnishes the Trustee by the 25th
day prior to the scheduled Letter of Credit expiration or termination
date written evidence from each
Rating Agency having a rating in effect for the Bonds that the
Rating Agency has reviewed the
proposed Alternate Credit Facility and that its replacement of the
current Letter of Credit will not
by itself result in a withdrawal or reduction of the Rating
Agency"s current rating for the Bonds (a
"Maintenance of Rating"). Notwithstanding the foregoing, when
the Bonds are in the CP Rate Mode
or an Adjustable Rate Mode, an existing Letter of Credit may not be
replaced prior to the expiration
date of the then applicable Rate Period with an Alternate Credit
Facility unless either (a) the Trustee
is furnished with evidence of a Maintenance of Rating by the date
described above (in which case
the Bonds will not be subject to mandatory tender as a result
thereof) or (b) in the event evidence
of Maintenance of Rating is not received, the substitution occurs on
a date on or after which the
Bonds may be optionally redeemed pursuant to the Indenture and
the mandatory tender price
payable upon the mandatory tender of Bonds as a result of such
substitution includes a premium
equal to the redemption premium at that time payable pursuant to
the optional redemption provisions
of this Indenture.
The Company shall notify the Trustee of its intention to
deliver an Alternate Credit Facility
at least 25 days prior to the date of such delivery. Upon receipt of
such notice, the Trustee will
promptly mail a notice of the anticipated delivery of the Alternate
Credit Facility by first class mail
to the Issuer, the Remarketing Agent, and each Owner at the
Owner"s registered address.
On or prior to the delivery of any Alternate Credit Facility
to the Trustee, the Company shall
furnish to the Trustee (i) a written opinion of counsel acceptable to
the Trustee stating that delivery
of such Alternate Credit Facility to the Trustee is authorized under
the Agreement and the
Indenture, and complies with the terms hereof and thereof, and (ii)
an opinion of counsel to the
issuer of such Alternate Credit Facility to the effect that the
Alternate Credit Facility is a valid and
binding obligation of the issuer thereof, enforceable in accordance
with its terms, subject to usual
exceptions relating to bankruptcy and insolvency. In addition, if
the Alternate Credit Facility is issued
in connection with a conversion of the interest rate Mode on the
Bonds or if the Company grants
a security interest in any cash, securities, or investment type
property to the issuer or provider of the
Alternate Credit Facility, the Company must furnish the Trustee an
opinion of Bond Counsel stating
that such grant will not adversely affect the exemption of interest
on the Bonds from Federal income
taxation.
(c) Surrender of Letter of Credit. If at any time there
shall have been delivered to the
Trustee an Alternate Credit Facility, together with the other
documents and opinions required by this
Article V, then the Trustee shall accept such Alternate Credit
Facility and promptly surrender the
previously held Letter of Credit to the issuer thereof, in accordance
with the terms thereof for
cancellation. If at any time there shall cease to be any Bonds
Outstanding under this Indenture, or
the Bonds are deemed paid under Section 10.01 of this Indenture,
or if the Letter of Credit expires
in accordance with its terms, the Trustee shall promptly surrender
the Letter of Credit to the issuer
thereof, in accordance with the terms thereof, for cancellation. The
Trustee shall comply with the
procedures set forth in the Letter of Credit relating to the
termination thereof.
(d) Federal Income Tax Requirements Pertaining to
Substitutions of Letters of Credit
Upon Certain Mode Conversions. The CP Rate Mode, the Daily
Rate Mode, the Weekly Rate
Mode, and each Adjustable Rate Period of one year or less shall be
referred to as a "Short-Term
Mode" and each Adjustable Rate Period of greater than one
year"s duration shall be referred to as
a "Long-Term Mode." Upon any conversion or change from a
Short-Term Mode to a Long-Term
Mode or from a Long-Term Mode to a Short-Term Mode, if the
Company then proposes to either
(i) add a Letter of Credit where none was then in effect, (ii)
terminate a Letter of Credit then in
effect without replacing it with an Alternate Credit Facility, or (iii)
terminate an existing Letter of
Credit and substitute an Alternate Credit Facility issued by a
different Bank, the following shall apply:
(A) If the change or conversion is from a Long-Term
Mode to a Short-Term Mode,
the Bonds shall be supported by a Letter of Credit issued by an
entity with the highest generic
(i.e., without regard to "+" or "-" symbols) short-term rating
on the effective date of such
change or conversion by the Rating Agency then rating the
Bonds.
(B) If the change or conversion is from a Short-Term
Mode to an Adjustable Rate
Period of greater than or equal to one but less than three years"
duration, the Bonds shall be
supported by a Letter of Credit issued by an entity with an "A"
long-term rating (or its
equivalent) on the effective date of such change or conversion by
the Rating Agency than
rating the Bonds.
(C) If the change or conversion is from a Short-Term
Mode to an Adjustable Rate
Period of greater than or equal to three years" duration, the
Bonds shall not be supported by
any Letter of Credit for at least the duration of the Adjustable
Rate Period to which the
Bonds are being converted.
Notwithstanding any of the foregoing provisions of this
Section 5.03(d), the Bonds may or may
not be supported by a Letter of Credit in contravention of such
provisions if there is delivered to the
Trustee prior to the date of any such change or conversion an
opinion of Bond Counsel to the effect
that the deviation from the provisions of this Section 5.03(d) will
not adversely affect the exclusion
from gross income of interest on the Bonds.
Section 5.04. Letter of Credit Draws and Bond Fund
Moneys to Pay Principal, Premium, or
Interest. (a) On or before each Interest Payment Date, redemption
date, and date on which principal
shall be due and payable on the Bonds, whether at maturity or upon
acceleration, the Trustee shall
draw under the Letter of Credit (if then in effect) an amount which
shall be sufficient for the
purpose of paying the principal of, premium, if any (if the Letter of
Credit then covers premium) and
interest due and payable on the Bonds (other than Pledged Bonds
and Company Bonds) on such
date. Such drawing shall be made in a timely manner under the
terms of the Letter of Credit in
order that the Trustee may realize funds thereunder in sufficient
time to pay Owners on the payment
date as provided herein. All amounts derived by the Trustee with
respect to the Letter of Credit
shall be deposited in the Letter of Credit Account of the Bond Fund
upon receipt thereof by the
Trustee, as provided in Section 5.03. If no Letter of Credit is then
in effect, by 11:00 a.m. on any
Interest Payment Date, redemption date, acceleration date, or the
maturity date of the Bonds, as the
case may be, the Trustee shall receive from the Company pursuant
to Section 5.1(a) of the
Agreement the full amount of principal of, premium, if any, and
interest due on the Bonds on that
date.
(b) The Issuer hereby authorizes and directs the
Trustee to withdraw sufficient funds from
the Letter of Credit Account of the Bond Fund to pay the principal
of, premium, if any, and interest
on, the Bonds as the same become due and payable; and, in the
event of a default under the Letter
of Credit, or at such time as no Letter of Credit secures the Bonds,
to use all moneys then on
deposit, first in the Available Moneys Account and thereafter the
Non-Available Moneys Account,
of the Bond Fund to pay principal of, premium, if any, and interest
on, the Bonds, which
authorization and direction the Trustee hereby accepts. On the
Business Day which next succeeds
any date on which moneys are to be disbursed from the Bond Fund
pursuant to the preceding
sentence, if moneys then remain in the Bond Fund, and if the
Trustee's fees and expenses have been
paid such moneys shall be disbursed to the Bank to the extent
amounts are then owed to the Bank
pursuant to the Reimbursement Agreement. The Trustee may rely
on a certificate from the Bank
which certifies the amounts owed under the Reimbursement
Agreement at any time.
Section 5.05. Investment of Moneys. Subject to the
restrictions hereinafter set forth in this
Section 5.05 and in the Tax Agreement, any moneys held in the
Non-Available Moneys Account of
the Bond Fund and the Bond Proceeds Fund shall be invested and
reinvested by the Trustee upon
the written instructions of the Company in Qualified Investments,
maturing no later than the date
on which it is estimated that such moneys will be required to be
paid out hereunder. Moneys held
in the Available Moneys Account of the Bond Fund shall be
invested and reinvested solely in
Government Obligations, maturing no later than the date on which
such moneys will be required to
be paid out hereunder. Moneys held in the Purchase Fund and the
Letter of Credit Account and
moneys held pursuant to Section 5.06 hereof shall not be invested.
The Trustee may make any and
all such investments through its own investment department, or
through any of its affiliates or
subsidiaries. The Trustee shall be entitled to rely on all written
investment instructions or telephonic
instructions subsequently confirmed in writing provided by the
Company hereunder, and shall have
no duty to monitor the compliance thereof with the restrictions set
forth in this Section 5.05 or in
the Tax Agreement. The Trustee shall not be responsible or liable
for the performance of any such
investments or for keeping the moneys held by it hereunder fully
invested at all times other than in
accordance with the instructions of the Company. Absent the
provision of investment instructions
hereunder, the Trustee shall not make any investment of the
moneys held pursuant hereto; provided,
however, that the Trustee shall notify the Company in the event any
moneys are being held
uninvested pursuant hereto. Any obligations acquired by the
Trustee as a result of such investment
or reinvestment shall be held by or under the control of the Trustee
and shall be deemed to
constitute a part of the Fund or Account from which the moneys
used for its purchase were taken.
All investment income shall be retained in the Fund or Account to
which the investment is credited
from which such income is derived.
Section 5.06. Moneys to Be Held in Trust; Nonpresentment
of Bonds. (a) All moneys
required to be deposited with or paid to the Trustee for the account
of any Fund or Account under
any provisions of this Indenture shall be held by the Trustee in
trust, and, except for moneys
deposited with or paid to the Trustee for redemption of Bonds,
notice of the redemption for which
has been duly given, and moneys on deposit in the Rebate Fund,
shall, while held by the Trustee,
constitute part of the Trust Estate and be subject to the security
interest created hereby.
(b) In the event any Bond shall not be presented for
payment when the principal thereof
becomes due, either at maturity or otherwise, or at the date fixed for
redemption thereof, if Available
Moneys sufficient to pay such Bond shall have been deposited in
the Bond Fund, all liability of the
Issuer to the Owner thereof for the payment of such Bond shall
forthwith cease, determine, and be
completely discharged, and thereupon it shall be the duty of the
Trustee, subject to applicable escheat
laws, to hold such moneys, without liability for interest thereon, for
the benefit of the Owner of such
Bond who shall thereafter be restricted exclusively to such moneys,
for any claim of whatever nature
on his part under this Indenture or on, or with respect to, said
Bond. Such moneys shall be held in
a separate and segregated fund and shall not be invested.
(c) Any moneys so deposited with and held by the
Trustee not so applied to the payment
of Bonds for at least two years after the date on which the same
shall have become due shall upon
(i) payment of the Trustee's fees and expenses and (ii) delivery to
the Trustee of indemnification
reasonably satisfactory to it, then be paid by the Trustee to the
Bank, upon the written direction of
the Bank that amounts are due and owing the Bank under the
Reimbursement Agreement, or in any
other event, to the Company upon the written direction of the
Company. Thereafter Owners shall
be entitled to look only to the Company for payment, the Company
shall not be liable for any interest
thereon and shall not be regarded as a trustee of such moneys and
the Trustee shall have no further
responsibilities with respect to such moneys.
(d) The obligation of the Trustee under this Section to
pay any such funds to the Company
shall be subject, however, to any provisions of law applicable to the
Trustee or to such funds
providing other requirements for disposition of unclaimed property.
Section 5.07. Repayment from Indenture Funds. Any
amounts remaining in any Fund or
Account created under this Indenture, after payment or provision
for payment in full of the Bonds
in accordance with Article X hereof, the fees, charges, and
expenses of the Issuer, the Trustee, the
Tender Agent, the Remarketing Agent, and any co-trustee
appointed hereunder, and all other
amounts required to be paid hereunder or under the Agreement,
and after and to the extent that the
Company shall determine that the payment of such remaining
amounts may be made without violation
of the provisions of the Tax Agreement, shall be paid, upon the
expiration of, or upon the sooner
termination of, the terms of this Indenture, to the Bank to the extent
money shall be owed to the
Bank under the Reimbursement Agreement (as evidenced by
written notice thereof given to the
Trustee by the Bank) and, thereafter, to the Company.
Section 5.08. Tax Covenants. (a) The Issuer and the
Trustee covenant with the Owners of
the Bonds that, notwithstanding any other provision of this
Indenture or any other instrument, they
will not knowingly make any investment or other use of the
proceeds of the Bonds or any other
moneys held under this Indenture which would cause the Bonds to
be "arbitrage bonds" under
section 148 of the Code or "federally guaranteed" obligations
under section 149(b) of the Code, and
they further covenant that they will comply with all applicable
requirements of sections 103 and
141-150 of the Code (except that the Issuer and the Trustee shall be
deemed to have complied with
these requirements as long as they act on the written direction of
the Company).
(b) The Trustee shall maintain the Rebate Fund
established by Section 5.10 hereof as a
separate fund which shall be continuously held, invested, expended,
and accounted for in accordance
with the provisions of Section 5.10 hereof; provided, however that
the Rebate Fund need not be
maintained if the Company, the Issuer, and the Trustee shall have
received an opinion of Bond
Counsel to the effect that failure to maintain the Rebate Fund shall
not adversely affect the exclusion
of interest on the Bonds from the federal gross income of the
Owners thereof.
(c) In maintaining the Rebate Fund, the Trustee will
keep and retain the records described
in Section 5.10 hereof to the extent such records relate to Funds
held by the Trustee, and the Trustee
will take such further action as the Company may direct pursuant to
Section 5.10 hereof in order to
comply with the rebate requirements contained in section 148(f) of
the Code.
(d) Notwithstanding any other provision herein to the
contrary, the Trustee shall be
permitted to transfer moneys on deposit in any of the trust funds
established hereunder (other than
moneys representing remarketing proceeds or draws under the
Letter of Credit to the extent needed
to pay principal or purchase price of, premium, if any, or interest
on the Bonds) to the Rebate Fund.
Section 5.09. Custody of Funds and Accounts. Except as
otherwise expressly provided herein,
all Funds and Accounts created pursuant to this Indenture and held
by the Trustee shall be held in
trust, in the name of the Issuer, for the benefit of the Owners and,
to the extent of amounts owed
by the Company to the Bank under the Reimbursement Agreement,
the Bank. Notwithstanding the
foregoing, the Rebate Fund shall be held for the benefit of the
United States of America.
Section 5.10. Rebate Fund, Rebate. (a) There is hereby
created by the Issuer and ordered
established with the Trustee a Rebate Fund. Moneys held from
time to time in the Rebate Fund
shall not constitute part of the Trust Estate, but shall be held solely
for the purpose hereinbelow
described. Promptly after the end of each fifth Bond Year, the
Trustee shall determine whether
during the prior five Bond Years any of the funds which it held in
any of the funds or accounts under
this Indenture (other than the Rebate Fund) were invested in any
permitted investment. If the
Trustee determines that any such funds were so invested (except for
funds so invested in the Bond
Fund which produce gross earnings which amount to less than
$100,000 during each Bond Year), the
Company shall retain (at its expense) a Rebate Analyst, and the
following provisions shall apply:
Pursuant to Section 2.2(n) of the Agreement, within thirty (30) days
after each fifth Bond Year, the
Company shall cause the Rebate Analyst to compute, and deliver to
the Trustee written notice and
direction of, the amount of any transfer or deposit to the Rebate
Fund (or, if there has been a loss
in any fund or account other than the Rebate Fund, the amount of
any withdrawal from the Rebate
Fund) which is necessary to cause the aggregate amount transferred
to or otherwise deposited in such
Rebate Fund to equal the amount required to be rebated to the
United States pursuant to the
requirements of section 148 of the Code. If a deposit to the Rebate
Fund is required in accordance
with the written direction of the Rebate Analyst, the Trustee shall
accept such payment from the
Company and deposit it in the Rebate Fund for the benefit of the
Issuer. If the computations of the
Rebate Analyst show that a withdrawal may be made from the
Rebate Fund on account of a loss, the
Trustee shall, upon receipt of an approving opinion of Bond
Counsel to the effect that such
withdrawal will not adversely affect the exclusion from gross
income for federal income tax purposes
of interest on the Bonds, and in accordance with the written
directions of the Company and the
Rebate Analyst, withdraw such amount from the Rebate Fund and
pay such amount to the Company.
Records of the actions required to be taken by the Trustee by this
Section 5.10 must be retained by
the Trustee until six (6) years after the last Bond is no longer
outstanding.
(b) Not later than sixty (60) days after the fifth Bond Year
and every fifth Bond Year
thereafter, the Trustee shall, at the written direction of the Rebate
Analyst, pay to the United States
Government at least ninety percent (90%) of the amount specified
in writing by the Rebate Analyst
required to be rebated to the United States from funds on deposit in
the Rebate Fund or from funds
provided by the Company. Not later than forty-five (45) days after
the final retirement of the Bonds,
the Rebate Analyst shall specify in writing to the Trustee the
amount required to be rebated to the
United States, whereupon the Trustee shall request that the
Company deposit with the Trustee
pursuant to the Section 2.2(n) of the Agreement such amount, if
any, as is necessary to bring the
balance in the Rebate Fund to the amount required to be rebated to
the United States pursuant to
the requirements of section 148 of the Code and, upon receipt of
such funds from the Company, the
Trustee shall pay to the United States the amount specified in
writing by the Rebate Analyst to be
paid to the United States; any balance remaining in the Rebate
Fund after the final payment upon
retirement of the Bonds shall be paid to the Company unless
otherwise specified in writing by the
Rebate Analyst. The final payment by the Trustee to the United
States shall be made no later than
sixty (60) days after the final retirement of the Bonds, to the extent
funds therefor are on deposit in
the Rebate Fund at such time.
(c) The Trustee shall make information regarding the
Bonds and investments hereunder
available to the Rebate Analyst promptly following each fifth Bond
Year, shall make deposits to and
disbursements from the Rebate Fund in accordance with the
directions received from the Rebate
Analyst, shall invest moneys in the Rebate Fund as required by
Section 5.05 hereof, and shall deposit
income from such investments immediately upon receipt thereof in
the Rebate Fund.
(d) This Section 5.10 is intended to comply with the
requirements of section 148 of the Code
and the regulations promulgated thereunder. The requirements of
this Section 5.10 shall be deemed
modified and amended in the manner and to the extent necessary,
in the written opinion of Bond
Counsel delivered to the Issuer, the Company, and the Trustee, to
permit compliance with the
provisions of said section 148 applicable to the Bonds.
Section 5.11. Payments in the Project Account;
Disbursements. Proceeds of the issuance and
delivery of the Bonds shall be deposited in the Project Account as
provided in Section 5.01 hereof.
Moneys in the Project Account shall be expended on orders signed
by an Authorized Company
Representative stating with respect to each payment to be made:
(a) The requisition number;
(b) The name and address of the person, firm, or
corporation to whom payment is
due or has been made, which may include the Company;
(c) The amount to be or which has been paid;
(d) That each obligation mentioned therein has been
properly incurred, is a proper
charge against the Project Account, and has not been the basis of
any previous requisition;
(e) That each item for which payment is proposed to
be made is or was necessary
in connection with the Project;
(f) That after taking into account the costs proposed to
be paid or reimbursed in said
certificate, all of the costs paid or reimbursed out of the Project
Account are amounts which
will be chargeable to the Project's capital account or which would
be so chargeable either with
a proper election by the Company under the Code or but for a
proper election by the
Company to deduct such amount and were incurred and paid, or
are to be incurred and paid,
subsequent to January 17, 1994;
(g) That after taking into account the costs proposed to
be paid or reimbursed in said
certificate, at least 95% of the costs paid or reimbursed out of the
Bond Proceeds Fund are
for land costs or costs of property of a character subject to the
allowance for depreciation for
federal income tax purposes and were incurred and paid, or are
incurred and paid, subsequent
to January 17, 1994;
(h) That after taking into account the costs proposed to
be paid or reimbursed in said
certificate, no more than $160,000 of the costs paid or
reimbursed out of the Bond Proceeds
Fund are issuance costs within the meaning of the Code; and
(i) That no Event of Default exists under the
Agreement.
The Trustee is hereby authorized and directed to make each
disbursement required by the
provisions of the Agreement and to issue its checks therefor. The
Trustee shall keep and maintain
adequate records pertaining to the Project Account and all
disbursements therefrom, and after the
Project has been completed and a certificate of payment of all costs
is or has been filed as provided
in Section 5.11 hereof, the Trustee shall file an accounting thereof
with the Issuer, the Guarantor,
and the Company.
Section 5.12. Completion of Project. The completion of the
Project and payment or provision
made for payment of the full Cost of the Project shall be evidenced
by the filing with the Trustee of
a certificate required by the provisions of Section 3.3 of the
Agreement. Any balance remaining in
the Project Account on the Completion Date shall be used in
accordance with said Section.
Section 5.13. Transfer of Construction Fund. If the
Company should prepay all amounts
payable under Section 5.1(a) of the Agreement, any balance then
remaining in the Project Account
shall without further authorization be deposited in the Bond Fund
by the Trustee.
Section 5.14. Custody of Funds and Accounts. Except as
otherwise expressly provided herein,
all Funds and Accounts created pursuant to this Indenture and held
by the Trustee shall be held in
trust, in the name of the Issuer, for the benefit of the Owners and,
to the extent of amounts owed
by the Company to the Bank under the Reimbursement Agreement,
the Bank.
Article VI
Defaults and Remedies
Section 6.01. Events of Default. Each of the following
shall constitute, and is referred to in
this Indenture as, an "Event of Default":
(a) a default in the payment when due of interest on
any Bond;
(b) a default in the payment of principal of, or
premium, if any, on any Bond when due,
whether at maturity, upon acceleration or redemption, or otherwise;
(c) a default in the payment when due of the purchase
price of any Bond required to be
purchased pursuant to Section 2.03 or Section 2.04;
(d) the Issuer fails to perform any of its agreements in
this Indenture or the Bonds (except
a failure that results in an Event of Default under clause (a), (b), or
(c) above), the performance of
which is material to the Owners, and which failure continues after
the giving of the notice of default
and the expiration of the grace period specified in this Section;
(e) the Company or the Guarantor fails to perform any
of its agreements in the Agreement
or the Guaranty (except a failure that results in an Event of Default
under clause (a), (b), or (c) of
this Section), and the failure continues after the notice and for the
period specified in this Section;
(f) the Company or the Guarantor pursuant to or
within the meaning of any Bankruptcy
Law (as defined below) (l) commences a voluntary case, (2)
consents to the entry of an order for
relief against it in an involuntary case, (3) consents to the
appointment of a Custodian (as defined
below) for the Company or the Guarantor or any substantial part of
its property, or (4) makes a
general assignment for the benefit of its creditors;
(g) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law
that (l) is for relief against the Company or the Guarantor in an
involuntary case, (2) appoints a
Custodian for the Company or the Guarantor or any substantial part
of its property or (3) orders the
winding up or liquidation of the Company or the Guarantor, and
the decree or order remains
unstayed and in effect for 60 days;
(h) the Trustee receives notice from the Bank that a
"default" or "event of default" has
occurred and is continuing under the Reimbursement Agreement;
and
(i) the Trustee receives notice from the Bank on or
before the date or dates specified in
the Letter of Credit following a drawing on the Letter of Credit to
pay interest on the Bonds that
it will not reinstate its Letter of Credit in the amount of the said
interest drawing.
"Bankruptcy Law" means Title 11 of the United States
Code or any similar Federal or state
law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian,
or similar official under any Bankruptcy Law.
A default under clause (d) or (e) of this Section is not an
Event of Default until the Trustee
or the Owners of at least a majority in principal amount of the
Bonds then outstanding give the
Issuer, the Guarantor, and the Company a notice specifying the
default, demanding that it be
remedied, and stating that the notice is a "Notice of Default,"
and the Issuer or the Company (if the
default is under clause (d)) or the Company or the Guarantor (if the
default is under clause (e)) does
not cure the default within 60 days after receipt of the notice, or
within such longer period as the
Trustee shall agree to. The Trustee shall not unreasonably refuse to
agree to a longer cure period
if the default cannot reasonably be cured within 60 days after
receipt of the notice and the Issuer,
the Guarantor, or the Company has demonstrated to the Trustee
that it has begun within 60 days and
continued diligent efforts to cure the default and the Trustee has
received indemnification reasonably
satisfactory to it. The Issuer authorizes the Company and the
Guarantor to perform, in the name
and on behalf of the Issuer and for the purpose of preventing the
occurrence of an Event of Default,
any agreement of the Issuer in this Indenture or the Bonds.
Section 6.02. Acceleration. If an Event of Default under
clause (h) or (i) of the foregoing
Section occurs, the principal and accrued interest to the date of
acceleration on the Bonds shall
become due and payable immediately. If any other Event of Default
occurs and is continuing, the
Trustee by notice to the Issuer, the Guarantor, and the Company, or
the Owners of at least a
majority in principal amount of the Bonds then outstanding by
notice to the Issuer, the Company,
the Guarantor, and the Trustee, may declare the principal of and
accrued interest on the Bonds to
be due and payable immediately. Upon the principal of and
accrued interest on the Bonds becoming
due and payable as provided in this Section, the Trustee shall
immediately draw on the Letter of
Credit, if any, to pay the principal of and accrued interest on the
Bonds. The Trustee shall
immediately give notice of acceleration to the Owners. Interest on
the Bonds shall cease to accrue,
and the principal of and accrued and unpaid interest on the Bonds
shall, without further action,
become immediately due and payable, on the date of acceleration.
The Trustee may, and upon the request of Owners of a
majority in principal amount of the
Bonds then outstanding shall, rescind an acceleration and its
consequences if (a) all existing Events
of Default have been cured or waived, (b) the rescission would not
conflict with any judgment or
decree, (c) all payments due the Trustee and any predecessor
Trustee under Section 7.06 have been
made, and (d) when a Letter of Credit is in effect, the Bank
consents and the Letter of Credit is
reinstated up to the full amount available under it immediately
prior to such Event of Default.
Section 6.03. Other Remedies. (a) If an Event of Default
occurs and is continuing, the
Trustee may pursue any available remedy by proceeding at law or
in equity to collect the principal
of or interest on the Bonds or to enforce the performance of any
provision of the Bonds, this
Indenture, the Agreement, the Guaranty, and the Letter of Credit
including, without limitation, the
exercise of any remedy granted to it in the Agreement.
(b) The Trustee may maintain a proceeding even if it
does not possess any of the Bonds
or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any
Owner in exercising any right or remedy accruing upon an Event of
Default shall not impair the right
or remedy or constitute a waiver of or acquiescence in the Event of
Default. No remedy is exclusive
of any other remedy. All available remedies are cumulative.
(c) During any period the Bonds are secured by the
Letter of Credit and draws thereunder
have been duly honored by the Bank in accordance with the terms
and provisions of the Letter of
Credit, all remedies pursued by the Trustee upon the occurrence of
an Event of Default (other than
draws upon the Letter of Credit) shall be taken only with the prior
consent of the Bank.
Section 6.04. Waiver of Past Defaults. The Owners of a
majority in principal amount of the
Bonds then outstanding, together with the Bank, by written notice
to the Trustee, may waive an
existing Event of Default and its consequences if the Letter of
Credit is reinstated up to the full
amount available under it immediately prior to such Event of
Default. When an Event of Default
is waived, it is cured and stops continuing, but no such waiver shall
extend to any subsequent or other
Event of Default or impair any right consequent to it.
Section 6.05. Control by Majority. The Owners of a
majority in principal amount of the Bonds
then outstanding may (with the consent of the Bank) direct the
time, method, and place of
conducting any proceeding for any remedy available to the Trustee
or of exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or
this Indenture or, subject to Section 7.01, that the Trustee
determines is unduly prejudicial to the
rights of other Owners, or would involve the Trustee in personal
liability.
Section 6.06. Limitation on Suits. An Owner may not
pursue any remedy with respect to this
Indenture or the Bonds unless (a) the Owner gives the Trustee
notice stating that an Event of
Default is continuing, (b) the Owners of at least 25% in principal
amount of the Bonds then
outstanding make a written request to the Trustee to pursue the
remedy, (c) such Owner or Owners
offer to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense, and
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the
offer of indemnity.
A Owner may not use this Indenture to prejudice the rights
of another Owner or to obtain a
preference or priority over the other Owners.
Section 6.07. Rights of Owners to Receive Payment.
Notwithstanding any other provision of
this Indenture, the right of any Owner to receive payment of
principal of and interest on a Bond, on
or after the due dates expressed in the Bond, or the purchase price
of a Bond on or after the date
for its purchase as provided in the Bond, or to bring suit for the
enforcement of any such payment
on or after such dates, shall not be impaired or affected without the
consent of the Owner.
Section 6.08. Collection Suit by Trustee. If an Event of
Default under Section 6.01(a), (b)
or (c) occurs and is continuing, the Trustee may recover judgment
in its own name and as trustee of
an express trust against the Company or the Bank for the whole
amount remaining unpaid.
Section 6.09. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim
and other papers or documents as may be necessary or advisable in
order to have the claims of the
Trustee and the Owners allowed in any judicial proceedings relative
to the Company or the Bank,
its creditors or its property and, unless prohibited by law or
applicable regulations, may vote on behalf
of the Owners in any election of a trustee in bankruptcy or other
person performing similar functions.
Section 6.10. Priorities. If the Trustee collects any money
pursuant to this Article, it shall pay
out the money in the following order:
First: To the Trustee and the Tender Agent for amounts to
which they are entitled under
Section 7.06 hereof or Section 5.2 of the Agreement, but the
Trustee may not pay itself or the
Tender Agent from money drawn under the Letter of Credit, from
the proceeds of the remarketing
of any Bonds, or from amounts held by the Trustee pursuant to
Article X or Section 5.06(b).
Second: To Owners for amounts due and unpaid on the
Bonds for principal and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on the
Bonds for principal and interest, respectively.
Third: To the Bank to the extent the Bank certifies to the
Trustee that the Company is
indebted to the Bank on account of draws under the Letter of Credit
or any other amounts due and
payable to the Bank under the Reimbursement Agreement.
Fourth: To the Issuer.
Fifth: To the Company.
The Trustee may fix a payment date for any payment to the
Owners in accordance with this
Section.
Section 6.11. Bank Deemed Owner of Certain Bonds.
Notwithstanding any other provision
in this Article, as long as the Letter of Credit is in effect the Bank
shall be deemed to be the owner
of all Bonds which are secured by the Letter of Credit and all
Company Bonds and all Pledged Bonds
for all purposes of this Article VI following the occurrence of an
Event of Default. In no event,
however, may the Bank direct the Trustee not to draw on the Letter
of Credit, or prevent the
Trustee from so drawing, pursuant to the provisions of this Article
VI after the occurrence of an
Event of Default under clause (h) or (i) of Section 6.01 hereof.
Section 6.12. Bank Rights. Notwithstanding any other
provision of this Article, as long as the
Letter of Credit is in effect or amounts are owed to the Bank under
the Reimbursement Agreement,
the Trustee shall take any action that it is required or permitted to
take under this Article VI (except
for the Trustee's obligations to draw under a Letter of Credit due to
an Event of Default under
clause (h) or (i) of Section 6.01, which shall be absolute and
unconditional) solely at the written
direction of the Bank, and the Trustee shall not take any such
action without such written direction.
Article VII
Trustee, Remarketing Agent, and Tender Agent
Section 7.01. Duties of Trustee. (a) Prior to the occurrence
of an Event of Default, the
Trustee shall have no liability for any action or omission in the
performance of its duties hereunder,
except in the case of negligence or willful misconduct on the part of
the Trustee. During the
existence of an Event of Default, the Trustee shall exercise its
rights and powers 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 such person"s own affairs.
(b) Except during the continuance of an Event of
Default,
(i) the Trustee shall be required to perform only those
duties that are specifically
set forth in this Indenture and no others, and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to
the truth of the statements and the correctness of the opinions
expressed, upon certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions
to determine whether they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own
negligent failure to act or its own willful misconduct, except that
(i) this paragraph does not limit the effect of
paragraph (b) of this Section,
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by
any employee of the Trustee assigned by the Trustee to
administer its corporate trust matters
(a "Responsible Officer"), unless it is proved that the Trustee
was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take
in good faith in accordance with a direction received by it
pursuant to Section 6.05; and
(iv) no provision of this Indenture shall require the
Trustee to expend or risk its own
funds or otherwise incur any financial liability in the
performance of any of its duties hereunder
or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing
that repayment of such funds or adequate indemnity against such
risk or liability is not
reasonably assured to it.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to all
the paragraphs of this Section.
(e) The Trustee may refuse to perform any duty or
exercise any right or power unless it
receives indemnity satisfactory to it against any loss, liability, or
expense, but the Trustee may not
require indemnity as a condition to declaring the principal of,
premium, if any, and interest on the
Bonds to be due immediately under Section 6.02 or to drawing on
the Letter of Credit or to making
any payment of principal or interest on the Bonds.
(f) The Trustee shall not be liable for interest on any
cash held by it.
Section 7.02. Rights of Trustee. Subject to the foregoing
Section:
(a) The Trustee may rely on any document reasonably
believed by it to be genuine and to
have been signed or presented by the proper person. The Trustee
need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require a certificate of an
appropriate officer or officers of the Issuer or the Company or an
opinion of counsel; provided that
it may not require such a certificate as a condition to declaring the
principal of and interest on the
Bonds to be due immediately under Section 6.02 or to drawing on
the Letter of Credit or to making
any payment on the Bonds. The Trustee shall not be liable for any
action it takes or omits to take
in good faith in reliance on the certificate or opinion of counsel.
(c) The Trustee may act through agents or co-trustees
and shall not be responsible for the
misconduct or negligence of any agent or co-trustee appointed with
due care.
Section 7.03. Individual Rights of Trustee. The Trustee in
its individual or any other capacity
may become the Owner or pledgee of Bonds and may otherwise
deal with the Issuer or with the
Company or its affiliates with the same rights it would have if it
were not trustee. Any paying agent
may do the same with like rights.
Section 7.04. Trustee"s Disclaimer. The Trustee makes
no representation as to the validity
or adequacy of this Indenture or the Bonds, it shall not be
accountable for the Company"s use of
the proceeds from the Bonds paid to the Company, and it shall not
be responsible for any statement
in the Bonds other than its certificate of authentication.
Section 7.05. Notice of Defaults. (a) If an event occurs
which with the giving of notice or
lapse of time or both would be an Event of Default, and if the event
is continuing and if it is known
to the Trustee, the Trustee shall mail to each Owner and the Bank
notice of the event within 30 days
after it occurs. Except in the case of a default in payment or
purchase on any Bonds, the Trustee
may withhold the notice if and so long as a committee of its
Responsible Officers (as defined in
Section 7.01(c)) in good faith determines that withholding the
notice is in the interests of Owners.
(b) The Trustee shall not be required to take notice or
be deemed to have notice of any
default or Event of Default hereunder, or in any other document or
instrument executed in
connection with the execution and delivery of the Bonds, except an
Event of Default under Section
6.01(a), (b), (c), (h) or (i) hereof, unless the Trustee shall be
specifically notified in writing of such
default or Event of Default by the Issuer, the Tender Agent, the
Bank, the Company, or the Owners
of at least 25% in aggregate principal amount of the Bonds then
Outstanding. All notices or other
instruments required by this Indenture to be delivered to a
responsible officer of the Trustee shall
be delivered at the corporate trust office of the Trustee and, in the
absence of such notice so
delivered, the Trustee may conclusively assume there is no default
except as aforesaid.
Section 7.06. Compensation and Indemnity of Trustee. For
acting under this Indenture, the
Trustee shall be entitled to payment of compensation as outlined in
its fee schedule for its services
and reimbursement of advances, counsel fees, and other expenses
reasonably and necessarily made
or incurred by the Trustee in connection with its services under this
Indenture.
To secure the payment or reimbursement to the Trustee
provided for in this Section, the
Trustee shall have a senior claim, to which the Bonds are made
subordinate, on all money or property
held or collected by the Trustee, except that held under Article X or
otherwise held in trust to pay
principal of and interest on particular Bonds and except amounts
drawn under the Letter of Credit
or remarketing proceeds held by the Trustee or Tender Agent
hereunder.
The Company has agreed in the Agreement to indemnify
the Trustee for, and to hold it
harmless against, certain losses, liabilities, and expenses incurred
by the Trustee.
Section 7.07. Eligibility of Trustee. The Trustee shall be a
corporation organized and doing
business under the laws of the United States or any state or the
District of Columbia, authorized
under such laws to exercise corporate trust powers in the State, and
subject to supervision or
examination by United States, state or District of Columbia
authority. The initial Trustee shall be
Bank One, Texas, NA. The initial Trustee and any successor
Trustee must be an institution
acceptable to the Issuer, authorized to act as a trustee in the State,
and rated at least "Baa3" by
Moody"s Investors Service (or Moody"s Investors Service shall
have provided written evidence that
such successor Trustee is otherwise acceptable to Moody"s
Investors Service) if the Bonds are then
rated by Moody"s Investors Service, and at least "BBB-" or
"A-3" by Standard & Poor"s
Corporation (or Standard & Poor"s Corporation shall have
provided written evidence that such
successor Trustee is otherwise acceptable to Standard & Poor"s
Corporation) if the Bonds are then
rated by Standard & Poor"s Corporation, and authorized by law to
perform all the duties imposed
upon it as Trustee by this Indenture.
Section 7.08. Replacement of Trustee. The Trustee may
resign by notifying the Issuer and
the Company. The Owners of a majority in principal amount of the
Bonds then outstanding may
remove the Trustee by notifying the removed Trustee and may
appoint a successor Trustee with the
Issuer"s, the Bank"s, and the Company"s prior written consent.
If no Event of Default shall have
occurred and be continuing, the Company may cause the Trustee to
be removed, with the consent
of the Remarketing Agent and the Issuer, by giving notice to the
Issuer and the Bank requesting the
Issuer to remove and replace the Trustee. In addition, the Issuer
shall, at the direction of the
Company or on its own volition, remove the Trustee if (a) the
Trustee fails to comply with
Section 7.07 hereof, (b) the Trustee is adjudged a bankrupt or an
insolvent, (c) a receiver or other
public officer takes charge of the Trustee or its property or (d) the
Trustee otherwise becomes
incapable of acting.
If the Trustee resigns or is removed from the office of
Trustee for any reason, the Issuer, with
the prior written consent of the Bank and the Company, shall
promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring
Trustee and to the Issuer. Immediately thereafter, the retiring
Trustee shall transfer all property
(including the Letter of Credit) held by it as Trustee to the
successor Trustee, the resignation or
removal of the retiring Trustee shall then (but only then) become
effective, and the successor Trustee
shall have all the rights, powers, and duties of the Trustee under
this Indenture.
If a successor Trustee does not take office within 60 days
after the retiring Trustee resigns or
is removed, the retiring Trustee, the Issuer, the Company, the
Bank, the Guarantor, or the Owners
of a majority in principal amount of the Bonds then outstanding
may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with the foregoing Section,
any Owner may petition any court
of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Section 7.09. Duties of Remarketing Agent. The
Remarketing Agent will determine the
interest rate on the Bonds as provided in this Indenture as the
designee of the Issuer. The
Remarketing Agent will remarket Bonds as provided in this
Indenture as the designee of the
Company. The Remarketing Agent may for its own account or as
broker or agent for others deal
in Bonds and may do anything any other Owner may do to the
same extent as if the Remarketing
Agent were not serving as such.
Section 7.10. Eligibility of Remarketing Agent;
Replacement. The initial Remarketing Agent
shall be The First National Bank of Chicago, Chicago Illinois. Any
successor Remarketing Agent
must be an institution acceptable to the Issuer and rated at least
"Baa3" by Moody"s Investors
Service (or Moody"s Investors Service shall have provided written
evidence that such successor
Remarketing Agent is otherwise acceptable to Moody"s Investors
Service) if the Bonds are then
rated by Moody"s Investors Service, and at least "BBB-" or
"A-3" by Standard & Poor"s
Corporation (or Standard & Poor"s Corporation shall have
provided written evidence that such
successor Remarketing Agent is otherwise acceptable to Standard &
Poor"s Corporation) if the
Bonds are then rated by Standard & Poor"s Corporation, and
authorized by law to perform all the
duties imposed upon it by this Indenture.
A Remarketing Agent may at any time resign from its
duties under this Indenture by giving at
least 30 days" written notice to the Issuer, the Company, the
Guarantor, the Bank, the Tender
Agent, and the Trustee. The Trustee shall mail a copy of such
notice by certified mail to each of the
Bond Owners. A Remarketing Agent may be removed at any time
at the direction of the Issuer and
the Company by an instrument signed by the Issuer and the
Company and filed at least 30 days prior
to such removal with the Remarketing Agent, the Bank, and the
Trustee. No removal or resignation
hereunder shall become effective prior to the acceptance of
appointment of a successor Remarketing
Agent hereunder.
While the Bonds are in a Book-Entry System, the
Remarketing Agent shall serve as the
Participant on behalf of all of the Beneficial Owners of the Bonds.
Section 7.11. Tender Agent. (a) During any period the
Bonds shall not be in a Book-Entry
System, the Company shall appoint a Tender Agent for the Bonds,
who shall be satisfactory to the
Issuer, the Trustee, and the Remarketing Agent and who, upon
acceptance of its duties, will perform
the obligations of the Tender Agent set forth in this Indenture. Any
Tender Agent must be an
institution rated at least "Baa3" by Moody"s Investors Service
(or Moody"s Investors Service shall
have provided written evidence that such successor Tender Agent is
otherwise acceptable to Moody"s
Investors Service) if the Bonds are then rated by Moody"s
Investors Service, and at least "BBB-" or
"A-3" by Standard & Poor"s Corporation (or Standard &
Poor"s Corporation shall have provided
written evidence that such successor Tender Agent is otherwise
acceptable to Standard & Poor"s
Corporation) if the Bonds are then rated by Standard & Poor"s
Corporation, and authorized by law
to perform all the duties imposed upon it as Tender Agent by this
Indenture. The initial Tender
Agent and any successor Tender Agent shall accept its duties
hereunder by a written certificate or
tender agent agreement delivered to the Trustee, which certificate
or agreement shall designate the
Principal Office of the Tender Agent.
(b) The Tender Agent may at any time resign by
giving thirty (30) days" notice to the
Issuer, the Trustee, the Company, the Bank, and the Remarketing
Agent. Promptly upon the receipt
of such notice, the Trustee shall mail copies thereof to each
registered Owner of the Bonds. In no
event, however, shall any resignation of the Tender Agent take
effect until a successor Tender Agent
shall have been appointed.
(c) The Tender Agent may be removed at any time by
an instrument in writing delivered
to the Trustee and the Tender Agent by the Company, with the
prior written approval of the Bank
and the Issuer. In no event, however, shall any removal of the
Tender Agent take effect until a
successor Tender Agent shall have been appointed.
(d) Written notice of the appointment of a Tender
Agent shall immediately be given by the
Trustee to the Issuer and to the Owners. If no successor to a
Tender Agent has accepted
appointment in the manner provided above within 30 days after the
Tender Agent has given notice
of its resignation as provided above, the Trustee shall serve as
Tender Agent or shall appoint an
agent to act in its stead.
Section 7.12. Successor Trustee, Remarketing Agent, or
Tender Agent by Merger. If the
Trustee, the Tender Agent, or the Remarketing Agent consolidates
with, merges, or converts into,
or transfers all or substantially all its assets (or, in the case of a
bank or trust corporation, its
corporate trust assets) to, another corporation, the resulting,
surviving, or transferee corporation
without any further act shall, if otherwise eligible to serve
hereunder, be the successor Trustee,
Tender Agent, or Remarketing Agent.
Article VIII
Supplemental Indentures
Section 8.01. Without Consent of Owners. The Issuer and
the Trustee may amend or
supplement this Indenture or the Bonds without notice to or consent
of any Owner:
(a) to cure any ambiguity, inconsistency, or formal
defect or omission;
(b) to grant to the Trustee for the benefit of the
Owners additional rights, remedies,
powers, or authority;
(c) to subject to this Indenture additional collateral or
to add other agreements of the
Issuer;
(d) to modify this Indenture or the Bonds to permit
qualification under the Trust Indenture
Act of 1939 or any similar Federal statute at the time in effect, or to
permit the qualification of the
Bonds for sale under the securities laws of any state of the United
States;
(e) to evidence the succession of a new Trustee or the
appointment by the Trustee or the
Issuer of a co-trustee;
(f) to make any change that does not materially
adversely affect the rights of any Owner;
(g) to facilitate the use of the Book-Entry System; and
(h) to facilitate the substitution of an Alternate Credit
Facility which is not an irrevocable
letter of credit, but without modifying the payment terms of the
Bonds.
Section 8.02. With Consent of Owners. If an amendment
of or supplement to this Indenture
or the Bonds without any consent of Owners is not permitted by the
preceding Section, the Issuer
and the Trustee may enter into such amendment or supplement
with the consent of the Owners of
at least a majority in principal amount of the Bonds then
Outstanding. However, without the consent
of each Owner affected, no amendment or supplement may (a)
extend the maturity of the principal
of, or the due date of the payment of interest on, any Bond, (b)
reduce the principal amount of, or
rate of interest on, any Bond, (c) effect a privilege or priority of any
Bond or Bonds over any other
Bond or Bonds, (d) reduce the percentage of the principal amount
the Bonds required for consent
to such amendment or supplement, (e) impair the excludability
from gross income for federal income
tax purposes of interest on any Bond, (f) eliminate the Owners"
rights to demand that their Bonds
be purchased, or any mandatory tender or redemption of the Bonds,
(g) extend the due date for the
purchase of Bonds put by the Owners thereof or call for mandatory
tender or redemption or reduce
the purchase or redemption price of such Bonds, (h) create a lien
ranking prior to or on a parity with
the lien of this Indenture on the property described in the Granting
Clause of this Indenture not
otherwise provided for herein, or (i) deprive any Owner of the lien
created by this Indenture on such
property. In addition, if moneys or Governmental Obligations have
been deposited or set aside with
the Trustee pursuant to Article X for the payment of the Bonds and
the Bonds shall not have in fact
been actually paid in full, no amendment to the provisions of that
Article shall be made without the
consent of the Owners of each of those Bonds affected.
Section 8.03. Effect of Consents. After an amendment or
supplement becomes effective, it
will bind every Owner unless it makes a change described in any of
the lettered clauses of the
preceding Section. In that case, the amendment or supplement will
bind each Owner who consented
to it and each subsequent Owner of a Bond or portion of a Bond
evidencing the same debt as the
consenting Owner"s Bond.
Section 8.04. Notation on or Exchange of Bonds. If an
amendment or supplement changes
the terms of a Bond, the Trustee may require the Owner to deliver
it to the Trustee. The Trustee
may place an appropriate notation on the Bond about the changed
terms and return it to the Owner.
Alternatively, if the Trustee, the Issuer, and the Company
determine, the Issuer in exchange for the
Bond will issue and the Trustee will authenticate a new Bond that
reflects the changed terms.
Section 8.05. Execution and Delivery by Trustee of
Amendments and Supplements. The
Trustee shall execute and deliver any amendment or supplement to
the Indenture or the Bonds
authorized by this Article if the amendment or supplement does not
adversely affect the rights, duties,
liabilities, or immunities of the Trustee. In signing such
amendment or supplement, the Trustee will
be entitled to receive and (subject to Section 7.01) will be fully
protected in relying on an opinion
of Bond Counsel stating that such amendment or supplement is
authorized by this Indenture.
Section 8.06. Company and Bank Consent Required. An
amendment or supplement to this
Indenture or the Bonds shall not become effective unless the
Company and the Bank shall deliver
to the Trustee their written consents to the amendment or
supplement. The Company shall be
deemed to have consented if it shall fail to deliver a written
objection to the Trustee within 30 days
after receipt by the Company of a proposed form of an amendment
or supplement.
Section 8.07. Notice to Owners. The Trustee shall cause
notice of the execution of each
supplement or amendment to this Indenture or the Agreement to be
mailed to the Owners. The
notice shall, at the option of the Trustee, either (a) briefly state the
nature of the amendment or
supplement and that copies of it are on file with the Trustee for
inspection by Owners or (b) enclose
a copy of such amendment or supplement.
Article IX
Amendment of Agreement, Guaranty, or Letter of Credit
Section 9.01. Without Consent of Owners. The Issuer may
enter into, and the Trustee may
consent to, any amendment of or supplement to the Agreement and
the Trustee may enter into any
amendment of or supplement to the Guaranty, without notice to or
consent of any Owner, if the
amendment or supplement is (a) required or permitted by the
provisions of the Agreement, the
Guaranty, or this Indenture, (b) to cure any ambiguity,
inconsistency, or formal defect or omission,
(c) in connection with any authorized amendment of or supplement
to this Indenture, (d) to make
any change that does not materially adversely affect the rights of
any Owner, (e) to amend the
description of the Project, provided the Trustee is provided an
opinion of Bond Counsel to the effect
that such amendment will not adversely affect the excludability
from gross income of interest on the
Bonds for federal income tax purposes, or (f) to facilitate the
substitution of an Alternate Credit
Facility which is not an irrevocable letter of credit, but without
modifying the payment terms of the
Bonds.
Section 9.02. With Consent of Owners. If an amendment
of or supplement to the Agreement
or the Guaranty without any consent of Owners is not permitted by
the foregoing Section, the Issuer
may enter into, and the Trustee may consent to, such amendment or
supplement (or in the case of
the Guaranty, the Trustee may enter into such amendment or
supplement) with the consent of the
Owners of at least a majority in principal amount of the Bonds then
outstanding. However, without
the consent of each Owner affected, no amendment or supplement
may result in anything described
in the lettered clauses of Section 8.02.
Section 9.03. Bank Consent Required. An amendment or
supplement to the Agreement or
the Guaranty authorized by this Article shall not become effective
unless the Bank delivers to the
Trustee its written consent to the amendment or supplement.
Section 9.04. Modifications of Letter of Credit. No Letter
of Credit may be modified without
the prior written consent of 100% of the Owners of the Bonds,
except to (a) correct any formal
defects therein, (b) effect transfers thereof, (c) effect extensions
thereof, (d) effect reductions and
reinstatements thereof in accordance with the terms of the Letter of
Credit, (e) increase the stated
amount thereof, (f) effect any change which does not have a
material adverse effect upon the
interests of the Owners, or (g) any amendment effective from and
after a mandatory tender date
hereunder. Pursuant to this Indenture however, the Company has
the right to obtain an Alternate
Credit Facility, subject to the requirements set forth therein without
the consent of the Owners.
Section 9.05. Release of Guaranty. In connection with an
assignment described in Section 8.1
of the Agreement, the Trustee shall release the Guarantor from its
obligations under the Guaranty
if so directed in writing by the Company and the Guarantor. In
such event, the Bonds shall be
subject to mandatory tender pursuant to Section 2.04(e) hereof and
the Trustee shall give the notice
to Owners described in said Section 2.04. No consent of the
Owners or the Bank and no notice to
the Owners or the Bank other than that referenced above shall be
required to be obtained or given
in connection with such release. Notwithstanding the foregoing, no
such release shall then be
permitted if (a) the Bonds are then in the CP Rate Mode, or (b) if
the Bonds are then in an
Adjustable Rate Period of greater than one year's duration, unless
the release occurs on a date on
which the Bonds may be optionally redeemed pursuant to the
Indenture and the mandatory tender
price payable upon the mandatory tender of Bonds as a result of
such release includes a premium
equal to the redemption premium at that time payable pursuant to
the optional redemption provisions
of the Indenture.
Article X
Discharge of Indenture
Section 10.01. Bonds Deemed Paid; Discharge of
Indenture. Any Bond will be deemed paid
for all purposes of this Indenture when (a) payment of the principal
of and interest on the Bond to
the due date of such principal and interest (whether at maturity,
upon redemption or otherwise)
either (i) has been made in accordance with the terms of the Bond
or (ii) has been provided for by
depositing with the Trustee Available Moneys sufficient to make
such payment and/or Government
Obligations (purchased with Available Moneys) maturing as to
principal and interest in such amounts
and at such times as will, in the opinion of an independent certified
pubic accountant delivered to
the Trustee, ensure the availability of sufficient moneys to make
such payment, and (b) all
compensation and expenses of the Trustee pertaining to each Bond
in respect of which such deposit
is made have been paid or provided for to the Trustee"s
satisfaction. When a Bond is deemed paid,
it will no longer be secured by or entitled to the benefits of this
Indenture or be an obligation of the
Issuer, except for payment from moneys or Government
Obligations under clause (a)(ii) above.
Notwithstanding the foregoing, no deposit under clause
(a)(ii) of the first paragraph of this
Section shall be deemed a payment of a Bond until the Company or
the Guarantor has furnished the
Trustee an opinion of Bond Counsel stating that the deposit of such
cash or Government Obligations
will not cause the Bonds, or any portion thereof, to become
"arbitrage bonds" within the meaning
of section 148 of the Code and (A) notice of redemption of the
Bond is given in accordance with this
Indenture or, if the Bond is not to be redeemed or paid within the
next 60 days, until the Company
has given the Trustee, in form satisfactory to the Trustee,
irrevocable instructions (1) to notify, as
soon as practicable, the Owner of the Bond, in accordance with this
Indenture, that the deposit
required by clause (a)(ii) above has been made with the Trustee and
that the Bond is deemed to be
paid under this Article and stating the maturity or redemption date
upon which moneys are to be
available for the payment of the principal of the Bond, and, if the
Bond is to be redeemed rather
than paid at maturity, (2) to give notice of redemption as provided
herein for such Bond, or (B) the
maturity of the Bond. In addition, notwithstanding the foregoing,
if the Bonds are then in the Daily
Rate Mode or the Weekly Rate Mode, no deposit under clause
(a)(ii) of the first paragraph of this
Section shall be deemed a payment of a Bond unless the Trustee
receives written evidence from the
Rating Agency that such deposit would not result in a reduction or
withdrawal of the ratings then
maintained on the Bonds.
When all outstanding Bonds are deemed paid under the
foregoing provision of this Section,
the Letter of Credit has been surrendered to the Bank for
cancellation, and all amounts due and
payable to the Bank under the Reimbursement Agreement have
been paid in full, the Trustee will
upon request acknowledge the discharge of the lien of this
Indenture as to the Bonds, provided,
however that the obligations under Article II in respect of the
optional tender rights of the Owners
of the Bonds and the transfer, exchange, registration, discharge
from registration, and replacement
of Bonds shall survive the discharge of the lien of the Indenture.
The Trustee shall provide each Rating Agency then rating
the Bonds with at least 10 days prior
notice of any advance defeasance of the Bonds, together with a copy
of the opinion of independent
certified public accountant described in the first paragraph of this
Section and any opinion of counsel
delivered if Available Moneys described in clause (c) of the
definition thereof are used to effect the
defeasance. The Trustee shall notify each Owner of the advance
defeasance of the Bonds, within 10
days after such defeasance.
Section 10.02. Application of Trust Money. The Trustee
shall hold in trust moneys or
Governmental Obligations deposited with it pursuant to the
preceding Section and shall apply the
deposited money and the money from the Governmental
Obligations in accordance with this
Indenture only to the payment of principal of and interest on the
Bonds and to the payment of the
purchase price of Bonds demanded to be purchased by Owners.
Section 10.03. Repayment to Bank and Company. At such
time as no Bonds remain unpaid
within the meaning of Section 10.01, the Trustee shall promptly
pay first to the Bank (to the extent
the Bank certifies to the Trustee that the Company is indebted to it
for amounts owed under the
Reimbursement Agreement) and then to the Company upon request
(i) any excess money or
securities held by the Trustee at any time under this Article and (ii)
any money held by the Trustee
under any provision of this Indenture for the payment of principal
or interest or for the purchase of
Bonds that remains unclaimed for two years.
Article XI
Miscellaneous
Section 11.01. Owners" Consent. Any consent or other
instrument required by this Indenture
to be signed by Owners may be in any number of counterpart
documents and may be signed by a
Owner or by the Owner"s agent appointed in writing. Proof of the
execution of such instrument or
of the instrument appointing an agent and of the Ownership of
Bonds, if made in the following
manner, shall be conclusive for any purposes of this Indenture with
regard to any action taken by the
Trustee or the Tender Agent under the instrument:
(a) The fact and date of a person"s signing an
instrument may be proved by the certificate
of any officer in any jurisdiction who by law has power to take
acknowledgments within that
jurisdiction that the person signing the writing acknowledged
before the officer the execution of the
writing, or by an affidavit of any witness to the signing.
(b) The fact of Ownership of Bonds, the amount or
amounts, numbers and other
identification of such Bonds and the date of holding shall be proved
by the registration books kept
pursuant to this Indenture.
In determining whether the Owners of the required
principal amount of Bonds outstanding
have taken any action under this Indenture (and solely for such
purposes), Bonds owned by the
Company or any person controlling, controlled by, or under
common control with the Company shall
be disregarded and deemed not to be outstanding, unless the
Company shall be the Owner of 100%
of the Bonds. In determining whether the Trustee and the Tender
Agent shall be protected in
relying on any such action, only Bonds which the Trustee knows to
be so owned shall be disregarded.
Any consent or other instrument shall be irrevocable and
shall bind any subsequent Owner of
such Bond or any Bond delivered in substitution therefor.
Section 11.02. Limitation of Rights. Nothing expressed or
implied in this Indenture or the
Bonds shall give any person other than the Trustee, the Tender
Agent, the Issuer, the Bank, the
Company, the Guarantor, the Remarketing Agent, and the Owners
any right, remedy, or claim under
or with respect to this Indenture.
Section 11.03. No Personal Liability of Issuer. No
covenant, agreement, or obligation
contained herein or in the Bonds shall be deemed to be a covenant,
agreement, or obligation of any
present or future officer, of the employee or agent of the Issuer in
such person"s individual capacity,
and neither the officials or officers of the Issuer executing this
Indenture or the Bonds shall be liable
personally on the Bonds or under this Indenture or be subject to any
personal liability of
accountability by reason of the issuance, execution or delivery of
the Bonds. No officer, employee,
or agent of the Issuer shall incur any personal liability with respect
to any other action taken, or not
taken, by such person pursuant to this Indenture, the Agreement, or
the Act provided such person
does not act with malicious intent.
Section 11.04. Severability. If any provisions of this
Indenture shall be held or deemed to be
or shall, in fact, be invalid, inoperative, or unenforceable, the same
shall not affect any other
provision or provisions herein contained or render the same invalid,
inoperative, or unenforceable
to any extent whatever.
Section 11.05. Notices. Except as otherwise provided in
this Indenture, all notices, hereunder
shall be sufficiently given and shall be deemed given when
personally delivered or mailed by certified
mail, postage prepaid, or when sent by tested telecopy (receipt
confirmed by telephone) or telegram,
addressed as follows:
If to the Issuer:
Grapevine Industrial Development Corporation
c/o City of Grapevine
413 South Main Street
Grapevine, Texas 76051
Attention: City Manager
If to the Trustee:
Bank One, Texas, NA
P.O. Box 2604
500 Throckmorton
Fort Worth, Texas 76113-2604
Attention: Corporate Trust Department
If to the Tender Agent:
At its address specified in the certificate delivered by the Tender
Agent in which it assumes
its duties hereunder.
If to the Company:
Trencor Jetco, Inc.
P.O. box 2447
Grapevine, Texas 76099-2447
Attention: George Stuard
If to the Guarantor:
Astec Industries, Inc.
4101 Jerome Avenue
Chattanooga, Tennessee 37407
Attention: Corporate Comptroller
If to the Bank:
The First National Bank of Chicago
One First National Plaza
Suite 0086
Chicago, Illinois 60670-0086
Attention: John D. Runger
If to the Remarketing Agent:
The First National Bank of Chicago
One First National Plaza
Suite 0463
Chicago, Illinois 60670
Attention: Municipal Bond Department/Short-Term
Trading
If to the Owner of any Bond:
The address of such Owner as reflected on the registration books
maintained by the Trustee.
If to the Rating Agency:
Moody"s Investors Service
99 Church Street
New York, New York 10007
Attention: Structured Finance
Standard & Poor"s Corporation
25 Broadway
New York, New York 10004
Attention:
A duplicate copy of each notice given hereunder by either party
hereto shall be given to the Bank,
the Tender Agent, the Remarketing Agent, the Guarantor, and the
Company. Any person or entity
listed above may, by notice given hereunder, designate any further
or different addresses to which
subsequent notices, certificates, or other communications shall be
sent.
Section 11.06. Payments or Performance Due on Other
Than Business Day. If the last day
for making any payment or taking any action under this Indenture
falls on a day other than a
Business Day, such payment may be made, or such action may be
taken, on the next succeeding
Business Day, and, if so made or taken, shall have the same effect
as if made or taken on the date
required by this Indenture.
Section 11.07. Execution of Counterparts. This Indenture
may be executed in several
counterparts, each of which shall be an original and all of which
shall constitute but one and the same
instrument.
Section 11.08. Applicable Law. This Indenture shall be
governed by and construed in
accordance with the laws of the State.
Section 11.09. Notice to Texas Department of Commerce
of Certain Matters. Upon the
occurrence of an event of default as a result of the Company's
failure to make a payment under the
Agreement, or upon the occurrence of a Determination of
Taxability, or upon notice by the Internal
Revenue Service that interest on the Bonds is or may be subject to
federal income taxation, the
Trustee promptly upon becoming aware thereof shall give notice to
the Texas Department of
Commerce at Box 12728, Capitol Station, Austin, Texas 78711,
Attention of the Executive Director.
Section 11.10. Exceptions to Requirements of Bank
Consent. Notwithstanding any provision
of this Indenture to the contrary, no consent of or notice to the
Bank shall be required under any
provision of this Indenture nor shall the Bank have any right to
receive notice of, consent to, direct
or control any actions, restrictions, rights, remedies, waivers, or
accelerations pursuant to any
provision of this Indenture during any time which:
(a) the Bank has wrongfully failed to honor a properly
presented draw made under
and in compliance with the terms of the Letter of Credit;
(b) the Letter of Credit for any reason ceases to be
valid and binding on the Bank
or is declared to be null and void, or the validity or enforceability
of any provision of the
Letter of Credit is denied by the Bank or any governmental
agency or authority, or the Bank
is denying further liability or obligation under the Letter of
Credit, in all of the above cases
contrary to the terms of the Letter of Credit;
(c) a petition has been filed and is pending against the
Bank under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law
of any jurisdiction, whether now or hereafter in effect, and has
not been dismissed within 30
days after such filing;
(d) the Bank has filed a petition, which is pending,
under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution, or liquidation law
of any jurisdiction, whether now or hereafter in effect, or has
consented to the filing of any
petition against it under such law; or
(e) the Bank is dissolved or confiscated by action of
government due to war or peace
time emergency or the United States government declares a
moratorium on the Bank's
activities.
In Witness Whereof, the Issuer has caused these presents to
be signed in its name and on
its behalf by its duly authorized officers, and the Trustee, to
evidence its acceptance of the trusts
hereby created, has caused these presents to be signed in its name
and on its behalf by its duly
authorized officers, all as of the day and year first above written.
GRAPEVINE INDUSTRIAL
DEVELOPMENT CORPORATION
Attest: By:
Secretary President
BANK ONE, TEXAS, NA
Attest: /s/
By: /s/
Authorized Officer Authorized Officer
Exhibit A
to Indenture of Trust
Neither the State of Texas, the City of Grapevine, Texas, nor any
political corporation, subdivision, or agency thereof shall be obligated to
pay the principal of, premium, if any, or interest on this Bond and neither
the faith and credit nor the taxing power of the State of Texas, the City of
Grapevine, Texas, nor any political corporation, subdivision,
or agency thereof nor any assets of the Grapevine Industrial
Development Corporation, other than those specifically pledged therefor, are
pledged to the payment of the principal of, premium, if any, or interest on
the Bond.
[FACE OF BOND]
Grapevine Industrial Development Corporation
Industrial Development Revenue Bonds, Series 1994
(Trencor Jetco, Inc. Project)
DATED DATE: MATURITY DATE: CUSIP
NUMBER:
April 1, 1994
Registered Owner:
Principal Amount:
The Grapevine Industrial Development Corporation, a
corporation acting on behalf of the City
of Grapevine (the "Unit"), State of Texas (the "State"), hereby
promises to pay to the order of the
Registered Owner specified above, or registered assigns, the
Principal Amount specified above on
the Maturity Date specified above (or earlier as hereinafter
provided), and to pay interest on the
Principal Amount hereof from the date specified in the Indenture
(hereinafter defined) at the rates
per annum and on the dates set forth herein (but only out of the
revenues of the Issuer derived from
the Agreement, as hereinafter defined, or other moneys pledged
therefor) and in accordance with
the provisions of the Development Corporation Act of 1979, Article
5190.6 Tex. Rev. Civ. Stat. Ann.,
as amended (the "Act").
THIS BOND, TOGETHER WITH PREMIUM, IF ANY,
AND THE INTEREST HEREON, IS
A SPECIAL AND LIMITED OBLIGATION OF THE ISSUER
AND NEITHER THE ISSUER, THE
UNIT, NOR THE STATE OF TEXAS NOR ANY POLITICAL
SUBDIVISION THEREOF,
INCLUDING THE ISSUER AND THE UNIT, SHALL BE
OBLIGATED TO PAY THIS BOND, THE
PREMIUM, IF ANY, OR THE INTEREST HEREON OR OTHER
COSTS INCIDENT THERETO
EXCEPT FROM FUNDS PLEDGED UNDER THE INDENTURE.
NEITHER THE FAITH AND
CREDIT NOR THE TAXING POWER OF THE STATE, THE
UNIT, OR ANY POLITICAL
CORPORATION, SUBDIVISION, AGENCY, OR
INSTRUMENTALITY THEREOF IS PLEDGED
TO THE PAYMENT OF THE PRINCIPAL, PREMIUM, IF ANY,
OR INTEREST ON THIS BOND.
The principal of, premium, if any, and interest on this Bond
are payable in lawful money of the
United States of America. The principal of and premium, if any,
payable upon maturity or earlier
redemption of this Bond are payable when due upon the
presentation and surrender hereof at the
corporate trust office of Bank One, Texas, NA, in Fort Worth,
Texas, as trustee (the "Trustee"), or
any successor trustee. Each payment of interest on this Bond shall
be payable to the Registered
Owner hereof as shown on the registration books kept by the
Trustee at the close of business on the
Business Day (but, during an Adjustable Rate Period, the fifteenth
day of the calendar month) next
preceding the date on which such interest becomes due and payable
(herein, a "Record Date").
Interest on this Bond shall be payable to the Registered Owner
hereof by check mailed by first class
mail on the respective Interest Payment Dates (as hereinafter
defined) to the address of such
Registered Owner as shown on the books kept by the Trustee at the
close of business on the relevant
Record Date or such other address as is furnished to the Trustee (in
form satisfactory to the Trustee)
by such Owner prior to such Record Date. Registered Owners of
$1,000,000 or more in aggregate
principal amount of Bonds shall be entitled to receive interest
payments by wire transfer by providing
written wire instructions to the Trustee before the Record Date.
** [Reference is hereby made to the further provisions of this
Bond set forth on the reverse side
hereof, which further provisions shall for all purposes have the
same effect as if fully set forth in the
text of this Bond written above.*]
** [This Bond shall not be valid or become obligatory for any
purpose or be entitled to any
security or benefit under the Indenture until the Certificate of
Authentication hereon shall have been
signed by the Trustee or the Tender Agent.]
In Witness Whereof, the Issuer has caused this Bond to be
executed in its name by the
manual or facsimile signature of its President or Vice President and
attested with the manual or
facsimile signature of the Secretary of Assistant Secretary all as of
the date first above written.
[Seal]
Attest:/s/
By:/s/
By Authorized Officer Authorized Officer
**Certificate of Authentication
This Bond is hereby authenticated as required by the
within-referenced Indenture of Trust.
Authorized Officer of Trustee or Tender Agent
Date of Authentication:
[OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS REGISTER NO.
OF THE STATE OF TEXAS /S/
I hereby certify that there is on file and of record in my
office a certificate of the Attorney
General of the State of Texas to the effect that this Bond has been
examined by him as required by
law, that he finds that it has been issued in conformity with the
Constitution and laws of the State
of Texas, and that it is a valid and binding obligation of the
Grapevine Industrial Development
Corporation; and that this Bond has this day been registered by me.
Witness my hand and seal of office at Austin, Texas,
/S/
Comptroller of Public Accounts of the
[SEAL] State of Texas]
**Not utilized for Initial Bond
**[(Reverse of Bond)*]
This Bond is authorized and issued under and pursuant to
authority conferred by the Act,
certain proceedings of the Board of Directors of the Issuer and the
Indenture of Trust dated as of
April 1, 1994 (the "Indenture") between the Issuer and the
Trustee. Certain terms used and not
defined in this Bond are defined in the Indenture. This Bond is one
of the Issuer"s duly authorized
Industrial Development Revenue Bonds, Series 1994 (Trencor
Jetco, Inc. Project) (the "Bonds"),
which Bonds have been issued in the aggregate principal amount of
$8,000,000 to provide funds to
make a loan to Trencor Jetco, Inc., a Texas corporation (the
"Company") pursuant to a Loan
Agreement dated as of April 1, 1994 (the "Agreement") between
the Issuer and the Company. The
proceeds of the Bonds will be used to finance a portion of the costs
of acquisition, construction and
equipping of certain facilities (the "Project") located in the Unit.
As security for the payment of the
Bonds, the Company has caused to be delivered to the Trustee a
letter of credit (the "Initial Letter
of Credit") of The First National Bank of Chicago (the "Bank"),
against which the Trustee shall be
entitled to draw, in accordance with the terms thereof, to pay when
and as due, the principal or
purchase price of, and interest on, the Bonds during the term of the
Initial Letter of Credit. Under
certain conditions, the Company may cause to be delivered an
Alternate Credit Facility (an
"Alternate Credit Facility") in substitution for the Letter of
Credit then in effect without the consent
of the Owners of the Bonds. The Initial Letter of Credit, together
with any Alternate Credit Facility,
is hereinafter referred to as the "Letter of Credit". The Bonds are
guaranteed by Astec Industries,
Inc., a Tennessee corporation (the "Guarantor"), the owner of 100%
of the outstanding stock of the
Company, pursuant to a Guaranty Agreement dated April 1, 1994,
between the Guarantor and the
Trustee. The Bonds are not secured by any lien on or security
interest in the Project.
The Bonds are issued under and entitled to the benefits of
the Indenture. Pursuant to the
Indenture, the Issuer has pledged and assigned to the Trustee the
Trust Estate as security for its
obligation to pay the principal or purchase price of, premium, if
any, and interest on the Bonds.
Reference is made to the Indenture for a description of the Trust
Estate and for the provisions
thereof with respect to the nature and extent of the security granted
by the Issuer to the Trustee
thereunder, the rights, duties, and obligations of the Issuer and the
Trustee, the rights of the
registered Owners of the Bonds, and the terms on which the Bonds
are issued and secured, to all of
which provisions, and to all other provisions of the Indenture, the
Registered Owner hereof by the
acceptance of this Bond assents.
I. Weekly Rate Provisions
Optional Tender. During a Weekly Rate Period, this Bond
or any portion thereof in
Authorized Denominations (except during any period this Bond is a
Pledged Bond or Company
Bond) shall be purchased on the demand of the registered Owner
thereof on any Business Day at
a price equal to 100% of the principal amount thereof, plus accrued
and unpaid interest thereon to
the date of purchase, upon delivery to the tender agent duly
appointed in accordance with the
provisions of the Indenture (together with any successor tender
agent, the "Tender Agent") at its
Principal Office, on any Business Day, of (a) a written irrevocable
notice setting forth the information
required by the Indenture, including the date on which such Bond,
or the portion thereof being
tendered for purchase, shall be so purchased, which date shall be a
Business Day not prior to the
seventh day next succeeding the date of the delivery of such notice
to the Tender Agent, together
with (b) this Bond, as provided in the Indenture; provided, that if
the registered Owner of the
tendered Bond is an open-ended diversified management
investment company (registered under the
Investment Company Act of 1940, as amended), the delivery
required under this clause (b) need not
be made until the date such Bond is to be purchased from such
registered Owner as provided in the
Indenture. Notwithstanding the foregoing, if the Bonds, are held in
a Book-Entry System, separate
procedures for the optional tender of Bonds are set forth in the
Indenture.
Interest. During any period this Bond is in the Weekly Rate
Mode, interest on this Bond shall
be paid on the first Business Day of each month next succeeding
the Closing Date (if applicable),
each Weekly Rate Conversion Date, and on the Maturity Date
specified above or such other date
as the outstanding principal amount of the Bonds is paid in full if
the Bonds are in the Weekly Rate
Mode at such time (each, a "Weekly Rate Interest Payment
Date"), and shall be computed on the
basis of a 365- or 366-day year, for the actual number of days
elapsed. Interest on this Bond for each
Weekly Interest Period shall be calculated as provided below and in
the Indenture. During each
Weekly Rate Period, "Weekly Interest Period" shall mean the
period from and including the first day
of the Weekly Rate Period through and including the following
Tuesday, and after the first Weekly
Interest Period of each Weekly Rate Period, from and including
Wednesday of each week through
and including the following Tuesday, whether or not such days are
Business Days, provided, however,
the initial Weekly Interest Period shall commence on the Closing
Date and end on the following
Tuesday.
On Tuesday (unless Tuesday is not a Business Day, then on
the next preceding Monday; unless
Monday and Tuesday are not Business Days, then on the next
subsequent Wednesday, whether or
not a Business Day) of each calendar week during a Weekly Rate
Period, with respect to each
Weekly Interest Period, the Remarketing Agent shall determine the
Weekly Rate for the ensuing or
current (in the case of determinations made on Wednesday)
Weekly Interest Period. The
determination of the Weekly Rate by the Remarketing Agent shall
be conclusive and binding.
The Weekly Rate for each Weekly Interest Period
determined by the Remarketing Agent shall
be the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent, having due
regard for prevailing financial market conditions, permit the Bonds
to be remarketed at a price of par,
plus accrued interest, on the first day of the applicable Weekly
Interest Period; provided that in no
case shall the Weekly Rate be more than the Maximum Rate. In
the event no Weekly Rate is
determined by the Remarketing Agent for a Weekly Interest Period,
the Weekly Rate for such
Weekly Interest Period shall be the rate from time to time
established pursuant to the Indenture.
II. Daily Rate Provisions
Optional Tender. During a Daily Rate Period, this Bond or
any portion thereof in Authorized
Denominations (except during any period this Bond is a Pledged
Bond or Company Bond) shall be
purchased on the demand of the registered Owner thereof on any
Business Day at a price equal to
100% of the principal amount thereof, plus accrued and unpaid
interest thereon to the date of
purchase, upon delivery (by telecopy of otherwise) to the Tender
Agent at its principal office, (a) by
10:30 a.m., New York time, on such Business Day, of a written
irrevocable notice, which will be
effective upon receipt, setting forth the information required by the
Indenture and (b) by 11:00 a.m.,
New York time, on such Business Day, this Bond, as provided in
the Indenture. Notwithstanding the
foregoing, if the Bonds are held in a Book-Entry System, separate
procedures for the optional tender
of Bonds are set forth in the Indenture.
Interest. During any period this Bond is in the Daily Rate
Mode, interest on this Bond shall
be paid on the first Business Day of each month next succeeding
the Closing Date (if applicable),
each Daily Rate Conversion Date, and on the Maturity Date
specified above or such other date as
the outstanding principal amount of the Bonds is paid in full if the
Bonds are in the Daily Rate Mode
at such time (each, a "Daily Rate Interest Payment Date"), and
shall be computed on the basis of
a 365- or 366-day year, for the actual number of days elapsed.
Interest on the Bonds for each Daily
Interest Period shall be calculated as provided below and in the
Indenture. During each Daily Rate
Period, "Daily Interest Period" shall mean the period from and
including the first day of the Daily
Rate Period to but excluding the immediately succeeding Business
Day.
On the first day of each Daily Interest Period, the
Remarketing Agent shall determine the
Daily Rate for such Daily Interest Period. The determination of the
Daily Rate by the Remarketing
Agent shall be conclusive and binding.
The Daily Rate for each Daily Interest Period determined by
the Remarketing Agent shall be
the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent, having due
regard for prevailing financial market conditions, permit the Bonds
to be remarketed at a price of par,
plus accrued interest, on the first day of the applicable Daily
Interest Period; provided that in no case
shall the Daily Rate be more than the Maximum Rate. In the event
no Daily Rate is determined by
the Remarketing Agent for a Daily Interest Period, then the Bonds
shall thereupon bear interest at
the last Daily Rate previously determined pursuant to the Indenture.
III. CP Rate Provisions
From and after each CP Rate Conversion Date or a CP Rate
Reset Date, as appropriate, to
the earlier of their redemption, the following Conversion Date, or
the following CP Rate Reset Date,
the interest rate of this Bond shall be a CP Rate, determined as
provided below and in the Indenture.
When the Bonds are in the CP Rate Mode, in the case of each CP
Rate Period, on the first day
thereof, the Remarketing Agent shall determine (i) the duration of
the CP Rate Period and (ii) the
CP Rate which shall apply during such CP Rate Period. The
duration of the CP Rate Period so
determined shall be that which, in the sole judgment of the
Remarketing Agent will provide the
lowest overall interest cost with respect to the Bonds, with due
regard to prevailing financial market
conditions, foreseeable changes in such conditions, the anticipated
duration of the period the Bonds
may remain in the CP Rate Mode, and such other factors which the
Remarketing Agent, in its sole
judgment, shall deem relevant and economically advantageous to
consider. Upon determination of
the duration of the CP Rate Period, the Remarketing Agent shall
determine the CP Rate which shall
be in effect during such CP Rate Period, which shall be the lowest
rate of interest which, in the sole
judgment of the Remarketing Agent, having due regard to
prevailing financial market conditions, will
permit the Bonds to be sold at par, plus accrued interest, on the first
day of such CP Rate Period.
Notwithstanding the foregoing, the CP Rate so determined shall not
be more than the Maximum
Rate. Unless and until the Company elects to effect a conversion of
the Bonds from the CP Rate
Mode to another Mode, the Remarketing Agent shall continually
redetermine the duration of, and
the CP Rate to be effective during each new CP Rate Period, which
will commence, without further
action on the part of the Company on each CP Rate Reset Date. If
on any CP Rate Reset Date the
Remarketing Agent shall fail to determine either the duration of, or
the CP Rate to be effective
during the CP Rate Period which commences on such date, then,
without further action on the part
of the Company, the Bonds shall thereupon bear interest at the
Weekly Rate determined pursuant
to the Indenture. Each determination by the Remarketing Agent
shall be conclusive and binding.
While the Bonds are in the CP Rate Mode, interest on this Bond
will be payable on the first Business
Day which follows each CP Rate Period, and shall be computed on
the basis of a 365- or 366-day
year, and the actual number of days elapsed.
IV. Adjustable Rate Provisions
From and after each Adjustable Rate Conversion Date or
Adjustable Rate Reset Date, the
interest rate on this Bond shall be an Adjustable Rate, determined
as provided below and in the
Indenture. When the Bonds are in the Adjustable Rate Mode, the
Bonds will remain in such Mode
for as long as the Company continues to deliver timely conversion
notices specifying the duration of
the next Adjustable Rate Period. The Remarketing Agent, on or
prior to the commencement of each
Adjustable Rate Period, shall determine the Adjustable Rate to be
borne by the Bonds during such
Adjustable Rate Period, which will be the lowest rate which, in its
sole judgment having due regard
for prevailing financial market conditions, will permit the Bonds to
be sold at par on the first day of
such Adjustable Rate Period. Notwithstanding the foregoing, the
Adjustable Rate shall not be more
than the Maximum Rate. In the event no Adjustable Rate is
determined by the Remarketing Agent
for an Adjustable Rate Period, then the Bonds shall bear interest as
provided in the Indenture.
During each Adjustable Rate Period, interest on this Bond
shall be paid on each Adjustable
Rate Interest Payment Date and shall be computed on the basis of a
360-day year consisting of twelve
30-day months.
V. Conversion Provisions
The interest rate Mode of this Bond shall be converted from
one Mode to another Mode, or
from an Adjustable Rate Period of one duration to an Adjustable
Rate Period of the same or a
different duration within the Adjustable Rate Mode, if the Company
shall give notice as provided in
the Indenture of its election to effect such conversion, specifying in
such notice the date on which
the Conversion Date will occur (which date shall be at least 25 days
after such notice is given) and,
if the conversion is to an Adjustable Rate Period, specifying the
Interest Payment Date which shall
be the day following the last day of such Adjustable Rate Period
(which Adjustable Rate Period shall
be of a duration of at least six months). The Bonds shall be subject
to mandatory tender and
purchase on the Conversion Date. In the event any condition
precedent to the conversion of the
interest rate Mode of this Bond from one Mode to another Mode, or
from an Adjustable Rate
Period of one duration to an Adjustable Rate Period of the same or
a different duration, is not
satisfied, this Bond shall nonetheless be subject to mandatory
tender on the Conversion Date and the
Bonds shall commence bearing interest on the Conversion Date as
provided in the Indenture.
VI. Mandatory Tender
All Bonds are subject to mandatory tender in whole by the
Owners to the Tender Agent at its
Principal Office on each date described below:
(a) On each Conversion Date;
(b) On each CP Rate Reset Date;
(c) On the second Business Day prior to the expiration
or termination of the Letter of
Credit (except as provided in the Indenture), if the Trustee has not
received evidence satisfactory to
it as required by the Indenture by the 25th day preceding the
scheduled expiration or termination
date of the Letter of Credit of either an extension of the then
existing Letter of Credit or the
issuance of an Alternate Credit Facility meeting the requirements
set forth therefor in the
Agreement, including the Maintenance of Rating requirement (as
defined therein);
(d) On the date of substitution of an Alternate Credit
Facility for the then existing Letter
of Credit if the Trustee has not received evidence of a Maintenance
of Rating with respect thereto
by the 25th day preceding such substitution date;
(e) On each optional redemption date pursuant to the
Indenture for which the Company
has elected to purchase Bonds in lieu of optional redemption
pursuant to the Indenture; and
(f) On the date on which the Guaranty is released as
provided in the Indenture.
The purchase price of Bonds subject to mandatory tender
shall be 100% of the principal
amount thereof (except in the case of a mandatory tender described
in paragraph (c), (d), (e), or (f)
above, during, but prior to the expiration date of, an Adjustable
Rate Period, in which case the
purchase price shall include a premium equal to the then applicable
optional redemption premium,
if any, on the Bonds, as set forth in the Indenture), plus accrued
interest, if any, to the mandatory
tender date. Not later than 20 days prior to any mandatory tender
date, the Trustee shall mail notice
to all Owners of Bonds subject to mandatory tender on such date
stating that (1) due to the
occurrence of one of the events described above (which event shall
be specified), such Owner"s
Bonds will be subject to mandatory tender to the Tender Agent at
its Principal Office on the
mandatory tender date at the purchase price described above, and
(2) interest with respect to Bonds
which are not tendered on the mandatory tender date will cease to
accrue provided Available Moneys
for such purchase are on deposit with the Tender Agent on the
mandatory tender date. Notice of
mandatory tenders described in paragraphs (a) and (e) above shall
be given as part of the notice of
conversion or optional redemption referenced above. No failure on
the part of the Tender Agent
to give such notice shall affect the requirement that Bonds be
tendered on the mandatory tender
date.
Any Bond subject to mandatory tender which is not
tendered on or before the mandatory
tender date shall, if Available Moneys sufficient and available for
the purchase of such Bonds have
been deposited with the Tender Agent on the mandatory tender
date, be deemed to have been
tendered for purchase on the mandatory tender date, and from and
after such date, interest will no
longer accrue on such Bonds. Owners of such Bonds shall have no
rights or benefits under the
Indenture with respect to such Bonds other than to receive the
purchase price for such Bonds upon
surrender of such Bonds to the Tender Agent.
VII. Redemption of Bonds
The Bonds shall be subject to optional redemption only as
follows:
a. Weekly Rate Mode, CP Rate Mode, or Daily Rate
Mode. While the Bonds are in the
Weekly Rate Mode or the Daily Rate Mode, they are subject to
optional redemption, in whole or
in part on any Business Day in Authorized Denominations, and
while the Bonds are in the CP Rate
Mode, they are subject to optional redemption in whole or in part in
Authorized Denominations on
any Interest Payment Date, at the direction of the Company, at a
redemption price equal to 100%
of the principal amount of the Bond to be redeemed, plus accrued
interest thereon to the redemption
date.
b. Adjustable Rate Mode. While the Bonds are in
the Adjustable Rate Mode, they are
subject to optional redemption in whole or in part on any date, at
the direction of the Company, only
on the dates and at the applicable redemption prices set forth in the
Indenture.
While the Bonds are in the Adjustable Rate Mode or the CP
Rate Mode, the Bonds are
subject to extraordinary optional redemption in whole on any date
at a redemption price equal to the
principal amount of Bonds plus accrued interest to the redemption
date, without premium, upon the
occurrence of certain events specified in the Indenture.
The Bonds in any Mode are subject to mandatory
redemption in whole on the next date for
which timely notice of redemption can be given by the Trustee after
the occurrence of a
Determination of Taxability at a redemption price equal to the
aggregate principal amount of the
Bonds plus accrued interest thereon to the redemption date, without
premium.
At least 30 days prior to any redemption of Bonds, the
Trustee shall cause notice of the call
for redemption to be sent by first class mail, postage prepaid, to the
Owner of each Bond to be
redeemed at the address of such Owner shown on the registration
books maintained by the Trustee.
Neither the failure to give any such notice nor any defect in any
notice so mailed shall affect the
sufficiency or the validity of any proceedings for the redemption of
the Bonds.
If Available Moneys are deposited in the Bond Fund on the
date Bonds are to be redeemed,
Bonds or portions thereof redeemed shall no longer be secured by
this Indenture and shall not be
deemed to be outstanding under the provisions of this Indenture.
Interest shall not continue to
accrue on the Bonds after the date fixed for redemption, so long as
Available Moneys are on deposit
to pay all principal of, premium, if any, and interest accrued on the
Bonds on such date. However,
if Available Moneys shall not be on deposit 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.
Any partial redemption of Bonds shall be made only in
integral multiples of $100,000. If fewer
than all of the Bonds shall be called for redemption, the portion of
Bonds to be redeemed shall be
selected by the Trustee as provided in the Indenture.
VIII. General Provisions
Except as provided in the Indenture, the Ownership of this
Bond may be transferred (in
Authorized Denominations) only upon presentation and surrender
of this Bond at the corporate trust
office of the Trustee, together with an assignment duly executed by
the Registered Owner hereof or
his duly authorized attorney-in-fact in such form as shall be
satisfactory to the Trustee.
Provisions may be made for the payment of amounts
represented by the Bonds as provided in
the Indenture, in which event all liability of the Issuer to the
Owners of the applicable Bonds for the
payment of such Bonds shall forthwith cease, terminate, and be
completely discharged, and thereupon
it shall be the duty of the Trustee to hold such funds (but only for
the period specified and as
provided in the Indenture), without liability for interest thereon, for
the benefit of the Owners of
such Bonds, who shall thereafter be restricted exclusively to such
funds for any claims of whatever
nature under the Indenture or on, or with respect to, said Bonds.
It is hereby certified and covenanted that this Bond has been
duly and validly authorized,
issued, and delivered; that all acts, conditions, and things required
or proper to be performed, exist
and be done precedent to or in the authorization, issuance, and
delivery of this Bond have been
performed, exist, and have been done in accordance with law.
The Bonds are secured by the Indenture, whereunder the
Trustee undertakes to enforce the
rights of the Owners of the Bonds and to perform other duties to the
extent and under the conditions
stated in the Indenture. In case an Event of Default shall occur, the
principal of and interest on the
Bonds then outstanding may, and, under certain circumstances,
shall, be declared to be due and
payable immediately upon the conditions and in the manner
provided in the Indenture. Under the
circumstances and conditions provided in the Indenture, the
Trustee may, or shall, waive any Event
of Default under the Indenture and its consequences.
The Issuer has reserved the right to amend the Indenture,
with the consent of the Bank, as
provided therein. Under some (but not all) circumstances,
amendments thereto must also be
approved by the Owners of either at least a majority or 100% in
aggregate principal amount of the
outstanding Bonds.
(Form of Assignment)
For value received, the undersigned hereby sells, assigns,
and transfers unto
___________________ the within Bond, and does hereby
irrevocably constitute and appoint
___________________, attorney to transfer such Bond on the
books kept for registration and transfer
of the within Bond, with full power of substitution in the premises.
Dated: __________________
Note: The signature to this Assignment must correspond with the
name as it appears upon the face
of the within Bond in every particular, without enlargement or
alteration or any change whatsoever.
Signature guaranteed by:
_______________________________________Note: The
signature to this assignment must correspond
with the name as it appears upon the face of the within Bond in
every particular, without alteration
or enlargement or any change whatever. Signature(s) must be
guaranteed by an "eligible guarantor
institution" meeting the requirements of the Trustee, which
requirements include membership or
participation in Stamp or such other "signature guaranty
program" as may be determined by the
Trustee in addition to or in substitution for Stamp, all in
accordance with the Securities Exchange
Act of 1934, as amended.
[Form of Registration Information]
Under the terms of the Indenture, the Trustee will register a
Bond in the name of a transferee
only if the Owner of such Bond (or his duly authorized
representative) provides as much of the
information requested below as is applicable to such Owner prior to
submitting this Bond for transfer.
Name: _______________________________________
Address: _____________________________________
Social Security or Employer Identification Number:
_______________________
If a Trust, Name, and Address of Trustee(s) and Date of Trust:
__________________
Neither the State of Texas, the City of Grapevine, Texas, nor any
political corporation,
subdivision, or agency thereof shall be obligated to pay the
principal of, premium, if any,
or interest on this Bond and neither the faith and credit nor the
taxing power of the
State of Texas, the City of Grapevine, Texas, nor any political
corporation, subdivision,
or agency thereof nor any assets of the Grapevine Industrial
Development Corporation,
other than those specifically pledged therefor, are pledged to the
payment of the
principal of, premium, if any, or interest on the Bond.
No. T-1 $8,000,000
Grapevine Industrial Development Corporation
Industrial Development Revenue Bonds, Series 1994
(Trencor Jetco, Inc. Project)
DATED DATE: MATURITY DATE: CUSIP
NUMBER:
April 1, 1994 April 1, 2019
Registered Owner: CEDE & CO.
Principal Amount: EIGHT MILLION DOLLARS
The Grapevine Industrial Development Corporation, a
corporation acting on behalf of the City
of Grapevine (the "Unit"), State of Texas (the "State"), hereby
promises to pay to the order of the
Registered Owner specified above, or registered assigns, the
Principal Amount specified above on
the Maturity Date specified above (or earlier as hereinafter
provided), and to pay interest on the
Principal Amount hereof from the date specified in the Indenture
(hereinafter defined) at the rates
per annum and on the dates set forth herein (but only out of the
revenues of the Issuer derived from
the Agreement, as hereinafter defined, or other moneys pledged
therefor) and in accordance with
the provisions of the Development Corporation Act of 1979, Article
5190.6 Tex. Rev. Civ. Stat. Ann.,
as amended (the "Act").
THIS BOND, TOGETHER WITH PREMIUM, IF ANY,
AND THE INTEREST HEREON, IS
A SPECIAL AND LIMITED OBLIGATION OF THE ISSUER
AND NEITHER THE ISSUER, THE
UNIT, NOR THE STATE OF TEXAS NOR ANY POLITICAL
SUBDIVISION THEREOF,
INCLUDING THE ISSUER AND THE UNIT, SHALL BE
OBLIGATED TO PAY THIS BOND, THE
PREMIUM, IF ANY, OR THE INTEREST HEREON OR OTHER
COSTS INCIDENT THERETO
EXCEPT FROM FUNDS PLEDGED UNDER THE INDENTURE.
NEITHER THE FAITH AND
CREDIT NOR THE TAXING POWER OF THE STATE, THE
UNIT, OR ANY POLITICAL
CORPORATION, SUBDIVISION, AGENCY, OR
INSTRUMENTALITY THEREOF IS PLEDGED
TO THE PAYMENT OF THE PRINCIPAL, PREMIUM, IF ANY,
OR INTEREST ON THIS BOND.
The principal of, premium, if any, and interest on this Bond
are payable in lawful money of the
United States of America. The principal of and premium, if any,
payable upon maturity or earlier
redemption of this Bond are payable when due upon the
presentation and surrender hereof at the
corporate trust office of Bank One, Texas, NA, in Fort Worth,
Texas, as trustee (the "Trustee"), or
any successor trustee. Each payment of interest on this Bond shall
be payable to the Registered
Owner hereof as shown on the registration books kept by the
Trustee at the close of business on the
Business Day (but, during an Adjustable Rate Period, the fifteenth
day of the calendar month) next
preceding the date on which such interest becomes due and payable
(herein, a "Record Date").
Interest on this Bond shall be payable to the Registered Owner
hereof by check mailed by first class
mail on the respective Interest Payment Dates (as hereinafter
defined) to the address of such
Registered Owner as shown on the books kept by the Trustee at the
close of business on the relevant
Record Date or such other address as is furnished to the Trustee (in
form satisfactory to the Trustee)
by such Owner prior to such Record Date. Registered Owners of
$1,000,000 or more in aggregate
principal amount of Bonds shall be entitled to receive interest
payments by wire transfer by providing
written wire instructions to the Trustee before the Record Date.
This Bond is authorized and issued under and pursuant to
authority conferred by the Act,
certain proceedings of the Board of Directors of the Issuer and the
Indenture of Trust dated as of
April 1, 1994 (the "Indenture") between the Issuer and the
Trustee. Certain terms used and not
defined in this Bond are defined in the Indenture. This Bond is one
of the Issuer"s duly authorized
Industrial Development Revenue Bonds, Series 1994 (Trencor
Jetco, Inc. Project) (the "Bonds"),
which Bonds have been issued in the aggregate principal amount of
$8,000,000 to provide funds to
make a loan to Trencor Jetco, Inc., a Texas corporation (the
"Company") pursuant to a Loan
Agreement dated as of April 1, 1994 (the "Agreement") between
the Issuer and the Company. The
proceeds of the Bonds will be used to finance a portion of the costs
of acquisition, construction and
equipping of certain facilities (the "Project") located in the Unit.
As security for the payment of the
Bonds, the Company has caused to be delivered to the Trustee a
letter of credit (the "Initial Letter
of Credit") of The First National Bank of Chicago (the "Bank"),
against which the Trustee shall be
entitled to draw, in accordance with the terms thereof, to pay when
and as due, the principal or
purchase price of, and interest on, the Bonds during the term of the
Initial Letter of Credit. Under
certain conditions, the Company may cause to be delivered an
Alternate Credit Facility (an
"Alternate Credit Facility") in substitution for the Letter of
Credit then in effect without the consent
of the Owners of the Bonds. The Initial Letter of Credit, together
with any Alternate Credit Facility,
is hereinafter referred to as the "Letter of Credit". The Bonds are
guaranteed by Astec Industries,
Inc., a Tennessee corporation (the "Guarantor"), the owner of 100%
of the outstanding stock of the
Company, pursuant to a Guaranty Agreement dated April 1, 1994,
between the Guarantor and the
Trustee. The Bonds are not secured by any lien on or security
interest in the Project.
The Bonds are issued under and entitled to the benefits of
the Indenture. Pursuant to the
Indenture, the Issuer has pledged and assigned to the Trustee the
Trust Estate as security for its
obligation to pay the principal or purchase price of, premium, if
any, and interest on the Bonds.
Reference is made to the Indenture for a description of the Trust
Estate and for the provisions
thereof with respect to the nature and extent of the security granted
by the Issuer to the Trustee
thereunder, the rights, duties, and obligations of the Issuer and the
Trustee, the rights of the
registered Owners of the Bonds, and the terms on which the Bonds
are issued and secured, to all of
which provisions, and to all other provisions of the Indenture, the
Registered Owner hereof by the
acceptance of this Bond assents.
I. Weekly Rate Provisions
Optional Tender. During a Weekly Rate Period, this Bond
or any portion thereof in
Authorized Denominations (except during any period this Bond is a
Pledged Bond or Company
Bond) shall be purchased on the demand of the registered Owner
thereof on any Business Day at
a price equal to 100% of the principal amount thereof, plus accrued
and unpaid interest thereon to
the date of purchase, upon delivery to the tender agent duly
appointed in accordance with the
provisions of the Indenture (together with any successor tender
agent, the "Tender Agent") at its
Principal Office, on any Business Day, of (a) a written irrevocable
notice setting forth the information
required by the Indenture, including the date on which such Bond,
or the portion thereof being
tendered for purchase, shall be so purchased, which date shall be a
Business Day not prior to the
seventh day next succeeding the date of the delivery of such notice
to the Tender Agent, together
with (b) this Bond, as provided in the Indenture; provided, that if
the registered Owner of the
tendered Bond is an open-ended diversified management
investment company (registered under the
Investment Company Act of 1940, as amended), the delivery
required under this clause (b) need not
be made until the date such Bond is to be purchased from such
registered Owner as provided in the
Indenture. Notwithstanding the foregoing, if the Bonds, are held in
a Book-Entry System, separate
procedures for the optional tender of Bonds are set forth in the
Indenture.
Interest. During any period this Bond is in the Weekly Rate
Mode, interest on this Bond shall
be paid on the first Business Day of each month next succeeding
the Closing Date (if applicable),
each Weekly Rate Conversion Date, and on the Maturity Date
specified above or such other date
as the outstanding principal amount of the Bonds is paid in full if
the Bonds are in the Weekly Rate
Mode at such time (each, a "Weekly Rate Interest Payment
Date"), and shall be computed on the
basis of a 365- or 366-day year, for the actual number of days
elapsed. Interest on this Bond for each
Weekly Interest Period shall be calculated as provided below and in
the Indenture. During each
Weekly Rate Period, "Weekly Interest Period" shall mean the
period from and including the first day
of the Weekly Rate Period through and including the following
Tuesday, and after the first Weekly
Interest Period of each Weekly Rate Period, from and including
Wednesday of each week through
and including the following Tuesday, whether or not such days are
Business Days, provided, however,
the initial Weekly Interest Period shall commence on the Closing
Date and end on the following
Tuesday.
On Tuesday (unless Tuesday is not a Business Day, then on
the next preceding Monday; unless
Monday and Tuesday are not Business Days, then on the next
subsequent Wednesday, whether or
not a Business Day) of each calendar week during a Weekly Rate
Period, with respect to each
Weekly Interest Period, the Remarketing Agent shall determine the
Weekly Rate for the ensuing or
current (in the case of determinations made on Wednesday)
Weekly Interest Period. The
determination of the Weekly Rate by the Remarketing Agent shall
be conclusive and binding.
The Weekly Rate for each Weekly Interest Period
determined by the Remarketing Agent shall
be the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent, having due
regard for prevailing financial market conditions, permit the Bonds
to be remarketed at a price of par,
plus accrued interest, on the first day of the applicable Weekly
Interest Period; provided that in no
case shall the Weekly Rate be more than the Maximum Rate. In
the event no Weekly Rate is
determined by the Remarketing Agent for a Weekly Interest Period,
the Weekly Rate for such
Weekly Interest Period shall be the rate from time to time
established pursuant to the Indenture.
II. Daily Rate Provisions
Optional Tender. During a Daily Rate Period, this Bond or
any portion thereof in Authorized
Denominations (except during any period this Bond is a Pledged
Bond or Company Bond) shall be
purchased on the demand of the registered Owner thereof on any
Business Day at a price equal to
100% of the principal amount thereof, plus accrued and unpaid
interest thereon to the date of
purchase, upon delivery (by telecopy of otherwise) to the Tender
Agent at its principal office, (a) by
10:30 a.m., New York time, on such Business Day, of a written
irrevocable notice, which will be
effective upon receipt, setting forth the information required by the
Indenture and (b) by 11:00 a.m.,
New York time, on such Business Day, this Bond, as provided in
the Indenture. Notwithstanding the
foregoing, if the Bonds are held in a Book-Entry System, separate
procedures for the optional tender
of Bonds are set forth in the Indenture.
Interest. During any period this Bond is in the Daily Rate
Mode, interest on this Bond shall
be paid on the first Business Day of each month next succeeding
the Closing Date (if applicable),
each Daily Rate Conversion Date, and on the Maturity Date
specified above or such other date as
the outstanding principal amount of the Bonds is paid in full if the
Bonds are in the Daily Rate Mode
at such time (each, a "Daily Rate Interest Payment Date"), and
shall be computed on the basis of
a 365- or 366-day year, for the actual number of days elapsed.
Interest on the Bonds for each Daily
Interest Period shall be calculated as provided below and in the
Indenture. During each Daily Rate
Period, "Daily Interest Period" shall mean the period from and
including the first day of the Daily
Rate Period to but excluding the immediately succeeding Business
Day.
On the first day of each Daily Interest Period, the
Remarketing Agent shall determine the
Daily Rate for such Daily Interest Period. The determination of the
Daily Rate by the Remarketing
Agent shall be conclusive and binding.
The Daily Rate for each Daily Interest Period determined by
the Remarketing Agent shall be
the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent, having due
regard for prevailing financial market conditions, permit the Bonds
to be remarketed at a price of par,
plus accrued interest, on the first day of the applicable Daily
Interest Period; provided that in no case
shall the Daily Rate be more than the Maximum Rate. In the event
no Daily Rate is determined by
the Remarketing Agent for a Daily Interest Period, then the Bonds
shall thereupon bear interest at
the last Daily Rate previously determined pursuant to the Indenture.
III. CP Rate Provisions
From and after each CP Rate Conversion Date or a CP Rate
Reset Date, as appropriate, to
the earlier of their redemption, the following Conversion Date, or
the following CP Rate Reset Date,
the interest rate of this Bond shall be a CP Rate, determined as
provided below and in the Indenture.
When the Bonds are in the CP Rate Mode, in the case of each CP
Rate Period, on the first day
thereof, the Remarketing Agent shall determine (i) the duration of
the CP Rate Period and (ii) the
CP Rate which shall apply during such CP Rate Period. The
duration of the CP Rate Period so
determined shall be that which, in the sole judgment of the
Remarketing Agent will provide the
lowest overall interest cost with respect to the Bonds, with due
regard to prevailing financial market
conditions, foreseeable changes in such conditions, the anticipated
duration of the period the Bonds
may remain in the CP Rate Mode, and such other factors which the
Remarketing Agent, in its sole
judgment, shall deem relevant and economically advantageous to
consider. Upon determination of
the duration of the CP Rate Period, the Remarketing Agent shall
determine the CP Rate which shall
be in effect during such CP Rate Period, which shall be the lowest
rate of interest which, in the sole
judgment of the Remarketing Agent, having due regard to
prevailing financial market conditions, will
permit the Bonds to be sold at par, plus accrued interest, on the first
day of such CP Rate Period.
Notwithstanding the foregoing, the CP Rate so determined shall not
be more than the Maximum
Rate. Unless and until the Company elects to effect a conversion of
the Bonds from the CP Rate
Mode to another Mode, the Remarketing Agent shall continually
redetermine the duration of, and
the CP Rate to be effective during each new CP Rate Period, which
will commence, without further
action on the part of the Company on each CP Rate Reset Date. If
on any CP Rate Reset Date the
Remarketing Agent shall fail to determine either the duration of, or
the CP Rate to be effective
during the CP Rate Period which commences on such date, then,
without further action on the part
of the Company, the Bonds shall thereupon bear interest at the
Weekly Rate determined pursuant
to the Indenture. Each determination by the Remarketing Agent
shall be conclusive and binding.
While the Bonds are in the CP Rate Mode, interest on this Bond
will be payable on the first Business
Day which follows each CP Rate Period, and shall be computed on
the basis of a 365- or 366-day
year, and the actual number of days elapsed.
IV. Adjustable Rate Provisions
From and after each Adjustable Rate Conversion Date or
Adjustable Rate Reset Date, the
interest rate on this Bond shall be an Adjustable Rate, determined
as provided below and in the
Indenture. When the Bonds are in the Adjustable Rate Mode, the
Bonds will remain in such Mode
for as long as the Company continues to deliver timely conversion
notices specifying the duration of
the next Adjustable Rate Period. The Remarketing Agent, on or
prior to the commencement of each
Adjustable Rate Period, shall determine the Adjustable Rate to be
borne by the Bonds during such
Adjustable Rate Period, which will be the lowest rate which, in its
sole judgment having due regard
for prevailing financial market conditions, will permit the Bonds to
be sold at par on the first day of
such Adjustable Rate Period. Notwithstanding the foregoing, the
Adjustable Rate shall not be more
than the Maximum Rate. In the event no Adjustable Rate is
determined by the Remarketing Agent
for an Adjustable Rate Period, then the Bonds shall bear interest as
provided in the Indenture.
During each Adjustable Rate Period, interest on this Bond
shall be paid on each Adjustable
Rate Interest Payment Date and shall be computed on the basis of a
360-day year consisting of twelve
30-day months.
V. Conversion Provisions
The interest rate Mode of this Bond shall be converted from
one Mode to another Mode, or
from an Adjustable Rate Period of one duration to an Adjustable
Rate Period of the same or a
different duration within the Adjustable Rate Mode, if the Company
shall give notice as provided in
the Indenture of its election to effect such conversion, specifying in
such notice the date on which
the Conversion Date will occur (which date shall be at least 25 days
after such notice is given) and,
if the conversion is to an Adjustable Rate Period, specifying the
Interest Payment Date which shall
be the day following the last day of such Adjustable Rate Period
(which Adjustable Rate Period shall
be of a duration of at least six months). The Bonds shall be subject
to mandatory tender and
purchase on the Conversion Date. In the event any condition
precedent to the conversion of the
interest rate Mode of this Bond from one Mode to another Mode, or
from an Adjustable Rate
Period of one duration to an Adjustable Rate Period of the same or
a different duration, is not
satisfied, this Bond shall nonetheless be subject to mandatory
tender on the Conversion Date and the
Bonds shall commence bearing interest on the Conversion Date as
provided in the Indenture.
VI. Mandatory Tender
All Bonds are subject to mandatory tender in whole by the
Owners to the Tender Agent at its
Principal Office on each date described below:
(a) On each Conversion Date;
(b) On each CP Rate Reset Date;
(c) On the second Business Day prior to the expiration
or termination of the Letter of
Credit (except as provided in the Indenture), if the Trustee has not
received evidence satisfactory to
it as required by the Indenture by the 25th day preceding the
scheduled expiration or termination
date of the Letter of Credit of either an extension of the then
existing Letter of Credit or the
issuance of an Alternate Credit Facility meeting the requirements
set forth therefor in the
Agreement, including the Maintenance of Rating requirement (as
defined therein);
(d) On the date of substitution of an Alternate Credit
Facility for the then existing Letter
of Credit if the Trustee has not received evidence of a Maintenance
of Rating with respect thereto
by the 25th day preceding such substitution date;
(e) On each optional redemption date pursuant to the
Indenture for which the Company
has elected to purchase Bonds in lieu of optional redemption
pursuant to the Indenture; and
(f) On the date on which the Guaranty is released as
provided in the Indenture.
The purchase price of Bonds subject to mandatory tender
shall be 100% of the principal
amount thereof (except in the case of a mandatory tender described
in paragraph (c), (d), (e), or (f)
above, during, but prior to the expiration date of, an Adjustable
Rate Period, in which case the
purchase price shall include a premium equal to the then applicable
optional redemption premium,
if any, on the Bonds, as set forth in the Indenture), plus accrued
interest, if any, to the mandatory
tender date. Not later than 20 days prior to any mandatory tender
date, the Trustee shall mail notice
to all Owners of Bonds subject to mandatory tender on such date
stating that (1) due to the
occurrence of one of the events described above (which event shall
be specified), such Owner"s
Bonds will be subject to mandatory tender to the Tender Agent at
its Principal Office on the
mandatory tender date at the purchase price described above, and
(2) interest with respect to Bonds
which are not tendered on the mandatory tender date will cease to
accrue provided Available Moneys
for such purchase are on deposit with the Tender Agent on the
mandatory tender date. Notice of
mandatory tenders described in paragraphs (a) and (e) above shall
be given as part of the notice of
conversion or optional redemption referenced above. No failure on
the part of the Tender Agent
to give such notice shall affect the requirement that Bonds be
tendered on the mandatory tender
date.
Any Bond subject to mandatory tender which is not
tendered on or before the mandatory
tender date shall, if Available Moneys sufficient and available for
the purchase of such Bonds have
been deposited with the Tender Agent on the mandatory tender
date, be deemed to have been
tendered for purchase on the mandatory tender date, and from and
after such date, interest will no
longer accrue on such Bonds. Owners of such Bonds shall have no
rights or benefits under the
Indenture with respect to such Bonds other than to receive the
purchase price for such Bonds upon
surrender of such Bonds to the Tender Agent.
VII. Redemption of Bonds
The Bonds shall be subject to optional redemption only as
follows:
a. Weekly Rate Mode, CP Rate Mode, or Daily Rate
Mode. While the Bonds are in the
Weekly Rate Mode or the Daily Rate Mode, they are subject to
optional redemption, in whole or
in part on any Business Day in Authorized Denominations, and
while the Bonds are in the CP Rate
Mode, they are subject to optional redemption in whole or in part in
Authorized Denominations on
any Interest Payment Date, at the direction of the Company, at a
redemption price equal to 100%
of the principal amount of the Bond to be redeemed, plus accrued
interest thereon to the redemption
date.
b. Adjustable Rate Mode. While the Bonds are in
the Adjustable Rate Mode, they are
subject to optional redemption in whole or in part on any date, at
the direction of the Company, only
on the dates and at the applicable redemption prices set forth in the
Indenture.
While the Bonds are in the Adjustable Rate Mode or the CP
Rate Mode, the Bonds are
subject to extraordinary optional redemption in whole on any date
at a redemption price equal to the
principal amount of Bonds plus accrued interest to the redemption
date, without premium, upon the
occurrence of certain events specified in the Indenture.
The Bonds in any Mode are subject to mandatory
redemption in whole on the next date for
which timely notice of redemption can be given by the Trustee after
the occurrence of a
Determination of Taxability at a redemption price equal to the
aggregate principal amount of the
Bonds plus accrued interest thereon to the redemption date, without
premium.
At least 30 days prior to any redemption of Bonds, the
Trustee shall cause notice of the call
for redemption to be sent by first class mail, postage prepaid, to the
Owner of each Bond to be
redeemed at the address of such Owner shown on the registration
books maintained by the Trustee.
Neither the failure to give any such notice nor any defect in any
notice so mailed shall affect the
sufficiency or the validity of any proceedings for the redemption of
the Bonds.
If Available Moneys are deposited in the Bond Fund on the
date Bonds are to be redeemed,
Bonds or portions thereof redeemed shall no longer be secured by
this Indenture and shall not be
deemed to be outstanding under the provisions of this Indenture.
Interest shall not continue to
accrue on the Bonds after the date fixed for redemption, so long as
Available Moneys are on deposit
to pay all principal of, premium, if any, and interest accrued on the
Bonds on such date. However,
if Available Moneys shall not be on deposit 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.
Any partial redemption of Bonds shall be made only in
integral multiples of $100,000. If fewer
than all of the Bonds shall be called for redemption, the portion of
Bonds to be redeemed shall be
selected by the Trustee as provided in the Indenture.
VIII. General Provisions
Except as provided in the Indenture, the Ownership of this
Bond may be transferred (in
Authorized Denominations) only upon presentation and surrender
of this Bond at the corporate trust
office of the Trustee, together with an assignment duly executed by
the Registered Owner hereof or
his duly authorized attorney-in-fact in such form as shall be
satisfactory to the Trustee.
Provisions may be made for the payment of amounts
represented by the Bonds as provided in
the Indenture, in which event all liability of the Issuer to the
Owners of the applicable Bonds for the
payment of such Bonds shall forthwith cease, terminate, and be
completely discharged, and thereupon
it shall be the duty of the Trustee to hold such funds (but only for
the period specified and as
provided in the Indenture), without liability for interest thereon, for
the benefit of the Owners of
such Bonds, who shall thereafter be restricted exclusively to such
funds for any claims of whatever
nature under the Indenture or on, or with respect to, said Bonds.
It is hereby certified and covenanted that this Bond has been
duly and validly authorized,
issued, and delivered; that all acts, conditions, and things required
or proper to be performed, exist
and be done precedent to or in the authorization, issuance, and
delivery of this Bond have been
performed, exist, and have been done in accordance with law.
The Bonds are secured by the Indenture, whereunder the
Trustee undertakes to enforce the
rights of the Owners of the Bonds and to perform other duties to the
extent and under the conditions
stated in the Indenture. In case an Event of Default shall occur, the
principal of and interest on the
Bonds then outstanding may, and, under certain circumstances,
shall, be declared to be due and
payable immediately upon the conditions and in the manner
provided in the Indenture. Under the
circumstances and conditions provided in the Indenture, the
Trustee may, or shall, waive any Event
of Default under the Indenture and its consequences.
The Issuer has reserved the right to amend the Indenture,
with the consent of the Bank, as
provided therein. Under some (but not all) circumstances,
amendments thereto must also be
approved by the Owners of either at least a majority or 100% in
aggregate principal amount of the
outstanding Bonds.
In Witness Whereof, the Issuer has caused this Bond to be
executed in its name by the
manual or facsimile signature of its President or Vice President and
attested with the manual or
facsimile signature of the Secretary of Assistant Secretary all as of
the date first above written.
[Seal]
Attest:______________________________________
By:_______________________________________
By Authorized Officer Authorized Officer
[OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS REGISTER NO.
_______________
OF THE STATE OF TEXAS
I hereby certify that there is on file and of record in my
office a certificate of the Attorney
General of the State of Texas to the effect that this Bond has been
examined by him as required by
law, that he finds that it has been issued in conformity with the
Constitution and laws of the State
of Texas, and that it is a valid and binding obligation of the
Grapevine Industrial Development
Corporation; and that this Bond has this day been registered by me.
Witness my hand and seal of office at Austin, Texas,
____________________________.
_________________________________________________
Comptroller of Public Accounts of the
[SEAL] State of Texas]
Assignment
For value received, the undersigned hereby sells, assigns,
and transfers unto ___________________ the within Bond, and does hereby
irrevocably constitute and appoint ___________________, attorney to
transfer such Bond on the books kept for registration and transfer
of the within Bond, with full power of substitution in the premises.
Dated: __________________
Note: The signature to this Assignment must correspond with the
name as it appears upon the face of the within Bond in every particular,
without enlargement or alteration or any change whatsoever.
Signature guaranteed by:
_______________________________________Note: The
signature to this assignment must correspond
with the name as it appears upon the face of the within Bond in
every particular, without alteration or enlargement or any change whatever.
Signature(s) must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Trustee, which
requirements include membership or participation in Stamp or such other
"signature guaranty program" as may be determined by the
Trustee in addition to or in substitution for Stamp, all in
accordance with the Securities Exchange Act of 1934, as amended.
Registration Information
Under the terms of the Indenture, the Trustee will register a
Bond in the name of a transferee only if the Owner of such Bond (or his duly
authorized representative) provides as much of the
information requested below as is applicable to such Owner prior to
submitting this Bond for transfer.
Name: _______________________________________
Address: _____________________________________
Social Security or Employer Identification Number:
_______________________
If a Trust, Name, and Address of Trustee(s) and Date of Trust:
__________________
Neither the State of Texas, the City of Grapevine, Texas, nor any
political corporation,
subdivision, or agency thereof shall be obligated to pay the
principal of, premium, if any,
or interest on this Bond and neither the faith and credit nor the
taxing power of the
State of Texas, the City of Grapevine, Texas, nor any political
corporation, subdivision,
or agency thereof nor any assets of the Grapevine Industrial
Development Corporation,
other than those specifically pledged therefor, are pledged to the
payment of the
principal of, premium, if any, or interest on the Bond.
No. R-1$8,000,000
Grapevine Industrial Development Corporation
Industrial Development Revenue Bonds, Series 1994
(Trencor Jetco, Inc. Project)
DATED DATE: MATURITY DATE: CUSIP
NUMBER:
April 1, 1994 April 1, 2019 388652 AL3
Registered Owner: CEDE & CO.
Principal Amount: EIGHT MILLION DOLLARS
The Grapevine Industrial Development Corporation, a
corporation acting on behalf of the City
of Grapevine (the "Unit"), State of Texas (the "State"), hereby
promises to pay to the order of the
Registered Owner specified above, or registered assigns, the
Principal Amount specified above on
the Maturity Date specified above (or earlier as hereinafter
provided), and to pay interest on the
Principal Amount hereof from the date specified in the Indenture
(hereinafter defined) at the rates
per annum and on the dates set forth herein (but only out of the
revenues of the Issuer derived from
the Agreement, as hereinafter defined, or other moneys pledged
therefor) and in accordance with
the provisions of the Development Corporation Act of 1979, Article
5190.6 Tex. Rev. Civ. Stat. Ann.,
as amended (the "Act").
THIS BOND, TOGETHER WITH PREMIUM, IF ANY,
AND THE INTEREST HEREON, IS
A SPECIAL AND LIMITED OBLIGATION OF THE ISSUER
AND NEITHER THE ISSUER, THE
UNIT, NOR THE STATE OF TEXAS NOR ANY POLITICAL
SUBDIVISION THEREOF,
INCLUDING THE ISSUER AND THE UNIT, SHALL BE
OBLIGATED TO PAY THIS BOND, THE
PREMIUM, IF ANY, OR THE INTEREST HEREON OR OTHER
COSTS INCIDENT THERETO
EXCEPT FROM FUNDS PLEDGED UNDER THE INDENTURE.
NEITHER THE FAITH AND
CREDIT NOR THE TAXING POWER OF THE STATE, THE
UNIT, OR ANY POLITICAL
CORPORATION, SUBDIVISION, AGENCY, OR
INSTRUMENTALITY THEREOF IS PLEDGED
TO THE PAYMENT OF THE PRINCIPAL, PREMIUM, IF ANY,
OR INTEREST ON THIS BOND.
The principal of, premium, if any, and interest on this Bond
are payable in lawful money of the
United States of America. The principal of and premium, if any,
payable upon maturity or earlier
redemption of this Bond are payable when due upon the
presentation and surrender hereof at the
corporate trust office of Bank One, Texas, NA, in Fort Worth,
Texas, as trustee (the "Trustee"), or
any successor trustee. Each payment of interest on this Bond shall
be payable to the Registered
Owner hereof as shown on the registration books kept by the
Trustee at the close of business on the
Business Day (but, during an Adjustable Rate Period, the fifteenth
day of the calendar month) next
preceding the date on which such interest becomes due and payable
(herein, a "Record Date").
Interest on this Bond shall be payable to the Registered Owner
hereof by check mailed by first class
mail on the respective Interest Payment Dates (as hereinafter
defined) to the address of such
Registered Owner as shown on the books kept by the Trustee at the
close of business on the relevant
Record Date or such other address as is furnished to the Trustee (in
form satisfactory to the Trustee)
by such Owner prior to such Record Date. Registered Owners of
$1,000,000 or more in aggregate
principal amount of Bonds shall be entitled to receive interest
payments by wire transfer by providing
written wire instructions to the Trustee before the Record Date.
This Bond shall not be valid or become obligatory for any
purpose or be entitled to any security
or benefit under the Indenture until the Certificate of
Authentication hereon shall have been signed
by the Trustee or the Tender Agent.
This Bond is authorized and issued under and pursuant to
authority conferred by the Act,
certain proceedings of the Board of Directors of the Issuer and the
Indenture of Trust dated as of
April 1, 1994 (the "Indenture") between the Issuer and the
Trustee. Certain terms used and not
defined in this Bond are defined in the Indenture. This Bond is one
of the Issuer"s duly authorized
Industrial Development Revenue Bonds, Series 1994 (Trencor
Jetco, Inc. Project) (the "Bonds"),
which Bonds have been issued in the aggregate principal amount of
$8,000,000 to provide funds to
make a loan to Trencor Jetco, Inc., a Texas corporation (the
"Company") pursuant to a Loan
Agreement dated as of April 1, 1994 (the "Agreement") between
the Issuer and the Company. The
proceeds of the Bonds will be used to finance a portion of the costs
of acquisition, construction and
equipping of certain facilities (the "Project") located in the Unit.
As security for the payment of the
Bonds, the Company has caused to be delivered to the Trustee a
letter of credit (the "Initial Letter
of Credit") of The First National Bank of Chicago (the "Bank"),
against which the Trustee shall be
entitled to draw, in accordance with the terms thereof, to pay when
and as due, the principal or
purchase price of, and interest on, the Bonds during the term of the
Initial Letter of Credit. Under
certain conditions, the Company may cause to be delivered an
Alternate Credit Facility (an
"Alternate Credit Facility") in substitution for the Letter of
Credit then in effect without the consent
of the Owners of the Bonds. The Initial Letter of Credit, together
with any Alternate Credit Facility,
is hereinafter referred to as the "Letter of Credit". The Bonds are
guaranteed by Astec Industries,
Inc., a Tennessee corporation (the "Guarantor"), the owner of 100%
of the outstanding stock of the
Company, pursuant to a Guaranty Agreement dated April 1, 1994,
between the Guarantor and the
Trustee. The Bonds are not secured by any lien on or security
interest in the Project.
The Bonds are issued under and entitled to the benefits of
the Indenture. Pursuant to the
Indenture, the Issuer has pledged and assigned to the Trustee the
Trust Estate as security for its
obligation to pay the principal or purchase price of, premium, if
any, and interest on the Bonds.
Reference is made to the Indenture for a description of the Trust
Estate and for the provisions
thereof with respect to the nature and extent of the security granted
by the Issuer to the Trustee
thereunder, the rights, duties, and obligations of the Issuer and the
Trustee, the rights of the
registered Owners of the Bonds, and the terms on which the Bonds
are issued and secured, to all of
which provisions, and to all other provisions of the Indenture, the
Registered Owner hereof by the
acceptance of this Bond assents.
I. Weekly Rate Provisions
Optional Tender. During a Weekly Rate Period, this Bond
or any portion thereof in
Authorized Denominations (except during any period this Bond is a
Pledged Bond or Company
Bond) shall be purchased on the demand of the registered Owner
thereof on any Business Day at
a price equal to 100% of the principal amount thereof, plus accrued
and unpaid interest thereon to
the date of purchase, upon delivery to the tender agent duly
appointed in accordance with the
provisions of the Indenture (together with any successor tender
agent, the "Tender Agent") at its
Principal Office, on any Business Day, of (a) a written irrevocable
notice setting forth the information
required by the Indenture, including the date on which such Bond,
or the portion thereof being
tendered for purchase, shall be so purchased, which date shall be a
Business Day not prior to the
seventh day next succeeding the date of the delivery of such notice
to the Tender Agent, together
with (b) this Bond, as provided in the Indenture; provided, that if
the registered Owner of the
tendered Bond is an open-ended diversified management
investment company (registered under the
Investment Company Act of 1940, as amended), the delivery
required under this clause (b) need not
be made until the date such Bond is to be purchased from such
registered Owner as provided in the
Indenture. Notwithstanding the foregoing, if the Bonds, are held in
a Book-Entry System, separate
procedures for the optional tender of Bonds are set forth in the
Indenture.
Interest. During any period this Bond is in the Weekly Rate
Mode, interest on this Bond shall
be paid on the first Business Day of each month next succeeding
the Closing Date (if applicable),
each Weekly Rate Conversion Date, and on the Maturity Date
specified above or such other date
as the outstanding principal amount of the Bonds is paid in full if
the Bonds are in the Weekly Rate
Mode at such time (each, a "Weekly Rate Interest Payment
Date"), and shall be computed on the
basis of a 365- or 366-day year, for the actual number of days
elapsed. Interest on this Bond for each
Weekly Interest Period shall be calculated as provided below and in
the Indenture. During each
Weekly Rate Period, "Weekly Interest Period" shall mean the
period from and including the first day
of the Weekly Rate Period through and including the following
Tuesday, and after the first Weekly
Interest Period of each Weekly Rate Period, from and including
Wednesday of each week through
and including the following Tuesday, whether or not such days are
Business Days, provided, however,
the initial Weekly Interest Period shall commence on the Closing
Date and end on the following
Tuesday.
On Tuesday (unless Tuesday is not a Business Day, then on
the next preceding Monday; unless
Monday and Tuesday are not Business Days, then on the next
subsequent Wednesday, whether or
not a Business Day) of each calendar week during a Weekly Rate
Period, with respect to each
Weekly Interest Period, the Remarketing Agent shall determine the
Weekly Rate for the ensuing or
current (in the case of determinations made on Wednesday)
Weekly Interest Period. The
determination of the Weekly Rate by the Remarketing Agent shall
be conclusive and binding.
The Weekly Rate for each Weekly Interest Period
determined by the Remarketing Agent shall
be the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent, having due
regard for prevailing financial market conditions, permit the Bonds
to be remarketed at a price of par,
plus accrued interest, on the first day of the applicable Weekly
Interest Period; provided that in no
case shall the Weekly Rate be more than the Maximum Rate. In
the event no Weekly Rate is
determined by the Remarketing Agent for a Weekly Interest Period,
the Weekly Rate for such
Weekly Interest Period shall be the rate from time to time
established pursuant to the Indenture.
II. Daily Rate Provisions
Optional Tender. During a Daily Rate Period, this Bond or
any portion thereof in Authorized
Denominations (except during any period this Bond is a Pledged
Bond or Company Bond) shall be
purchased on the demand of the registered Owner thereof on any
Business Day at a price equal to
100% of the principal amount thereof, plus accrued and unpaid
interest thereon to the date of
purchase, upon delivery (by telecopy of otherwise) to the Tender
Agent at its principal office, (a) by
10:30 a.m., New York time, on such Business Day, of a written
irrevocable notice, which will be
effective upon receipt, setting forth the information required by the
Indenture and (b) by 11:00 a.m.,
New York time, on such Business Day, this Bond, as provided in
the Indenture. Notwithstanding the
foregoing, if the Bonds are held in a Book-Entry System, separate
procedures for the optional tender
of Bonds are set forth in the Indenture.
Interest. During any period this Bond is in the Daily Rate
Mode, interest on this Bond shall
be paid on the first Business Day of each month next succeeding
the Closing Date (if applicable),
each Daily Rate Conversion Date, and on the Maturity Date
specified above or such other date as
the outstanding principal amount of the Bonds is paid in full if the
Bonds are in the Daily Rate Mode
at such time (each, a "Daily Rate Interest Payment Date"), and
shall be computed on the basis of
a 365- or 366-day year, for the actual number of days elapsed.
Interest on the Bonds for each Daily
Interest Period shall be calculated as provided below and in the
Indenture. During each Daily Rate
Period, "Daily Interest Period" shall mean the period from and
including the first day of the Daily
Rate Period to but excluding the immediately succeeding Business
Day.
On the first day of each Daily Interest Period, the
Remarketing Agent shall determine the
Daily Rate for such Daily Interest Period. The determination of the
Daily Rate by the Remarketing
Agent shall be conclusive and binding.
The Daily Rate for each Daily Interest Period determined by
the Remarketing Agent shall be
the lowest rate of interest which will, in the sole judgment of the
Remarketing Agent, having due
regard for prevailing financial market conditions, permit the Bonds
to be remarketed at a price of par,
plus accrued interest, on the first day of the applicable Daily
Interest Period; provided that in no case
shall the Daily Rate be more than the Maximum Rate. In the event
no Daily Rate is determined by
the Remarketing Agent for a Daily Interest Period, then the Bonds
shall thereupon bear interest at
the last Daily Rate previously determined pursuant to the Indenture.
III. CP Rate Provisions
From and after each CP Rate Conversion Date or a CP Rate
Reset Date, as appropriate, to
the earlier of their redemption, the following Conversion Date, or
the following CP Rate Reset Date,
the interest rate of this Bond shall be a CP Rate, determined as
provided below and in the Indenture.
When the Bonds are in the CP Rate Mode, in the case of each CP
Rate Period, on the first day
thereof, the Remarketing Agent shall determine (i) the duration of
the CP Rate Period and (ii) the
CP Rate which shall apply during such CP Rate Period. The
duration of the CP Rate Period so
determined shall be that which, in the sole judgment of the
Remarketing Agent will provide the
lowest overall interest cost with respect to the Bonds, with due
regard to prevailing financial market
conditions, foreseeable changes in such conditions, the anticipated
duration of the period the Bonds
may remain in the CP Rate Mode, and such other factors which the
Remarketing Agent, in its sole
judgment, shall deem relevant and economically advantageous to
consider. Upon determination of
the duration of the CP Rate Period, the Remarketing Agent shall
determine the CP Rate which shall
be in effect during such CP Rate Period, which shall be the lowest
rate of interest which, in the sole
judgment of the Remarketing Agent, having due regard to
prevailing financial market conditions, will
permit the Bonds to be sold at par, plus accrued interest, on the first
day of such CP Rate Period.
Notwithstanding the foregoing, the CP Rate so determined shall not
be more than the Maximum
Rate. Unless and until the Company elects to effect a conversion of
the Bonds from the CP Rate
Mode to another Mode, the Remarketing Agent shall continually
redetermine the duration of, and
the CP Rate to be effective during each new CP Rate Period, which
will commence, without further
action on the part of the Company on each CP Rate Reset Date. If
on any CP Rate Reset Date the
Remarketing Agent shall fail to determine either the duration of, or
the CP Rate to be effective
during the CP Rate Period which commences on such date, then,
without further action on the part
of the Company, the Bonds shall thereupon bear interest at the
Weekly Rate determined pursuant
to the Indenture. Each determination by the Remarketing Agent
shall be conclusive and binding.
While the Bonds are in the CP Rate Mode, interest on this Bond
will be payable on the first Business
Day which follows each CP Rate Period, and shall be computed on
the basis of a 365- or 366-day
year, and the actual number of days elapsed.
IV. Adjustable Rate Provisions
From and after each Adjustable Rate Conversion Date or
Adjustable Rate Reset Date, the
interest rate on this Bond shall be an Adjustable Rate, determined
as provided below and in the
Indenture. When the Bonds are in the Adjustable Rate Mode, the
Bonds will remain in such Mode
for as long as the Company continues to deliver timely conversion
notices specifying the duration of
the next Adjustable Rate Period. The Remarketing Agent, on or
prior to the commencement of each
Adjustable Rate Period, shall determine the Adjustable Rate to be
borne by the Bonds during such
Adjustable Rate Period, which will be the lowest rate which, in its
sole judgment having due regard
for prevailing financial market conditions, will permit the Bonds to
be sold at par on the first day of
such Adjustable Rate Period. Notwithstanding the foregoing, the
Adjustable Rate shall not be more
than the Maximum Rate. In the event no Adjustable Rate is
determined by the Remarketing Agent
for an Adjustable Rate Period, then the Bonds shall bear interest as
provided in the Indenture.
During each Adjustable Rate Period, interest on this Bond
shall be paid on each Adjustable
Rate Interest Payment Date and shall be computed on the basis of a
360-day year consisting of twelve
30-day months.
V. Conversion Provisions
The interest rate Mode of this Bond shall be converted from
one Mode to another Mode, or
from an Adjustable Rate Period of one duration to an Adjustable
Rate Period of the same or a
different duration within the Adjustable Rate Mode, if the Company
shall give notice as provided in
the Indenture of its election to effect such conversion, specifying in
such notice the date on which
the Conversion Date will occur (which date shall be at least 25 days
after such notice is given) and,
if the conversion is to an Adjustable Rate Period, specifying the
Interest Payment Date which shall
be the day following the last day of such Adjustable Rate Period
(which Adjustable Rate Period shall
be of a duration of at least six months). The Bonds shall be subject
to mandatory tender and
purchase on the Conversion Date. In the event any condition
precedent to the conversion of the
interest rate Mode of this Bond from one Mode to another Mode, or
from an Adjustable Rate
Period of one duration to an Adjustable Rate Period of the same or
a different duration, is not
satisfied, this Bond shall nonetheless be subject to mandatory
tender on the Conversion Date and the
Bonds shall commence bearing interest on the Conversion Date as
provided in the Indenture.
VI. Mandatory Tender
All Bonds are subject to mandatory tender in whole by the
Owners to the Tender Agent at its
Principal Office on each date described below:
(a) On each Conversion Date;
(b) On each CP Rate Reset Date;
(c) On the second Business Day prior to the expiration
or termination of the Letter of
Credit (except as provided in the Indenture), if the Trustee has not
received evidence satisfactory to
it as required by the Indenture by the 25th day preceding the
scheduled expiration or termination
date of the Letter of Credit of either an extension of the then
existing Letter of Credit or the
issuance of an Alternate Credit Facility meeting the requirements
set forth therefor in the
Agreement, including the Maintenance of Rating requirement (as
defined therein);
(d) On the date of substitution of an Alternate Credit
Facility for the then existing Letter
of Credit if the Trustee has not received evidence of a Maintenance
of Rating with respect thereto
by the 25th day preceding such substitution date;
(e) On each optional redemption date pursuant to the
Indenture for which the Company
has elected to purchase Bonds in lieu of optional redemption
pursuant to the Indenture; and
(f) On the date on which the Guaranty is released as
provided in the Indenture.
The purchase price of Bonds subject to mandatory tender
shall be 100% of the principal
amount thereof (except in the case of a mandatory tender described
in paragraph (c), (d), (e), or (f)
above, during, but prior to the expiration date of, an Adjustable
Rate Period, in which case the
purchase price shall include a premium equal to the then applicable
optional redemption premium,
if any, on the Bonds, as set forth in the Indenture), plus accrued
interest, if any, to the mandatory
tender date. Not later than 20 days prior to any mandatory tender
date, the Trustee shall mail notice
to all Owners of Bonds subject to mandatory tender on such date
stating that (1) due to the
occurrence of one of the events described above (which event shall
be specified), such Owner"s
Bonds will be subject to mandatory tender to the Tender Agent at
its Principal Office on the
mandatory tender date at the purchase price described above, and
(2) interest with respect to Bonds
which are not tendered on the mandatory tender date will cease to
accrue provided Available Moneys
for such purchase are on deposit with the Tender Agent on the
mandatory tender date. Notice of
mandatory tenders described in paragraphs (a) and (e) above shall
be given as part of the notice of
conversion or optional redemption referenced above. No failure on
the part of the Tender Agent
to give such notice shall affect the requirement that Bonds be
tendered on the mandatory tender
date.
Any Bond subject to mandatory tender which is not
tendered on or before the mandatory
tender date shall, if Available Moneys sufficient and available for
the purchase of such Bonds have
been deposited with the Tender Agent on the mandatory tender
date, be deemed to have been
tendered for purchase on the mandatory tender date, and from and
after such date, interest will no
longer accrue on such Bonds. Owners of such Bonds shall have no
rights or benefits under the
Indenture with respect to such Bonds other than to receive the
purchase price for such Bonds upon
surrender of such Bonds to the Tender Agent.
VII. Redemption of Bonds
The Bonds shall be subject to optional redemption only as
follows:
a. Weekly Rate Mode, CP Rate Mode, or Daily Rate
Mode. While the Bonds are in the
Weekly Rate Mode or the Daily Rate Mode, they are subject to
optional redemption, in whole or
in part on any Business Day in Authorized Denominations, and
while the Bonds are in the CP Rate
Mode, they are subject to optional redemption in whole or in part in
Authorized Denominations on
any Interest Payment Date, at the direction of the Company, at a
redemption price equal to 100%
of the principal amount of the Bond to be redeemed, plus accrued
interest thereon to the redemption
date.
b. Adjustable Rate Mode. While the Bonds are in
the Adjustable Rate Mode, they are
subject to optional redemption in whole or in part on any date, at
the direction of the Company, only
on the dates and at the applicable redemption prices set forth in the
Indenture.
While the Bonds are in the Adjustable Rate Mode or the CP
Rate Mode, the Bonds are
subject to extraordinary optional redemption in whole on any date
at a redemption price equal to the
principal amount of Bonds plus accrued interest to the redemption
date, without premium, upon the
occurrence of certain events specified in the Indenture.
The Bonds in any Mode are subject to mandatory
redemption in whole on the next date for
which timely notice of redemption can be given by the Trustee after
the occurrence of a
Determination of Taxability at a redemption price equal to the
aggregate principal amount of the
Bonds plus accrued interest thereon to the redemption date, without
premium.
At least 30 days prior to any redemption of Bonds, the
Trustee shall cause notice of the call
for redemption to be sent by first class mail, postage prepaid, to the
Owner of each Bond to be
redeemed at the address of such Owner shown on the registration
books maintained by the Trustee.
Neither the failure to give any such notice nor any defect in any
notice so mailed shall affect the
sufficiency or the validity of any proceedings for the redemption of
the Bonds.
If Available Moneys are deposited in the Bond Fund on the
date Bonds are to be redeemed,
Bonds or portions thereof redeemed shall no longer be secured by
this Indenture and shall not be
deemed to be outstanding under the provisions of this Indenture.
Interest shall not continue to
accrue on the Bonds after the date fixed for redemption, so long as
Available Moneys are on deposit
to pay all principal of, premium, if any, and interest accrued on the
Bonds on such date. However,
if Available Moneys shall not be on deposit 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.
Any partial redemption of Bonds shall be made only in
integral multiples of $100,000. If fewer
than all of the Bonds shall be called for redemption, the portion of
Bonds to be redeemed shall be
selected by the Trustee as provided in the Indenture.
VIII. General Provisions
Except as provided in the Indenture, the Ownership of this
Bond may be transferred (in
Authorized Denominations) only upon presentation and surrender
of this Bond at the corporate trust
office of the Trustee, together with an assignment duly executed by
the Registered Owner hereof or
his duly authorized attorney-in-fact in such form as shall be
satisfactory to the Trustee.
Provisions may be made for the payment of amounts
represented by the Bonds as provided in
the Indenture, in which event all liability of the Issuer to the
Owners of the applicable Bonds for the
payment of such Bonds shall forthwith cease, terminate, and be
completely discharged, and thereupon
it shall be the duty of the Trustee to hold such funds (but only for
the period specified and as
provided in the Indenture), without liability for interest thereon, for
the benefit of the Owners of
such Bonds, who shall thereafter be restricted exclusively to such
funds for any claims of whatever
nature under the Indenture or on, or with respect to, said Bonds.
It is hereby certified and covenanted that this Bond has been
duly and validly authorized,
issued, and delivered; that all acts, conditions, and things required
or proper to be performed, exist
and be done precedent to or in the authorization, issuance, and
delivery of this Bond have been
performed, exist, and have been done in accordance with law.
The Bonds are secured by the Indenture, whereunder the
Trustee undertakes to enforce the
rights of the Owners of the Bonds and to perform other duties to the
extent and under the conditions
stated in the Indenture. In case an Event of Default shall occur, the
principal of and interest on the
Bonds then outstanding may, and, under certain circumstances,
shall, be declared to be due and
payable immediately upon the conditions and in the manner
provided in the Indenture. Under the
circumstances and conditions provided in the Indenture, the
Trustee may, or shall, waive any Event
of Default under the Indenture and its consequences.
The Issuer has reserved the right to amend the Indenture,
with the consent of the Bank, as
provided therein. Under some (but not all) circumstances,
amendments thereto must also be
approved by the Owners of either at least a majority or 100% in
aggregate principal amount of the
outstanding Bonds.
In Witness Whereof, the Issuer has caused this Bond to be
executed in its name by the
manual or facsimile signature of its President or Vice President and
attested with the manual or
facsimile signature of the Secretary of Assistant Secretary all as of
the date first above written.
[Seal]
Attest:______________________________________
By:_______________________________________
By Authorized Officer Authorized Officer
This Bond is hereby authenticated as required by the
within-referenced Indenture of Trust.
Authorized Officer of Trustee or Tender Agent
Date of Authentication: ____________________
Assignment
For value received, the undersigned hereby sells, assigns,
and transfers unto
___________________ the within Bond, and does hereby
irrevocably constitute and appoint
___________________, attorney to transfer such Bond on the
books kept for registration and transfer
of the within Bond, with full power of substitution in the premises.
Dated: __________________
Note: The signature to this Assignment must correspond with the
name as it appears upon the face
of the within Bond in every particular, without enlargement or
alteration or any change whatsoever.
Signature guaranteed by:
_______________________________________Note: The
signature to this assignment must correspond
with the name as it appears upon the face of the within Bond in
every particular, without alteration
or enlargement or any change whatever. Signature(s) must be
guaranteed by an "eligible guarantor
institution" meeting the requirements of the Trustee, which
requirements include membership or
participation in Stamp or such other "signature guaranty
program" as may be determined by the
Trustee in addition to or in substitution for Stamp, all in
accordance with the Securities Exchange
Act of 1934, as amended.
Registration Information
Under the terms of the Indenture, the Trustee will register a
Bond in the name of a transferee
only if the Owner of such Bond (or his duly authorized
representative) provides as much of the
information requested below as is applicable to such Owner prior to
submitting this Bond for transfer.
Name: _______________________________________
Address: _____________________________________
Social Security or Employer Identification Number:
_______________________
If a Trust, Name, and Address of Trustee(s) and Date of Trust:
__________________
TABLE OF CONTENTS
Page
Recitals1
Article I
Definitions and Interpretation
Section 1.01. Definitions 3
Section 1.02 Article and Section Headings 11
Section 1.03. Interpretation 11
Article II
Authorization and Issuance of the Bonds
Section 2.01. Authorization of Bonds; No Additional Bonds 11
Section 2.02. Issuance of Bonds; Terms of Bonds 11
Section 2.03. Optional Tender 16
Section 2.04. Mandatory Tenders 18
Section 2.05. Form of Bonds 19
Section 2.06. Execution and Authentication of Bonds; Limited
Obligations 19
Section 2.07. Registration and Exchange of Bonds; Persons
Treated as Owners 20
Section 2.08. Mutilated, Lost, Stolen, or Destroyed Bonds 21
Section 2.09. Cancellation of Bonds 21
Section 2.10. Temporary Bonds 21
Section 2.11. Conditions Precedent to Authentication and
Delivery of Bonds 21
Section 2.12. Book-Entry System 22
Article III
Redemption of Bonds; Purchase and Remarketing of Bonds
Section 3.01. Optional Redemption 23
Section 3.02. Extraordinary Optional Redemption 25
Section 3.03. Mandatory Redemption 25
Section 3.04. Notice of Redemption 25
Section 3.05. Effect of Availability of Redemption Prices 26
Section 3.06. Partial Redemption 26
Section 3.07. Purchase of Tendered Bonds 27
Section 3.08. Remarketing of Tendered Bonds; Payment of
Purchase Price 27
Section 3.09. Funds for Purchase Price of Bonds 29
Section 3.10. Delivery of Purchased Bonds 29
Section 3.11. Pledged Bonds 30
Article IV
General Provisions
Section 4.01. Payment of Principal, Premium, if any, and
Interest 31
Section 4.02. Instruments of Further Assurance 31
Section 4.03. Tax-Exempt Status of Bonds 31
Section 4.04. Books, Records and Accounts 31
Section 4.05. Notice to Rating Agencies 32
Article V
Revenues and Funds; Letter of Credit
Section 5.01. Application of Original Proceeds of Bonds 32
Section 5.02. Bond Fund 32
Section 5.03. Letter of Credit; Alternate Credit Facility 33
Section 5.04. Letter of Credit Draws and Bond Fund Moneys to
Pay Principal, Premium, or Interest 35
Section 5.05. Investment of Moneys 35
Section 5.06. Moneys to Be Held in Trust; Nonpresentment of
Bonds 36
Section 5.07. Repayment from Indenture Funds 36
Section 5.08. Tax Covenants 37
Section 5.09. Custody of Funds and Accounts 37
Section 5.10. Rebate Fund, Rebate 37
Section 5.11. Payments in the Project Account; Disbursements. 38
Section 5.12. Completion of Project 39
Section 5.13. Transfer of Construction Fund 39
Section 5.14. Custody of Funds and Accounts 39
Article VI
Defaults and Remedies
Section 6.01. Events of Default 40
Section 6.02. Acceleration 41
Section 6.03. Other Remedies 41
Section 6.04. Waiver of Past Defaults 41
Section 6.05. Control by Majority 42
Section 6.06. Limitation on Suits 42
Section 6.07. Rights of Owners to Receive Payment 42
Section 6.08. Collection Suit by Trustee 42
Section 6.09. Trustee May File Proofs of Claim 42
Section 6.10. Priorities 42
Section 6.11. Bank Deemed Owner of Certain Bonds 43
Section 6.12. Bank Rights 43
Article VII
Trustee, Remarketing Agent, and Tender Agent
Section 7.01. Duties of Trustee 43
Section 7.02. Rights of Trustee 44
Section 7.03. Individual Rights of Trustee 44
Section 7.04. Trustee"s Disclaimer 44
Section 7.05. Notice of Defaults 45
Section 7.06. Compensation and Indemnity of Trustee 45
Section 7.07. Eligibility of Trustee 45
Section 7.08. Replacement of Trustee 45
Section 7.09. Duties of Remarketing Agent 46
Section 7.10. Eligibility of Remarketing Agent; Replacement 46
Section 7.11. Tender Agent 47
Section 7.12. Successor Trustee, Remarketing Agent, or Tender
Agent by Merger 47
Article VIII
Supplemental Indentures
Section 8.01. Without Consent of Owners 48
Section 8.02. With Consent of Owners 48
Section 8.03. Effect of Consents 48
Section 8.04. Notation on or Exchange of Bonds 49
Section 8.05. Execution and Delivery by Trustee of
Amendments and Supplements 49
Section 8.06. Company and Bank Consent Required 49
Section 8.07. Notice to Owners 49
Article IX
Amendment of Agreement, Guaranty, or Letter of Credit
Section 9.01. Without Consent of Owners 49
Section 9.02. With Consent of Owners 49
Section 9.03. Bank Consent Required 50
Section 9.04. Modifications of Letter of Credit 50
Section 9.05. Release of Guaranty 50
Article X
Discharge of Indenture
Section 10.01. Bonds Deemed Paid; Discharge of Indenture 50
Section 10.02. Application of Trust Money 51
Section 10.03. Repayment to Bank and Company 51
Article XI
Miscellaneous
Section 11.01. Owners" Consent 51
Section 11.02. Limitation of Rights 52
Section 11.03. No Personal Liability of Issuer 52
Section 11.04. Severability 52
Section 11.05. Notices 52
Section 11.06. Payments or Performance Due on Other Than
Business Day 54
Section 11.07. Execution of Counterparts 54
Section 11.08. Applicable Law 54
Section 11.09. Notice to Texas Department of Commerce of
Certain Matters 54
Section 11.10. Exceptions to Requirements of Bank Consent 54
Execution55
Exhibit A - Bond Form