EXHIBIT 10.9
TRUST INDENTURE
________________
MCDUFFIE COUNTY DEVELOPMENT AUTHORITY
FIRST UNION NATIONAL BANK,
as Trustee
and
BRANCH BANKING AND TRUST COMPANY,
as Credit Facility Trustee
________________
securing the
$10,000,000
________________
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(ADVANCE STORES COMPANY, INCORPORATED PROJECT), SERIES 1997
________________
DATED AS OF DECEMBER 1, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION......................................................... 6
Section 1.1 Definitions................................................................ 6
Section 1.2 Rules of Construction...................................................... 17
ARTICLE II
THE BONDS..................................................................................... 18
Section 2.1 Amount, Terms, and Issuance of the Bonds................................... 18
Section 2.2 Designation, Denominations, Maturity Date and Interest Rates
of the Bonds............................................................... 18
Section 2.3 Optional Tender Provisions of the Bonds.................................... 22
Section 2.4 Registered Bonds Required: Bond Registrar and Bond Register................ 23
Section 2.5 Transfer and Exchange...................................................... 24
Section 2.6 Execution.................................................................. 25
Section 2.7 Authentication: Authenticating Agent....................................... 25
Section 2.8 Payment of Principal and Interest; Interest Rights Preserved............... 26
Section 2.9 Persons Deemed Owners...................................................... 27
Section 2.10 Mutilated, Destroyed, Lost, Stolen or Undelivered Bonds................... 28
Section 2.11 Temporary Bonds............................................................ 28
Section 2.12 Cancellation of Surrendered Bonds.......................................... 28
Section 2.13 Conditions of Issuance..................................................... 29
Section 2.14 Book Entry................................................................. 30
ARTICLE III
PURCHASE AND REMARKETING OF TENDERED BONDS.................................................... 32
Section 3.1 Remarketing of Tendered Bonds.............................................. 32
Section 3.2 Purchase of Bonds Delivered to the Tender Agent............................ 33
Section 3.3 Delivery of Purchased Bonds................................................ 34
Section 3.4 Delivery of the Proceeds of the Sale of Remarketed Bonds................... 34
Section 3.5 No Remarketing After Certain Events........................................ 35
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ARTICLE IV
PROJECT FUND.................................................................................. 36
Section 4.1 Creation of and Deposits to the Project Fund............................... 36
Section 4.2 Payments from the Project Fund............................................. 36
Section 4.3 Trustee May Rely on Requisitions........................................... 37
Section 4.4 Completion Date............................................................ 37
Section 4.5 Transfers to the Bond Fund................................................. 37
Section 4.6 Trustee's Records.......................................................... 37
Section 4.7 Disposition of Balance in Project Fund..................................... 37
ARTICLE V
REVENUES AND APPLICATION THEREOF.............................................................. 38
Section 5.1 Revenues to be Paid Over to Trustee........................................ 38
Section 5.2 The Bond Fund.............................................................. 38
Section 5.3 Revenues to Be Held for All Bondholders; Certain Exceptions................ 40
ARTICLE VI
DEPOSITORIES OF MONEYS; SECURITY FOR DEPOSITS
AND INVESTMENT OF FUNDS....................................................................... 41
Section 6.1 Security for Deposits...................................................... 41
Section 6.2 Investment of Moneys....................................................... 41
Section 6.3 The Credit Facility........................................................ 42
ARTICLE VII
REDEMPTION OR PURCHASE OF THE BONDS........................................................... 45
Section 7.1 Redemption or Purchase Dates and Prices.................................... 45
Section 7.2 Company to Direct Optional Redemption...................................... 47
Section 7.3 Selection of Bonds to be Called for Redemption............................. 47
Section 7.4 Notice of Redemption or Purchase........................................... 48
Section 7.5 Bonds Redeemed or Purchased in Part........................................ 49
ARTICLE VIII
PARTICULAR COVENANTS AND PROVISIONS........................................................... 50
Section 8.1 Covenant to Pay the Bonds; Bonds Limited Obligations
of the Issuer.............................................................. 50
Section 8.2 Covenants to Perform Obligations Under this Indenture...................... 50
Section 8.3 Covenant to Perform Obligations Under the Lease Agreement.................. 51
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Section 8.4 Trustee May Enforce the Issuer's Rights Under
the Lease Agreement........................................................ 51
Section 8.5 Covenant Against Arbitrage................................................. 51
Section 8.6 Inspection of the Bond Register............................................ 51
Section 8.7 Priority of Pledge and Security Interest................................... 51
Section 8.8 Maintenance of Insurance: Payment of Taxes, Charges, Etc................... 52
Section 8.9 Maintenance and Repair..................................................... 52
Section 8.10 Insurance and Condemnation Proceeds........................................ 52
ARTICLE IX
DEFAULT AND REMEDIES.......................................................................... 53
Section 9.1 Defaults................................................................... 53
Section 9.2 Acceleration and Annulment Thereof......................................... 54
Section 9.3 Other Remedies............................................................. 55
Section 9.4 Legal Proceedings by the Credit Facility Trustee........................... 55
Section 9.5 Discontinuance of Proceedings by the Credit Facility Trustee............... 55
Section 9.6 Credit Facility Issuer or Bondholders May Direct Proceedings............... 56
Section 9.7 Limitations on Actions by the Bondholders.................................. 56
Section 9.8 Credit Facility Trustee May Enforce Rights Without
Possession of the Bonds.................................................... 57
Section 9.9 Remedies Not Exclusive..................................................... 57
Section 9.10 Delays and Omissions Not to Impair Rights.................................. 57
Section 9.11 Application of Moneys in the Event of Default.............................. 57
Section 9.12 Credit Facility Trustee and Bondholders
Entitled to All Remedies Under the Act..................................... 58
Section 9.13 Credit Facility Trustee May File Claim in Bankruptcy....................... 58
Section 9.14 Receiver................................................................... 59
ARTICLE X
CONCERNING THE TRUSTEE........................................................................ 60
Section 10.1 Acceptance of the Trusts................................................... 60
Section 10.2 Acceptance of Trusts by Credit Facility Trustee............................ 61
Section 10.3 Trustee or Credit Facility Trustee to Give Notice.......................... 63
Section 10.4 Trustee and The Credit Facility Trustee Entitled to Indemnity.............. 63
Section 10.5 Trustee nor the Credit Facility Trustee Responsible for Insurance,
Taxes, Execution of this Indenture, Acts of the Issuer or
Application of the Moneys Applied in Accordance
with this Indenture........................................................ 64
Section 10.6 Compensation............................................................... 65
Section 10.7 Trustee to Preserve Records................................................ 66
Section 10.8 Trustee or Credit Facility Trustee May Be a Bondholder..................... 66
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Section 10.9 Trustee and Credit Facility Trustee Not Responsible for Recitals........... 66
Section 10.10 No Responsibility for Recording or Filing.................................. 66
Section 10.11 Trustee and Credit Facility Trustee May Require Information................ 66
Section 10.12 Trustee and Credit Facility Trustee May Rely on Certificates............... 67
Section 10.13 Trustee or Credit Facility Trustee Bond.................................... 67
Section 10.14 Segregation of Funds; Interests............................................ 67
Section 10.15 Qualification of the Trustee and the Credit Facility Trustee............... 67
Section 10.16 Resignation and Removal of the Trustee or
Credit Facility Trustee.................................................... 68
Section 10.17 Successor Trustee or Credit Facility Trustee............................... 69
Section 10.18 Co-Trustee................................................................. 70
Section 10.19 Notice to Moody's or S&P................................................... 71
ARTICLE XI
EXECUTION OF INSTRUMENTS BY THE BONDHOLDERS
AND PROOF OF OWNERSHIP OF THE BONDS........................................................... 72
Section 11.1 Execution of Instruments by the Bondholders and Proof
of Ownership of the Bonds.................................................. 72
Section 11.2 Preservation of Information................................................ 72
ARTICLE XII
THE REMARKETING AGENT, THETENDER AGENT AND THE PLACEMENT
AGENT........................................................................................ 73
Section 12.1 The Remarketing Agent...................................................... 73
Section 12.2 The Tender Agent........................................................... 74
Section 12.3 The Placement Agent........................................................ 74
Section 12.4 Notices.................................................................... 74
ARTICLE XIII
AMENDMENTS AND SUPPLEMENTS.................................................................... 75
Section 13.1 Amendments and Supplements Without
the Bondholders' Consent................................................... 75
Section 13.2 Amendments With the Bondholders' and the
Credit Facility Issuer's Consent........................................... 76
Section 13.3 Supplemental Indentures Affecting the Rights
of the Credit Facility Issuer.............................................. 77
Section 13.4 Amendment of the Lease Agreement........................................... 78
Section 13.5 Amendment of the Lease Agreement Requiring the
Consent of the Credit Facility Issuer...................................... 78
Section 13.6 Amendment of the Credit Facility........................................... 78
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Section 13.7 Trustee and the Credit Facility Trustee Authorized to Join
in Amendments and Supplements; Reliance on Counsel......................... 78
ARTICLE XIV
DEFEASANCE: OTHER PAYMENTS.................................................................... 79
Section 14.1 Defeasance................................................................. 79
Section 14.2 Deposit of Funds for Payment of the Bonds.................................. 80
Section 14.3 Effect of Purchase of the Bonds............................................ 81
ARTICLE XV
MISCELLANEOUS PROVISIONS...................................................................... 82
Section 15.1 Covenants of the Issuer to Bind its Successors............................. 82
Section 15.2 Notices.................................................................... 82
Section 15.3 Trustee as the Paying Agent and the Bond Registrar......................... 83
Section 15.4 Rights Under this Indenture................................................ 83
Section 15.5 Form of Certificates and Opinions.......................................... 83
Section 15.6 Severability............................................................... 84
Section 15.7 State Law Governs.......................................................... 84
Section 15.8 Payments Due on Days Other Than Business Days.............................. 84
Section 15.9 Execution in Counterparts.................................................. 84
EXHIBIT A: Form of Notice of Conversion
EXHIBIT B: DTC Blanket Issuer Letter of Representations
EXHIBIT C: Form of Bond
EXHIBIT D: Description of the Project
EXHIBIT E: Requisition and Certificate
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TRUST INDENTURE
This TRUST INDENTURE, dated as of December 1, 1997, by and among the
DEVELOPMENT AUTHORITY OF MCDUFFIE COUNTY, a public body politic and corporate
under the laws of the State of Georgia (the "Issuer"), FIRST UNION NATIONAL
BANK, a national banking association, having a corporate trust office in
Richmond, Virginia, as Trustee (the "Trustee"), and BRANCH BANKING AND TRUST
COMPANY, a North Carolina banking institution, having its principal office in
Wilson, North Carolina, as Credit Facility Trustee (in its capacity as Credit
Facility Trustee to be hereinafter referred to as the "Credit Facility
Trustee").
W I T N E S S E T H:
--------------------
WHEREAS, the Issuer has been created pursuant to the provisions of an act
of the General Assembly of the State of Georgia (O.C.G.A. Section 36-62 et
--
seq.), as amended (the "Enabling Act") and an activating resolution of the Board
- ---
of Commissioners of McDuffie County, duly adopted on January 17, 1970, and its
directors have been appointed as provided therein and are currently acting in
that capacity; and
WHEREAS, in furtherance of the public purpose for which the Issuer was
created, the Issuer proposes to issue $10,000,000 in aggregate principal amount
of its Taxable Industrial Development Revenue Bonds (Advance Stores Company,
Incorporated Project), Series 1997 (the "Bonds") pursuant to this Indenture to
finance, in whole or in part, the cost of the acquisition, construction,
installation and equipping of an industrial facility to be located in McDuffie
County, Georgia (the "Project") as more fully set forth in Exhibit D hereto and
a portion of the costs of issuance of the Bonds, and to make available the
proceeds of the sale of the Bonds to Advance Stores Company, Incorporated, a
Virginia corporation (the "Company"); and
WHEREAS, the Issuer and the Company will enter into a Lease Agreement,
dated as of December 1, 1997 (the "Lease Agreement"), pursuant to which the
Company will agree to make payments sufficient to pay the principal and purchase
price of, and redemption premium (if any) and interest on, the Bonds as the same
become due and payable and to pay administrative expenses in connection with the
Bonds; and
WHEREAS, it has been determined that the estimated amount necessary to
finance the cost of the acquisition, construction, equipping and improving of
the Project, including necessary expenses incidental to the issuance of the
Bonds, will require the issuance, sale and delivery of Bonds in the aggregate
principal amount of $10,000,000 as hereinafter provided; and
WHEREAS, the Company and First Union National Bank, a national banking
association (the "Bank"), have entered into a Letter of Credit and Reimbursement
Agreement, dated as of December 1, 1997 (the "Reimbursement Agreement"),
pursuant to which the Bank has agreed to issue its irrevocable direct-pay letter
of credit, dated the date of the delivery of the Bonds (the "Letter of Credit"),
in favor of the Credit Facility Trustee, for the account of the Company
obligating the Bank to pay the Credit Facility Trustee upon draws made by the
Credit Facility Trustee in accordance with the terms thereof, up to (i) an
amount equal to the aggregate principal amount of the Bonds then Outstanding
(hereinafter defined) to be used by the Credit Facility Trustee (a) to pay the
principal of such Bonds whether at maturity, upon redemption, acceleration or
otherwise, and (b) to pay the portion of the purchase price equal to the
principal amount of any such Bonds delivered to the Tender Agent (hereinafter
defined) for purchase plus (ii) an amount equal to up to forty-nine (49) days'
accrued interest on the Bonds at an assumed interest rate of fifteen percent
(15%) per annum (which is the maximum interest rate to be borne by the Bonds),
to be used by the Credit Facility Trustee to pay accrued interest on the Bonds
and to pay the portion of the purchase price of tendered Bonds equal to the
accrued interest, if any, on any such Bonds, and pursuant to which the Company
has agreed to reimburse the Bank for all amounts drawn by the Credit Facility
Trustee under the Letter of Credit, together with interest on all such amounts
and to pay to the Bank certain fees and expenses for issuing the Letter of
Credit; and
WHEREAS, as security for the payment of the Bonds, the Issuer has agreed to
assign and pledge to the Trustee and the Credit Facility Trustee, as their
interests may appear, all right, title and interest of the Issuer in (a) the
Lease Agreement (except certain rights reserved by the Issuer under the terms of
this Indenture), (b) all money and securities at any time on deposit in, in
transit to or credited to any account or Fund created hereunder, including
without limitation the Project Fund and the Bond Fund; and (c) Revenues (as
hereinafter defined); and
WHEREAS, all things necessary to make the Bonds, when authenticated by the
Trustee and issued and delivered as provided in this Indenture, the legal,
valid, binding and enforceable limited obligations of the Issuer, according to
the import thereof, and to create a valid assignment and pledge of the Pledged
Revenues to the payment of the principal of, and the redemption premium (if any)
and the interest on, the Bonds and a valid assignment of certain of the rights,
title and interest of the Issuer in the Lease Agreement, have been done and
performed, and the execution, issuance and delivery of the Bonds, subject to the
terms hereof, have in all respects been authorized; and
WHEREAS, the Trustee and the Credit Facility Trustee, as their interests
may appear, have accepted the trusts created by this Indenture and in evidence
thereof have joined in the execution hereof; and
WHEREAS, the Issuer has determined that the Bonds to be issued hereunder
shall be substantially in the form contained in Exhibit C, with such variations,
omissions and insertions as are required or permitted by this Indenture; and
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NOW, THEREFORE, in consideration of the premises, of the acceptance by the
Trustee and the Credit Facility Trustee of the trusts hereby created, and of the
purchase and acceptance of the Bonds by the Bondholders, and also for and in
consideration of the sum of One Dollar to the Issuer in hand paid by the Trustee
and the Credit Facility Trustee at or before the execution and delivery of this
Indenture, the receipt of which is hereby acknowledged, and for the purpose of
fixing and declaring the terms and conditions upon which the Bonds are to be
issued, delivered, secured and accepted by the Bondholders and any and all other
persons who shall from time to time be or become owners thereof, and in order to
secure the payment of the Bonds at any time issued and outstanding hereunder and
the interest thereon according to their tenor, purport and effect, and in order
to secure the performance and observance of all the covenants, agreements and
conditions therein and herein contained:
THE ISSUER DOES HEREBY PLEDGE AND ASSIGN, and grant a security interest
unto the Trustee and its successors and assigns and unto the Credit Facility
Trustee and its successors and assigns, as their interests may appear, forever,
to have and to hold, for the benefit of the owners of the Bonds all right, title
and interest of the Issuer presently owned or hereafter acquired in and to the
following (collectively, the "Trust Estate"):
(a) The Lease Agreement (as the same may from time to time be
supplemented or amended), including, but not limited to, all payments of
principal and interest due and to become due under the Lease Agreement
whether made at their respective due dates or as prepayments permitted or
required by the Lease Agreement together with full power and authority, in
the name of the Issuer or otherwise, to demand, receive, enforce, collect
or receipt for any or all of the foregoing, to endorse or execute any
checks or other instruments or orders, to file any claims and to take any
action which the Trustee or the Credit Facility Trustee may deem necessary
or advisable in connection therewith, and the Issuer hereby irrevocably
appoints the Trustee and the Credit Facility Trustee as attorneys-in-fact
of the Issuer for such purposes, which appointment is coupled with an
interest and is irrevocable; provided, however, that the Issuer shall
continue to have all the rights, together with the Trustee, contained in
the following sections of the Lease Agreement:
(i) Section 6.4 (pertaining to the Issuer's non-exclusive right
to receive payment for certain advances);
(ii) Section 7.1 (pertaining to the Issuer's right of access to
the Project and certain records);
(iii) Section 7.3 (pertaining to the Issuer's right to receive
certain information);
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(iv) Section 7.4 (pertaining to the Issuer's right to receive
payment for certain costs and expenses);
(v) Section 7.5 (pertaining to the Issuer's right to certain
indemnities);
(vi) Section 7.6 (pertaining to the Issuer's right to
indemnification);
(vii) Section 7.9 (pertaining to the Issuer's right to provide
certain information);
(viii) Section 8.1 (pertaining to the Issuer's right to consent
or withhold consent to assignment of rights of the Company under the
Lease Agreement or lease or sale of the Project);
(ix) Sections 9.3 and 9.5 (pertaining to the Issuer's right to
reimbursement of expenses incurred upon a default);
(x) Section 10.1(c) (pertaining to the Issuer's right to notice
of prepayments and rights upon the occurrence of certain events);
(xi) Section 11.5 (pertaining to the Issuer's right to receive
notices);
(xii) Section 11.13 (pertaining to the limitations on the
liability of the Issuer); and
(xiii) Section 11.14 (pertaining to the Issuer's right to receive
payment for certain costs and expenses).
(b) All money and securities at any time on deposit in, in transit to
or credited to any account or Fund created hereunder, including without
limitation the Project Fund and the Bond Fund; and
(c) Revenues (as hereinafter defined);
and it is so mutually agreed and covenanted by and between the parties hereto
for the equal and proportionate benefit and security of the Bondholders without
preference, priority or distinction as to lien or otherwise, except as
hereinafter provided, of any one Bond over any other Bond, by reason of priority
in the issue, sale or negotiation thereof or otherwise, for the benefit of the
Bondholders and as security for the fulfillment of the obligations of the Issuer
hereunder;
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TO HAVE AND TO HOLD the same forever, subject, however, to the exceptions,
reservations and matters therein and herein recited but IN TRUST, nevertheless,
for the benefit and security of the owners from time to time of the Bonds
delivered hereunder and issued by the Issuer and outstanding or, to the extent
set forth herein, for the benefit of the Credit Facility Issuer, so long as a
Credit Facility is in place in respect of the Bonds;
PROVIDED, HOWEVER, that if, after the right, title and interest of the
Trustee and the Credit Facility Trustee in and to the Trust Estate pledged and
assigned to them under this Indenture shall have ceased, terminated and become
void in accordance with Article XIV hereof, the principal of and interest on the
Bonds and any other obligations arising hereunder shall have been paid to the
Bondholders or shall have been paid by the Company pursuant to Article XIV
hereof, then, this Indenture and all covenants, agreements and other obligations
of the Issuer hereunder shall cease, terminate and be void, and thereupon the
Trustee and the Credit Facility Trustee shall cancel and discharge this
Indenture and execute and deliver to the Issuer and the Company such instruments
in writing as shall be required to evidence the discharge hereof, otherwise,
this Indenture shall be and remain in full force and effect.
THIS INDENTURE FURTHER WITNESSETH, and it is expressly declared, that
the Bonds issued and secured hereunder are to be issued and delivered and the
Trust Estate and other revenues and funds herein pledged and assigned are to be
dealt with and disposed of under, upon and subject to the terms, conditions,
stipulations, covenants, agreements, trusts, uses and purposes as hereinafter
expressed.
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ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.1 DEFINITIONS. All words and terms defined in Article I of
the Lease Agreement shall have the same meanings in this Indenture, unless
otherwise specifically defined herein. In addition, the following words and
terms as used in this Indenture shall have the following meanings unless some
other meaning is plainly intended:
"Act" shall mean Section 36-62 et seq., as amended, Official Code of
-- ---
Georgia Annotated, and other applicable provisions of law.
"Alternate Credit Facility" shall mean an irrevocable direct pay letter of
credit, insurance policy or similar credit enhancement or support facility for
the benefit of the Credit Facility Trustee, the terms of which Alternate Credit
Facility shall, in all respects material to the Bondholders, be the same (except
for the term of such Alternate Credit Facility) as or better than the Credit
Facility that is replaced by such Alternate Credit Facility as set forth in
Section 6.3 hereof.
"Authenticating Agent" shall mean the Trustee and any agent, designated and
appointed pursuant to Section 2.7 hereof.
"Available Moneys" shall mean:
(a) with respect to any payment date occurring during any period that
the Bonds are entitled to the benefit of a Credit Facility,
(1) any moneys which have been paid to the Trustee by the Company
(including moneys transferred from the Project Fund pursuant to
Section 4.1 hereof and which have been on deposit with the Trustee for
at least three hundred sixty-seven (367) days during and prior to
which no Event of Bankruptcy shall have occurred, and the proceeds
from the investment of such moneys after such moneys have become
Available Moneys, and
(2) moneys on deposit with the Trustee representing proceeds from
the resale by the Remarketing Agent of Bonds to persons other than the
Issuer or the Company as described in Article III hereof, which, in
each case, were at all times since their deposit with the Trustee held
in a separate and segregated account or accounts or sub-account or
sub-accounts in which no moneys which were not Available Moneys were
at any time held, and the proceeds from the investment thereof, and
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(3) moneys drawn under a Credit Facility which in each case were
at all times since their deposit with the Trustee held in a separate
and segregated account or accounts or sub-account or sub-accounts in
which no moneys (other than those drawn under a Credit Facility) were
at any time held; and
(b) with respect to any payment date not occurring during a period
that the Bonds are entitled to the benefit of a Credit Facility, any moneys
furnished to the Trustee and the proceeds from the investment thereof. The
Trustee may presume that no Event of Bankruptcy has occurred unless
notified in writing to the contrary by the Company, the Credit Facility
Issuer or the owners of not less than twenty-five percent (25%) in
aggregate principal amount of Bonds Outstanding.
"Bank" shall mean (1) First Union National Bank, a national banking
association, as the issuer of the Letter of Credit, and its successors and
assigns; and (2) any Substitute Bank.
"Bank Account" shall mean the account of that name established in the Bond
Purchase Fund pursuant to Section 3.2 hereof.
"Bond" or "Bonds" shall mean Development Authority of McDuffie County
Taxable Industrial Development Revenue Bonds (Advance Stores Company,
Incorporated Project), Series 1997, issued by the Issuer under this Indenture.
"Bond Counsel" shall mean the firm of King & Spalding, or its successors
appointed by the Issuer. If the Trustee determines, at its sole discretion,
that the Issuer has failed to appoint a successor, "Bond Counsel" shall mean a
firm of attorneys of nationally recognized standing in matters pertaining to the
tax-exempt or taxable nature of interest on bonds issued by states and their
political subdivisions, duly admitted to the practice of law before the highest
court of any state of the United States of America.
"Bond Fund" shall mean the trust fund so designated which is established
pursuant to Section 5.2(a) hereof.
"Bond Purchase Fund" shall mean the trust fund so designated which is
established pursuant to Section 3.2 hereof.
"Bond Register" shall have the meaning provided in Section 2.4 hereof.
"Bond Registrar" shall mean the Bond Registrar as designated in Section 2.4
hereof.
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"Bondholder" or "Bondholders" or "owner" or "owners" shall mean the initial
owner or owners and any future owner or owners of the Bond or Bonds as
registered on the books and records of the Bond Registrar pursuant to Section
2.4 hereof.
"Book Entry Agreement" shall have the meaning provided in Section 2.14
hereof.
"Business Day" means a day on which (a) banks located in each of the cities
in which the principal office of the Trustee, the Credit Facility Trustee, the
Credit Facility Issuer and the Remarketing Agent is located are not required or
authorized by law or executive order to close for business, and (b) The New York
Stock Exchange is not closed.
"Calculation Period" shall mean the period from and including the day
following the Determination Date of each week (even if not a Business Day) to
and including the following Determination Date.
"Company" shall mean Advance Stores Company, Incorporated, a Virginia
corporation, and its successor or assigns and any surviving, resulting or
transferee corporation or other entity.
"Conversion Date" shall mean that Business Day elected by the Company in
accordance with Section 2.2(e) hereof as the effective date of conversion of the
interest rate on the Bonds from the Variable Rate to the Fixed Rate, which date
shall be an Interest Payment Date.
"Counsel" shall mean an attorney or firm of attorneys acceptable to the
Trustee (who may, but need not be, counsel to the Issuer or the Company).
"Credit Facility" shall mean the Letter of Credit or any Alternate Credit
Facility delivered to the Trustee pursuant to Article VI hereof.
"Credit Facility Account" shall mean the account of that name established
in the Bond Fund pursuant to Section 5.2 hereof.
"Credit Facility Issuer" shall mean the Bank with respect to the Letter of
Credit and the institution issuing any Alternate Credit Facility.
"Credit Facility Trustee" means Branch Banking and Trust Company, a North
Carolina banking corporation, and any successor Credit Facility Trustee
appointed hereunder. In addition, if the interest rate on the Bonds is
converted to a Fixed Rate, there will no longer be a Credit Facility in effect,
and thereafter all references to Credit Facility Trustee shall mean the Trustee.
"Defaulted Interest" has the meaning provided in Section 2.8 hereof.
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"Determination Date" shall mean Wednesday of each week or if Wednesday is
not a Business Day then the next succeeding Business Day.
"DTC" means The Depository Trust Company, or any successor thereto.
"DTC Participant" or "DTC Participants" means securities brokers and
dealers, trust companies and clearing corporations that have access to the DTC
system either directly or through other DTC Participants.
"Event of Bankruptcy" shall mean a petition by or against the Company or
the Issuer under any bankruptcy act or under any similar act which may be
enacted which shall have been filed (other than bankruptcy proceedings
instituted by the Company or the Issuer against third parties) unless such
petition shall have been dismissed within 90 days and such dismissal shall be
final and not subject to appeal.
"Event of Default" shall mean any of the events specified in Section 9.1
hereof to be an Event of Default.
"Fixed Rate" shall mean the fixed annual rate of interest on the Bonds
determined by the Placement Agent pursuant to Section 2.2(e) hereof. If, for any
reason, the Fixed Rate is held to be invalid or unenforceable by a court of
competent jurisdiction, the Fixed Rate shall be equal to ten percent (10%) per
annum for the Bonds.
"Fixed Rate Period" shall mean the period during which the Fixed Rate is in
effect, which shall be the period beginning on the Conversion Date and ending on
the Maturity Date.
"Governmental Obligations" shall mean:
(i) direct obligations of the United States of America for the
full and timely payment of which the full faith and credit of the
United States of America is pledged,
(ii) obligations issued by a Person controlled or supervised by
and acting as an instrumentality of the United States of America, the
full and timely payment of which is unconditionally guaranteed as a
full faith and credit obligation of the United States of America, and
(iii) securities or receipts evidencing ownership interests in
obligations or specified portions (such as principal or interest) of
obligations described in clause (i) or (ii) above the full and timely
payment of which securities, receipts or obligations is
unconditionally guaranteed by the United States of America, which
obligations,
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securities or receipts are not subject to redemption prior to maturity
at less than par at the option of anyone other than the holder
thereof.
"Indenture" shall mean this Indenture as amended or supplemented at the
time in question.
"Initial Interest Rate" shall mean a variable rate of interest as
determined by the Remarketing Agent on the date of the issuance of the Bonds.
"Initial Rate Period" shall mean from and including the Original Delivery
Date to and including January 7, 1998.
"Interest Payment Date" shall mean the first Business Day of each month
commencing on the first Business Day of February, 1998 and ending on the
Maturity Date, the Conversion Date and the Maturity Date.
"Investment Obligations" shall mean:
(i) Bonds or obligations of counties, municipal corporations, school
districts, political subdivisions, authorities, or bodies of the State;
(ii) Bonds or other obligations of the United States or of subsidiary
corporations of the United States Government which are fully guaranteed by
such government;
(iii) Obligations of agencies of the United States Government issued
by the Federal Land Bank, the Federal Home Loan Bank, the Federal
Intermediate Credit Bank, and the Central Bank for Cooperatives;
(iv) Bonds or other obligations issued by any Public Housing Agency
or Municipal Corporation in the United States, which such bonds or
obligations are fully secured as to the payment of both principal and
interest by a pledge of annual contributions under an annual contributions
contract or contracts with the United States Government, or project notes
issued by any public housing agency, urban renewal agency, or municipal
corporation in the United States which are fully secured as to payment of
both principal and interest by a requisition, loan, or payment agreement
with the United States Government;
(v) Certificates of deposit of national or state banks located
within the state which have deposits insured by the Federal Deposit
Insurance Corporation and certificates of deposit of federal savings and
loan associations and state building and loan associations located within
this state which have deposits insured by the Savings Association Insurance
Fund of the Federal Deposit Insurance
10
Corporation or the Georgia Credit Union Deposit Insurance Corporation,
including the certificates of deposit of any bank, savings and loan
association, or building and loan association acting as depositary,
custodian, or trustee for any such bond proceeds. The portion of such
certificates of deposit in excess of the amount insured by the Federal
Deposit Insurance Corporation, the Savings Association Insurance Fund of
the Federal Deposit Insurance Corporation or the Georgia Credit Union
Deposit Insurance Corporation, if any, shall be secured by deposit, with
the Federal Reserve Bank of Atlanta, Georgia, or with any national or state
bank or federal savings and loan association or state building and loan or
savings and loan association located within this state, of one or more the
following securities in an aggregate principal amount equal at least to the
amount of such excess; direct and general obligations of this state or of
any county or municipal corporation in this state, obligations of the
United States or subsidiary corporations included in paragraph (ii) hereof,
obligations of the agencies of the United States Government included in
paragraph (iii) hereof, or bonds, obligations, or project notes of public
housing agencies, urban renewal agencies, or municipalities included in
paragraph (iv) hereof;
(vi) Repurchase agreements with respect to obligations included in
(i), (ii), (iii), (iv) or (v) above and any other investments to the extent
at the time permitted by then applicable law for the investment of public
funds.
"Issuer" shall mean the Development Authority of McDuffie County, a public
body politic and corporate pursuant to the laws of the State of Georgia.
"Lease Agreement" shall mean the Lease Agreement of even date herewith
between the Issuer and the Company and any amendments or supplements thereof
permitted by this Indenture.
"Letter of Credit" shall mean the irrevocable direct pay letter of credit,
dated the date of delivery of the Bonds in the amount of $10,201,370 issued by
the Bank in favor of the Credit Facility Trustee as beneficiary, with an initial
term of three (3) years, subject to any extensions thereof.
"Majority of the Bondholders" shall mean the owners of a majority of the
aggregate principal amount of the Outstanding Bonds.
"Maturity Date" shall mean November 1, 2002 unless the maturity of the
Bonds shall be accelerated by the Credit Facility Trustee pursuant to Section
9.2 hereof, in which case the "Maturity Date" of the Bonds shall be the date set
forth in the notice of acceleration from the Credit Facility Trustee to the
Issuer pursuant to Section 9.2 of hereof.
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"Moody's" shall mean Moody's Investors Service, Inc. a Delaware
corporation, its successors and assigns, and, if such corporation shall be
dissolved or liquidated or shall no longer perform the functions of a securities
rating agency, "Moody's" shall be deemed to refer to any other nationally
recognized securities rating agency designated by the Trustee, with the consent
of the Company and the Credit Facility Issuer.
"Optional Retention Notice" shall mean a notice of the owner of a Bond to
the Trustee as described in Sections 2.2(e) and 7.1(d) hereof regarding
retention of the Bonds after a conversion of the interest rate.
"Optional Tender Notice" shall mean a notice from the owner of a Bond to
the Tender Agent as described in Sections 2.3 and 3.1 hereof regarding the
optional tender of the Bonds by the owners.
"Original Delivery Date" shall mean December 31, 1997.
"Outstanding" in connection with Bonds shall mean, as of the time in
question, all Bonds authenticated and delivered under the Indenture, except:
(i) Bonds theretofore canceled or required to be canceled under
Section 2.12 hereof,
(ii) Bonds which are deemed to have been paid in accordance with
Article XIV hereof; and
(iii) Bonds in substitution for which other Bonds have been
authenticated and delivered pursuant to Article II hereof.
In determining whether the owners of a requisite aggregate principal amount of
Bonds Outstanding have concurred in any request, demand, authorization,
direction, notice, consent or waiver under the provisions hereof, Bonds which
are held by or on behalf of the Company (unless all of the outstanding Bonds are
then owned by the Company) or an Affiliate of the Company (as defined below)
shall be disregarded for the purpose of any such determination. For the purpose
of this paragraph, an "Affiliate" of any specified entity shall mean any other
entity directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified entity and "control", when used with
respect to any specific entity, shall mean the power to direct the management
and policies of such entity, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Paying Agent" shall mean the Trustee and its successors as provided in
Section 15.3 hereof.
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"Payment Date" shall have the meaning set forth in Section 5.2(d) hereof.
"Placement Agent" shall mean the securities dealer, bank or trust company
which is designated by the Company with the consent of the Credit Facility
Issuer, which is responsible for the initial placement of the Bonds and which
will agree to establish the Preliminary Fixed Rate and to use its best efforts
to arrange for the sale of Tendered Bonds on the Conversion Date, all as more
particularly described in Section 2.2(e) hereof.
"Pledge Agreement" shall mean the Pledge Agreement of even date herewith by
the Company to the Bank, and any amendments or supplements thereof.
"Pledged Revenues" means and shall include the payments required to be made
by the Company under the Lease Agreement except payments to be made to the
Trustee for services rendered as Trustee under the Indenture and as Bond
Registrar and Paying Agent for the Bonds and except for expenses,
indemnification and other payments required to be made pursuant to Sections 7.8
and 7.9 of the Lease Agreement.
"Preliminary Fixed Rate" shall mean the rate of interest determined by the
Placement Agent prior to the Conversion Date to be that rate which, in the sole
judgment of the Placement Agent based on prevailing market conditions, is the
minimum fixed rate of interest necessary for the Placement Agent to arrange for
the sale at par of all of the Bonds for which the Placement Agent would be so
required to arrange for the sale on the Conversion Date pursuant to Section
2.2(e) hereof.
"Principal Office" of the Trustee or Bond Registrar shall mean the office
at which, at the time in question, its corporate trust business with respect to
the Bonds is principally conducted.
"Project" shall mean the financing, in whole or in part, of the
acquisition, construction, installation and equipping of an industrial facility
on approximately 49 acres of land located in McDuffie County, Georgia, to be
used as a warehouse and distribution center, and any other interests in real and
personal property, leasehold interest, easements, licenses, and rights in real
property and personal property as more fully set forth on Exhibit D hereto.
"Project Fund" shall mean the trust fund so designated which is established
pursuant to Section 4.1 hereof.
"Regular Record Date" shall mean:
(i) in respect of any Interest Payment Date during the Variable Rate
Period, the close of business on the Business Day immediately preceding
each such Interest Payment Date, and
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(ii) in respect of any Interest Payment Date during the Fixed Rate
Period, the fifteenth (15th) day (whether or not a Business Day) of the
calendar month immediately preceding each such Interest Payment Date.
"Reimbursement Agreement" shall mean the Letter of Credit and Reimbursement
Agreement of even date herewith by and between the Company and the Bank, as the
same may be amended from time to time and filed with the Trustee, and any
agreement of the Company with a Credit Facility Issuer setting forth the
obligations of the Company to such Credit Facility Issuer arising out of any
payments under a Credit Facility and which provides that it shall be deemed to
be a Reimbursement Agreement for the purpose of this Indenture.
"Remarketing Account" shall mean the account of that name established in
the Bond Purchase Fund pursuant to Section 3.2 hereof.
"Remarketing Agent" shall mean First Union National Bank, Charlotte, North
Carolina, and its successors as provided in Section 12.1 hereof.
"Remarketing Agreement" shall mean the Remarketing Agreement of even date
herewith between the Company and the Remarketing Agent and any amendments and
supplements thereof.
"Repayments Account" shall mean the account of that name established in the
Bond Fund pursuant to Section 5.2 hereof.
"Requisite Bondholders" shall mean the owners of more than two-thirds (2/3)
in aggregate principal amount of the Outstanding Bonds.
"Responsible Officer" when used with respect to the Trustee shall mean the
chairman or vice chairman of the board of directors, the chairman or vice-
chairman of the executive committee of the board of directors, the president,
any vice president, the secretary, any assistant secretary, the treasurer, any
assistant treasurer, the cashier, any assistant cashier, any trust officer, any
assistant trust officer, the controller, any assistant controller or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers of banking institutions with
trust powers and also shall mean, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Revenues" shall mean:
(i) all amounts payable to the Trustee with respect to the principal
or redemption price of, or interest on the Bonds (a) by the Company under
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the Lease Agreement, (b) by the Credit Facility Issuer under a Credit
Facility, and (c) by transfer from the Project Fund pursuant to Section 4.1
hereof, and
(ii) investment income with respect to any moneys held by the Trustee
in the Bond Fund.
"Security interest" or "security interests" refers to the security
interests created herein and shall have the meaning set forth in the U.C.C.
"S&P" shall mean Standard & Poor's, a division of McGraw-Hill Companies,
Inc., a New York corporation, its successors and assigns, and, if such
corporation shall be dissolved or liquidated or shall no longer perform the
functions of a securities rating agency, "S&P" shall be deemed to refer to any
other nationally recognized securities rating agency designated by the Trustee,
with the consent of the Company and the Credit Facility Issuer.
"Special Record Date" shall mean for purpose of payment of Defaulted
Interest on the Bonds, the date fixed by the Trustee pursuant to Section 2.8
hereof.
"State" shall mean the State of Georgia.
"Substitute Bank" shall mean a commercial bank or savings and loan
association which has issued a Substitute Letter of Credit.
"Substitute Letter of Credit" shall mean a letter of credit delivered to
the Trustee in accordance with Section 6.3(c) of this Indenture, issued by the
Bank or a Substitute Bank, replacing any existing Letter of Credit and with
substantially identical payment terms and conditions to the Letter of Credit
being replaced.
"Tender Agent" shall mean First Union National Bank, Richmond, Virginia and
its successors as provided in Section 12.2 hereof.
"Tender Agency Agreement" shall mean the Tender Agency Agreement of even
date herewith among the Company, the Trustee and the Tender Agent and any
amendments and supplements thereof.
"Tendered Bonds" shall mean those Bonds tendered or deemed tendered by the
owners for purchase pursuant to an Optional Tender Notice or on the Conversion
Date.
"Trustee" shall mean First Union National Bank, Richmond, Virginia, a
national banking association, and its successor in the trust hereunder.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing hereunder, the Credit
15
Facility Trustee shall perform all of the duties of the Trustee under this
Indenture and all references to the Trustee shall mean the Credit Facility
Trustee.
"U.C.C." means the Uniform Commercial Code of the State of Georgia.
"Undelivered Bond" shall mean:
(i) any Bond for which an Optional Tender Notice has been given
pursuant to Section 2.3 hereof and which has not been delivered to the
Tender Agent on the date specified for purchase, and
(ii) any Bond which has not been delivered to the Trustee for
redemption or purchase on any mandatory redemption or purchase date or the
Conversion Date if, with respect to Bonds to be delivered on the Conversion
Date, the owner thereof has not provided the Trustee with the Optional
Retention Notice; provided that in either case the Trustee has on hand and
available on such date funds sufficient to purchase or redeem said Bond.
"Variable Rate" shall mean a variable interest rate established after the
Initial Rate Period as the rate of interest determined by the Remarketing Agent
on and as of each Determination Date as the minimum rate of interest necessary,
in the judgment of the Remarketing Agent, taking into account market conditions
prevailing on the Determination Date, to enable the Remarketing Agent to arrange
for the sale of all of the Bonds on the Determination Date in the secondary
market at a price equal to the principal amount thereof (plus interest accrued
to the date of settlement). If the Remarketing Agent fails to certify such rate,
the Variable Rate for the next succeeding Calculation Period or Periods until
thereafter certified by the Remarketing Agent shall remain the same as that most
recently established and certified by the Remarketing Agent until thereafter
certified by the Remarketing Agent or adjusted as set forth in the next
succeeding sentence. If the Remarketing Agent fails to certify such rate for the
Bonds for four consecutive Calculation Periods, the rate for the Bonds for each
Calculation Period thereafter (if none is certified by the Remarketing Agent) to
be determined by the Trustee shall be a rate equal to the 30 day LIBOR Rate.
"LIBOR Rate" shall mean, for any period, an interest rate per annum (based on a
360-day year) determined by the Trustee or its designee to be the rate or the
arithmetic mean of rates (rounded upward, if necessary, to the nearest one-
sixteenth (1/16) of one percentage point of the rate per annum) for deposits in
immediately available and freely transferable dollars of the United States of
America that appears on Telerate Screen, page 3747, as published daily by the
British Bankers Association Interest Settlement Rates (or another comparable
international financial data service satisfactory to the Trustee, or its
designee, in its discretion, if Telerate no longer publishes such rates) and
that is offered by first class banks in the London InterBank market to the
offices of the Trustee or its
16
designee at 10:00 a.m. on the applicable Determination Date. If, for any reason,
the Variable Rate is not determined as described above or is held to be invalid
or unenforceable by a court of competent jurisdiction for any period, the
interest rate for each such period shall be equal to ten percent (10%) per annum
for the Bonds.
"Variable Rate Period" shall mean that period during which a Variable Rate
is in effect on the Bonds.
"Variable Rate Purchase Date" shall mean while the Bonds bear interest at
the Variable Rate, any Business Day (prior to and upon the effective date of the
Fixed Interest Rate) on which the Bonds may be tendered for purchase at the
option of the owner thereof in accordance with Section 2.3 hereof.
SECTION 1.2 RULES OF CONSTRUCTION.
(a) Words of the masculine gender shall be deemed and construed to include
correlative words of the feminine and neuter genders. Unless the context shall
otherwise indicate, the words "Bondowner", "Bondholder", "Bondholder of Record"
and "person" shall include the plural as well as the singular number; the word
"person" shall include any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof, and the word
"Bondholder" when used herein with respect to the Bonds shall mean the
registered owner of any of the Bonds.
(b) Words importing the redemption or calling for redemption of the Bonds
shall not be deemed to refer to or connote payment of Bonds at their stated
maturity.
(c) The Table of Contents, captions and headings in this Indenture are for
convenience only and in no way limit the scope or intent of any provision or
section of this Indenture.
(d) All references herein to particular articles or sections are references
to articles or sections of this Indenture unless some other reference is
indicated.
(e) All references herein to time shall be prevailing Eastern time.
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ARTICLE II
THE BONDS
SECTION 2.1 AMOUNT, TERMS, AND ISSUANCE OF THE BONDS.
(a) The Bonds shall be limited to $10,000,000 in aggregate principal
amount and shall contain substantially the terms recited in the form of Bond in
Exhibit C and as set forth in this Indenture. No Bonds may be issued under this
Indenture except in accordance with this Article II. No additional bonds shall
be issued under this Indenture.
(b) The Issuer may cause a copy of the text of the opinion of Bond
Counsel delivered in connection with the issuance of the Bonds to be printed on
or attached to any of the Bonds. The Bonds may bear such endorsement or legend
satisfactory to the Trustee as may be required to conform to usage or law with
respect thereto, including the imposition of CUSIP or other identifying numbers.
(c) Upon satisfaction of the conditions set forth in Section 2.13
hereof, the Issuer shall issue the Bonds, and the Trustee shall, at the Issuer's
request, authenticate the Bonds and deliver them as specified in the request.
SECTION 2.2 DESIGNATION, DENOMINATIONS, MATURITY DATE AND INTEREST RATES
OF THE BONDS.
(a) DESIGNATION, DENOMINATIONS, MATURITY DATE. The Bonds shall be
designated "$10,000,000 Development Authority of McDuffie County Taxable
Industrial Development Revenue Bonds (Advance Stores Company, Incorporated
Project), Series 1997." The Bonds shall be issuable as fully registered Bonds
in the denominations of $100,000 or any integral multiple of $5,000 in excess
thereof, provided that if less than One Hundred Thousand Dollars ($100,000)
principal amount of Bonds is outstanding one Bond shall be issued in such
smaller denomination; and provided further, that if as a result of redemption
pursuant to Article VII hereof the unredeemed portion of a redeemed Bond shall
be less than $100,000, a replacement Bond in the amount of such unredeemed
portion may be issued. All Bonds shall bear the date of their authentication,
shall bear interest from the most recent date to which interest has been paid or
duly provided for, or, if authenticated on an Interest Payment Date, from that
date, or, if no interest has been paid or duly provided for, from the date of
authentication, and shall mature, subject to prior redemption as provided in
Article VII hereof, on November 1, 2002. The Bonds shall be numbered from "1"
consecutively upwards prefixed by the letter "R".
(b) INTEREST RATES. The Bonds shall bear interest at the applicable
rate provided below. On each Interest Payment Date, interest accrued through
the day immediately preceding such Interest Payment Date shall be payable by the
Company.
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While the Bonds bear interest at a Variable Rate interest on the Bonds shall be
computed on the basis of a year of three hundred sixty-five (365) or three
hundred sixty-six (366) days, as applicable, for the number of days actually
elapsed. From and including the Conversion Date, and thereafter, interest on the
Bonds shall be computed on the basis of a three hundred sixty (360) day year for
the number of days actually elapsed.
(c) INITIAL INTEREST RATE. For the Initial Rate Period, the Bonds
shall bear interest at the Initial Interest Rate.
(d) VARIABLE RATE. Following the Initial Rate Period and until the
Conversion Date, the Bonds shall bear interest at the Variable Rate. During the
Variable Rate Period, the Remarketing Agent shall determine the interest rate
for the Bonds on each Determination Date. The Remarketing Agent shall give
telephonic notice on the Determination Date to the Trustee and the Company of
the interest rate to be in effect for the following Calculation Period. The
determination of the Variable Rate by the Remarketing Agent shall be conclusive
and binding upon the Bondholders, the Issuer, the Company, the Trustee, the
Tender Agent and the Remarketing Agent. Any owner may request the Variable Rate
in effect from time to time with respect to the Bonds from the Trustee or the
Remarketing Agent.
(e) FIXED RATE: CONVERSION TO FIXED RATE.
(1) The Company has a one-time option to convert the interest
rate payable on the Bonds from the Variable Rate to the Fixed Rate
effective on an Interest Payment Date following compliance by the
Company with the provisions of this Section 2.2(e). The Fixed Rate
shall be established after delivery by the Company to the Issuer, the
Credit Facility Trustee, the Trustee, the Credit Facility Issuer, the
Tender Agent and the Remarketing Agent of:
(A) a notice to the effect that the interest rate on the
Bonds shall become fixed on the Conversion Date specified in such
notice, which notice shall designate the Placement Agent and
shall state that a Credit Facility will not be in effect after
the Conversion Date, and
(B) an opinion of Bond Counsel addressed to the Credit
Facility Trustee, the Trustee and the Issuer that the
establishment of a Fixed Rate is authorized and permitted under
this Indenture. Such notice and opinion must be delivered not
less than thirty (30) nor more than sixty (60) days prior to the
Conversion Date.
(2) At least twenty-five (25) days prior to the proposed
Conversion Date, the Placement Agent shall determine the Preliminary
Fixed Rate as of
19
such date and shall notify the Credit Facility Trustee, the Trustee
and the Company of the Preliminary Fixed Rate by telephone,
telecopier, telex, telegram or other telecommunication device and upon
request, shall confirm such notice in writing.
(3) Upon receipt of notice of the Preliminary Fixed Rate, the
Trustee shall, as soon as practicable (but in no event more than two
(2) Business Days thereafter), mail, in the name of the Issuer, a
notice to the owners of the Bonds which shall be in the form of the
Notice of Conversion attached hereto as Exhibit A and which shall:
(A) state that the interest rate on the Bonds is being
converted to the Fixed Rate effective on the Conversion Date and
specify the Conversion Date,
(B) state that after the tenth (10th) day preceding the
Conversion Date, the owners shall not be entitled to deliver
Bonds for purchase pursuant to Section 2.3 hereof,
(C) state the Preliminary Fixed Rate,
(D) state that depending on market conditions, the Fixed
Rate may be higher but in no event lower than the Preliminary
Fixed Rate,
(E) state that payment of the Bonds will not be supported by
a Credit Facility after the Conversion Date,
(F) state that the rating on the Bonds (if any) may be
reduced or withdrawn on the Conversion Date,
(G) state that all owners who desire to retain such Bonds
must deliver an Optional Retention Notice to the Trustee by the
tenth (10th) day preceding the Conversion Date (or the next
succeeding Business Day if such date is not a Business Day) or be
deemed to have tendered their Bonds for purchase and must deliver
the Bonds to the Trustee on or before the Conversion Date to be
stamped with the legend contained in Section 2.2(e)(8) hereof,
(H) state that the delivery by the Company to the Trustee of
a letter from Bond Counsel dated as of the Conversion Date
confirming the opinion received pursuant to the notice is a
condition precedent to a conversion to a Fixed Rate, and
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(I) state that in order to receive payment of the purchase
price of any Bond which is deemed to have been tendered, the
owner of such Bond must deliver such Bond to a specified office
of the Tender Agent before 10:00 a.m. (prevailing Eastern time)
on the Conversion Date.
(4) The delivery by the Company to the Trustee of a letter from
Bond Counsel confirming the opinion required prior to the notification
described above on such Conversion Date is a condition precedent to
any such conversion. In the event that the Company fails to deliver to
the Trustee the letter of Bond Counsel referred to in the preceding
sentence, such conversion shall not take effect, and the Bonds shall
continue to bear interest at the Variable Rate.
(5) Any owner of Bonds to be converted to a Fixed Rate not
providing the Trustee with the Optional Retention Notice shall be
deemed to have tendered its Bonds to the Tender Agent. Said owner
shall not be entitled to any payment (including any interest to accrue
subsequently to the Conversion Date) other than the purchase price for
such Bonds which shall be equal to the unpaid principal amount of such
Bonds, and any such Bonds shall no longer be entitled to the benefits
of this Indenture, except for the purpose of payment of the purchase
price therefor and interest payable on the Conversion Date. Payment of
the purchase price of any such Bonds shall be made only upon the
presentment and surrender of such Bonds to the Tender Agent. Upon
request, the Trustee shall provide the Tender Agent with the address
set forth on the Bond Register for such owner. The Trustee shall
notify the Bond Registrar of all Bonds with respect to which the
Trustee has not received Optional Retention Notices, which Bonds shall
be deemed to be tendered for purchase on the Conversion Date. In the
case of any Bond deemed tendered, the Issuer shall cause to be
executed, and the Trustee shall authenticate and deliver to the new
owner as provided in Section 3.1 hereof, a new Bond of like date and
tenor in lieu of and in substitution for such Bond deemed to be
tendered.
(6) On the Conversion Date, the Fixed Rate shall be established
as follows:
(A) if any of the Bonds have been tendered or deemed
tendered for purchase, then:
(i) if the Placement Agent shall have arranged for the
sale of any or all Tendered Bonds at a price equal to the
principal amount thereof, the Fixed Rate shall be equal to
the
21
interest rate or rates at which such Bonds were sold by the
Placement Agent, provided that all Tendered Bonds shall be
sold at par and at a rate greater than or equal to the
Preliminary Fixed Rate; or
(ii) if the Placement Agent shall have arranged for the
sale of none of the Tendered Bonds, the Fixed Rate shall be
equal to the Preliminary Fixed Rate; or
(B) if all owners of the Bonds elect to retain such Bonds,
the Fixed Rate shall be equal to the Preliminary Fixed Rate.
(7) On the Conversion Date, the Placement Agent shall give
written notice to the Trustee of the Fixed Rate and the Trustee shall
give notice of the same as soon as practicable (but in no event more
than two (2) Business Days thereafter) to the owners of Bonds being
converted to bear the Fixed Rate.
(8) On or before the Conversion Date, all Bonds shall be
presented to the Trustee for stamping thereon of the legend:
"The interest rate on this Bond has been fixed at ____% per annum
in accordance with the provisions of this Bond and Section 2.2(e)
of the Indenture." And, if applicable: "There is not a Credit
Facility in effect."
SECTION 2.3 OPTIONAL TENDER PROVISIONS OF THE BONDS.
(a) While the Bonds bear interest at the Variable Rate, any Bond or portion
thereof in an authorized denomination (other than a Bond registered in the name
of the Company) shall be purchased on the demand of the owner thereof, on any
Business Day at a purchase price equal to one hundred percent (100%) of the
principal amount thereof plus interest accrued to the date of purchase, if the
owner of such Bond delivers to the Tender Agent at its address filed with the
Trustee an Optional Tender Notice at least seven (7) days prior to the Variable
Rate Purchase Date specified in such Optional Tender Notice.
(b) Any Optional Tender Notice delivered pursuant to the preceding
subsection shall automatically constitute: (1) an irrevocable offer to sell such
Bond on the Variable Rate Purchase Date at a price equal to one hundred percent
(100%) of the principal amount of such Bond plus interest accrued to the
Variable Rate Purchase Date; and (2) an irrevocable authorization and
instruction to the Bond Registrar to effect transfer of such
22
Bond to the purchaser thereof on the Variable Rate Purchase Date. No purchase of
Bonds pursuant to the provisions of this Section 2.3 shall be deemed a
redemption thereof.
(c) Any owner who delivers an Optional Tender Notice pursuant to this
Section 2.3 shall deliver such Bond to the Tender Agent, at its address filed
with the Trustee, not less than five (5) days prior to the Variable Rate
Purchase Date specified in the aforesaid Optional Tender Notice; provided,
however, that any Bond owner which is an investment company registered under the
Investment Company Act of 1940 may deliver Bonds owned by it to the Tender Agent
at its address filed with the Trustee, at or prior to 10:00 a.m. on the Variable
Rate Purchase Date. All Bonds delivered to the Tender Agent pursuant to this
Section 2.3 must be duly endorsed for transfer in blank in form satisfactory to
the Trustee.
(d) If a Bondholder who gives the Optional Tender Notice shall fail to
deliver the Bond or Bonds identified in the Optional Tender Notice to the Tender
Agent at or prior to 10:00 a.m. on the Variable Rate Purchase Date, such
Undelivered Bond shall be purchased and shall cease to accrue interest on such
Variable Rate Purchase Date and the owner thereof shall thereafter be entitled
only to payment of the purchase price therefor and not to the benefits of this
Indenture, and the Issuer, to the extent permitted by law, shall execute and the
Trustee or the Authenticating Agent shall authenticate and deliver a substitute
Bond or Bonds in lieu of the Undelivered Bond and the Bond Registrar shall
register such Bond in the name of the purchaser or purchasers thereof pursuant
to Section 2.5 hereof. The Tender Agent shall notify the Trustee and the Bond
Registrar of any Undelivered Bonds. The Trustee shall (1) notify the Remarketing
Agent of such Undelivered Bonds and (2) place a stop transfer against such
Undelivered Bonds until the Undelivered Bonds are properly delivered to the
Tender Agent. Payment of the purchase price of any such Undelivered Bonds shall
be made only upon the presentment and surrender of such Bonds to the Tender
Agent. Upon notice of such delivery, the Bond Registrar shall make any necessary
adjustment to the Bond Register.
(e) Notwithstanding anything to the contrary contained herein, the rights
of the owners to tender Bonds pursuant to this Section 2.3 shall cease
immediately and without further notice from and including the date payment of
the Bonds is accelerated following an Event of Default pursuant to Article IX
hereof.
SECTION 2.4 REGISTERED BONDS REQUIRED: BOND REGISTRAR AND BOND REGISTER.
(a) All Bonds shall be issued in fully registered form. The Bonds shall be
registered upon original issuance and upon subsequent transfer or exchange as
provided in this Indenture.
(b) The Issuer shall designate one or more persons to act as "Bond
Registrar" for the Bonds, provided that the Bond Registrar appointed for the
Bonds shall be either the Trustee or a person which would meet the requirements
for qualification as a successor
23
trustee imposed by Section 10.15 hereof. The Issuer hereby appoints First Union
National Bank as its Bond Registrar in respect of the Bonds. Any person other
than the Trustee undertaking to act as Bond Registrar shall first execute a
written agreement, in form satisfactory to the Trustee, to perform the duties of
a Bond Registrar under this Indenture, which agreement shall be filed with the
Trustee and the Tender Agent.
(c) The Bond Registrar shall act as registrar and transfer agent for the
Bonds. There shall be kept at an office of the Bond Registrar a register (herein
sometimes referred to as the "Bond Register") in which, subject to such
reasonable regulations as the Issuer, the Trustee or the Bond Registrar may
prescribe, there shall be provisions for the registration of the Bonds and for
the registration of transfers of the Bonds. The Issuer shall cause the Bond
Registrar to designate, by a written notification to the Trustee, a specific
office location (which may be changed from time to time, upon similar
notification) at which the Bond Register is kept. In the absence of a specific
designation by the Bond Registrar, the corporate trust office of the Trustee in
Richmond, Virginia, shall be deemed such office in respect of the Bonds for
which the Trustee is acting as Bond Registrar.
SECTION 2.5 TRANSFER AND EXCHANGE.
(a) Upon surrender for transfer of any Bond at the office of the Bond
Registrar, the Issuer shall execute and the Trustee or its Authenticating Agent
shall authenticate and deliver in the name of the transferee or transferees, one
or more new fully registered Bonds of authorized denomination for the aggregate
principal amount which the new owner is entitled to receive; provided that if
moneys for the purchase of such Bond have been provided pursuant to a draw under
the Credit Facility, such Bond shall not be transferable to any one other than
the Company or its assignee or pledgee. Except for transfers in connection with
the purchase of Bonds pursuant to Section 2.3 hereof and the remarketing thereof
pursuant to Article III, which shall be effected at the corporate trust office
of the Tender Agent in Richmond, Virginia, Bonds shall be surrendered for
transfer at the corporate trust office of the Trustee in Richmond, Virginia.
Also, the Issuer shall execute and the Trustee or its Authenticating Agent shall
authenticate and deliver Bonds in lieu of Undelivered Bonds.
(b) Bonds may be exchanged for other Bonds of any other authorized
denomination, of a like aggregate principal amount, upon surrender of the Bonds
to be exchanged at the principal corporate trust office of the Bond Registrar or
Trustee; provided, however, that in connection with the purchase of Bonds
tendered for purchase and the remarketing thereof pursuant to Article III
hereof, Bonds may be exchanged at the principal office of the Tender Agent, or
any office of any agent designated by the Trustee. Whenever any Bonds are so
surrendered for exchange, the Issuer shall execute, and the Trustee or its
Authenticating Agent shall authenticate and deliver, the Bonds which the
Bondholder making the exchange is entitled to receive.
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(c) All Bonds presented for transfer, exchange, redemption or payment (if
so required by the Issuer, the Bond Registrar or the Trustee) shall be
accompanied by a written instrument or instruments of transfer or authorization
for exchange, in form satisfactory to the Bond Registrar, which may include a
signature guarantee, duly executed by the owner or by his attorney duly
authorized in writing.
(d) No service charge shall be made to a Bondholder for any exchange or
transfer of Bonds, but the Issuer or the Bond Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto.
(e) Except in connection with the purchase of Bonds pursuant to Section 2.3
hereof and the remarketing thereof pursuant to Article III hereof, neither the
Issuer nor any Bond Registrar on behalf of the Issuer shall be required to
issue, transfer or exchange any Bond selected for redemption in whole or in
part.
(f) New Bonds delivered upon transfer or exchange shall be valid
obligations of the Issuer, evidencing the same debt as the Bond surrendered,
shall be secured by this Indenture and shall be entitled to all of the security
and benefits hereof to the same extent as the Bonds surrendered.
SECTION 2.6 EXECUTION.
(a) The Bonds shall be executed by the manual or facsimile signature of the
Chairman or Vice Chairman of the Issuer, the seal of the Issuer shall be
affixed, imprinted, lithographed or reproduced thereon and the same shall be
attested by the manual or facsimile signature of the Secretary or Assistant
Secretary of the Issuer.
(b) Bonds executed as above provided may be issued and shall, upon request
of the Issuer, be authenticated by the Trustee or the Authenticating Agent,
notwithstanding that any officer signing such Bonds or whose facsimile signature
appears thereon shall have ceased to hold office at the time of issuance or
authentication or shall not have held office at the date of the Bond.
SECTION 2.7 AUTHENTICATION: AUTHENTICATING AGENT.
(a) No Bond shall be valid for any purpose until the Trustee's Certificate
of Authentication thereon shall have been duly executed as provided in this
Indenture, and such authentication shall be conclusive proof that such Bond has
been duly authenticated and delivered under this Indenture and that the owner
thereof is entitled to the benefit of the trust hereby created subject to the
provisions of Section 2.3(d) and Article XIV hereof.
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(b) If the Bond Registrar is other than the Trustee, the Trustee may
appoint the Bond Registrar as an Authenticating Agent with the power to act on
the Trustee's behalf and subject to its direction in the authentication and
delivery of Bonds in connection with transfers and exchanges under Section 2.5
hereof, and the authentication and delivery of Bonds by an Authenticating Agent
pursuant to this Section shall, for all purposes of this Indenture, be deemed to
be the authentication and delivery "by the Trustee". The Trustee shall,
however, itself authenticate all Bonds upon their initial issuance. The
Authenticating Agent may authenticate Bonds in substitution for Undelivered
Bonds. The Authenticating Agent shall be entitled to reasonable compensation
from the Company for its services.
(c) Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate trust business
of any Authenticating Agent shall be the successor of the Authenticating Agent
hereunder, if such successor corporation is otherwise eligible as a Bond
Registrar under Section 2.4 hereof, without the execution or filing of any
further document on the part of the parties hereto or the Authenticating Agent
or such successor corporation.
(d) Any Authenticating Agent may at any time resign by giving written
notice of resignation to the Trustee, the Issuer, the Remarketing Agent and the
Company. The Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice of termination to such Authenticating Agent, the
Issuer and the Company. Upon receiving such a notice of resignation or upon such
a termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section, the Trustee may promptly appoint a successor
Authenticating Agent, shall give written notice of any such appointment to the
Issuer and the Company, and shall mail notice of any such appointment to all
owners of Bonds as the names and addresses of such owners appear on the Bond
Register.
SECTION 2.8 PAYMENT OF PRINCIPAL AND INTEREST; INTEREST RIGHTS
PRESERVED.
(a) The principal and redemption price of any Bond shall be payable, upon
surrender of such Bond, at the office of the Trustee or other paying agent
appointed pursuant to this Indenture. Interest on each Interest Payment Date
shall be payable by check, mailed on the Interest Payment Date to the address of
the person entitled thereto on the Regular Record Date or, if applicable, the
Special Record Date, as such address shall appear in the Bond Register. While
the Bonds bear interest at a Variable Rate, interest shall also be payable by
wire transfer to the account of a member bank of the Federal Reserve System of
any owner of Bonds in the aggregate principal amount of $1,000,000 or more at
the written request (identifying such account by number) of such owner received
by the Trustee at least ten (10) days prior to the Regular Record Date or
Special Record Date.
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(b) Interest on any Bond which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Bond is registered at the close of business on the Regular Record Date
for such interest.
(c) Any interest on any Bond which is payable, and is not punctually paid
or duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the owner of such Bonds on the
relevant Regular Record Date solely by virtue of such registered owner having
been such record owner on the Regular Record Date, and such Defaulted Interest
shall be paid, pursuant to Section 9.11 hereof, to the person in whose name the
Bond is registered at the close of business on a Special Record Date to be fixed
by the Trustee, such date to be not more than fifteen (15) nor less than ten
(10) days prior to the date of proposed payment. The Trustee shall cause notice
of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first class postage prepaid, to each Bondholder, at its
address as it appears in the Bond Register, not less than ten (10) days prior to
such Special Record Date.
(d) Subject to the foregoing provisions of this Section 2.8, each Bond
delivered under this Indenture, upon transfer of or exchange for or in lieu of
any other Bond shall carry the rights to interest accrued and unpaid, and to
accrue, as such other Bond.
All payments of principal and redemption price of and interest on the
Bonds, whether upon redemption, acceleration, maturity or otherwise, shall be
made first, pursuant to draws under the Credit Facility in accordance with its
terms on the dates when due; second, from Available Moneys on deposit with the
Trustee and not held in trust for the benefit of the owners of the Bonds
pursuant to the provisions of Article XIV hereof, and then from other collected
funds available to the Trustee hereunder for such payments.
SECTION 2.9 PERSONS DEEMED OWNERS. The Issuer, the Trustee, the Credit
Facility Trustee, the Bond Registrar and the Authenticating Agent may deem and
treat the person in whose name any Bond is registered as the absolute owner
thereof (whether or not such Bond shall be overdue and notwithstanding any
notation of ownership or other writing thereon made by anyone other than the
Issuer, the Trustee, the Credit Facility Trustee, the Bond Registrar or the
Authenticating Agent) for the purpose of receiving payment of or on account of
the principal of (and premium, if any, on), and (subject to Section 2.8 hereof)
interest on such Bond, and for all other purposes, and neither the Issuer, the
Trustee, the Credit Facility Trustee, the Bond Registrar, nor the Authenticating
Agent shall be affected by any notice to the contrary. All such payments so made
to any such registered owner, or upon his order, shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Bond.
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SECTION 2.10 MUTILATED, DESTROYED, LOST, STOLEN OR UNDELIVERED BONDS.
(a) If any Bond shall become mutilated, the Issuer shall execute, and the
Trustee or its Authenticating Agent shall thereupon authenticate and deliver, a
new Bond of like tenor and denomination in exchange and substitution for the
Bond so mutilated, but only upon surrender to the Trustee of such mutilated Bond
for cancellation, and the Issuer and the Trustee may require reasonable
indemnity therefor. If any Bond shall be reported lost, stolen or destroyed,
evidence as to the loss, theft or destruction thereof shall be submitted to the
Issuer and the Trustee; and if such evidence shall be satisfactory to both and
indemnity satisfactory to both shall be given, the Issuer shall execute, and
thereupon the Trustee or its Authenticating Agent shall authenticate and
deliver, a new Bond of like tenor and denomination. The cost of providing any
substitute Bond under the provisions of this Section shall be borne by the
Bondholder for whose benefit such substitute Bond is provided. If any such
mutilated, lost, stolen or destroyed Bond shall have matured or be about to
mature, the Issuer may, with the consent of the Trustee, pay to the owner the
principal amount of such Bond upon the maturity thereof and the compliance with
the aforesaid conditions by such owner, without the issuance of a substitute
Bond therefor.
(b) The Issuer shall execute and the Trustee or its Authenticating Agent
shall authenticate and deliver a substitute Bond in lieu of each Undelivered
Bond.
(c) Every substituted Bond issued pursuant to this Section 2.10 shall
constitute an additional contractual obligation of the Issuer, whether or not
the Bond alleged to have been destroyed, lost or stolen shall be at any time
enforceable by anyone, and shall be entitled to all of the benefits of this
Indenture equally and proportionately with any and all other Bonds duly issued
hereunder.
(d) All Bonds shall be held and owned upon the express condition that the
foregoing provisions are, to the extent permitted by law, exclusive with respect
to the replacement or payment of mutilated, destroyed, lost, stolen or
Undelivered Bonds and shall preclude any and all other rights or remedies.
SECTION 2.11 TEMPORARY BONDS. Pending preparation of definitive Bonds, or
by agreement with the purchasers of all Bonds, the Issuer may issue, and, upon
its request, the Trustee shall authenticate, in lieu of definitive Bonds one or
more temporary printed or typewritten Bonds of substantially the tenor recited
above in any denomination authorized under Section 2.2 hereof. Upon request of
the Issuer, the Trustee shall authenticate definitive Bonds in exchange for and
upon surrender of an equal principal amount of temporary Bonds. Until so
exchanged, temporary Bonds shall have the same rights, remedies and security
hereunder as definitive Bonds.
SECTION 2.12 CANCELLATION OF SURRENDERED BONDS. Bonds surrendered for
payment, redemption, transfer or exchange and Bonds surrendered to the Trustee
by the
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Issuer or by the Company for cancellation shall be canceled by the Trustee and a
certificate evidencing such cancellation shall be furnished by the Trustee to
the Issuer and the Company. Bonds purchased pursuant to Section 2.3 hereof shall
not be surrendered Bonds and, unless otherwise specifically provided in this
Indenture, shall be Outstanding Bonds.
SECTION 2.13 CONDITIONS OF ISSUANCE.
(a) Prior to or simultaneously with the authentication and delivery of the
Series 1997 Bonds by the Trustee, the Trustee shall have received notice that
the conditions for the issuance of the Letter of Credit as set forth in Article
VII of the Reimbursement Agreement have been satisfied and there shall be filed
with the Trustee such documents, certificates and opinions as Trustee (or in the
case of the Letter of Credit, the Credit Facility Trustee) may require,
including, the following:
(1) A copy, certified by the Secretary of the Issuer, of the
resolution or resolutions of the Issuer authorizing the issuance of the
Bonds, awarding the Bonds and directing the authentication and delivery of
the Bonds to or upon the order of the purchaser(s) therein named upon
payment of the purchase price therein set forth.
(2) Executed counterparts of this Indenture, the Lease Agreement, the
Letter of Credit and Reimbursement Agreement, the Tender Agency Agreement
and the Remarketing Agreement.
(3) An opinion of Counsel for the Issuer, to the effect that the
execution and delivery of the Lease Agreement and this Indenture have been
duly authorized by the Issuer, that the Lease Agreement and this Indenture
are in substantially the forms so authorized and have been duly executed by
the Issuer and that, assuming proper authorization and execution of this
Indenture by the Trustee and the Credit Facility Trustee and of the Lease
Agreement by the Company, the Lease Agreement and this Indenture are the
valid and binding agreements of the Issuer enforceable in accordance with
their respective terms, subject to the qualification that enforceability
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting enforcement of creditors' rights
generally and by the exercise of judicial discretion in accordance with
general equitable principles.
(4) An opinion of Counsel to the Company to the effect that the
execution and delivery of the Lease Agreement, the Reimbursement Agreement,
the Remarketing Agreement and the Tender Agency Agreement have been duly
authorized by the Company, that the Lease Agreement, the Reimbursement
Agreement, the Remarketing Agreement and the Tender Agency Agreement have
been duly executed and delivered by the Company, and that the Lease
Agreement,
29
the Reimbursement Agreement, the Remarketing Agreement and the Tender
Agency Agreement, assuming due authorization, execution and delivery
thereof by the other parties thereto, if any, are valid, binding and
enforceable against the Company in accordance with their terms, subject to
the qualification that enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and by the exercise of judicial
discretion in accordance with general equitable principles.
(5) An opinion of Bond Counsel to the Issuer, to the effect that the
issuance of the Bonds has been duly and validly authorized by the Issuer,
that the Bonds are valid and binding agreements of the Issuer enforceable
in accordance with their terms, subject to the qualification that
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and by the exercise of judicial discretion in
accordance with general equitable principles.
(6) A written request and authorization of the Issuer addressed to the
Trustee directing the Trustee to authenticate and deliver the Series 1997
Bonds.
(7) Such other documents as the Trustee may reasonably require.
(b) When the documents mentioned in paragraphs (1) through (7) of
subsection (a) of this Section shall have been filed with the Trustee
and/or the Credit Facility Trustee and when the Bonds shall have been
executed as required by this Indenture, the Trustee shall authenticate the
Bonds and deliver them to or upon the order of the purchaser(s) named in
the resolution mentioned in paragraph (1) thereof, but only upon payment to
the Trustee for the account of the Issuer of the purchase price of the
Bonds. The Trustee and the Credit Facility Trustee shall be entitled to
rely conclusively upon such resolution or resolutions, or document approved
thereby, as to the name of the purchasers and the amount of such purchase
price.
(c) Simultaneously with the delivery of the Bonds, the Trustee shall apply
the proceeds of the Bonds in accordance with Article IV of this Indenture.
SECTION 2.14 BOOK ENTRY. The Issuer shall enter into an agreement in
substantially the form attached hereto as Exhibit B (the "Book Entry Agreement")
with the Paying Agent and DTC, or any successor thereto, or other securities
depository, and make such other provision and perform such further acts as are
necessary or appropriate to provide for the distribution of the Bonds in book-
entry form.
Neither the Issuer, the Company, the Trustee, the Credit Facility Trustee,
nor the Paying Agent will have any responsibility or obligations to the DTC
Participants, DTC
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Indirect Participants (as each is defined in the Book Entry Agreement contained
as Exhibit B hereto) or the beneficial owners with respect to (i) the accuracy
of any records maintained by DTC or any DTC Participant or DTC Indirect
Participant; (ii) the payment by DTC or any DTC Participant or DTC Indirect
Participant of any amount due to any beneficial owner in respect of the
principal amount or redemption price of or interest on the Bonds; (iii) the
delivery by DTC or any DTC Participant or DTC Indirect Participant of any notice
to any beneficial owner that is required or permitted to be given to bondholders
under the terms of the Indenture; (iv) the selection of the beneficial owners to
receive payment in the event of any partial redemption of the Bonds; or (v) any
consent given or other action taken by DTC as registered owner.
The Trustee shall issue Bonds directly to beneficial owners of Bonds other
than DTC, or its nominee, in the event that:
(1) DTC determines not to continue to act as securities depository for
the Bonds; or
(2) The Trustee has advised DTC at the request of the Company of the
Company's determination that DTC is incapable of discharging its duties; or
(3) The Issuer determines that it is in the best interest of the
Company not to continue the book-entry system (and the Company provides
written approval of such determination) or that the interests of the
beneficial owners of the Bonds might be adversely affected if the book-
entry system is continued.
Upon occurrence of the events described in (1) or (2) above, the Company
shall attempt to locate another qualified securities depository.
In the event the Issuer makes the determination noted in (3) above, or if
the Company fails to locate another qualified securities depository to replace
DTC upon occurrence of the events described in (1) or (2) above, the Trustee
shall mail a notice to DTC for distribution to the beneficial owners of the
Bonds stating that DTC will no longer serve as securities depository, whether a
new securities depository will or can be appointed, the procedures for obtaining
such Bonds and the provisions of this Indenture which govern the Bonds
including, but not limited to, provisions regarding authorized denominations,
transfer and exchange, principal and interest payment and other related matters.
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ARTICLE III
PURCHASE AND REMARKETING OF TENDERED BONDS
SECTION 3.1 REMARKETING OF TENDERED BONDS.
(a) Not later than the close of business on the date the Tender Agent
receives an Optional Tender Notice, the Tender Agent shall notify the
Remarketing Agent, the Trustee and the Company by telephone, telex or
telecopier, confirmed in writing if requested, specifying the Variable Rate
Purchase Date and the aggregate principal amount of Bonds to be purchased on
such Variable Rate Purchase Date.
(b) Not later than the close of business on the ninth (9th) day prior to
the Conversion Date, the Trustee shall notify the Placement Agent and the
Company by telephone, telex or telecopier, confirmed in writing if requested,
specifying the aggregate principal amount of Bonds tendered or deemed tendered
for mandatory purchase on the Conversion Date.
(c) Except as provided in subsection (d) below and Section 3.5 hereof, upon
receipt by the Remarketing Agent of notice from the Tender Agent pursuant to
Section 3.1(a) hereof and by the Placement Agent of notice from the Trustee
pursuant to Section 3.1(b) hereof, the Remarketing Agent or the Placement Agent,
as the case may be, shall use its best efforts to arrange for the sale, at par
plus accrued interest, if any, of such Bonds tendered or deemed tendered for
settlement on the Variable Rate Purchase Date or the Conversion Date,
respectively. At or before 3:00 p.m. on the Business Day immediately preceding
the Variable Rate Purchase Date or the Conversion Date, the Remarketing Agent or
the Placement Agent, respectively, shall give notice by telephone, telecopier or
telex, promptly confirmed in writing if requested, to the Trustee and the Tender
Agent specifying the principal amount of such Bonds, if any, to be placed by it
and to the Trustee the names, addresses and social security numbers or other tax
identification numbers of the proposed purchasers thereof.
(d) Notwithstanding the provisions of subsection (c) above, any Bond
purchased pursuant to the terms of this Indenture from the date notice of
redemption or conversion is given shall not be remarketed except to a buyer who
agrees at the time of such purchase to tender such Bond for redemption or
purchase on the redemption or purchase date.
(e) During the Variable Rate Period, the Remarketing Agent shall continue
to use its best efforts to arrange for the sale, at the best price available,
but not less than the principal amount thereof plus accrued interest, of any
Bonds purchased with moneys advanced under the Credit Facility pursuant to
Section 3.2(a)(2) hereof, provided that Bonds purchased with moneys advanced
under the Credit Facility shall not be released
32
for delivery to the purchasers unless the Credit Facility has been reinstated by
the amount drawn thereunder to pay the purchase price for such Bonds and the
Credit Facility Trustee has received the executed reinstatement certificate
required to be delivered by such Credit Facility Issuer. The Credit Facility
Trustee agrees to advise the Trustee and the Tender Agent immediately upon
receipt of such reinstatement certificate.
SECTION 3.2 PURCHASE OF BONDS DELIVERED TO THE TENDER AGENT.
(a) There is hereby established with the Tender Agent, as agent for the
Trustee, a "Development Authority of McDuffie County Taxable Industrial
Development Revenue Bonds (Advance Stores Company, Incorporated Project), Series
1997 Bond Purchase Fund" out of which the purchase price for Bonds tendered for
purchase on a Variable Rate Purchase Date, the Conversion Date or on such other
date on which Bonds are remarketed shall be paid. There are hereby established
in the Bond Purchase Fund two separate and segregated accounts, to be designated
the "Remarketing Account" and the "Bank Account". Funds received from purchasers
of Tendered Bonds (other than the Company or the Credit Facility Issuer) shall
be deposited by the Remarketing Agent or the Placement Agent, as the case may
be, in the Remarketing Account. At or prior to 10:00 a.m. on each Variable Rate
Purchase Date or the Conversion Date, the Remarketing Agent or the Placement
Agent, as the case may be, shall deliver to the Tender Agent for deposit in the
Remarketing Account of the Bond Purchase Fund immediately available funds,
payable to the order of the Tender Agent, in an amount equal to the purchase
price of the Bonds to be delivered to the Tender Agent that have been remarketed
by the Remarketing Agent or placed by the Placement Agent as specified in the
notice delivered pursuant to Section 3.1(c) hereof. Funds, if any, drawn by the
Credit Facility Trustee under the Credit Facility pursuant to Section 3.2(b)
below in an amount equal to the aggregate purchase price of Bonds tendered for
purchase less the amount available in the Remarketing Account shall, at the
direction of the Credit Facility Trustee, be delivered by the Credit Facility
Issuer to the Tender Agent for deposit in the Bank Account of the Bond Purchase
Fund. On each Variable Rate Purchase Date and on the Conversion Date, the
Tender Agent in coordination with the Trustee shall effect the purchase, but
only from the funds listed below, of such Bonds from the owners thereof at a
purchase price equal to the principal amount thereof, plus interest accrued, if
any, to the date of purchase and such payment shall be made in immediately
available funds. Funds from the payment of such purchase price shall be derived
from the following sources in the order of priority indicated:
(1) proceeds of the remarketing of such Bonds pursuant to Section
3.1(c) hereof which constitute Available Moneys;
(2) moneys furnished by the Trustee or the Credit Facility Trustee to
the Tender Agent representing proceeds of a drawing by the Credit Facility
Trustee under the Credit Facility; and
33
(3) any other moneys available for such purposes.
(b) The Tender Agent shall advise the Trustee and the Credit Facility
Trustee by telex or telecopier and shall advise the Credit Facility Issuer and
the Company by telephone, in each case, no later than 10:30 a.m. on each
Variable Rate Purchase Date or the Conversion Date, as the case may be, of the
amount of any drawing under the Credit Facility necessary to make full and
timely payments hereunder. The Credit Facility Trustee shall promptly (and in
no event later than 11:00 a. m.) take all action necessary to draw on the Credit
Facility the specified amount. All amounts received by the Credit Facility
Trustee from a drawing under the Credit Facility shall be transferred to the
Tender Agent and held by the Tender Agent in the Bank Account pending
application of such moneys as provided in this Article III. The Trustee and the
Credit Facility Trustee shall provide to the Tender Agent the funds referred to
in paragraph (2) of Section 3.2(a) prior to the time the Tender Agent is
required to apply such funds to effect the purchase of Bonds and shall notify
the Tender Agent promptly after receipt of notice from the Credit Facility
Issuer reinstating the Credit Facility. The Remarketing Agent shall deliver
funds from the sale of Bonds held by the Credit Facility Issuer as pledgee of
the Company pursuant to Section 3.1(e) hereof to the Tender Agent for deposit in
the Remarketing Account, which funds shall be promptly paid by the Tender Agent
on behalf of the Company to the Credit Facility Issuer as reimbursement under
the Reimbursement Agreement. The Tender Agent shall notify the Trustee and the
Credit Facility Trustee of any such reimbursement, and the Credit Facility
Trustee shall promptly deliver to the Credit Facility Issuer any reinstatement
certificate and the form of transfer certificate required by the Credit
Facility.
SECTION 3.3 DELIVERY OF PURCHASED BONDS.
(a) Bonds purchased shall be delivered as follows:
(1) Bonds placed by the Remarketing Agent or the Placement Agent
pursuant to Section 3.1 hereof shall be delivered by the Tender Agent to
the Remarketing Agent or the Placement Agent, as the case may be, on behalf
of the purchasers thereof.
(2) Bonds purchased with moneys described in Section 3.2(a)(2) shall
be delivered to the Credit Facility Issuer as pledgee of the Company
pursuant to the terms of the Reimbursement Agreement and the Pledge
Agreement or the Credit Facility Issuer designee.
(3) Bonds purchased with excess moneys transferred from the Project
Fund to the Bond Fund pursuant to Section 4.5 hereof or with draws under
the Credit Facility for which the Credit Facility Issuer has been
reimbursed with such excess moneys from the Project Fund shall be canceled
by the Trustee.
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(b) Except as otherwise set forth herein, Bonds delivered as provided in
this Section 3.3 shall be registered by the Bond Registrar in the manner
directed by the recipient thereof.
(c) In the event that any Bond to be delivered to the Tender Agent is not
delivered by the owner thereof properly endorsed for transfer on or prior to the
Variable Rate Purchase Date or the Conversion Date, as the case may be, and
there has been irrevocably deposited with the Tender Agent an amount sufficient
to pay the purchase price thereof, which amount may be held by the Tender Agent
in a non-interest bearing account, the Issuer shall execute and the Trustee or
its Authenticating Agent shall authenticate and deliver a substitute Bond in
lieu of the Undelivered Bond and the Bond Registrar shall register such Bond in
the name of the purchaser thereof. Thereafter, interest on such Undelivered
Bond shall cease to accrue, and the holder thereof shall be entitled only to
payment of the purchase price therefor and not to the benefits of the Indenture.
(d) Notwithstanding the foregoing, Bonds purchased with funds identified in
Section 3.2(a)(2) hereof shall be held by the Credit Facility Issuer or the
Tender Agent and shall not be delivered to subsequent purchasers thereof or any
other person until (i) the Credit Facility Trustee has received notice in
writing from the Credit Facility Issuer that the Credit Facility has been
reinstated to the extent of the purchase price of such Bonds and interest
thereon and (ii) the Credit Facility Trustee has notified the Trustee and the
Tender Agent of such reinstatement.
SECTION 3.4 DELIVERY OF THE PROCEEDS OF THE SALE OF REMARKETED BONDS.
The proceeds of the placement of the Bonds by the Remarketing Agent of any Bonds
delivered to the Tender Agent or by the Placement Agent of Bonds on the
Conversion Date shall be paid first, to the tendering Bondholders of such Bonds;
second, to the Credit Facility Issuer, to the extent of any amounts drawn under
the Credit Facility in connection with the payment of the purchase price for
such Bonds and not reimbursed to the Credit Facility Issuer as of the time of
sale of such Bonds; and third, to the Company.
SECTION 3.5 NO REMARKETING AFTER CERTAIN EVENTS. Anything in this
Indenture to the contrary notwithstanding, there shall be no remarketing of
Bonds pursuant to this Article III after the Conversion Date or the principal of
the Bonds shall have been accelerated pursuant to Section 9.2 hereof.
35
ARTICLE IV
PROJECT FUND
SECTION 4.1 CREATION OF AND DEPOSITS TO THE PROJECT FUND.
(a) A special fund is hereby created and designated "Development Authority
of McDuffie County Taxable Industrial Development Revenue Bonds (Advance Stores
Company, Incorporated Project), Series 1997 Project Fund" (the "Project Fund")
to the credit of which such deposits shall be made as are required by the
provisions of this Indenture. Any moneys received by the Issuer or by the
Trustee as trustee under this Indenture from any source for payment of the Cost
of the Project, including all proceeds of the sale of the Bonds and insurance
and condemnation proceeds as provided in the Lease Agreement, shall be deposited
to the credit of the Project Fund.
(b) The moneys in the Project Fund shall be held by the Trustee in trust
and, subject to the provisions of Section 4.5 and 9.2 of this Indenture, shall
be applied to the payment of the Cost of the Project and, pending such
application, shall be and are hereby made subject to a lien and charge in favor
of the owners of the Bonds issued and outstanding under this Indenture and for
the further security of such owners until paid out or transferred as herein
provided.
SECTION 4.2 PAYMENTS FROM THE PROJECT FUND.
(a) Payment of the Cost of the Project shall be made from the Project Fund.
All payments from the Project Fund shall be subject to the provisions and
restrictions set forth in this Article, and the Issuer covenants that it will
not cause to be paid from the Project Fund any sums except in accordance with
such provisions and restrictions. Such payments shall be made by the Trustee
upon receipt of an appropriately completed requisition and certificate, signed
by the Company Representative (substantially in the form of the Requisition and
Certificate attached hereto as Exhibit "E" and hereby deemed incorporated
herein) stating to whom the payment described is to be made and the purpose, in
reasonable detail, for which the obligation to make such payment was incurred
and including, if such requisition and certificate comprises an item for payment
for labor or to contractors, buildings or materialmen, a paragraph in the form
of the last paragraph of the attached form of requisition and certificate.
(b) The Trustee is authorized and directed to apply the moneys in the
Project Fund in accordance herewith but only upon receipt of the requisitions
required by this Section 4.2, duly executed by the person and in the manner
provided for herein.
(c) Interest earnings on the funds deposited in the Project Fund shall be
transferred to the Repayments Account of the Bond Fund.
36
SECTION 4.3 TRUSTEE MAY RELY ON REQUISITIONS. All requisitions in the
form provided by Section 4.2 hereof and all other statements, orders,
certifications and approvals received by the Trustee, as required by this
Article as conditions of payment from the Project Fund, may be conclusively
relied upon by the Trustee, and shall be retained by the Trustee as provided in
Section 4.6, subject at all reasonable times to examination by the Company, the
Bank, the Issuer, any Bondholder and the agents and representatives thereof.
SECTION 4.4 COMPLETION DATE. The establishment of the Completion Date
and the disposition of moneys then held for the credit of the Project Fund shall
be in accordance with Sections 4.3 and 4.4 of the Lease Agreement, respectively.
SECTION 4.5 TRANSFERS TO THE BOND FUND. In the event that the Company
should elect or be required to prepay the rental payments pursuant to Section
10.1, Section 10.2, or Section 10.3 of the Lease Agreement or that the Trustee
shall declare the Bonds to be due and payable pursuant to Section 9.2 hereof,
the Trustee shall, without further authorization, forthwith transfer any balance
remaining in the Project Fund to the Bond Fund.
SECTION 4.6 TRUSTEE'S RECORDS. The Trustee shall maintain adequate
records for a period of at least three (3) years after the Completion Date
pertaining to all disbursements from the Project Fund. After the Completion
Date, the Trustee shall deliver to the Company, and the Issuer upon request a
final accounting.
SECTION 4.7 DISPOSITION OF BALANCE IN PROJECT FUND. When the Project
shall have been completed and the Trustee shall have received a certificate of
the Company Representative stating the Completion Date and what items of the
Cost of the Project, if any, have not been paid, and for the payment of which
money should be reserved, any funds remaining after the Trustee has reserved
funds for unpaid items shall be deposited in the Bond Fund and applied by the
Trustee at the written direction of the Company as soon thereafter as
practicable, (a) to the purchase of Bonds at such price and upon such terms and
conditions as the Company may direct or to the reimbursement of the Credit
Facility Issuer for draws under the Credit Facility to purchase Bonds, or (b) to
the redemption of the Bonds, on the first redemption date occurring after the
Completion Date at the applicable optional or mandatory redemption price or to
reimburse the Credit Facility Issuer for draws under the Credit Facility to
redeem bonds, such amounts may be transferred to the Bond Fund for payment of
maturing principal of or interest on any of the Bonds or to reimburse the Credit
Facility Issuer for draws under the Credit Facility for such payment.
37
ARTICLE V
REVENUES AND APPLICATION THEREOF
SECTION 5.1 REVENUES TO BE PAID OVER TO TRUSTEE. The Issuer has caused
the Revenues for the Lease Agreement payments to be paid directly to the
Trustee. If, notwithstanding these arrangements, the Issuer receives any
payments under the Lease Agreement or on account of a Credit Facility with
respect to the principal or redemption price of or interest on the Bonds, the
Issuer shall immediately pay over the same to the Trustee to be held as
Revenues.
SECTION 5.2 THE BOND FUND.
(a) There is hereby established with the Trustee a special fund to be
designated "Development Authority of McDuffie County Taxable Industrial
Development Revenue Bonds (Advance Stores Company, Incorporated Project), Series
1997 Bond Fund" (the "Bond Fund"), the moneys in which, in accordance with
Section 5.2(c) hereof, the Trustee shall apply to (1) the principal or
redemption price of Bonds as they mature or become due, upon surrender thereof,
and (2) the interest on Bonds as it becomes payable. There are hereby
established with the Trustee within the Bond Fund two separate and segregated
accounts, to be designated the "Repayments Account" and the "Credit Facility
Account".
(b) There shall be deposited into the various accounts of the Bond Fund
from time to time the following:
(1) into the Repayments Account, moneys received by the Trustee under
and pursuant to the provisions of this Indenture or any of the provisions
of the Lease Agreement, when accompanied by written directions from the
person depositing such moneys that such moneys are to be paid into such
account of the Bond Fund, which shall include the interest earnings on the
Project Fund deposited as required by Section 4.2(c) hereof. All amounts
deposited in the Repayments Account shall be segregated and held, with the
earnings thereon, separate and apart from other funds in the Bond Fund
until such amounts become Available Moneys. At such time as funds deposited
in the Repayments Account become Available Moneys, they may be commingled
with other Available Moneys in the Repayments Account; and
(2) into the Credit Facility Account, all moneys drawn by the Credit
Facility Trustee under the Credit Facility to pay principal or redemption
price (excluding any premium) of the Bonds and interest on the Bonds.
(c) Except as provided in, Section 9.11 hereof, moneys in the Bond Fund
shall be used solely for the payment of the principal or redemption price of the
Bonds and
38
interest on the Bonds from the following source or sources but only in the
following order of priority;
(1) moneys held in the Credit Facility Account, provided that in no
event shall moneys held in the Credit Facility Account be used to pay any
amounts due on Bonds which are held by or for the Company, including
without limitation, Bonds pledged to the Credit Facility Issuer, or to pay
any portion of the redemption premium required pursuant to Section 7.1
(a)(2) hereof; and
(2) moneys held in the Repayments Account to the extent such amounts
qualify as Available Moneys (except with respect to moneys paid on Bonds
that are held by or for the Company, including without limitation, Bonds
pledged to the Credit Facility Issuer, which moneys need not qualify as
Available Moneys).
(d) Not later than 10:00 A.M. on the third (3rd) Business Day preceding the
date on which principal or redemption price of or interest on the Bonds is due
and payable (the "Payment Date"), the Trustee shall have notified the Company
and the Credit Facility Issuer and the Credit Facility Trustee of the amounts of
principal and interest due on the Bonds on the Payment Date. Not later than
11:00 A.M. on each Payment Date, the Credit Facility Trustee shall present a
draft or drafts under the Credit Facility in the amounts due and payable on the
Bonds. Such funds shall be wired by the Credit Facility Issuer to the Credit
Facility Trustee and immediately transferred by the Credit Facility Trustee to
the Trustee to be credited to the Credit Facility Account and payments due under
the Bonds shall be made by the Trustee in accordance with Section 2.8 and
Section 5.2(c) hereof. Following such payment to the Bondholders, the Trustee
shall, on behalf of the Company, promptly pay moneys on deposit in the
Repayments Account in an amount equal to the amounts of such drawing or drawings
to the Bank as reimbursement to the Credit Facility Issuer under the terms of
the Reimbursement Agreement. If no amounts are owed by the Company to the Credit
Facility Issuer under the Reimbursement Agreement, any amounts remaining in the
Repayments Account on the Business Day immediately following a Payment Date
shall be paid to the Company upon request with the consent of the Credit
Facility Issuer.
(e) Except as provided in the following sentence, the Bond Fund shall be
depleted at least once each year, except for a reasonable carryover amount (not
to exceed the greater of one year's earnings on the Bond Fund or one-twelfth
(1/12th) of annual debt service). Any money deposited in the Bond Fund shall be
spent within a thirteen (13) month period beginning on the date of deposit, and
any amount received from investment of money held in the Bond Fund shall be
spent within a one (1) year period beginning on the date of receipt. Any amounts
remaining in the Bond Fund after payment in full of the principal or redemption
price of and interest on the Bonds (or provisions for payment thereof) shall be
paid to the Company at the written request of the Company therefor or as
otherwise required by law; provided, that if any payments have been received by
the Credit
39
Facility Trustee from the Credit Facility in connection with such payment of the
Bonds, any remaining amounts shall be paid to the Credit Facility Issuer to the
extent of such payments.
SECTION 5.3 REVENUES TO BE HELD FOR ALL BONDHOLDERS; CERTAIN EXCEPTIONS.
Revenues shall, until applied as provided in this Indenture, be held by the
Trustee in trust for the benefit of the owners of all Outstanding Bonds, except
that any portion of the Revenues representing principal or redemption price of
any Bonds, and interest on any Bonds previously matured or called for redemption
in accordance with Article VII of this Indenture, shall be held for the benefit
of the owners of such Bonds only.
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ARTICLE VI
DEPOSITORIES OF MONEYS; SECURITY FOR
DEPOSITS AND INVESTMENT OF FUNDS
SECTION 6.1 SECURITY FOR DEPOSITS. All moneys deposited with the
Trustee under the provisions of this Indenture or the Lease Agreement shall be
held in trust and applied only in accordance with the provisions of this
Indenture and the Lease Agreement and shall not be subject to lien (other than
the lien created hereby) or attachment by any creditor of the Trustee, the
Issuer, the Credit Facility Trustee or the Company.
SECTION 6.2 INVESTMENT OF MONEYS.
(a) At the request and the direction of the Company Representative
(confirmed in writing), moneys held for the credit of the Project Fund and the
Bond Fund (including any amount therein) shall be invested and reinvested by the
Trustee in Investment Obligations which shall mature not later than the
respective dates when the moneys held for the credit of said funds will be
required for the purposes intended, provided that moneys held in the Credit
Facility Account of the Bond Fund shall be invested and reinvested by the
Trustee only in Governmental Obligations which shall mature not later than the
date on which such moneys will be required to be paid; provided further that
such investment shall only be made at the direction of the Company
Representative. The Trustee shall be entitled to rely on instruction from the
Company Representative.
(b) Obligations so purchased as an investment of moneys in any such fund or
account shall be deemed at all times to be a part of such fund or account, and
the interest accruing thereon and any profit realized from such investment shall
be credited to such fund or account (except as provided in Section 4.2(c)), and
any loss resulting from such investment shall be charged to such fund or
account. The Trustee shall sell at market price or present for redemption any
obligation so purchased whenever it shall be necessary so to do in order to
provide cash to meet any payment or transfer from any such fund or account.
Neither the Trustee nor the Issuer shall be liable or responsible for loss
resulting from any such investment or the sale of any such investment made
pursuant to the terms of this Section.
(c) For the purpose of the Trustee's determination of the amount on deposit
to the credit of any such fund or account, obligations in which moneys in such
fund or account have been invested shall be valued at the lower of cost or
market.
(d) The Trustee may make any and all investments permitted by this Section
through its own bond or investment department, unless otherwise directed in
writing by the Company Representative.
41
SECTION 6.3 THE CREDIT FACILITY.
(a) Initial Letter of Credit.
------------------------
(1) The Letter of Credit shall be a direct pay letter of credit and
shall provide for direct payments to or upon the order of the Credit
Facility Trustee as hereinafter set forth and shall be the irrevocable
obligation of the Bank to pay to or upon the order of the Credit Facility
Trustee, upon request and in accordance with the terms thereof, an amount
of up to $10,201,370 of which (A) $10,000,000 shall support the payment of
principal of the Bonds when due and that portion of the purchase price
corresponding to principal of Tendered Bonds not remarketed on any Variable
Rate Purchase Date or sold on the Conversion Date, and (B) $201,370 shall
support the payment of up to forty-nine (49) days' interest at an assumed
rate of fifteen percent (15%) per annum (which is the maximum rate of
interest borne by the Bonds) on the Bonds when due and that portion of the
purchase price corresponding to interest on Tendered Bonds not remarketed
on any Variable Rate Purchase Date or sold on the Conversion Date.
(2) The Letter of Credit shall terminate automatically on the earliest
of (A) the date on which a drawing under the Letter of Credit has been
honored upon the maturity or acceleration of the Bonds or redemption of all
the Bonds, (B) the day on which the Credit Facility Issuer receives the
notice of the conversion following the Conversion Date, (C) the date on
which the Bank receives notice from the Credit Facility Trustee that an
Alternate Credit Facility is substituted for the Letter of Credit and is in
effect, (D) the date on which the Bank receives notice from the Credit
Facility Trustee that there are no longer any Bonds Outstanding and (E) the
"Expiration Date" stated in the Letter of Credit as it may be extended
pursuant to the terms thereof.
(3) The Bank's obligation under the Letter of Credit may be reduced to
the extent of any drawing thereunder, subject to reinstatement as provided
therein. The Letter of Credit shall provide that, with respect to a
drawing by the Credit Facility Trustee solely to pay interest on the Bonds
on any Interest Payment Date, if the Credit Facility Trustee shall not have
received from the Bank within ten (10) days from the date of such drawing a
notice by telecopier, by telex or in writing that the Bank has not been
reimbursed, the Credit Facility Trustee's right to draw under the Letter of
Credit with respect to the payment of interest shall be reinstated on or
before the eleventh (11th) calendar day following such drawing in an
amount equal to such drawing. With respect to any other drawing by the
Credit Facility Trustee, the amount available under the Letter of Credit
for payment of the purchase price of the Bonds and the principal and
interest on the Bonds shall be reinstated in an amount equal to any such
drawing but only to the extent that the Bank is reimbursed in accordance
with the terms of the Reimbursement Agreement for the
42
amounts so drawn and the Bank delivers a notice to the Credit Facility
Trustee reinstating the Letter of Credit in such amount.
(4) The Letter of Credit shall provide that if, in accordance with the
terms of the Indenture, the Bonds shall become or be declared immediately
due and payable pursuant to any provision of the Indenture, the Credit
Facility Trustee shall be entitled to draw on the Letter of Credit to the
extent that the amounts are available thereunder to pay the aggregate
principal amount of the Bonds then Outstanding plus an amount of interest
not to exceed forty-nine (49) days.
(5) Upon the termination of the Letter of Credit, the Credit Facility
Trustee shall return the Letter of Credit to the Bank, marked "CANCELED" on
its face.
(b) Expiration. Unless an Alternate Credit Facility has been provided in
----------
accordance with Section 6.3(c) hereof at least thirty (30) days before the
Interest Payment Date immediately preceding the fifteenth (15th) day prior to
the expiration date of a Credit Facility or unless the interest rate payable on
the Bonds has been converted from the Variable Rate to the Fixed Rate pursuant
to Section 2.2 hereof, the Credit Facility Trustee shall call the Bonds for
redemption in accordance with the Section 7.1 (c)(2) hereof. If at any time
there shall cease to be any Bonds Outstanding hereunder, the Credit Facility
Trustee shall promptly surrender the then current Credit Facility to the Credit
Facility Issuer for cancellation. The Credit Facility Trustee shall comply with
the procedures set forth in the Credit Facility relating to the termination
thereof.
(c) Alternate Credit Facilities. While the Bonds bear interest at the
---------------------------
Variable Rate, the Company may, at its option, provide for the delivery to the
Credit Facility Trustee of an Alternate Credit Facility. The Alternate Credit
Facility shall have terms in all respects material to the owners of the Bonds
the same as the Credit Facility being replaced and shall be in form acceptable
to the Credit Facility Trustee and the Tender Agent. On or prior to the date of
delivery of an Alternate Credit Facility to the Credit Facility Trustee, the
Company shall furnish to the Credit Facility Trustee and the Trustee:
(1) an opinion of Counsel stating that the delivery of such Alternate
Credit Facility to the Credit Facility Trustee is authorized under this
Indenture and complies with the terms hereof and that such Alternate Credit
Facility is enforceable against the Credit Facility Issuer thereof in
accordance with its terms, and
(2) if the Bonds are rated by Moody's or S&P, written evidence from
Moody's, if the Bonds are rated by Moody's, and from S&P, if the Bonds are
rated by S&P, in each case to the effect that such rating agency has
reviewed the proposed Alternate Credit Facility and that the substitution
of the proposed Alternate Credit Facility for the then current Credit
Facility will not, by itself, result in:
43
(A) a permanent withdrawal of its rating of the Bonds, or
(B) a reduction of the then current rating of the Bonds,
or if the Bonds are not rated by Moody's or S&P, written evidence (or such
other evidence satisfactory to the Credit Facility Trustee in its sole
discretion) that the obligations of the bank or institution issuing the
proposed Alternate Credit Facility substantially equivalent in term to the
remaining term of the Bonds are rated by Moody's or S&P in the same
category as the obligations of substantially equivalent term of the bank or
institution which issued the Credit Facility being replaced.
The Credit Facility Trustee shall then accept such Alternate Credit Facility and
surrender the previously held Credit Facility to the previous Credit Facility
Issuer for cancellation promptly on or before the fifteenth (15th) day after the
Alternate Credit Facility becomes effective, but not later than the fifteenth
(15th) day following the last Interest Payment Date covered by the Credit
Facility to be canceled.
(d) Notices of Substitution or Replacement of Credit Facility.
---------------------------------------------------------
(1) The Trustee shall, at least twenty (20) days prior to the proposed
replacement of a Credit Facility with an Alternate Credit Facility, give
notice thereof by mail to the owners of the Bonds, which notice shall
include the identity of the issuer thereof and the rating, if any, to be
assigned to the Bonds by Moody's or S&P following the effective date of
such Alternate Credit Facility or, if the Bonds are not then rated by
Moody's or S&P, then the rating assigned by Moody's or S&P to the
obligations of the issuer of such Alternate Credit Facility substantially
equivalent in term to the remaining term of the Bonds.
(2) The Credit Facility Trustee shall promptly give notice of any
replacement of the Credit Facility to the Issuer, the Tender Agent and the
Remarketing Agent.
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ARTICLE VII
REDEMPTION OR PURCHASE OF THE BONDS
SECTION 7.1 REDEMPTION OR PURCHASE DATES AND PRICES. The Bonds shall be
subject to redemption, and, in certain instances, to purchase, prior to maturity
in the amounts, at the times and in the manner provided in this Article VII.
Payments of the redemption price or the purchase price of any Bond shall be made
only upon the surrender to the Trustee or its agent, as directed, of any Bond so
redeemed or purchased.
(a) OPTIONAL REDEMPTION.
(1) Optional Redemption During Variable Rate Period. While the Bonds
bear interest at the Variable Rate, the Bonds shall be subject to
redemption, upon the written direction of the Issuer, given at the request
of the Company, with the consent of the Credit Facility Issuer, on any
Interest Payment Date and on the Conversion Date in whole or in part, at a
redemption price of one hundred percent (100%) of the principal amount
thereof, without premium, plus interest accrued to the redemption date.
(2) Optional Redemption With Premium During Fixed Rate Period. While
the Bonds bear interest at the Fixed Rate, the Bonds shall be subject to
redemption upon the written direction of the Issuer, given at the request
of the Company, in whole on any date, or in part on any Interest Payment
Date, occurring on or after the dates set forth below, at the redemption
prices (expressed as percentages of principal amount to be redeemed) set
forth below plus interest accrued to the redemption date as follows:
======================================================================
Commencement of
Redemption Period Redemption Price
- ----------------------------------------------------------------------
The Business Day four (4) years 103% declining by 1/2% on each
from the Conversion Date succeeding anniversary date of
the first Business day of the
redemption period until reaching
100% and thereafter at 100%
======================================================================
(b) EXTRAORDINARY OPTIONAL REDEMPTION DUE TO CASUALTY OR EMINENT DOMAIN.
45
(1) The Bonds may be redeemed as a whole or in part by the Issuer at
any time at the written direction of the Company, at a redemption price
equal to one hundred percent (100%) of the principal amount thereof plus
interest accrued thereon to the redemption date, without premium, under any
of the following conditions, the existence of which shall be certified to
the Trustee by the Company Representative:
(A) The Project shall have been damaged or destroyed to such
extent that the amount of Net Proceeds of insurance exceeds $50,000
and the Company elects not to rebuild the Project or fails to so elect
within ninety (90) days of receipt by the Trustee of such Net
Proceeds; or
(B) Title to, or the temporary use of, all of the Project or any
substantial portion thereof shall have been taken by Eminent Domain
and the amount of Net Proceeds from such taking exceeds $50,000 and
the Company elects not to replace the property so taken or fails so to
elect within ninety (90) days of receipt by the Trustee of such Net
Proceeds.
(2) Such redemption shall occur on the next Interest Payment Date
occurring not less than thirty (30) days following the expiration of such
90-day period referred to in paragraph (1) of this Section 7.1(b).
(c) MANDATORY REDEMPTION.
(1) Failure to Provide Alternate Credit Facility. The Bonds shall be
--------------------------------------------
subject to mandatory redemption during the Variable Rate Period at one
hundred percent (100%) of the principal amount thereof, without premium,
plus interest accrued, if any, thereon to the date of redemption, on the
Interest Payment Date occurring closest to but not after fifteen (15) days
prior to the date of expiration of the then current Credit Facility, unless
an Alternate Credit Facility has been provided in accordance with Article
VI hereof.
(2) Excess Moneys in Project Fund. The Bonds shall be subject to
-----------------------------
mandatory redemption in whole or in part from excess moneys in the Project
Fund or from moneys drawn under the Credit Facility for which the Credit
Facility Issuer has been reimbursed from such excess moneys in accordance
with the provisions of Section 4.5 of the Lease Agreement, which redemption
date shall be no more than 60 days following the date of transfer of moneys
to the Bond Fund from the Project Fund.
46
(d) MANDATORY PURCHASE ON CONVERSION DATE. The Bonds shall be subject to
mandatory purchase in whole on the Conversion Date at a purchase price equal to
one hundred percent (100%) of the principal amount thereof, without premium,
plus interest accrued, if any, thereon to the date of purchase, on the
Conversion Date; provided that there shall not be so purchased (1) Bonds or
portions thereof in authorized denominations with respect to which the Trustee
shall have received Optional Retention Notices from the owners thereof, and (2)
Bonds issued in exchange for or upon the registration of transfer of Bonds or
portions thereof in authorized denominations referred to in (1) above.
(e) PURCHASE IN LIEU OF REDEMPTION. The Bonds are subject to optional call
and purchase in whole prior to the Conversion Date on any Interest Payment Date
upon the written direction of the Issuer, given at the request of the Company,
which purchase may be in lieu of redemption, from monies deposited with the
Trustee sufficient for payment of 100% of the principal amount due upon such
call together with accrued interest on the Bonds to the call date.
SECTION 7.2 COMPANY TO DIRECT OPTIONAL REDEMPTION. The Issuer shall
direct the Trustee in writing to call Bonds for optional redemption when and
only when it shall have been notified by the Company to do so and the Company
has notified the Trustee in writing that the Company has made or intends to make
a corresponding prepayment under the Lease Agreement. Such direction from the
Issuer to the Trustee shall be given at least forty-five (45) days but not more
than sixty (60) days prior to the redemption date or such shorter period as
shall be acceptable to the Trustee. So long as a Credit Facility is then held
by the Credit Facility Trustee, the Trustee shall only call Bonds for optional
redemption if it has Available Moneys in the Repayments Account of the Bond Fund
or has been notified by the Credit Facility Issuer that it will receive moneys
pursuant to the Credit Facility, in the aggregate, sufficient to pay the
redemption price of the Bonds to be called for redemption, plus accrued interest
thereon. No optional redemptions shall be effected at the option of the Company
during the Variable Rate Period under this Article VII without the prior written
consent of the Credit Facility Issuer.
SECTION 7.3 SELECTION OF BONDS TO BE CALLED FOR REDEMPTION. Except as
otherwise provided herein or in the Bonds, if less than all the Bonds are to be
redeemed, the particular Bonds to be called for redemption shall be selected in
the following order of priority: first, Bonds pledged to the Bank pursuant to
the Pledge Agreement, second, Bonds owned by the Company and third, Bonds
selected by any random or other method determined by the Trustee in its sole
discretion to be fair and reasonable. The Trustee shall treat any Bond of a
denomination greater than One Hundred Thousand Dollars ($100,000) as
representing that number of separate Bonds each of the denomination of the
minimum denomination of One Hundred Thousand Dollars ($100,000) or any integral
multiple of Five Thousand Dollars ($5,000) in excess thereof as the Trustee
shall so determine.
47
SECTION 7.4 NOTICE OF REDEMPTION OR PURCHASE.
(a) When required to redeem or purchase Bonds under any provision of this
Article VII, or when directed to do so by the Issuer, the Trustee shall cause
notice of the redemption or purchase to be given not more than sixty (60) days
and not less than twenty (20) days prior to the redemption or purchase date by
mailing a copy of all notices of redemption or purchase by first class mail,
postage prepaid, to all registered owners of Bonds to be redeemed or purchased
at their addresses shown on the Bond Register. Failure to mail any such notice
or defect in the mailing thereof in respect of any Bond shall not affect the
validity of the redemption or purchase of any other Bond. Notices of redemption
or purchases shall also be mailed to the Remarketing Agent and the Credit
Facility Issuer if any. Any such notice shall be given in the name of the
Issuer, shall identify the Bonds to be redeemed or purchased (and, in the case
of partial redemption or purchase of any Bonds, the respective principal amounts
thereof to be redeemed or purchased), shall specify the redemption or purchase
date, and shall state that on the redemption or purchase date, the redemption or
purchase price of the Bonds called for redemption or purchase will be payable at
the principal corporate trust office of the Trustee, or in the case of mandatory
redemptions or purchases pursuant to Section 7.1 (c)(2) or 7.1(d) hereof at the
office of the Trustee's Paying Agent, if any, and that from that date interest
will cease to accrue. The Trustee may use "CUSIP" numbers in notices of
redemption or purchase as a convenience to Bondholders, provided that any such
notice shall state that no representation is made as to the correctness of such
numbers either as printed on the Bonds or as contained in any notice of
redemption or purchase and that reliance may be placed only on the
identification numbers containing the prefix established under the Indenture.
(b) With respect to any notice of redemption or purchase of Bonds in
accordance with Section 7.1(c)(2) hereof, such notice shall also specify the
date of the expiration of the term of the Credit Facility.
(c) If at the time of mailing of notice of any optional redemption the
Issuer shall not have deposited with the Trustee moneys sufficient to redeem all
the Bonds called for redemption, such notice may state that it is conditional on
the deposit of Available Moneys (or in the case of purchase pursuant to Section
7.2(e), moneys) with the Trustee not later than the redemption date, and such
notice shall be of no effect unless such moneys are so deposited.
(d) Upon redemption of less than all of the Bonds, the Credit Facility
Trustee shall furnish to the Credit Facility Issuer a notice in the form
specified by the Credit Facility Issuer to reduce the coverage provided by the
Credit Facility and upon redemption of all of the Bonds, the Credit Facility
Trustee shall surrender the Credit Facility to the Credit Facility Issuer for
cancellation.
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(e) Purchases under Section 7.1(d) hereof shall be in accordance with
Section 2.2(e) hereof.
SECTION 7.5 BONDS REDEEMED OR PURCHASED IN PART. Any Bond which is to
be redeemed or purchased only in part shall be surrendered at a place stated in
the notice provided for in Section 7.4 hereof (with due endorsement by, or a
written instrument of transfer in form satisfactory to the Trustee duly executed
by, the owner thereof or his attorney duly authorized in writing), and the
Issuer shall execute and the Trustee or its Authenticating Agent shall
authenticate and deliver to the owner of such Bond without service charge, a new
Bond or Bonds, of any authorized denomination as requested by such owner in an
aggregate principal amount equal to and in exchange for the unredeemed and
unpurchased portion of the principal of the Bond so surrendered.
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ARTICLE VIII
PARTICULAR COVENANTS AND PROVISIONS
SECTION 8.1 COVENANT TO PAY THE BONDS; BONDS LIMITED OBLIGATIONS OF THE
ISSUER.
(a) The Issuer covenants that it will promptly pay the principal of and
interest on and other amounts payable under the Bonds at the places, on the
dates and in the manner provided herein and in the Bonds according to the true
intent and meaning thereof. Such principal and interest and other amounts are
payable solely from the payments made by the Company under the Lease Agreement
and other Revenues.
(b) The Bonds shall not be general obligations of the Issuer but limited
and special obligations payable solely from the amounts payable under the
Agreement and other amounts specifically pledged therefor under this Indenture,
and shall be a valid claim of the respective Owners thereof only against the
designated accounts of the Bond Fund and other moneys held by the Trustee and
the amounts payable under the Lease Agreement or otherwise pledged therefor,
which amounts are hereby pledged, assigned and otherwise secured for the equal
and ratable payment of the Bonds and shall be used for no other purpose than to
pay the principal of, premium, if any, and interest on the Bonds, except as may
be otherwise expressly authorized in this Indenture. No Owner of any Bonds has
the right to compel any exercise of taxing power of the Issuer to pay the Bonds
or the interest thereon, and the Bonds do not constitute an indebtedness of the
Issuer or a loan of credit thereof within the meaning of any constitutional or
statutory provisions.
SECTION 8.2 COVENANTS TO PERFORM OBLIGATIONS UNDER THIS INDENTURE. The
Issuer covenants that it will faithfully perform at all times any and all
covenants, undertakings, stipulations and provisions contained in this
Indenture, in the Bonds executed and delivered hereunder and in all proceedings
of the Issuer pertaining thereto and will faithfully observe and perform at all
times any and all covenants, undertakings, stipulations and provisions of the
Lease Agreement on its part to be observed or performed. The Issuer covenants
that it is duly authorized under the Constitution and laws of the State,
including particularly and without limitation the Act, to issue the Bonds
authorized hereby and to enter into this Indenture, to pledge the payments under
the Lease Agreement and other Revenues in the manner and to the extent herein
set forth, and to assign its interest in the Lease Agreement to the Trustee; and
that all action on its part for the issuance of the Bonds issued hereunder and
the execution and delivery of this Indenture has been duly and effectively
taken; and that the Bonds in the hands of the owners thereof are and will be the
valid and binding obligations of the Issuer according to the tenor and import
thereof.
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SECTION 8.3 COVENANT TO PERFORM OBLIGATIONS UNDER THE LEASE AGREEMENT.
Subject to the provisions of Section 8.4 of this Article, the Issuer covenants
and agrees that it will not suffer, permit or take any action or do anything or
fail to take any action or fail to do anything which may result in the
termination or cancellation of the Lease Agreement so long as any Bond is
Outstanding; that it will punctually fulfill its obligations and will require
the Company to perform punctually its duties and obligations under the Lease
Agreement; that it will not execute or agree to any change, amendment or
modification of or supplement to the Lease Agreement or this Indenture except by
a supplement or an amendment duly executed by the Issuer and the Company with
the approval of the Trustee and the Credit Facility Trustee and upon the further
terms and conditions set forth in Article VIII of this Indenture; that it will
not agree to any abatement, reduction, abrogation, waiver, diminution or other
modification in any manner or to any extent whatsoever of the obligation of the
Company to pay the rental payments and to meet its other obligations as provided
in the Lease Agreement; and that it will promptly notify the Trustee and the
Credit Facility Trustee in writing of any actual or alleged Event of Default
under the Lease Agreement, whether by the Company or the Issuer, and will
further notify the Trustee and the Credit Facility Trustee at least thirty (30)
days before the proposed date of effectiveness of any proposed termination or
cancellation of the Lease Agreement.
SECTION 8.4 TRUSTEE MAY ENFORCE THE ISSUER'S RIGHTS UNDER THE LEASE
AGREEMENT. The Lease Agreement, a duly executed counterpart of which has been
filed with the Trustee, sets forth the covenants and obligations of the Issuer
and the Company, including a provision in Section 12.9 thereof that subsequent
to the issuance of the Bonds and prior to Payment of the Bonds (as defined in
the Lease Agreement) the Lease Agreement may not be effectively amended,
changed, modified, altered or terminated except as provided in Article VIII of
this Indenture, and reference is hereby made to the Lease Agreement for a
detailed statement of said covenants and obligations of the Company under the
Lease Agreement, and the Issuer agrees that the Trustee, subject to the
provisions of the Lease Agreement and this Indenture reserving certain rights to
the Issuer and respecting actions by the Trustee in its name or in the name of
the Issuer, may enforce all rights of the Issuer and all obligations of the
Company under and pursuant to the Lease Agreement for and on behalf of the
Bondholders whether or not the Issuer is in default hereunder.
SECTION 8.5 [INTENTIONALLY OMITTED].
SECTION 8.6 INSPECTION OF THE BOND REGISTER. At reasonable times and
upon reasonable regulations established by the Bond Registrar, the Bond Register
may be inspected and copied by and at the expense of the Company.
SECTION 8.7 PRIORITY OF PLEDGE AND SECURITY INTEREST. The pledge herein
made of the Trust Estate and the security interest created herein with respect
thereto constitutes a first and prior pledge of, and a security interest in, the
Trust Estate. Said pledge and
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security interest shall at no time be impaired directly or indirectly by the
Issuer or the Trustee, and the Trust Estate shall not otherwise be pledged and,
except as provided herein and in the Lease Agreement, no persons shall have any
rights with respect thereto.
SECTION 8.8 MAINTENANCE OF INSURANCE: PAYMENT OF TAXES, CHARGES, ETC.
Pursuant to the provisions of 6.3 of the Lease Agreement and Section 4.3 of the
Reimbursement Agreement, the Company has agreed to maintain certain insurance
and to pay all lawful taxes, assessments and charges at any time levied or
assessed upon or against the Project, or any part thereof, which might impair or
prejudice the lien afforded by this Indenture as to the Trust Estate; provided,
however, that nothing contained in this Section shall require the maintenance of
such insurance or the payment of any such taxes, assessments or charges if the
same are not required to be maintained or paid under the provisions of the
Lease Agreement.
SECTION 8.9 MAINTENANCE AND REPAIR. Pursuant to the provisions of
Section 6.1 of the Lease Agreement, the Company has agreed at its own expense to
cause the Project to be maintained, preserved and kept in good condition, repair
and working order, and that it will, from time to time, cause to be made all
needed repairs so that the Project shall at all times be kept in good condition
and repair, and that the Company may, at its own expense, make, from time to
time, additions, modifications and improvements to the Project under the terms
and conditions set forth in the Lease Agreement.
SECTION 8.10 INSURANCE AND CONDEMNATION PROCEEDS. Reference is hereby
made to Section 6.8 of the Lease Agreement whereunder it is provided that under
certain circumstances the respective Net Proceeds of insurance and condemnation
awards (or Net Proceeds from a sale in lieu of condemnation) are to be paid to
the Trustee and deposited in separate trust accounts (but not in the Bond Fund)
and to be disbursed and paid out as therein provided. The Trustee hereby accepts
and agrees to perform the duties and obligations as therein specified.
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ARTICLE IX
DEFAULT AND REMEDIES
SECTION 9.1 DEFAULTS. Each of the following events is hereby declared
to be an "Event of Default":
(a) Payment of interest on any of the Bonds shall not be made when the
same shall become due; or
(b) Payment of the principal or redemption price of any of the Bonds
shall not be made when the same shall become due, whether at maturity or
upon call for redemption or otherwise; or
(c) An "Event of Default" under the Lease Agreement shall have
occurred and not have been waived; or
(d) The Credit Facility Trustee receives written notice from the
Credit Facility Issuer that an Event of Default under the Reimbursement
Agreement has occurred and has not been waived; or
(e) The Credit Facility Trustee receives notice by telecopier, by
telex or in writing from the Credit Facility Issuer that the Credit
Facility Issuer has not been reimbursed for a drawing on or before the
close of business on the tenth (10th) calendar day following a drawing
under such Credit Facility to pay interest on the Bonds and that the
interest portion of the Credit Facility will not be reinstated for the
amount so drawn; or
(f) Payment of the purchase price of any Bond tendered pursuant to
Section 2.3 hereof is not made when payment is due; or
(g) The Issuer shall fail to duly and punctually perform any of the
covenants, conditions, agreements and provisions contained in the Bonds or
in this Indenture on the part of the Issuer to be performed other than as
referred to in the preceding subsections of this Section;
provided, however, that no failure specified in subsections (c) or (g) of this
Section 9.1 shall constitute an Event of Default until written notice specifying
such failure and requiring the same to be remedied shall have been given to the
Company, the Issuer and the Credit Facility Trustee by the Trustee, which may
give notice in its discretion and shall give such notice at the written
direction of the owners of not less than twenty-five percent (25%) in aggregate
principal amount of Bonds Outstanding, and the Company and the Issuer shall have
had thirty (30) days after receipt of such notice to correct said failure and
shall not
53
have corrected said failure within the applicable period, provided, however,
that if the Issuer or Company as the case may be, is diligently and continuously
pursuing a cure or correction of such failure but has been unable to affect such
cure within the aforementioned thirty (30) day period, the Trustee shall extend
such period to allow for the same to be remedied.
SECTION 9.2 ACCELERATION AND ANNULMENT THEREOF.
(a) Subject to the requirement that, so long as the Credit Facility Issuer
is performing under the Credit Facility, the consent of the Credit Facility
Issuer to any acceleration must be obtained in the case of an Event of Default
described in subsections (c) or (g) of Section 9.1 hereof, upon the occurrence
of an Event of Default, the Credit Facility Trustee may, and upon (1) the
written request of the Credit Facility Issuer, or (2) the occurrence of an Event
of Default described in subsection (a), (b), (d), (e) or (f) of Section 9.1
hereof the Credit Facility Trustee shall, by notice to the Issuer, declare the
entire unpaid principal of and interest on the Bonds due and payable; and upon
such declaration, the said principal, together with interest accrued thereon,
shall become payable immediately at the place of payment provided therein,
anything in the Indenture or in the Bonds to the contrary notwithstanding. The
Credit Facility Trustee shall not be permitted to request receipt of indemnity
to its satisfaction prior to such declaration of acceleration. Upon the
occurrence of any acceleration hereunder, the Credit Facility Trustee, to the
extent it has not already done so, shall immediately draw upon the Credit
Facility to the extent permitted by the terms thereof. Interest on the Bonds
shall cease to accrue upon receipt by the Credit Facility Trustee of funds drawn
under the Credit Facility.
(b) Immediately after any acceleration because of the occurrence of an
Event of Default under Sections 9.1(a), (b), (d), (e), (f) or (g), the Credit
Facility Trustee shall (immediately, and in no event within two Business Days
thereafter) notify in writing the Issuer, the Company and the Credit Facility
Issuer of the occurrence of such acceleration. Within five (5) days of the
occurrence of any acceleration hereunder, the Credit Facility Trustee shall
notify by first class mail, postage prepaid, the owners of all Bonds
Outstanding of the occurrence of such acceleration.
(c) If, after the principal of the Bonds has become due and payable, all
arrears of interest upon the Bonds are paid by the Company, and the Company also
performs all other things in respect to which it may have been in default under
the Lease Agreement and pays the reasonable charges of the Credit Facility
Trustee and the Bondholders, including reasonable attorneys' fees, then, and in
every such case, the Credit Facility Issuer or a Majority of the Bondholders by
written notice to the Issuer and to the Credit Facility Trustee, may annul such
acceleration and its consequences, and such annulment shall be binding upon the
Credit Facility Trustee and upon all owners of Bonds issued hereunder; provided,
however, that the Credit Facility Trustee shall not annul any declaration
without the written consent of the Credit Facility Issuer unless such
acceleration
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has resulted from the failure of the Credit Facility Issuer to honor a proper
draw for payment under the Credit Facility. Notwithstanding the foregoing, the
Credit Facility Trustee shall not annul any acceleration which has resulted from
an Event of Default under Section 9.1(e) hereof unless the Credit Facility has
been reinstated in accordance with its terms to an amount equal to the principal
amount of the Bonds Outstanding plus one hundred twenty (120) days' interest
accrued thereon, and the Credit Facility Trustee has received written notice of
such reinstatement from the Credit Facility Issuer. The Trustee and the Credit
Facility Trustee shall forward a copy of any notice from Bondholders received by
it pursuant to this paragraph to the Company.
SECTION 9.3 OTHER REMEDIES. If any Event of Default occurs and is
continuing, the Credit Facility Trustee, before or after the principal of the
Bonds becomes immediately due and payable, may enforce each and every right
granted to it under the Lease Agreement and any supplements or amendments
thereto. In exercising such rights and the rights given the Credit Facility
Trustee under this Article IX, the Credit Facility Trustee shall take such
action as, in the judgment of the Credit Facility Trustee applying the standards
described in Section 10.1 hereof would best serve the interests of the
Bondholders.
SECTION 9.4 LEGAL PROCEEDINGS BY THE CREDIT FACILITY TRUSTEE.
(a) If any Event of Default has occurred and is continuing, the Credit
Facility Trustee in its direction may, and upon the written request of the
Credit Facility Issuer or the owners of not less than twenty-five percent (25%)
in aggregate principal amount of the Outstanding Bonds and receipt of indemnity
to its satisfaction shall, in its own name:
(1) By mandamus, or other suit, action or proceeding at law or in
equity, enforce all rights of the Bondholders hereunder;
(2) Bring suit upon the Bonds, the Credit Facility (but only to the
extent the Credit Facility Issuer shall have wrongfully dishonored drawings
made in strict conformity with the terms hereof); and
(3) By action or suit in equity seek to enjoin any acts or things
which may be unlawful or in violation of the rights of the Bondholders.
(b) If an Event of Default under Section 9.1(c) occurs and is continuing,
the Credit Facility Trustee in its discretion may, and upon the written request
of the owners of not less than twenty-five percent (25%) in aggregate principal
amount of the Outstanding Bonds and receipt of indemnity to its satisfaction
shall, enforce each and every right granted to it under the Lease Agreement.
SECTION 9.5 DISCONTINUANCE OF PROCEEDINGS BY THE CREDIT FACILITY
TRUSTEE. If any proceeding commenced by the Credit Facility Trustee on account
of any Event of
55
Default is discontinued or is determined adversely to the Credit Facility
Trustee, then the Company, the Credit Facility Issuer, the Issuer, the Credit
Facility Trustee, the Trustee and the Bondholders shall be restored to their
former positions and rights hereunder as though no proceedings had been
commenced.
SECTION 9.6 CREDIT FACILITY ISSUER OR BONDHOLDERS MAY DIRECT
PROCEEDINGS. Anything to the contrary in this Indenture notwithstanding, either
the Credit Facility Issuer if a Credit Facility is in effect (and no default has
occurred and is continuing under the Credit Facility), or a Majority of the
Bondholders, if there is no Credit Facility in effect, shall have the right,
after furnishing indemnity satisfactory to the Credit Facility Trustee, to
direct the method and place of conducting all remedial proceedings by the Credit
Facility Trustee hereunder, provided that such direction shall not be in
conflict with any rule of law or with this Indenture or unduly prejudice the
rights of minority Bondholders.
SECTION 9.7 LIMITATIONS ON ACTIONS BY THE BONDHOLDERS.
(a) No Bondholder shall have any right to bring suit on the Credit
Facility. No Bondholder shall have any right to pursue any other remedy
hereunder unless:
(1) the Trustee and the Credit Facility Trustee shall have been given
written notice of an Event of Default;
(2) the owners of not less than twenty-five percent (25%) in aggregate
principal amount of the Outstanding Bonds shall have requested the Credit
Facility Trustee, in writing, to exercise the powers hereinabove granted
or to pursue such remedy in its or their name or names;
(3) the Credit Facility Trustee shall have been offered indemnity
satisfactory to it against costs, expenses and liabilities, except that no
offer of indemnification shall be required for a declaration of
acceleration under Section 9.2 hereof or for a drawing under the Credit
Facility;
(4) the Credit Facility Trustee shall have failed to comply with such
request within a reasonable time; and
(5) prior to the Conversion Date, the Credit Facility Issuer has
failed to honor a proper draw request under the Credit Facility.
(b) Notwithstanding the foregoing provisions of subsection (a) of this
Section 9.7 or any other provision of this Indenture, the obligation of the
Issuer shall be absolute and unconditional to pay hereunder, but solely from the
Revenues and other funds pledged under this Indenture, the principal or
redemption price of, and interest on, the Bonds to the respective owners thereof
on the respective due dates thereof, and nothing herein shall
56
affect or impair the right of action, which is absolute and unconditional, of
such owners to enforce such payment.
SECTION 9.8 CREDIT FACILITY TRUSTEE MAY ENFORCE RIGHTS WITHOUT
POSSESSION OF THE BONDS. All rights under this Indenture and the Bonds may be
enforced by the Credit Facility Trustee without the possession of any Bonds or
the production thereof at the trial or other proceedings relative thereto, and
any proceedings instituted by the Credit Facility Trustee shall be brought in
its name for the ratable benefit of the owners of the Bonds.
SECTION 9.9 REMEDIES NOT EXCLUSIVE. No remedy herein conferred is
intended to be exclusive of any other remedy or remedies, and each remedy is in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute.
SECTION 9.10 DELAYS AND OMISSIONS NOT TO IMPAIR RIGHTS. No delays or
omission in respect of exercising any right or power accruing upon any default
shall impair such right or power or be a waiver of such default, and every
remedy given by this Article IX may be exercised from time to time and as often
as may be deemed expedient.
SECTION 9.11 APPLICATION OF MONEYS IN THE EVENT OF DEFAULT.
(a) Any moneys received by the Trustee or the Credit Facility Trustee,
under this Article IX shall be applied in the following order; provided that any
moneys received by the Trustee or the Credit Facility Trustee from a drawing
under the Credit Facility shall be applied to the extent permitted by the terms
thereof only as provided in paragraph (3) below with respect to the principal of
and interest accrued on, Bonds other than Bonds held by or for the Company:
(1) To the payment of the reasonable costs of the Trustee and the
Credit Facility Trustee, including counsel fees and any disbursements of
the Trustee and the Credit Facility Trustee, with interest thereon from the
date of payment at the overdue rate, and their reasonable compensation; and
(2) To the payment of reasonable costs and expenses of the Issuer,
including counsel fees, incurred in connection with the Event of Default;
and
(3) To the payment of principal or redemption price (as the case may
be) and interest on the Bonds, and in case such moneys shall be
insufficient to pay the same in full, then to payment of principal or
redemption price and interest ratably, without preference or priority of
one over another or of any installment of interest over any other
installment of interest.
(b) The surplus, if any, shall be paid to the Company or the person
lawfully entitled to receive the same as a court of competent jurisdiction may
direct; provided that,
57
if the Credit Facility Trustee has received payments on the Credit Facility
following the Event of Default, the surplus shall be paid to the Credit Facility
Issuer to the extent of such payments.
SECTION 9.12 CREDIT FACILITY TRUSTEE AND BONDHOLDERS ENTITLED TO ALL
REMEDIES UNDER THE ACT. It is the purpose of this Article IX to provide such
remedies to the Credit Facility Trustee and the Bondholders as may be lawfully
granted under the provisions of the Act, but should any remedy herein granted be
held unlawful, the Credit Facility Trustee and the Bondholders shall
nevertheless be entitled to every remedy provided by the Act. It is further
intended that, insofar as lawfully possible, the provisions of this Article
shall apply to and be binding upon any trustee or receiver appointed under
applicable law.
SECTION 9.13 CREDIT FACILITY TRUSTEE MAY FILE CLAIM IN BANKRUPTCY.
(a) In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
similar judicial proceeding relating to the Issuer, the Company or any other
obligor upon the Lease Agreement or the Bonds or to property of the Issuer, the
Company, or such other obligor or the creditors of any of them, the Credit
Facility Trustee (irrespective of whether the principal of the Bonds shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Credit Facility Trustee shall have made any demand
on the Company for the payment of an amount equal to overdue principal or
interest or additional interest) shall be entitled and empowered, by
intervention in such proceedings or otherwise.
(1) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Bonds and to file such other
papers or documents as may be necessary or advisable in order to have the
claims of the Credit Facility Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Credit
Facility Trustee, its agents and counsel) and of the Bondholders allowed in
such judicial proceeding; and
(2) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by the
Bondholders to make such payments to the Credit Facility Trustee, and in the
event that the Credit Facility Trustee shall consent to the making of such
payments directly to the Bondholders, to pay to the Credit Facility Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Credit Facility Trustee, its agents and counsel, and any other
amounts due the Credit Facility Trustee under Section 9.11 hereof.
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(b) Nothing herein contained shall be deemed to authorize the Credit
Facility Trustee to authorize or consent to or accept, or adopt on behalf of the
Bondholders, any plan of reorganization, arrangement, adjustment or composition
affecting the Bonds or the rights of any Bondholder thereof, or to authorize the
Credit Facility Trustee to vote in respect of the claim of the Bondholders in
any such proceeding.
(c) All moneys received by the Credit Facility Trustee pursuant to any
right given or action taken under this Indenture shall, after payment of the
costs and expenses of the proceedings resulting in the collection of such moneys
and the fees and expenses of the Credit Facility Trustee, be deposited in the
Bond Fund and applied to the payment of the principal of, redemption premium, if
any, and interest then due and unpaid on the Bonds in accordance with the
provisions of this Indenture.
SECTION 9.14 RECEIVER. Upon the occurrence of an Event of Default and
upon the filing of a suit or other commencement of judicial proceedings to
enforce the rights of the Credit Facility Trustee and of the Bondholders under
this Indenture, the Credit Facility Trustee shall be entitled, as a matter of
right, to the appointment of a receiver or receivers of the amounts payable
under the Lease Agreement and assigned to the Credit Facility Trustee under this
Indenture pending such proceedings, with such powers as the court making such
appointment shall confer, whether or not any such amounts payable shall be
deemed sufficient ultimately to satisfy the Bonds.
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ARTICLE X
CONCERNING THE TRUSTEE
SECTION 10.1 ACCEPTANCE OF THE TRUSTS. The Trustee hereby represents and
warrants to the Issuer (for the benefit of the Company and the Bondholders as
well as the Issuer) that it is a national banking association and that it is
duly authorized under the laws of the United States of America to accept and
execute trusts of the character herein set out.
The Trustee accepts and agrees to execute the trusts imposed upon it by
this Indenture, but only upon the terms and conditions set forth in this Article
and subject to the provisions of this Indenture including the following express
terms and conditions, to all of which the parties hereto and the Bondholders
agree:
(a) Except during the continuance of an Event of Default, the Trustee
undertakes to perform such duties and only such duties as are specifically
set forth in this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(c) The Trustee may execute any of the trusts or powers hereof and
perform any of its duties by or through attorneys, agents, receivers or
employees but shall be answerable for the conduct of the same in accordance
with the standard specified above, and shall be entitled to act upon the
opinion or advice of its Counsel concerning all matters of trust hereof and
the duties hereunder, and may in all cases be reimbursed hereunder for
reasonable compensation paid to all such attorneys, agents, receivers and
employees as may reasonably be employed in connection with the trust
hereof. The Trustee may conclusively rely upon an opinion of Counsel and
shall not be responsible for any loss or damage resulting from any action
or non-action by it taken or omitted to be taken in good faith in reliance
upon such opinion of Counsel.
(d) The Trustee shall not be responsible for any recital herein, or in
the Bonds (except in respect to the authentication certificate of the
Trustee endorsed on the Bonds), or for insuring the Trust Estate or any
part of the Project or collecting any insurance moneys, or for the validity
of the execution hereof by the Issuer or of any supplements hereto or
instruments of further assurance, or for the sufficiency of the security
for the Bonds; and the Trustee shall not be bound to ascertain or
60
inquire as to the performance or observance of any agreements or conditions
on the part of the Issuer or on the part of the Company under the Lease
Agreement, except as hereinafter set forth; but the Trustee may require of
the Issuer or the Company full information and advice as to the performance
of the agreements and conditions aforesaid and as to the condition of the
Trust Estate.
(e) The Trustee shall not be liable in connection with the performance
or nonperformance of its duties under this Indenture except for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This subsection shall not be construed to limit the effect of
subsection (a) of this Section 10.1;
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a responsible Officer or Officers of the Trustee
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of a Majority of the Bondholders relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee under this Indenture.
(f) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee, including without
limitation Sections 10.3 and 10.4 hereof, shall be subject to the
provisions of this Section 10.1.
SECTION 10.2 ACCEPTANCE OF TRUSTS BY CREDIT FACILITY TRUSTEE. The Credit
Facility Trustee hereby represents and warrants to the Issuer (for the benefit
of the Company and the Bondholders as well as the Issuer) that it is a national
banking corporation and that it is authorized under the laws of the United
States of America to accept and execute trusts of the character herein set out.
The Credit Facility Trustee accepts and agrees to execute the trusts
imposed upon it by this Indenture and the Lease Agreement, but only upon the
terms and conditions set forth in this Article and subject to the provisions of
this Indenture and the Lease Agreement including the following express terms and
conditions, to all of which the parties hereto and the Bondholders agree:
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(a) Except during the continuance of an Event of Default, the Credit
Facility Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Credit Facility
Trustee.
(b) In case an Event of Default has occurred and is continuing, the
Credit Facility Trustee shall exercise such of the rights and powers vested
in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(c) The Credit Facility Trustee may execute any of the trusts or
powers hereof and perform any of its duties by or through attorneys,
agents, receivers or employees but shall be answerable for the conduct of
the same in accordance with the standard specified above, and shall be
entitled to act upon the opinion or advice of its counsel concerning all
matters of trust hereof and the duties hereunder, and may in all cases be
reimbursed hereunder for reasonable compensation paid to all such
attorneys, agents, receivers and employees as may reasonably be employed in
connection with the trust hereof. The Credit Facility Trustee may
conclusively rely upon an opinion of counsel and shall not be responsible
for any loss or damage resulting from any action or non-action by it taken
or omitted to be taken in good faith in reliance upon such opinion of
counsel.
(d) The Credit Facility Trustee shall not be liable in connection with
the performance or nonperformance of its duties under this Indenture except
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) This subsection shall not be construed to limit the effect of
subsection (a) of this Section 10.2;
(2) The Credit Facility Trustee shall not be liable for any error
of judgment made in good faith by a responsible officer or officers of
the Credit Facility Trustee unless it shall be proved that the Credit
Facility Trustee was negligent in ascertaining the pertinent facts;
and
(3) The Credit Facility Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Majority Bondholders relating to
the time, method and place of conducting any proceeding for any remedy
available to the Credit Facility Trustee, or exercising any
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trust or power conferred upon the Credit Facility Trustee under this
Indenture.
(e) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Credit Facility Trustee,
including without limitation Sections 10.3 and 10.4 hereof, shall be
subject to the provisions of this Section 10.2.
SECTION 10.3 TRUSTEE OR CREDIT FACILITY TRUSTEE TO GIVE NOTICE.
(a) Neither the Credit Facility Trustee nor the Trustee shall be required
to take notice or be deemed to have notice of any default hereunder, except
failure by the Issuer to cause to be made any of the payments to the Trustee
required to be made by Article V or failure by the Issuer or the Company to file
with the Trustee any document required by this Indenture or the Lease Agreement
to be so filed, unless the Trustee or Credit Facility Trustee shall be notified
of such default by the Issuer or by the holders of 25% in aggregate principal
amount of Bonds then Outstanding or unless a responsible corporate trust officer
of the Credit Facility Trustee charged with the responsibility for the
management of the trusts conferred by this Indenture shall have actual knowledge
of such default.
(b) If a responsible trust officer of the Credit Facility Trustee charged
with the responsibility for the management of the trusts conferred by this
Indenture shall have actual knowledge of any Event of Default continuing
hereunder, the Credit Facility Trustee shall give to the Trustee, all
Bondholders and to the Credit Facility Issuer written notice of all such
defaults within thirty (30) days after receipt of such information.
SECTION 10.4 TRUSTEE AND THE CREDIT FACILITY TRUSTEE ENTITLED TO
INDEMNITY.
(a) The Company shall indemnify the Trustee and the Credit Facility Trustee
and their officers, directors and employees against any loss, liability or
expense incurred by any thereof arising out of or in connection with the
acceptance or administration of their duties under this Indenture, except as
set forth in subsection (b) below. The Trustee and the Credit Facility Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
Except where the Company is the claimant, the Company shall defend the claim,
and the Trustee and the Credit Facility Trustee shall cooperate in the defense.
The Trustee and the Credit Facility Trustee may have separate counsel, and the
Company shall pay the reasonable fees and expenses of such counsel.
(b) The Company shall not be obligated to reimburse any expense or to
indemnify against any loss or liability incurred by the Trustee and the Credit
Facility Trustee through negligence or bad faith.
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(c) To secure the Company's payment obligations in this Section, the
Trustee and the Credit Facility Trustee shall have a lien prior to the lien of
the Trustee for the benefit of the owners of the Bonds on all money or property
held or collected by the Trustee, except for amounts drawn under the Credit
Facility as to which the Trustee shall have no such lien. Such obligations shall
survive the satisfaction and discharge of this Indenture.
(d) When the Trustee or the Credit Facility Trustee, incurs expenses or
renders services after an Event of Default, the expenses and compensation for
the services are intended to constitute expenses of administration under any
applicable bankruptcy law.
(e) The Trustee or the Credit Facility Trustee may, nevertheless, begin
suit, or appear in and defend suit, or do anything else in its judgment proper
to be done by it as such Trustee or the Credit Facility Trustee, without
indemnity, and in such case the Issuer shall reimburse the Trustee or the Credit
Facility Trustee from funds available therefor under the Lease Agreement for all
costs and expenses, outlays and counsel fees and other reasonable disbursements
properly incurred in connection therewith; provided, however, that the Trustee
or the Credit Facility Trustee, as the case may be, shall:
(1) make all payments hereunder of principal and redemption price of
and interest on the Bonds and of the purchase price of Bonds tendered at
the option of the owners thereof or purchased by the Company in lieu of
redemption,
(2) accelerate the Bonds when required to do so hereunder other than
at the direction of the Bondholders, and
(3) draw on the Credit Facility when required to do so hereunder,
each without the necessity of the Bondholders providing security or indemnity to
the Trustee or the Credit Facility Trustee, as the case may be. If the Issuer
shall fail to make reimbursement, the Trustee and the Credit Facility Trustee
may reimburse itself from any moneys in its possession under the provisions of
this Indenture (other than amounts drawn under the Credit Facility) and shall be
entitled with respect thereto to a preference over the Bonds.
SECTION 10.5 TRUSTEE NOR THE CREDIT FACILITY TRUSTEE RESPONSIBLE FOR
INSURANCE, TAXES, EXECUTION OF THIS INDENTURE, ACTS OF THE ISSUER OR APPLICATION
OF THE MONEYS APPLIED IN ACCORDANCE WITH THIS INDENTURE.
(a) Neither the Trustee nor the Credit Facility Trustee shall be under any
obligation to effect or maintain insurance or to renew any policies of insurance
or to inquire as to the sufficiency of any policies of insurance carried by the
Company, or to report, or make or file claims or proof of loss for, any loss or
damage insured against or which may
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occur, or to keep itself informed or advised as to the payment of any taxes or
assessments, or to require any such payment to be made. Neither the Trustee nor
the Credit Facility Trustee shall have responsibility in respect of the
validity, sufficiency, due execution or acknowledgment of this Indenture or any
supplements thereto or instruments of further assurance or the validity or
sufficiency of the security provided hereunder or in respect of the validity of
the Bonds or the due execution or issuance thereof. Neither the Trustee nor the
Credit Facility Trustee shall be under any obligation to see that any duties
herein imposed upon any party other than itself, or any covenants herein
contained on the part of any party other than itself to be performed, shall be
done or performed, and the Trustee and the Credit Facility Trustee shall be
under no liability for failure to see that any such duties or covenants are so
done or performed.
(b) The Trustee and the Credit Facility Trustee shall not be liable or
responsible because of the failure of the Issuer or of any of its employees or
agents to make any collections or deposits or to perform any act herein required
of the Issuer or because of the loss of any moneys arising through the
insolvency or the act or default or omission of any other depository in which
such moneys shall have been deposited under the provisions of this Indenture.
The Trustee and the Credit Facility Trustee shall not be responsible for the
application of any of the proceeds of the Bonds or any other moneys deposited
with it and paid out, withdrawn or transferred hereunder if such application,
payment, withdrawal or transfer shall be made in accordance with the provisions
of this Indenture. The Trustee shall not be responsible or liable for any loss
suffered in connection with any investment of funds made by it in accordance
with Section 6.2 hereof.
(c) The permissive right of the Trustee and the Credit Facility Trustee to
do things enumerated in this Indenture shall not be construed as a duty, and the
Trustee and the Credit Facility Trustee shall not be answerable for other than
its negligence or willful misconduct. The immunities and exemptions from
liability of the Trustee and the Credit Facility Trustee hereunder shall extend
to the directors, officers, employees and agents of the Trustee and the Credit
Facility Trustee.
SECTION 10.6 COMPENSATION. The Issuer shall use its best efforts to
cause the Company to pay to the Trustee and the Credit Facility Trustee a total
annual fee of $3,500 each year during the term hereof and reasonable out-of-
pocket expenses in accordance with Section 7.8 of the Lease Agreement. In
computing such compensation, the parties shall not be limited by any law on the
compensation of an express trust. If the Company shall fail to make any payment
required by this Section 10.6, the Trustee may, but shall be under no obligation
to, make such payment from any moneys in its possession under the provisions of
this Indenture and shall be entitled to a preference therefor over the Bonds
hereunder; provided that no payments under this Section 10.6 shall be made with
moneys drawn under the Credit Facility. When the Trustee or the Credit Facility
Trustee incurs expenses or renders services after an Event of Default, the
expenses and compensation
65
for the services are intended to and shall constitute expenses of administration
under any applicable bankruptcy law.
SECTION 10.7 TRUSTEE TO PRESERVE RECORDS. All records and files
pertaining to the Project in the custody of the Trustee shall be open at all
reasonable times to the inspection of the Issuer, the Credit Facility Issuer,
the Credit Facility Trustee and the Company and their agents and
representatives.
SECTION 10.8 TRUSTEE OR CREDIT FACILITY TRUSTEE MAY BE A BONDHOLDER. The
institution acting as Trustee and Credit Facility Trustee under this Indenture,
and directors, officers, employees or agents of the Trustee and the Credit
Facility Trustee, may in good faith buy, sell, own, hold and deal in the Bonds
issued under and secured by this Indenture, and may join in the capacity of a
Bondholder in any action which any Bondholder may be entitled to take with like
effect as if such institution were not the Trustee nor the Credit Facility
Trustee under this Indenture. To the extent permitted by law, such institution
may also receive tenders and purchase in good faith Bonds from itself, including
any department, affiliate or subsidiary, with like effect as if it were not the
Trustee or the Credit Facility Trustee, as the case may be.
SECTION 10.9 TRUSTEE AND CREDIT FACILITY TRUSTEE NOT RESPONSIBLE FOR
RECITALS. Except for the authentication of the Bonds by the Trustee, the
recitals, statements and representations contained herein and in the Bonds shall
be taken and construed as made by and on the part of the Issuer and not by the
Trustee or the Credit Facility Trustee, and, except for the authentication of
the Bonds by the Trustee, neither the Trustee nor the Credit Facility Trustee
shall be under any responsibility for the correctness of the same.
SECTION 10.10 NO RESPONSIBILITY FOR RECORDING OR FILING. Neither the
Trustee nor the Credit Facility Trustee shall be under any obligation to see to
the recording or filing of this Indenture, the Lease Agreement, any financing
statements or any other instrument or otherwise to the giving to any person of
notice of the provisions hereof or thereof.
SECTION 10.11 TRUSTEE AND CREDIT FACILITY TRUSTEE MAY REQUIRE INFORMATION.
Except for the obligations of the Credit Facility Trustee under Section 9.2
hereof, the obligations of the Trustee to make payments on the Bonds when due,
and the obligations of the Credit Facility Trustee to draw under the Credit
Facility as required hereunder, anything contained in this Indenture to the
contrary notwithstanding, the Trustee and the Credit Facility Trustee shall have
the right, but shall not be required, to demand, as a condition of any action by
the Trustee or the Credit Facility Trustee, as applicable, in respect of the
authentication of any Bonds, the withdrawal of any cash, the release of any
property, or any action whatsoever within the purview of this Indenture, any
showings, certificates, opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that required by the terms hereof.
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SECTION 10.12 TRUSTEE AND CREDIT FACILITY TRUSTEE MAY RELY ON
CERTIFICATES. The Trustee and the Credit Facility Trustee shall be protected and
shall incur no liability in acting or proceeding, or in not acting or not
proceeding, in good faith and in accordance with the terms of this Indenture,
upon any ordinance, resolution, order, notice, request, consent, waiver,
certificate, statement, instrument, opinion, affidavit, requisition, bond or
other paper or document which it shall in good faith believe to be genuine and
to have been adopted or signed by the proper board or person or to have been
prepared and furnished pursuant to any of the provisions of the Lease Agreement
or this Indenture, or upon the written opinion of any attorney, engineer,
accountant or other expert believed by it to be qualified in relation to the
subject matter, and neither the Trustee nor the Credit Facility Trustee shall be
under any duty to make any investigation or inquiry as to any statements
contained or matters referred to in any such instrument. Any action taken by the
Trustee or the Credit Facility Trustee pursuant to this Indenture upon the
request or authority or consent of any person who at the time of making such
request or giving such authority or consent is the owner of any Bond shall be
conclusive and binding upon all future owners of the same Bond and upon Bonds
issued in exchange therefor or in place thereof.
SECTION 10.13 TRUSTEE OR CREDIT FACILITY TRUSTEE BOND. Neither the Trustee
nor the Credit Facility Trustee shall be required to give any bond or surety in
respect to the execution of its rights and obligations hereunder.
SECTION 10.14 SEGREGATION OF FUNDS; INTERESTS. All moneys received by the
Trustee and the Credit Facility Trustee shall, until used or applied or invested
as herein provided, be held in trust in the manner and for the purposes for
which they were received but need not be segregated from other funds except to
the extent required by this Indenture or law. Neither the Trustee nor the Credit
Facility Trustee shall be under any liability for interest on any moneys
received hereunder.
SECTION 10.15 QUALIFICATION OF THE TRUSTEE AND THE CREDIT FACILITY
TRUSTEE. There shall at all times be a Trustee and, until the Conversion Date, a
Credit Facility Trustee hereunder which shall be an association or a corporation
organized and doing business under the laws of the United States of America or
of any state, authorized under such laws and the applicable laws of the State to
exercise corporate trust powers and act as Bond Registrar hereunder, having a
combined capital and surplus of at least Fifty Million Dollars ($50,000,000) for
the Trustee or Twenty-Five Million Dollars ($25,000,000) for the Credit Facility
Trustee, and subject to supervision or examination by federal or state
authority. If such association or corporation is not a commercial bank or trust
company, it shall also have a rating by Moody's (if the Bonds are then rated by
Moody's) of BAA 3/P3 or higher, or by S&P (if the Bonds are then rated by S&P)
of BBB/A3 or higher or shall otherwise be approved in writing by Moody's or S&P,
as the case may be. If such association or corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the
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purposes of this Section 10.15, the combined capital and surplus of such
association or corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
addition, under no circumstances shall the Credit Facility Trustee and the
Credit Facility Issuer be the same person or be Affiliates of one another. If at
any time the Trustee or the Credit Facility Trustee shall cease to be eligible
in accordance with the provisions of this Section 10.15, it shall resign
immediately in the manner and with the effect specified in Section 10.16 hereof.
SECTION 10.16 RESIGNATION AND REMOVAL OF THE TRUSTEE OR CREDIT FACILITY
TRUSTEE.
(a) No resignation or removal of the Trustee or the Credit Facility Trustee
and no appointment of a successor Trustee or successor Credit Facility Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee or the successor Credit Facility Trustee
under Section 10.17 hereof.
(b) The Trustee or the Credit Facility Trustee may resign at any time by
giving written notice thereof to the Issuer and the Company. If an instrument
of acceptance by a successor Trustee or successor Credit Facility Trustee shall
not have been delivered to the Trustee or Credit Facility Trustee within thirty
(30) days after the giving of such notice of resignation, the resigning Trustee
or Credit Facility Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee or successor Credit Facility Trustee.
(c) The Trustee and the Credit Facility Trustee may be removed at any time
by an instrument or instruments in writing to the Trustee or Credit Facility
Trustee, as the case may be, with copies to the Issuer and the Company, signed
by a Majority of the Bondholders or by their attorneys, legal representatives or
agents and delivered to the Trustee, the Credit Facility Trustee, the Issuer and
the Company (such instruments to be effective only when received by the Trustee
or Credit Facility Trustee as the case may be).
(d) If at any time:
(1) the Trustee or Credit Facility Trustee shall cease to be eligible
under Section 10.15 hereof and shall fail to resign after written request
therefor by the Company or by a Majority of the Bondholders, or
(2) the Trustee or Credit Facility Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or Credit Facility Trustee or of the property of the Trustee or the
Credit Facility Trustee shall be appointed or any public officer shall take
charge or control of the Trustee or Credit Facility Trustee or of the
property or affairs for the purpose of rehabilitation, conservation or
liquidation of the Trustee or the Credit Facility Trustee,
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then, in any such case, the Issuer or the Company may remove the Trustee or the
Credit Facility Trustee, or any Bondholder may petition any court of competent
jurisdiction for the removal of the Trustee or Credit Facility Trustee, and the
appointment of a successor.
(e) If the Trustee or Credit Facility Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of Trustee
or the Credit Facility Trustee for any cause, the Issuer with the approval of
the Company shall promptly appoint a successor. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee or successor Credit Facility Trustee shall be appointed by act
of the Majority of the Bondholders delivered to the Company and the resigning or
removed Trustee or Credit Facility Trustee, the successor Trustee or successor
Credit Facility Trustee so appointed shall forthwith upon its acceptance of such
appointment, become the successor Trustee or successor Credit Facility Trustee,
as the case may be, and supersede the successor Trustee or successor Credit
Facility Trustee appointed by the Issuer and approved by the Company. If no
successor Trustee or successor Credit Facility Trustee shall have been so
appointed by the Issuer and approved by the Company or a Majority of the
Bondholders and accepted appointment in the manner hereinafter provided, any
Bondholder, if he has been a bona fide owner of a Bond for at least six (6)
months, may petition any court of competent jurisdiction for the appointment of
a successor Trustee or successor Credit Facility Trustee, as the case may be.
(f) The Issuer shall cause the successor Trustee to give notice of each
resignation and each removal of the Trustee or the Credit Facility Trustee and
each appointment of a successor Trustee or successor Credit Facility Trustee by
mailing written notice of such event by first class mail, postage prepaid, to
each Bondholder. Each notice shall include the name and address of the
principal corporate trust office of the successor Trustee or successor Credit
Facility Trustee, as applicable.
SECTION 10.17 SUCCESSOR TRUSTEE OR CREDIT FACILITY TRUSTEE.
(a) Every successor Trustee appointed hereunder and any successor Credit
Facility Trustee appointed hereunder shall execute, acknowledge and deliver to
its predecessor, and also to the Issuer and the Company, an instrument in
writing accepting such appointment hereunder, and thereupon and upon transfer of
the Credit Facility to the successor Credit Facility Trustee, such successor
Trustee or successor Credit Facility Trustee without any further act, shall
become fully vested with all the rights, immunities, powers and trusts, and
subject to all the duties and obligations, of its predecessor; but such
predecessor shall, nevertheless, on the written request of its successor or of
the Issuer and upon payment of the expenses, charges and other disbursements of
such predecessor which are payable pursuant to the provisions of Section 10.6
hereof, execute and deliver an instrument transferring to such successor Trustee
or such successor Credit Facility Trustee all the rights, immunities, powers and
trusts of such predecessor hereunder; and every predecessor Trustee or
predecessor Credit Facility Trustee, as the
69
case may be, shall deliver all property and moneys held by it hereunder to its
successor, subject, nevertheless, to its preference, if any, provided for in
Sections 10.4 and 10.6 hereof. Should any instrument in writing from the Issuer
be required by any successor Trustee or successor Credit Facility Trustee for
more fully and certainly vesting in such Trustee or such Credit Facility Trustee
the rights, immunities, powers and trusts hereby vested or intended to be vested
in the predecessor Trustee or predecessor Credit Facility Trustee, any such
instrument in writing shall and will, on request, be executed, acknowledged and
delivered by the Issuer. The resignation of any Trustee or Credit Facility
Trustee and the instrument or instruments removing any Trustee or Credit
Facility Trustee and appointing a successor hereunder, together with all other
instruments provided for in this Article, shall be filed and/or recorded by the
successor Trustee or successor Credit Facility Trustee in each recording office
where this Indenture and the Financing Statements have been filed and/or
recorded.
(b) Notwithstanding any of the foregoing provisions of this Article, any
bank or trust company having power to perform the duties and execute the trusts
of this Indenture and otherwise qualified to act as Trustee or Credit Facility
Trustee hereunder with or into which the bank or trust company acting as Trustee
or Credit Facility Trustee may be merged or consolidated, or to which the assets
and business of such bank or trust company may be sold, shall be deemed the
successor of the Trustee or Credit Facility Trustee, as applicable; provided,
however, that any sale of trust assets, if any, other than as part of all other
assets of the bank or trust company being sold shall be deemed a resignation
pursuant to Section 10.16 hereof.
SECTION 10.18 CO-TRUSTEE. It is the purpose of this Indenture that there
shall be no violation of any law of any jurisdiction denying or restricting the
right of certain banking corporations or associations to transact business as
trustee as contemplated herein in such jurisdiction. It is recognized that in
case of litigation under this Indenture and in particular in case of the
enforcement of the security interest contained in this Indenture upon the
occurrence of an Event of Default, it may be necessary that the Trustee appoint
an additional individual or institution as a separate Trustee or Co-Trustee,
which shall be satisfactory to the Company. The following provisions of this
Section 10.18 are adapted to these ends:
(a) In the event of the incapacity or lack of authority of the Trustee
by reason of any present or future law of any jurisdiction to exercise any
of the rights, powers and trusts herein granted to the Trustee or to hold
title to or a security interest in the Trust Estate or to take any other
action which may be necessary or desirable in connection therewith, each
and every remedy, power, right, claim, demand, cause of action, immunity,
estate, title, interest and lien expressed or intended by this Indenture to
be exercised by or vested in or conveyed to the Trustee with respect
thereto shall be exercisable by and vest in such separate Trustee or Co-
Trustee but only to the extent necessary to enable the separate
70
Trustee or Co-Trustee to exercise such rights, powers and trusts, and every
covenant and obligation necessary to the exercise thereof shall run to and
be enforceable by such separate Trustee or Co-Trustee.
(b) Should any deed, conveyance or instrument in writing from the
Issuer be required by the separate Trustee or Co-Trustee so appointed by
the Trustee in order to more fully and certainly vest in and confirm to it
such properties, rights, powers, trusts, duties and obligations any and all
such deeds, conveyances and instruments shall, on request, be executed,
acknowledged and delivered by the Issuer. In case any separate Trustee or
Co-Trustee or a successor to either, shall die, be dissolved, become
incapable of action, resign or be removed, all the estates, properties,
rights, powers, trusts, duties and obligations of such separate Trustee or
Co-Trustee, so far as permitted by are, shall vest in and be exercised by
the Trustee until the appointment of a new Trustee or successor to such
separate Trustee or Co-Trustee.
SECTION 10.19 NOTICE TO MOODY'S OR S&P. At any time during which the
Bonds are rated by Moody's or S&P, the Trustee, to the extent it has knowledge
of the following, shall notify Moody's or S&P, as applicable, promptly of:
(a) any change in the Trustee,
(b) the expiration or termination of the Credit Facility during the
Variable Rate Period or the provision of an Alternate Credit Facility in
accordance with the terms of this Indenture,
(c) a change in the interest rate borne by the Bonds from a Variable
Rate to a Fixed Rate,
(d) the payment of all of the Bonds, or
(e) any material change to this Indenture, the Lease Agreement, or the
Reimbursement Agreement.
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ARTICLE XI
EXECUTION OF INSTRUMENTS BY THE BONDHOLDERS
AND PROOF OF OWNERSHIP OF THE BONDS
SECTION 11.1 EXECUTION OF INSTRUMENTS BY THE BONDHOLDERS AND PROOF OF
OWNERSHIP OF THE BONDS.
(a) Any request, direction, consent or other instrument in writing required
or permitted by this Indenture to be signed or executed by a Bondholder may be
signed or executed by the Bondholder or its attorneys or legal representatives.
Proof of the execution of any such instrument and of the ownership of the Bonds
shall be sufficient for any purpose of this Indenture and shall be conclusive in
favor of the Trustee and the Credit Facility Trustee with regard to any action
taken by the Trustee or the Credit Facility Trustee under such instrument if
made in the following manner:
The fact and date of the execution by any person of any such
instrument may be proved by the verification of any officer in any
jurisdiction who, by the laws thereof, has power to take affidavits within
such jurisdiction, to the effect that such instrument was subscribed and
sworn to before him, or by an affidavit of a witness to such execution, and
where such execution is by an officer of a corporation or association or a
member of a partnership on behalf of such corporation, association or
partnership, such verification or affidavit shall also constitute
sufficient proof of his authority.
(b) Nothing contained in this Section 11.1 shall be construed as limiting
the Trustee or the Credit Facility Trustee to such proof, it being intended that
the Trustee or the Credit Facility Trustee may accept any other evidence of the
matters herein stated which may be sufficient. Any request or consent of a
Bondholder shall bind every future owner of the Bond(s) to which such request or
consent pertains or any Bond(s) issued in lieu thereof in respect of anything
done by the Trustee or the Credit Facility Trustee pursuant to such request or
consent.
(c) Notwithstanding any of the foregoing provisions of this Section 11.1,
the Trustee and the Credit Facility Trustee shall not be required to recognize
any person as an owner of Bonds or to take any action at such owner's request
unless the Bonds shall be deposited with the Trustee or the Credit Facility
Trustee, as applicable.
SECTION 11.2 PRESERVATION OF INFORMATION. The Trustee shall preserve
in the Bond Register, in as current a form as is reasonably practicable, the
name and address of each Bondholder received by the Trustee in its capacity as
Bond Registrar.
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ARTICLE XII
THE REMARKETING AGENT, THE
TENDER AGENT AND THE PLACEMENT AGENT
SECTION 12.1 THE REMARKETING AGENT.
(a) The Issuer hereby appoints First Union National Bank, with its
corporate office in Charlotte, North Carolina, as Remarketing Agent under this
Indenture. The Remarketing Agent and any successor Remarketing Agent, by
written instrument delivered to the Issuer, the Trustee and the Company, shall
accept the duties and obligations imposed on it under this Indenture and the
Remarketing Agreement.
(b) In addition to the other obligations imposed on the Remarketing Agent
hereunder, the Remarketing Agent shall agree to keep such books and records in
connection with its activities as Remarketing Agent hereunder as shall be
consistent with prudent industry practice and make such books and records
available for inspection by the Issuer, the Trustee, the Credit Facility Issuer
and the Company at all reasonable times.
(c) The Remarketing Agent shall at all times be a member of the National
Association of Securities Dealers, Inc. and registered as a Municipal Securities
Dealer under the Securities Exchange Act of 1934, as amended, or a national
banking association or a bank or a trust company, in each case authorized by law
to perform its obligations hereunder.
(d) If at any time the Remarketing Agent is unable or unwilling to act as
Remarketing Agent, the Remarketing Agent, upon sixty (60) Business Days' prior
written notice to the Issuer, the Trustee, the Credit Facility Trustee, the
Credit Facility Issuer, the Tender Agent and the Company, may resign. The
Remarketing Agent may be removed at any time by the Company with the consent of
the Issuer, by written 30 days notice signed by the Company delivered to the
Trustee, the Remarketing Agent, the Credit Facility Issuer and the Tender Agent.
Upon resignation or removal of the Remarketing Agent, the Company, with the
consent of the Issuer, shall appoint a substitute Remarketing Agent meeting the
qualifications of Section 12.1(c) above.
(e) In the event that the Company shall fail to appoint a successor
Remarketing Agent, upon the resignation or removal of the Remarketing Agent or
upon its dissolution, insolvency or bankruptcy, the Trustee may, but is not
required to, appoint a Remarketing Agent or may itself act as Remarketing Agent
until the appointment of a successor Remarketing Agent in accordance with this
Section 12.1; provided, however, that the Trustee, in its capacity as
Remarketing Agent, shall not be required to sell Bonds or determine the interest
rate on the Bonds pursuant to Section 2.2 hereof.
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SECTION 12.2 THE TENDER AGENT.
(a) The Issuer hereby appoints as Tender Agent under this Indenture First
Union National Bank, which agent has a corporate trust office in Richmond,
Virginia. The Tender Agent and any successor Tender Agent, by written
instrument delivered to the Issuer, the Trustee and the Company, shall accept
the duties and obligations imposed on it under this Indenture.
(b) The Tender Agent shall at all times be a member of the National
Association of Securities Dealers, Inc. having a capitalization of at least
Fifteen Million Dollars ($15,000,000) and a rating by Moody's (if the Bonds are
then rated by Moody's) of Baa 3/P3 or higher or a national banking association
of a bank or a trust company having capital and surplus of at least $50,000,000,
in each case authorized by law to perform its obligations hereunder.
(c) If at any time the Tender Agent is unable or unwilling to act as Tender
Agent, the Tender Agent, upon sixty (60) days' prior written notice to the
Issuer, the Trustee, the Remarketing Agent and the Company, may resign;
provided, however, that in no case shall such resignation become effective until
the appointment of a successor Tender Agent. The Tender Agent may be removed at
any time by the Company with the consent of the Issuer, by written notice signed
by the Company delivered to the Trustee, the Remarketing Agent, the Credit
Facility Issuer and the Tender Agent; provided, however, that in no case shall
such removal become effective until the appointment of a successor Tender Agent.
Upon resignation or removal of the Tender Agent, the Company, with the consent
of the Issuer, shall appoint a substitute Tender Agent meeting the
qualifications of Section 12.2(b) above.
(d) In the event that the Company shall fail to appoint a successor Tender
Agent, upon the resignation or removal of the Tender Agent or upon its
dissolution, insolvency or bankruptcy, the Trustee may at its discretion, but is
not required to, act as Tender Agent until the appointment of a successor Tender
Agent in accordance with this Section 12.2.
SECTION 12.3 THE PLACEMENT AGENT. The Placement Agent shall be a member of
the National Association of Securities Dealers, Inc. and registered as a
municipal securities dealer under the Securities Exchange Act of 1934, as
amended, or a national banking association or a bank or trust company, in each
case authorized by law to perform its obligations described in Section 2.2(e)
hereof.
SECTION 12.4 NOTICES. The Trustee shall, within thirty (30) days of
the resignation or removal of the Remarketing Agent or the Tender Agent or the
appointment of the Placement Agent or a successor Remarketing Agent or a
successor Tender Agent, give notice thereof by first class mail, postage
prepaid, to the owners of the Bonds.
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ARTICLE XIII
AMENDMENTS AND SUPPLEMENTS
SECTION 13.1 AMENDMENTS AND SUPPLEMENTS WITHOUT THE BONDHOLDERS' CONSENT.
This Indenture may be amended or supplemented at any time and from time to time,
without the consent of the Bondholders, but with the consent of the Company and
the Credit Facility Issuer, if a Credit Facility is in effect (and no Event of
Default has occurred and is continuing under the Credit Facility), by a
supplemental indenture authorized by a resolution of the Issuer filed with the
Trustee, for one or more of the following purposes:
(a) to add additional covenants of the Issuer or to surrender any
right or power herein conferred upon the Issuer;
(b) for any purpose not inconsistent with the terms of this Indenture
or to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture which shall not adversely
affect the interests of the owners of the Bonds;
(c) to permit the Bonds to be converted during the Variable Rate
Period to certificateless securities or securities represented by a master
certificate held in trust, ownership of which, in either case, is evidenced
by book entries on the books of the Bond Registrar, for any period of time;
(d) to permit the appointment of a Co-Trustee under this Indenture;
(e) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act of 1939, as amended, or under any
similar federal statute hereafter enacted, and to add to this Indenture
such other provisions as may be expressly permitted by the Trust Indenture
Act of 1939, as amended;
(f) except as otherwise provided in Section 13.2 hereof, to modify,
eliminate or add to the provisions of this Indenture to such extent as
shall be necessary to obtain a rating of the Bonds from Moody's or S&P;
(g) to amend the administrative provisions hereof to accommodate the
provisions of an Alternate Credit Facility; and
75
(h) to change or modify any provisions of the Indenture (other than as
specified in Section 13.2 hereof) which in the judgment of the Trustee are
not to the material prejudice of any Bondholder.
Notwithstanding the foregoing, prior to the making of any amendment or
supplement as described in the preceding paragraph, the Company shall
provide the Trustee and the Credit Facility Trustee and during the Variable
Rate Period (if no Event of Default has occurred and is continuing under
the Credit Facility) the Credit Facility Issuer with:
(1) a copy of the proposed amendment or supplement, and
(2) an opinion of Bond Counsel to the effect that unless the
Trustee shall have otherwise given its consent to such amendment or
supplement, to the effect that such amendment or supplement will not
otherwise adversely affect the interests of the Bondholders.
SECTION 13.2 AMENDMENTS WITH THE BONDHOLDERS' AND THE CREDIT FACILITY
ISSUER'S CONSENT.
(a) This Indenture may be amended pursuant to Section 13.2 from time to
time, except with respect to:
(1) the principal, redemption price, purchase price, or interest
payable upon any Bonds,
(2) the Interest Payment Dates, the dates of maturity or the
redemption or purchase provisions of any Bonds, and
(3) this Article XIII,
by a supplemental indenture authorized by a resolution of the Issuer filed with
the Trustee and consented to by the Credit Facility Issuer if a Credit Facility
is in effect (and no Event of Default has occurred and is continuing under the
Credit Facility) and by the Company.
(b) This Indenture may be amended with respect to the matters enumerated in
paragraphs (1) through (3) of subsection (a) of this Section with the unanimous
consent of all Bondholders, the Credit Facility Issuer if a Credit Facility is
in effect (and no Event of Default has occurred and is continuing under the
Credit Facility), the Company and the Issuer.
76
(c) Notwithstanding the foregoing provisions of this Section 13.2, prior to
the making of any amendment or supplement as described in this Section 13.2, the
Company shall provide the Trustee, the Credit Facility Trustee and during the
Variable Rate Period (if no Event of Default has occurred and is continuing
under the Credit Facility) the Credit Facility Issuer with:
(1) a copy of the proposed amendment or supplement, and
(2) an opinion of Bond Counsel that unless the Trustee shall have
otherwise given its consent to such amendment or supplement, to the effect
that such amendment or supplement will not otherwise adversely affect the
interests of the Bondholders.
SECTION 13.3 SUPPLEMENTAL INDENTURES AFFECTING THE RIGHTS OF THE CREDIT
FACILITY ISSUER. Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article XIII which in the judgment of the
Credit Facility Issuer if a Credit Facility is in effect (and no default has
occurred and is continuing under the Credit Facility) materially and adversely
affects the rights of the Credit Facility Issuer shall not become effective
unless or until the Credit Facility Issuer shall have consented to the execution
and delivery thereof.
SECTION 13.4 AMENDMENT OF THE LEASE AGREEMENT.
(a) The Company and the Issuer may amend the Lease Agreement but as to any
amendment to the Lease Agreement during the Variable Rate Period with the
consent of the Credit Facility Issuer (if no default has occurred and is
continuing under the Credit Facility); provided that prior to making any
amendment, the Company shall provide the Trustee and the Credit Facility Trustee
during the Variable Rate Period (if no default has occurred and is continuing
under the Credit Facility) the Credit Facility Issuer with:
(1) copy of the proposed amendment, and
(2) an opinion of Bond Counsel that unless the Trustee shall have
otherwise given its consent to such amendment, to the effect that such
amendment will not otherwise adversely affect the interests of the
Bondholders.
Notwithstanding the foregoing, the Issuer and the Company may amend the Lease
Agreement to such extent as may be necessary to obtain a rating of the Bonds
from Moody's or S&P without providing the opinion of Bond Counsel specified in
paragraph (2) above.
(b) If the Company proposes to amend the Lease Agreement in such a manner
as would materially and adversely affect the interests of the Bondholders, the
Trustee shall
77
notify Bondholders of the proposed amendment and may consent thereto with the
consent of at least a Majority of the Bondholders which would be affected by the
action proposed to be taken; provided, that the Trustee shall not, without the
unanimous consent of the owners of all Bonds then Outstanding, consent to any
amendment which would:
(1) decrease the amounts payable under the Lease Agreement,
(2) change the due date of rental payments corresponding with payment
of principal of or interest on the Bonds or change any of the prepayment
provisions of the Lease Agreement, or
(3) change Section 5.6 of the Lease Agreement.
SECTION 13.5 AMENDMENT OF THE LEASE AGREEMENT REQUIRING THE CONSENT OF THE
CREDIT FACILITY ISSUER. Anything herein to the contrary notwithstanding, any
amendment, change or modification of the Lease Agreement which in the judgment
of the Credit Facility Issuer (if a Credit Facility is in effect and no default
has occurred and is continuing under the Credit Facility) materially and
adversely affects the rights of the Credit Facility Issuer shall not become
effective unless or until the Credit Facility Issuer shall have consented to the
execution and delivery of such amendment, change or modification.
SECTION 13.6 AMENDMENT OF THE CREDIT FACILITY. The initial Credit
Facility may be amended to such extent as shall be necessary to obtain a rating
of the Bonds from Moody's or S&P provided that such amendment or supplement will
not adversely affect the interests of the Bondholders. The Trustee shall notify
the Bondholders and the Issuer of any proposed amendment of the Credit Facility
which would materially and adversely affect the interests of the Bondholders and
may consent thereto with the consent of the Issuer, which consent shall not be
unreasonably withheld, and the consent of at least a Majority of the Bondholders
which would be affected by the action proposed to be taken; provided, that the
Trustee shall not, without the unanimous consent of the owners of all Bonds then
Outstanding, consent to any amendment which would decrease the amount payable
under the Credit Facility or reduce the term of the Credit Facility.
SECTION 13.7 TRUSTEE AND THE CREDIT FACILITY TRUSTEE AUTHORIZED TO JOIN IN
AMENDMENTS AND SUPPLEMENTS; RELIANCE ON COUNSEL. The Trustee and the Credit
Facility Trustee are authorized to join with the Issuer in the execution and
delivery of any supplemental indenture or amendment permitted by this Article
XIII and in so doing shall be fully protected by an opinion of Counsel that such
supplemental indenture or amendment is so permitted and has been duly authorized
by the Issuer and that all things necessary to make it a valid and binding
agreement have been done; provided that certain amendments may, by agreement
between the Trustee and the Credit Facility Issuer, require the prior consent of
the Credit Facility Issuer.
78
ARTICLE XIV
DEFEASANCE: OTHER PAYMENTS
SECTION 14.1 DEFEASANCE.
(a) When the principal or redemption price (as the case may be) of, and
interest on all Bonds issued hereunder have been paid, including without
limitation the purchase price for Bonds tendered under Section 2.2 hereof, or
provision has been made for payment of the same, together with the compensation
of the Trustee and all other sums payable hereunder by the Issuer, the right,
title and interest of the Trustee and the Credit Facility Trustee in and to the
Trust Estate and the security interests shall thereupon cease, and the Trustee
and the Credit Facility Trustee, on written demand of the Issuer, shall release
this Indenture and the security interests and shall execute such documents to
evidence such release as may be reasonably required by the Issuer and shall turn
over to the Company or to such person, body or authority as may be entitled to
receive the same all balances then held by the Trustee or the Credit Facility
Trustee hereunder; provided, that, if any payments have been received by the
Trustee or the Credit Facility Trustee derived from draws by the Credit Facility
Trustee under the Credit Facility in connection with such release, such balances
shall be paid to the Credit Facility Issuer to the extent of such payments. If
payment or provision therefor is made with respect to less than all of the
Bonds, the particular Bonds (or portion thereof) for which provision for payment
shall have been considered made shall be selected by lot by the Trustee and
thereupon the Trustee shall take similar action for the release of this
Indenture with respect to such Bonds. Notwithstanding anything to the contrary
contained herein, Bonds purchased at the option of the owners thereof with
moneys held by the Trustee pursuant to this Article XIV shall not be remarketed
but shall be canceled by the Trustee.
(b) Provision for the payment of Bonds shall be deemed to have been made
when the Trustee holds in the Bond Fund, in trust and irrevocably set aside
exclusively for such payment, (1) moneys sufficient to make such payment
provided that if a Credit Facility is then held by the Trustee or the Credit
Facility Trustee, such moneys shall constitute Available Moneys or (2)
noncallable Governmental Obligations maturing as to principal and interest in
such amounts and at such times as will provide sufficient moneys without
reinvestment to make such payment, and provided, that if a Credit Facility is
then held by the Credit Facility Trustee, such Governmental Obligations shall
have been on deposit with the Trustee in a separate and segregated account for a
period of three hundred sixty-six (366) days during and prior to which no Event
of Bankruptcy has occurred or which Governmental Obligations were purchased with
Available Moneys.
(c) No Bonds in respect of which a deposit under subsection (b) above has
been made shall be deemed paid within the meaning of this Article unless the
Trustee is satisfied that the amounts deposited are sufficient to make all
payments that might become due on
79
the Bonds, including purchase price payments for Bonds tendered at the option of
the owners or purchased by the Company in lieu of redemption, if any.
Notwithstanding the foregoing, no delivery to the Trustee under this subsection
(c) shall be deemed a payment of any Bonds which are to be redeemed prior to
their stated maturity until such Bonds shall have been irrevocably called or
designated for redemption on a date thereafter on which such Bonds may be
redeemed in accordance with the provisions of this Indenture or the Issuer shall
have given the Trustee, in form satisfactory to the Trustee, irrevocable
instructions to give notice of redemption. Neither the obligations nor moneys
deposited with the Trustee pursuant to this Section shall be withdrawn or used
for any purpose other than, and shall be segregated and held in trust for, the
payment of the principal of, redemption price of, purchase price if applicable
of, and interest on the Bonds with respect to which such deposit has been made.
In the event that such moneys or obligations are to be applied to the payment of
principal or redemption price of any Bonds more than sixty (60) days following
the deposit thereof with the Trustee, the Trustee shall mail a notice stating
that such moneys or obligations have been deposited and identifying the Bonds
for the payment of which such moneys or obligations are being held to all owners
of such Bonds at their addresses shown on the Bond Register.
(d) Anything in Article XIV to the contrary notwithstanding, if moneys or
Governmental Obligations have been deposited or set aside with the Trustee
pursuant to this Article for the payment of the principal or redemption price,
including purchase price if applicable, of the Bonds and the interest thereon
and such moneys or Governmental Obligations do not constitute Available Moneys,
no amendment to the provisions of this Article shall be made without the consent
of the owner of each of the Bonds affected thereby.
(e) Notwithstanding the foregoing, those provisions relating to the
purchase of Bonds upon the demand of any Bondholders, the maturity of Bonds,
interest payments and dates thereof, and the dates, premiums and notice
requirements for optional and mandatory redemption or purchase and the Trustee's
remedies with respect thereto, and provisions relating to exchange, transfer and
registration of Bonds, replacement of mutilated, destroyed, lost or stolen
Bonds, the safekeeping and cancellation of Bonds, non-presentment of Bonds, the
holding of moneys in trust and repayments to the Company or the Credit Facility
Issuer from the Bond Fund and the duties of the Trustee in connection with all
of the foregoing and the fees, expenses and indemnities of the Trustee and the
Credit Facility Trustee, shall remain in effect and shall be binding upon the
Trustee, the Credit Facility Trustee, the Issuer, the Company and the
Bondholders notwithstanding the release and discharge of the lien of this
Indenture.
SECTION 14.2 DEPOSIT OF FUNDS FOR PAYMENT OF THE BONDS. If the principal
or redemption price of any Bonds to become due, either at maturity or by call
for redemption or otherwise, together with all interest accruing thereon to the
due date, has been paid or provision therefor made in accordance with Section
14.1 hereof, all interest on such Bonds
80
shall cease to accrue on the due date and all liability of the Issuer with
respect to such Bonds shall likewise cease, except as hereinafter provided.
Thereafter the owners of such Bonds shall be restricted exclusively to the funds
so deposited for any claim of whatsoever nature with respect to such Bonds, and
the Trustee shall hold such funds in trust for such owners.
SECTION 14.3 EFFECT OF PURCHASE OF THE BONDS. No purchase of Bonds
pursuant to Section 3.3 hereof shall be deemed to be a payment or redemption of
such Bonds or any portion thereof and such purchase will not operate to
extinguish or discharge the indebtedness evidenced by such Bonds.
81
ARTICLE XV
MISCELLANEOUS PROVISIONS
SECTION 15.1 COVENANTS OF THE ISSUER TO BIND ITS SUCCESSORS. In the event
of the dissolution of the Issuer, all of the covenants, stipulations,
obligations and agreements contained in this Indenture by or on behalf of or for
the benefit of the Issuer shall bind or inure to the benefit of the successor or
successors of the Issuer from time to time and any officer, board, commission,
authority, agency or instrumentality to whom or to which any power or duty
affecting such covenants, stipulations, obligations and agreements shall be
transferred by or in accordance with law, and the term "Issuer" as used in this
Indenture shall include such successor or successors.
SECTION 15.2 NOTICES.
(a) Any notice, demand, direction, request or other instrument authorized
or required by this Indenture to be given or filed with the Issuer, the Trustee,
the Credit Facility Trustee, the Company or the Credit Facility Issuer shall be
in writing and shall be deemed given or filed for all purposes of this Indenture
when delivered by hand delivery, sent via overnight courier service or mailed by
first class mail, postage prepaid, registered or certified mail, addressed as
follows:
(1) If to the Issuer: Development Authority of McDuffie County, c/o Samuel
A. Fowler, Jr., Esquire, P.O. Box 1620, 318 Jackson Street, Thomson, Georgia
30824-1150;
(2) If to the Trustee: First Union National Bank, 901 East Cary Street,
2nd Floor, Richmond, Virginia 23219, Attention: Corporate Trust Department;
(3) If to the Credit Facility Trustee: Branch Banking and Trust Company,
223 West Nash Street, Wilson, North Carolina 27893, Attention: Corporate Trust
Department;
(4) If to any successor Trustee, successor Credit Facility Trustee or Co-
Trustee, addressed to it at its principal corporate trust office, Attention:
Corporate Trust Department;
(5) If to the Company, to Advance Stores Company, Incorporated, P.O. Box
2710, 5673 Airport Road, Roanoke, Virginia 24012;
(6) If to the Bank, to First Union National Bank, 201 South Jefferson
Street, VA 7387 Underwriting, Roanoke, Virginia 24011 ; and
(7) If to any Credit Facility Issuer (other than the Bank), addressed to it
at its principal office;
82
and if sent by telegraph, telegram report of delivery requested, or telecopy,
addressed as above, at the time and date appearing on the report of delivery.
Notwithstanding the foregoing, the delivery of Bonds, Optional Tender Notices,
or Optional Retention Notices to the Trustee or Tender Agent if made by
telegraph, telegram or telecopy, must be made by delivery of the hard copy by
overnight delivery on the date of delivery of such telegraph, telegram or
telecopy and shall not be effective until actual receipt thereof by the Trustee
or the Tender Agent, as the case maybe.
(b) A duplicate copy of each notice or other communication given hereunder
by either the Issuer, the Trustee or the Credit Facility Trustee to the other
shall also be given to the Company.
(c) All documents received by the Trustee or Credit Facility Trustee under
the provisions of this Indenture, or photographic copies thereof, shall be
retained in its possession until this Indenture shall be released in accordance
with the provisions of the Indenture, subject at all reasonable times to the
inspection of the Issuer and the Company and the agents and representatives
thereof.
(d) The Issuer, the Trustee, the Credit Facility Trustee, the Company and
the Credit Facility Issuer may, by notice given hereunder, designate any further
or different addresses to which subsequent notices, certificates or other
communications shall be sent.
SECTION 15.3 TRUSTEE AS THE PAYING AGENT AND THE BOND REGISTRAR. The
Trustee is hereby designated and agrees to act as Paying Agent and Bond
Registrar for and in respect of the Bonds and any amounts received under the
Credit Facility or the Lease Agreement.
SECTION 15.4 RIGHTS UNDER THIS INDENTURE. Except as herein otherwise
expressly provided, nothing in this Indenture expressed or implied is intended
or shall be construed to confer upon any person, firm or corporation other than
the parties hereto, the Company and the owners of the Bonds issued under and
secured by this Indenture, any benefit of this Indenture or any provisions
hereof, this Indenture and all its provisions being intended to be and being for
the sole and exclusive benefit of the parties hereto, the Company and the owners
from time to time of the Bonds issued hereunder.
SECTION 15.5 FORM OF CERTIFICATES AND OPINIONS. Except as otherwise
provided in this Indenture, any request, notice, certificate or other instrument
from the Issuer or the Company to the Trustee shall be deemed to have been
signed by the proper party or parties if signed by the Issuer Representative or
the Company Representative, respectively, and the Trustee may accept and rely
upon a certificate signed by the Issuer Representative as to any action taken by
the Issuer and by the Company Representative as to any action taken by the
Company.
83
SECTION 15.6 SEVERABILITY. In case any one or more of the provisions of
this Indenture or of the Bonds issued hereunder shall for any reason be held to
be illegal or invalid, such illegality or invalidity shall not affect any other
provisions of this Indenture or of the Bonds, but this Indenture and the Bonds
shall be construed and enforced as if such illegal or invalid provision had not
been contained therein. In case any covenant, stipulation, obligation or
agreement of the Issuer contained in this Indenture or in the Bonds shall for
any reason be held to be in violation of law, then such covenant, stipulation,
obligation or agreement of the Issuer shall be given effect to the full extent
permitted by law.
SECTION 15.7 STATE LAW GOVERNS. This Indenture shall be governed by and
construed in accordance with the laws of the State.
SECTION 15.8 PAYMENTS DUE ON DAYS OTHER THAN BUSINESS DAYS. In any case
where the date of maturity of interest on or principal of the Bonds or the date
fixed for redemption of the Bonds shall be in the city of payment a day other
than a Business Day, then payment of interest or principal need not be made on
such date but may be made on the next succeeding Business Day with the same
force and effect as if made on the date of maturity or the date fixed for
redemption, provided that interest shall accrue for the period of any such
extension.
SECTION 15.9 EXECUTION IN COUNTERPARTS. This Indenture may be executed in
multiple counterparts, each of which shall be regarded for all purposes as an
original, and such counterparts shall constitute but one and the same
instrument, and no one counterpart of which need be executed by all parties.
84
IN WITNESS WHEREOF, the Issuer has caused this Indenture to be executed in
its name and on its behalf by the Chairman of the Issuer, the official seal of
the Issuer to be impressed hereon and the same to be attested by the Secretary
of the Issuer; the Trustee has caused this Indenture to be executed in its name
and on its behalf by a vice president or trust officer; and the Credit Facility
Trustee has caused this Indenture to be executed in its name and on its behalf
by a vice president or trust officer, all as of the date and year first above
written.
DEVELOPMENT AUTHORITY OF
MCDUFFIE COUNTY
[SEAL]
By: /s/
_______________________________
Chairman
Attest: /s/
___________________________
Secretary
FIRST UNION NATIONAL BANK,
as Trustee
By: /s/
______________________________
Title:
BRANCH BANKING AND TRUST COMPANY, as
Credit Facility Trustee
By: /s/
_____________________________
Title:
85
EXHIBIT A
Form of Notice of Conversion
[Name and Address of Owner]
Re: $10,000,000 Development Authority of McDuffie County Taxable
Industrial Development Revenue Bonds (Advance Stores Company,
Incorporated Project), Series 1997
The undersigned officer of First Union National Bank, as Trustee with
respect to the captioned Bonds, pursuant to the provisions of Section 2.2(e) of
that certain Trust Indenture (the "Indenture"), dated as of December 1, 1997,
among McDuffie County Development Authority, the Trustee and Branch Banking and
Trust Company, as Credit Facility Trustee, hereby notifies you that the interest
rate borne by the captioned Bonds shall be converted from the Variable Rate to
the Fixed Rate, as follows (capitalized terms used herein shall have the
meanings provided in the Indenture):
1. The Conversion Date is ____________________.
2. The Placement Agent is First Union National Bank, One First Union
Center, TW8, 301 South College Street, Charlotte, North Carolina 28288-
0600.
3. All Owners of Bonds are required to tender their Bonds on the Conversion
Date to the Tender Agent, at the address set forth below, for purchase
on the Conversion Date. In the event any owner of Bonds shall fail to
tender such owner's Bonds for purchase on the Conversion Date, such
Bonds shall be deemed to have been tendered for purchase on the
Conversion Date.
4. The address of the Tender Agent is as follows:
First Union National Bank
901 East Carry Street
2nd Floor
Richmond, Virginia 23219
Attention: Corporate Trust Department
5. After the tenth day preceding the Conversion Date, you will not be
entitled to tender any Bond for purchase.
A-1
6. In order to receive payment of the purchase price of any Bond which is
deemed to have been tendered, you must deliver such Bond to the office
of the Tender Agent shown above before 10:00 a.m. (prevailing Eastern
time) on the Conversion Date.
7. Interest on any Bond will be payable only to (but not including) the
Conversion Date.
8. The delivery by the Company to the Trustee of a letter from Bond
Counsel confirming the opinion received pursuant to this notification
is a condition precedent to a conversion to a Fixed Rate. In the event
that the Company fails to deliver to the Trustee the letter of Bond
Counsel herein referred to, the conversion of interest on the Bonds to
the Fixed Rate shall not take effect and the Bonds shall continue to
bear interest at the Variable Rate.
9. The Preliminary Fixed Rate is _____________
10. Depending on market conditions, the Fixed Rate may be higher but in no
event lower than the Preliminary Fixed Rate.
11. After the Conversion Date, payment on the Bonds will not be supported
by a Credit Facility.
12. The rating on the Bonds (if any) may be reduced or withdrawn on the
Conversion Date.
13. All owners of Bonds who desire to retain such Bonds must deliver an
Optional Retention Notice to the Trustee by the tenth (10th) day
preceding the Conversion Date (or the next succeeding Business Day if
such date is not a Business Day) or be deemed to have tendered their
Bonds for purchase and must deliver the Bonds to the Trustee on or
before the Conversion Date to be stamped with the legend contained in
Section 2.2(e)(8) of the Indenture.
A-2
Dated this ________ day of ____________________, ____.
FIRST UNION NATIONAL BANK,
as Trustee
________________________________
Title:
A copy of this Notice has been delivered to the Tender Agent at the address
above.
A-3
EXHIBIT B
DTC Blanket Issuer Letter of Representations
B-1
EXHIBIT C
Form of Bond
MCDUFFIE COUNTY DEVELOPMENT AUTHORITY
TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(ADVANCE STORES COMPANY INCORPORATED PROJECT), SERIES 1997
CUSIP NO. _________
No. ___
Registered Owner: Cede & Co.
Principal Amount: $10,000,000
Maturity Date: November 1, 2002
Initial Interest Rate: __.___%
Interest Payment Dates: The first Business Day of each month, commencing the
first Business Day of February 1998, and ending on the
Maturity Date, the Conversion Date (hereinafter
defined) and the Maturity Date.
Original Delivery Date: December 31, 1997
THE ISSUER HAS ESTABLISHED A BOOK ENTRY SYSTEM OF REGISTRATION FOR THIS
BOND. EXCEPT AS SPECIFICALLY PROVIDED OTHERWISE IN THE INDENTURE, CEDE & CO., AS
NOMINEE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), WILL BE
THE REGISTERED OWNER AND WILL HOLD THIS BOND ON BEHALF OF EACH BENEFICIAL OWNER
HEREOF. BY ACCEPTANCE OF A CONFIRMATION OF PURCHASE, DELIVERY OR TRANSFER, EACH
BENEFICIAL OWNER OF THIS BOND SHALL BE DEEMED TO HAVE AGREED TO SUCH
ARRANGEMENT. CEDE & CO., AS REGISTERED OWNER OF THIS BOND, MAY BE TREATED AS THE
OWNER OF IT FOR ALL PURPOSES.
UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE
TRUSTEE FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY BOND ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
C-1
OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE BONDS SHALL NOT BE GENERAL OBLIGATIONS OF THE ISSUER BUT LIMITED AND
SPECIAL OBLIGATIONS PAYABLE SOLELY FROM THE AMOUNTS PAYABLE UNDER THE AGREEMENT
AND OTHER AMOUNTS SPECIFICALLY PLEDGED THEREFOR UNDER THIS INDENTURE, AND SHALL
BE A VALID CLAIM OF THE RESPECTIVE OWNERS THEREOF ONLY AGAINST THE DESIGNATED
ACCOUNTS OF THE BOND FUND AND OTHER MONEYS HELD BY THE TRUSTEE AND THE AMOUNTS
PAYABLE UNDER THE AGREEMENT OR OTHERWISE PLEDGED THEREFOR, WHICH AMOUNTS ARE
HEREBY PLEDGED, ASSIGNED AND OTHERWISE SECURED FOR THE EQUAL AND RATABLE PAYMENT
OF THE BONDS AND SHALL BE USED FOR NO OTHER PURPOSE THAN TO PAY THE PRINCIPAL
OF, PREMIUM, IF ANY, AND INTEREST ON THE BONDS, EXCEPT AS MAY BE OTHERWISE
EXPRESSLY AUTHORIZED IN THIS INDENTURE. NO OWNER OF ANY BONDS HAS THE RIGHT TO
COMPEL ANY EXERCISE OF TAXING POWER OF THE ISSUER TO PAY THE BONDS OR THE
INTEREST THEREON, AND THE BONDS DO NOT CONSTITUTE AN INDEBTEDNESS OF THE ISSUER
OR A LOAN OF CREDIT THEREOF WITHIN THE MEANING OF ANY CONSTITUTIONAL OR
STATUTORY PROVISIONS.
THIS BOND MAY BE TENDERED FOR PURCHASE AS DESCRIBED HEREIN. DELIVERY OF AN
OPTIONAL TENDER NOTICE WITH RESPECT TO THIS BOND CONSTITUTES AN IRREVOCABLE
OFFER TO SELL THIS BOND ON THE DATE SPECIFIED THEREIN AND IS BINDING ON
SUBSEQUENT OWNERS OF THIS BOND. IN THE EVENT THE OWNER OF THIS BOND FAILS TO
DELIVER THIS BOND TO THE TENDER AGENT ON THE SPECIFIED DATE, THE OWNER HEREOF
SHALL THEREAFTER BE ENTITLED ONLY TO PAYMENT OF THE PURCHASE PRICE AND NOT TO
THE BENEFITS OF THE INDENTURE. THIS BOND ALSO IS SUBJECT TO MANDATORY TENDER AND
PURCHASE AS DESCRIBED HEREIN.
The Development Authority of McDuffie County (herein called the "Issuer"),
a public body politic and corporate of the State of Georgia (herein called the
"State"), for value received, hereby promises to pay (but only from the sources
hereinafter mentioned) to the Registered Owner set forth above, or registered
assigns, the Principal Amount set forth above on the Maturity Date set forth
above and to pay (but only from the sources hereinafter mentioned) interest
thereon from the Interest Payment Date immediately preceding the Date of
Authentication endorsed hereon, unless this Bond is authenticated on an Interest
Payment Date in which event it will bear interest from such date, payable on
each Interest Payment Date, until payment of said principal sum has been made or
provided for, at the rate or rates per annum set forth below. Principal and
interest and premium, if any, will be paid in any coin or currency of the United
States of America which, at the time of payment, is legal tender for the payment
of public and private debts. Interest
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will be paid by check mailed on the Interest Payment Date to the person in whose
name this Bond is registered at the close of business on the Regular Record Date
(as hereinafter defined) immediately preceding such Interest Payment Date;
provided, however, that while the Bonds (as hereinafter defined) bear interest
at the Variable Rate (as hereinafter defined) interest will also be payable by
wire transfer to the account at a member bank of the Federal Reserve System of
any registered owner of Bonds in the aggregate principal amount of One Million
Dollars ($1,000,000) or more at the written request (identifying such account by
number) of such owner received by the Trustee (as hereinafter defined) on or
before the Regular Record Date. While the Bonds bear interest at the Variable
Rate (as hereinafter defined), the Regular Record Date will be the close of
business on the Business Day immediately preceding each Interest Payment Date.
While the Bonds bear interest at the Fixed Rate (as hereinafter defined), the
Regular Record Date will be the fifteenth (15th) day of the calendar month
immediately preceding each Interest Payment Date. Any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
owner on such Regular Record Date, and may be paid to the person in whose name
this Bond is registered at the close of business on a Special Record Date (as
defined in the Indenture (hereinafter defined)) for the payment of such
defaulted interest to be fixed by the Trustee, or may be paid at any time in any
other lawful manner, all as more fully provided in the Indenture. Principal and
redemption price will be paid upon surrender of this Bond at the corporate trust
office of First Union National Bank, as trustee (said banking institution and
any successor trustee or co-trustee under the Indenture being herein called the
"Trustee"), in the City of Richmond, Virginia. Payment of the purchase price of
Bonds purchased as described herein will be paid, upon surrender of such Bonds,
at the office of First Union National Bank in the City of Richmond, Virginia (in
such capacity, herein called the "Tender Agent").
This Bond is issued under and pursuant to the Constitution and laws of the
State of Georgia (the "State"), particularly the provisions of an act of the
General Assembly of the State of Georgia (O.C.G.A. Section 36-62 et seq.), as
-- ---
amended (the "Enabling Act") and an activating resolution of the Board of
Commissioners of McDuffie County, duly adopted on January 17, 1970, and its
directors have been appointed as provided therein and are currently acting in
that capacity
This Bond and the issue of which it is a part and the purchase price
thereof, the premium, if any, and interest thereon are limited obligations of
the Issuer payable by the Issuer solely from the revenues and receipts derived
from the Lease Agreement (as hereinafter defined), which revenues and receipts
have been pledged and assigned to the Trustee to secure payment thereof and from
amounts received pursuant to the Credit Facility (as hereinafter defined). This
Bond and the interest hereon will not constitute an indebtedness or a charge
against the general credit or taxing powers of the Issuer within the meaning of
any constitutional provision or statutory limitation and shall never constitute
nor give rise to any pecuniary liability of the Issuer, but will be a limited
obligation of the Issuer payable solely from the revenues and other funds
pledged therefor and will not be payable from any assets or funds of the Issuer
other than the revenues and other funds
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pledged therefor, and neither the faith and credit nor the taxing power of the
State or any political subdivision or any agency thereof is pledged to the
payment of the principal of or the interest on this Bond.
This Bond is one of the Bonds of a duly authorized issue of variable rate
industrial revenue bonds of the Issuer in the aggregate principal amount of
$10,000,000 and designated Development Authority of McDuffie County Taxable
Industrial Development Revenue Bonds (Advance Stores Company, Incorporated
Project), Series 1997 (the "Bonds").
The Bonds have been issued for the purpose of financing the acquisition,
construction, installation and equipping of an industrial facility (herein
called the "Project") and to pay a portion of the costs of issuing the Bonds.
The Bonds are issued under and pursuant to a Trust Indenture, dated as of
December 1, 1997 (said Trust Indenture, together with all such supplements and
amendments thereto as therein permitted, being herein called the "Indenture"),
among the Issuer, the Trustee and Branch Banking and Trust Company, as Credit
Facility Trustee (said banking institution and any successor Credit Facility
Trustee under the Indenture being herein called the "Credit Facility Trustee").
An executed counterpart of the Indenture is on file at the principal corporate
trust office of the Trustee and the Credit Facility Trustee. Reference is hereby
made to the Indenture for the provisions, among others, with respect to the
custody and application of the proceeds of the Bonds; the collection and
disposition of revenues; a description of the funds charged with and pledged to
the payment of the principal of and interest on and any other amounts payable
under the Bonds; the nature and extent of the security; the terms and conditions
under which the Bonds are or may be issued; and the rights, duties and
obligations of the Issuer and of the Trustee and the rights of the owners of the
Bonds, and, by the acceptance of this Bond, the owner hereof assents to all of
the provisions of the Indenture.
The Issuer has entered into a Lease Agreement, dated as of December 1, 1997
(herein called the "Lease Agreement"), with the Company, under which the Issuer
has agreed to use the proceeds of the Bonds to provide financing for the
acquisition, equipping, and renovation of an industrial facility located in
McDuffie County, Georgia (the "Project") and to pay a portion of the costs of
issuing the Bonds, and in consideration therefor, the Company has agreed to make
rental payments, bearing interest at a rate or rates and payable at times
corresponding to the principal amount of interest rates on and due dates of the
Bonds. The Lease Agreement also provides for the payment by the Company of
certain fees and expenses of the Issuer and the Trustee, and the Lease Agreement
further obligates the Company (a) to pay the cost of maintaining the Project in
good repair in all material respects and keeping the same properly insured and
(b) to maintain a Credit Facility (as hereinafter defined) during the period of
time the Bonds bear interest at the Variable Rate (herein called the "Variable
Rate Period").
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As security for the payment of the Bonds, all right, title and interest of
the Issuer in (a) the Lease Agreement (except certain rights reserved by the
Issuer under the terms of the Indenture), together with the Lease Agreement; (b)
all money and securities at any time on deposit in, in transit to or credited to
any account or Fund created under the Indenture, including without limitation
the Project Fund and the Bond Fund (as defined in the Indenture); and (c)
Revenues (as defined in the Indenture) have been assigned to the Trustee under
the Indenture and pledged to the payment of the principal of, and the redemption
premium (if any) and the interest on, the Bonds. The Issuer shall not be vested
with any interest in the Project by virtue of the issuance of the Bonds to
finance the construction and installation of the Project, and the Project shall
not otherwise constitute any part of the security for the payment of the Bonds.
Reference to the Indenture is hereby made for a description of the
aforesaid Bond Fund which is charged with, and pledged to, the payment of the
principal of, and the redemption premium (if any) and the interest on, the
Bonds, the nature and extent of the security, the rights, duties and obligations
of the Issuer, the Company and the Trustee, the rights of the owners of the
Bonds, the terms and conditions under and upon the occurrence of which the
Indenture and the Lease Agreement may be modified and the terms and conditions
under and upon the occurrence of which the lien of the Indenture may be defeased
as to this Bond prior to the maturity or redemption date hereof, to all of the
provisions of which the owner hereof, by the acceptance of this Bond, assents.
Credit Facility. The Company has entered into a Letter of Credit and
---------------
Reimbursement Agreement, dated as of December 1, 1997 (herein called the
"Reimbursement Agreement"), by and among the Company, Advance Holding
Corporation, a Virginia corporation (the "Parent") and First Union National
Bank, Roanoke, Virginia (in such capacity, herein called the "Bank").
Pursuant to the Reimbursement Agreement, the Company and the Parent have
caused a Letter of Credit issued by the Bank (herein called the "Letter of
Credit"; such Letter of Credit and any extensions or renewals thereof or any
amendment thereto and any Alternate Credit Facility (as hereinafter defined)
referred to herein as the "Credit Facility") to be delivered to the Credit
Facility Trustee. The Credit Facility Trustee will be entitled under the Letter
of Credit to draw up to an amount of $10,201,370 of which (a) $10,000,000 will
be available for the payment of principal or that portion of the purchase price
corresponding to principal of the Bonds and (b) $201,370 will support the
payment of up to forty-nine (49) days' interest or that portion of the purchase
price corresponding to interest on the Bonds at an assumed rate of fifteen
percent (15%) per annum, which is the maximum rate of interest borne by the
Bonds. Subject to the provisions of the Indenture, the Company is required
during the Variable Rate Period to provide an alternate credit facility with
terms and provisions substantially the same as those of the Letter of Credit (an
"Alternate Credit Facility") prior to the termination of Letter of Credit.
During the Variable Rate Period unless the Letter of Credit or the then current
Alternate Credit Facility
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is replaced prior to its expiration in accordance with the terms of the
Indenture, this Bond will become subject to mandatory redemption as provided in
the Indenture.
Source of Funds. The principal of, premium (if any) and interest on the
---------------
Bonds are payable solely from payments under the Lease Agreement and from any
other moneys held by the Trustee under the Indenture for such purpose,
including, with respect to principal and interest only, moneys drawn by the
Credit Facility Trustee under the Letter of Credit or Alternate Credit Facility
for the benefit of the Bondholders (the Bank as the issuer of the Letter of
Credit and the institution issuing any Alternate Credit Facility are herein
called the "Credit Facility Issuer"). Except as otherwise specified in the
Indenture, this Bond is entitled to the benefits of the Indenture equally and
ratably both as to principal (and redemption and purchase price) and interest
with all other Bonds issued under the Indenture.
INTEREST RATES
--------------
Initial Interest Rate.
---------------------
The Bonds will bear interest from the Original Delivery Date specified
above to January 7, 1998 at the Initial Interest Rate.
Variable Rate.
-------------
The Bonds will initially bear interest from the Original Delivery Date (as
defined in the Indenture) through January 7, 1998 at the initial interest rate
stated thereon as determined in accordance with the Indenture. Thereafter,
prior to and including the Conversion Date, the Bonds will bear interest at a
floating rate determined weekly by the Remarketing Agent as set forth below (the
"Variable Rate"). The Variable Rate will be equal to the rate of interest
certified to the Trustee by the Remarketing Agent on and as of each Wednesday
(or the next Business Day if such Wednesday is not a Business Day) (the
"Determination Date") as the minimum rate of interest necessary, in the judgment
of the Remarketing Agent taking into account market conditions prevailing on the
Determination Date, to enable the Remarketing Agent to arrange for the sale of
all of the Bonds in the secondary market on the Determination Date at a price
equal to the principal amount thereof (plus accrued interest to the date of
settlement). If the Remarketing Agent fails to certify such rate for the Bonds
for four consecutive Calculation Periods, the rate for the Bonds for each
Calculation Period thereafter (if none is certified by the Remarketing Agent) to
be determined by the Trustee shall be a rate equal to the 30 day LIBOR Rate. For
purposes hereof, "LIBOR Rate" shall mean, for any period, an interest rate per
annum (based on a 360-day year) determined by the Trustee or its designee to be
the rate or the arithmetic mean of rates (rounded upward, if necessary, to the
nearest one-sixteenth (1/16) of one percentage point of the rate per annum) for
deposits in immediately available and freely transferable dollars of the United
States of America that appears on Telerate Screen, page 3747, as published daily
by the British Bankers Association Interest Settlement Rates
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(or another comparable international financial data service satisfactory to the
Trustee, or its designee, in its discretion, if Telerate no longer publishes
such rates) and that is offered by first class banks in the London InterBank
market to the offices of the Trustee or its designee at 10:00 a.m. on the
applicable Determination Date, and "Calculation Period" shall mean the period
from and including the day following the Determination Date of each week (even
if not a Business Day) to and including the following Determination Date;
provided that if during the Variable Rate Period the Determination Date at the
end of such Calculation Period is a Regular Record Date, such Calculation Period
will extend until the Business Day following such Determination Date. If for any
reason the Variable Rate is not determined as described above or is held to be
invalid or unenforceable by a court of competent jurisdiction for any period,
the interest rate for such period shall be equal to ten percent (10%) per annum.
While the Bonds bear interest at a Variable Rate, interest on the Bonds shall be
computed on the basis of a year of 365 or 366 days, as applicable, for the
number of days actually elapsed and shall be payable on each Interest Payment
Date.
Fixed Rate.
----------
(a) The interest rate on this Bond will be converted to the Fixed Rate upon
an election by the Company pursuant to the Indenture to convert the rate of
interest on all Bonds then outstanding from the Variable Rate to the Fixed Rate
(herein called the "Fixed Rate Election"), on any Interest Payment Date by
giving written notice, accompanied by the items described in Section 2.2(e) of
the Indenture, to the Issuer, the Trustee, the Credit Facility Issuer, the
Tender Agent and the Remarketing Agent, which notice will specify, among other
things, the name and address of the Placement Agent which has agreed to use its
best efforts to arrange for the sale of any Bonds to be tendered or deemed
tendered for purchase on the Conversion Date (herein called the "Placement
Agent"). At least twenty-five (25) days prior to the Conversion Date, the
Placement Agent will determine a rate (the "Preliminary Fixed Rate") which will
be the minimum rate of interest on the Bonds determined by the Placement Agent
to be the fixed annual rate of interest (for the period beginning on the
Conversion Date and ending on the Maturity Date) necessary, in the judgment of
the Placement Agent taking into account market conditions prevailing on the
date such rate is determined, to enable the Placement Agent to arrange for the
sale of all of the Bonds in the secondary market at a price equal to the
principal amount thereof if the Bonds were tendered for purchase on the
Conversion Date. The Placement Agent will promptly notify the Trustee of the
Preliminary Fixed Rate.
(b) As soon after the receipt of notice from the Placement Agent of the
Preliminary Fixed Rate as practicable (but in no event more than two (2)
Business Days thereafter) a notice will be mailed by the Trustee to each
registered owner of Bonds stating, among other things, (1) the Preliminary Fixed
Rate, (2) that, depending on market conditions, the Fixed Rate may be higher but
in no event will be lower than the Preliminary Fixed Rate, (3) the Conversion
Date, (4) that after the tenth (10th) day preceding the Conversion Date, the
owner will not be entitled to tender this Bond for purchase as described below,
(5) that payment of this Bond will not be supported by an Alternate Credit
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Facility after the Conversion Date, (6) that the rating on the Bonds (if at such
time there is a rating in effect on the Bonds) may be reduced or withdrawn on
the Conversion Date, (7) that unless such registered owner delivers to the
Trustee a notice (an "Optional Retention Notice") at least ten days prior to the
Conversion Date, this Bond will be deemed tendered for purchase on the
Conversion Date, (8) that in order to receive payment of the purchase price of
any Bond which is deemed to have been tendered, the registered owner of such
Bond must deliver such Bond to the office of the Tender Agent before 10:00 a.m.
on the Conversion Date specifying such address, and (9) that interest on any
Bond deemed to have been tendered will be payable only to (but not including)
the Conversion Date.
(c) Upon the Conversion Date stated in such notice, the Fixed Rate to be
borne by the Bonds for the period beginning on the Conversion Date until the
Maturity Date or prior redemption of the Bonds (the "Fixed Rate"), will be
determined as follows:
(1) if any of the Bonds have been tendered or deemed tendered for
purchase (herein called the "Tendered Bonds"), then:
(A) if the Placement Agent shall have arranged for the sale of
any or all of the Tendered Bonds, at a price equal to the principal
amount thereof, the Fixed Rate will be equal to the interest rate at
which all such Bonds were sold by the Placement Agent, provided that
all such Bonds will be sold at a rate greater than or equal to the
Preliminary Fixed Rate; and
(B) if the Placement Agent shall have arranged for the sale of
none of the Tendered Bonds, the Fixed Rate will be equal to the
Preliminary Fixed Rate; or
(2) if all owners of the outstanding Bonds elect to retain such Bonds,
the Fixed Rate will be equal to the Preliminary Fixed Rate.
(d) If, for any reason, the Fixed Rate is held to be invalid or
unenforceable by a court of competent jurisdiction, the Fixed Rate will be ten
percent (10%) per annum.
(e) The Fixed Rate will be computed on the basis of a three hundred sixty
(360)-day year, computed for the actual number of days elapsed, and will be
payable on each Interest Payment Date after the Conversion Date until the
principal of, and premium, if any, and interest on the Bonds shall have been
paid in full.
Interest Rate Determination Binding.
-----------------------------------
The determination of the interest rate on the Bonds by the Remarketing
Agent or Placement Agent, as appropriate, in accordance with the terms of the
Indenture will be conclusive and binding upon the owners of the Bonds, the
Issuer, the Company, the
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Trustee, the Credit Facility Trustee, the Remarketing Agent, the Placement
Agent, the Tender Agent and the Credit Facility Issuer.
REDEMPTION OF BONDS
-------------------
Optional Redemption.
-------------------
(a) While the Bonds bear interest at the Variable Rate, the Bonds will be
subject to redemption upon the written direction of the Issuer, given at the
request of the Company, with the consent of the Credit Facility Issuer, on any
Interest Payment Date and on the Conversion Date, in whole or in part, at
redemption price equal to one hundred percent (100%) of the principal amount
thereof without premium plus interest accrued to the redemption date.
(b) While the Bonds bear interest at the Fixed Rate, the Bonds will be
subject to redemption upon the written direction of the Issuer, given at the
request of the Company, in whole on any date, or in part on any Interest Payment
Date, occurring on or after the dates set forth below, at the redemption prices
(with a premium expressed as a percentage of principal amount to be redeemed)
set forth below plus interest accrued to the redemption date as follows:
Commencement of
Redemption Period Redemption Price
----------------- ----------------
The Business Day four 103% declining by 1/2% on each
(4) years from the succeeding anniversary date of
Conversion Date the first day of the redemption period until
reaching 100% and thereafter at 100%
(c) The Bonds will be subject to redemption upon the written direction of
the Issuer, given at the request of the Company, at any time in whole or in part
at a redemption price equal to one hundred percent (100%) of the principal
amount thereof plus interest accrued to the redemption date in the event of
damage, destruction or condemnation of the Project, all as more fully described
in Section 7.1(b) of the Indenture.
Mandatory Redemption.
--------------------
(a) During the Variable Rate Period, the Bonds will be subject to
mandatory redemption in whole on the Interest Payment Date occurring closest to
but not after fifteen (15) days prior to the date of expiration of the then
current Credit Facility unless prior to such date an Alternate Credit Facility
has been provided in accordance with the Indenture, at a redemption price or
purchase price equal to one hundred percent (100%) of the principal amount
thereof, without premium, plus interest accrued to the redemption date.
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(b) The Bonds are subject to redemption without premium from proceeds of
the Bonds not used to complete the Project or from moneys drawn under the Credit
Facility for which the Credit Facility Issuer is reimbursed from such excess
proceeds in accordance with the provisions of the Indenture, which redemption
date shall be no more than sixty (60) days following the date of transfer of
moneys to the Bond Fund established under the Indenture from the Project Fund
established under the Indenture.
Purchase in Lieu of Redemption.
------------------------------
The Bonds are subject to optional call and purchase in whole prior to the
Conversion Date on any Interest Payment Date upon the written direction of the
Issuer, given at the request of the Company, which purchase may be in lieu of
redemption, from monies deposited with the Trustee sufficient for payment of
100% of the principal amount due upon such call together with accrued interest
on the Bonds to the call date.
Notice of Redemption and Selection of Bonds.
-------------------------------------------
Any notice of redemption, identifying the Bonds or portions thereof to be
redeemed, will be given not more than sixty (60) days and not less than twenty
(20) days prior to the redemption date, by mailing a copy of the redemption
notice by first class mail to the owner of each Bond to be redeemed in whole or
in part at the address shown on the Bond Register (as defined in the Indenture)
maintained by the Bond Registrar (as hereinafter described). Notice of optional
redemption may be conditioned upon the deposit of moneys with the Trustee before
the date fixed for redemption and such notice will be of no effect unless such
moneys are so deposited. All Bonds so called for redemption, including Bonds
purchased by the Company as provided in the Indenture but not yet surrendered
for payment of the purchase price, will cease to bear interest on the specified
redemption date provided funds for the payment of their redemption price and any
accrued interest payable on the specified redemption date are on deposit at the
principal place of payment at that time. If less than all the Bonds are to be
redeemed, the particular Bonds to be called for redemption will be selected in
the following order of priority: first, Bonds pledged to the Credit Facility
Issuer; second, Bonds owned by the Company and third, Bonds selected by any
random or other method determined by the Trustee in its sole discretion.
Mandatory Tender for Purchase Upon Conversion to Fixed Rate.
-----------------------------------------------------------
The Bonds will be subject to mandatory purchase in whole (and not in part)
on the Conversion Date at a purchase price equal to one hundred percent (100%)
of the principal amount thereof plus interest accrued thereon to the date of
purchase; provided that there will not be so purchased (a) Bonds or portions
thereof in authorized denominations which the owners have irrevocably elected to
retain on the Conversion Date in accordance with the Indenture by the delivery
of an Optional Retention Notice in accordance with the provisions of Section
2.2(e) of the Indenture, or (b) Bonds issued in exchange for or upon the
registration of transfer of Bonds referred to in clause (a) above.
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THE OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES TO THE MANDATORY
PURCHASE OF THIS BOND AS PROVIDED IN THE INDENTURE, AND AGREES THAT THIS BOND
WILL BE PURCHASED ON THE DATE SPECIFIED UPON DEPOSIT WITH THE TRUSTEE OF AN
AMOUNT SUFFICIENT TO PAY THE PURCHASE PRICE HEREOF. THE OWNER OF THIS BOND ALSO
UNDERSTANDS AND AGREES THAT IN THE EVENT THE OWNER FAILS TO DELIVER THIS BOND,
PROPERLY ENDORSED FOR TRANSFER, TO THE TRUSTEE ON THE DATE SPECIFIED, INTEREST
WILL CEASE TO ACCRUE HEREON ON SUCH SPECIFIED DATE AND THE OWNER HEREOF WILL
THEREAFTER BE ENTITLED ONLY TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE
BENEFIT OF THE INDENTURE.
Purchase at Option of the Owner During Variable Rate Period.
-----------------------------------------------------------
While the Bonds bear interest at the Variable Rate, any Bond or portion
thereof in an authorized denomination will be purchased on the demand of the
owner thereof, on any Business Day at a purchase price equal to one hundred
percent (100%) of the principal amount thereof plus interest accrued to the date
of purchase upon delivery to the Tender Agent of a notice (herein called an
"Optional Tender Notice") in the form attached hereto as Exhibit B specifying
---------
the date on which such Bond will be purchased, which date will be a Business Day
not prior to the seventh (7th) day after the date of delivery of the Optional
Tender Notice. To receive payment of the purchase price, the owner will be
required to deliver such Bond to the Tender Agent, accompanied by an executed
form of assignment and any other instruments of transfer satisfactory to the
Trustee, not less than five (5) days prior to the purchase date specified in
such notice as provided in the Indenture; provided, however, that any owner
which is an investment company registered pursuant to the Investment Company Act
of 1940 may deliver such Bond to the Tender Agent at or prior to 10:00 am. on
the date of purchase. No purchase of Bonds at the option of the owner thereof or
on the Conversion Date will be deemed to be a payment or redemption of the Bonds
or any portion thereof. Notwithstanding the foregoing, no owner will have a
right to tender such owner's Bond(s) for purchase as described in this paragraph
following acceleration of the payment of the Bonds pursuant to the terms of the
Indenture or after the Conversion Date.
THE OWNER OF THIS BOND, BY ACCEPTANCE HEREOF, AGREES THAT DELIVERY OF THE
WRITTEN NOTICE DESCRIBED IN THE PRECEDING PARAGRAPH BY THE OWNER CONSTITUTES AN
IRREVOCABLE OFFER TO SELL THIS BOND ON THE DATE SPECIFIED, AND THAT THIS BOND
WILL BE PURCHASED ON SUCH DATE UPON DEPOSIT WITH THE TENDER AGENT OF AN AMOUNT
SUFFICIENT TO PAY THE PURCHASE PRICE HEREOF. THE OWNER OF THIS BOND ALSO
UNDERSTANDS AND AGREES THAT IN THE EVENT THE OWNER FAILS TO DELIVER THIS BOND,
PROPERLY ENDORSED FOR TRANSFER, TO THE TENDER AGENT ON THE DATE SPECIFIED IN THE
NOTICE, THIS BOND WILL BE HELD BY THE OWNER AS AGENT FOR THE COMPANY, INTEREST
WILL CEASE TO ACCRUE HEREON AS
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OF THE DATE SPECIFIED IN THE NOTICE AND THE OWNER HEREOF WILL THEREAFTER BE
ENTITLED ONLY TO PAYMENT OF THE PURCHASE PRICE AND NOT TO THE BENEFITS OF THE
INDENTURE, AND THE ISSUER WILL, TO THE EXTENT PERMITTED BY LAW, EXECUTE AND THE
TRUSTEE WILL AUTHENTICATE AND DELIVER A SUBSTITUTE BOND IN LIEU OF THE
UNDELIVERED BOND.
Tender Agent.
------------
The Issuer had appointed First Union National Bank, Richmond, Virginia as
Tender Agent. The Tender Agent may be changed at any time by the Company with
the consent of the Issuer and the Trustee.
Authorized Denominations.
------------------------
Subject to the provisions of the Indenture, the Bonds are issuable as
registered Bonds in the denomination of One Hundred Thousand Dollars ($100,000)
or any integral multiple of $5,000 in excess thereof; provided that if less than
$100,000 in principal amount of Bonds is Outstanding (as defined in the
Indenture), one Bond shall be issued in such smaller denomination; and provided
further, that if as a result of redemption pursuant to Article 7 of the
Indenture the unredeemed portion of a redeemed Bond shall be less than $100,000,
a replacement Bond in the amount of such unredeemed portion may be issued.
Subject to the limitations provided in the Indenture and upon payment of any tax
or governmental charge, if any, Bonds may be exchanged for a like aggregate
principal amount of Bonds of other authorized denominations.
Transfer.
--------
This Bond is transferable by the registered owner hereof or his duly
authorized attorney at the corporate trust office of First Union National Bank,
as Bond Registrar, in the City of Richmond, Virginia, in compliance with the
terms and conditions set forth in the Indenture and upon surrender of this Bond,
provided that transfers in connection with the remarketing hereof will be made
at the corporate trust office of the Credit Facility Trustee in Wilson, North
Carolina, accompanied by a duly executed instrument of transfer in form
satisfactory to the Bond Registrar, subject to such reasonable regulations as
the Issuer, the Bond Registrar or the Trustee may prescribe and upon payment of
any tax or other governmental charge incident to such transfer, PROVIDED THAT IF
MONEYS FOR THE PURCHASE OF THIS BOND HAVE BEEN PROVIDED PURSUANT TO A DRAW UNDER
THE CREDIT FACILITY, THIS BOND IS NOT TRANSFERABLE TO ANYONE OTHER THAN THE
COMPANY OR ITS ASSIGNEE OR PLEDGEE. Upon any such transfer, a new Bond or Bonds
registered in the name of the transferee or transferees in denominations
authorized by the Indenture and in the same aggregate principal amount as the
principal amount of this Bond (and of the same maturity and bearing interest at
the same rate) will be issued to the transferee. Except as set forth in this
Bond and as otherwise provided in the Indenture, the person in whose name this
Bond is registered will
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be deemed the owner hereof for all purposes, and the Issuer, the Bond Registrar
and the Trustee will not be affected by any notice to the contrary.
The owner of this Bond will have no right to enforce the provisions of the
Indenture or to institute action to enforce the covenants therein, or to take
any action with respect to any Event of Default under the Indenture or to
institute, appear in or defend any suit or other proceeding with respect
thereto, except as provided in the Indenture.
In certain events, on the conditions, in the manner and with the effect set
forth in the Indenture, the principal of this Bond may become or may be declared
due and payable before the stated maturity hereof, together with the interest
accrued hereon.
Modifications or alterations of the Lease Agreement and the Indenture and
any supplement or amendment thereto may be made only to the extent and in the
circumstances permitted by the Indenture and may be made in certain cases
without the consent of the owners of the Bonds.
No recourse shall be had for the enforcement of any obligation, promise or
agreement of the Issuer contained herein or other documents to which the Issuer
is a party or for any claim based hereon or thereon or otherwise in respect
hereof or thereof against any director, member, officer, agent, attorney or
employee, as such, in his/her individual capacity, past, present or future, of
the Issuer or of any successor entity, either directly or through the Issuer or
any successor entity, under or by reason of any of the obligations, promises or
agreements entered into in this Bond or between the Issuer and the Trustee; and
all personal liability of that character against every such director, member,
officer, agent, attorney and employee is, by the execution of the Indenture and
as a condition of, and as part of the consideration for, the execution of this
Indenture, expressly waived and released.
Notwithstanding anything to the contrary, any liability for payment of
money and any other liability or obligation which the Issuer may incur under
this Bond shall not constitute a general obligation of the Issuer but shall
constitute limited obligations of the Issuer payable solely from and enforced
only against the Trust Estate. No recourse shall be had for the enforcement of
any obligation, promise or agreement of the Issuer contained herein or in the
Bonds or the Lease Agreement to which the Issuer is a party or for any claim
based hereon or thereon or otherwise in respect hereof or thereof against any
director, member, officer, agent, attorney or employee, as such, in his
individual capacity, past, present or future, of the Issuer or of any successor
entity, either directly or through the Issuer or any successor entity whether by
virtue of any constitutional provision, statute or rule o law, or by the
enforcement of any assessment or penalty otherwise. No personal liability
whatsoever shall attach to, or be incurred by, any director, member, officer,
agent, attorney or employee as such, past, present or future, of the Issuer or
of any successor entity, either directly or through the Issuer or any successor
entity, under or by reason of any of the obligations, promises or agreements
entered into in this Bond or between the
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Issuer and the Trustee, whether herein contained or to be implied herefrom as
being supplemental hereto; and to all personal liability of that character
against every such director, member, officer, agent, attorney and employee is ,
by the execution of the Indenture and as a condition of, and as part of the
consideration for, the execution of the Indenture, expressly waived and
released.
Anything herein or in the Indenture to the contrary notwithstanding, the
obligations of the Issuer hereunder will be subject to the limitation that
payment of interest to the owner of this Bond will not be required to the extent
that receipt of any such payment by the owner of this Bond would be contrary to
the provisions of law applicable to such Bond which limits the maximum rate of
interest which may be charged or collected by such owner.
In any case where the date of maturity of interest on or principal of the
Bonds or the date fixed for redemption of the Bonds shall be in the city of
payment a day other than a Business Day, then payment of interest or principal
need not be made on such date but may be made on the next succeeding Business
Day with the same force and effect as if made on the date of maturity or the
date fixed for redemption, provided that interest will accrue for the period of
any such extension.
This Bond will be governed by and construed in accordance with the laws of
the State of Georgia.
All acts, conditions and things required to happen, exist and be performed
precedent to and in the issuance of this Bond and the execution of the Indenture
have happened, exist and have been performed as so required.
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IN WITNESS WHEREOF, Development Authority of McDuffie County has caused
this Bond to be executed with the manual signature of the Chairman of the
Issuer, its official seal to be impressed or imprinted hereon and the same to be
attested by the manual signature of the Chairman of the Issuer, all as of
December 31, 1997.
MCDUFFIE COUNTY DEVELOPMENT
AUTHORITY
[SEAL]
By:________________________________
Chairman
Attest:______________________________
Secretary
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CERTIFICATE OF AUTHENTICATION
This Bond is one of the Bonds of the series designated therein and issued
under the provisions of the within-mentioned Indenture.
FIRST UNION NATIONAL BANK,
as Trustee
By:________________________________
Authorized Signatory
Date of Authentication: December 31, 1997
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VALIDATION CERTIFICATE
----------------------
STATE OF GEORGIA
COUNTY OF MCDUFFIE
The undersigned Clerk of the Superior Court of McDuffie County,
Georgia, HEREBY CERTIFIES that the within bond was confirmed and validated by
judgment of the Superior Court of McDuffie County, Georgia, rendered on the 29th
day of December, 1997, that no intervention or objection was filed thereto and
that no appeal has been taken therefrom.
WITNESS the manual or duly authorized reproduced facsimile of my
signature and the reproduced facsimile seal of said Court.
(SEAL) _________________________________
Clerk, Superior Court,
McDuffie County, Georgia
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
the within bond of the ____________________________ and does hereby constitute
and appoint _______________________________ attorney to transfer the said bond
on the books of the within named Issuer, with full power of substitution in the
premises.
Dated:
In the presence of: ________________________________
Bondholder
Signature Guaranteed:
_____________________________
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EXHIBIT D
Description of Project
EXHIBIT E
REQUISITION CERTIFICATE
-----------------------
TO: FIRST UNION NATIONAL BANK, AS TRUSTEE
FROM: ADVANCE STORES COMPANY, INCORPORATED (THE "COMPANY")
SUBJECT: LEASE AGREEMENT DATED AS OF DECEMBER 1, 1997
This represents Requisition Certificate No. _______ in the total amount of
$___________ for payment of those Costs of the Project detailed in the schedule
attached.
The undersigned does certify that"
1. All of the expenditures for which monies are requested hereby
represent proper Costs of the Project, have not been included in a previous
Requisition Certificate and have been properly recorded on the Company's books.
2. The monies requested thereby are not greater than those necessary to
meet obligations due and payable or to reimburse the company for funds actually
advanced for Costs of the Project. The monies requested do not include
retention or other monies not yet due or earned under construction contracts.
3. After payment of monies hereby requested, there will remain available
to the Company sufficient funds to complete the Project substantially in
accordance with the plans.
4. The Company is not in default under the Lease Agreement or the
Reimbursement Agreement and nothing has occurred to the knowledge of the Company
that would prevent the performance of its obligations under the Lease Agreement
or the Reimbursement Agreement.
Executed this _________ day of ________________, 19___.
ADVANCE STORES COMPANY,
INCORPORATED
By:____________________________
Its:
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