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EXHIBIT 10.23
TRUST INDENTURE
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PALM BEACH COUNTY, FLORIDA
FIRST UNION NATIONAL BANK OF FLORIDA,
as Trustee
and
BRANCH BANKING AND TRUST COMPANY,
as Credit Facility Trustee
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securing the
$7,650,000
PALM BEACH COUNTY, FLORIDA
VARIABLE RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE BONDS
(PALM BEACH BEDDING COMPANY PROJECT),
SERIES 1996
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DATED AS OF APRIL 1, 1996
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION.................................................... 5
Section 1.1 Definitions............................................................ 5
Section 1.2 Rules of Construction.................................................. 16
ARTICLE 2
THE BONDS................................................................................ 16
Section 2.1 Amount, Terms, and Issuance of the Bonds............................... 16
Section 2.2 Designation. Denominations, Maturity Date and Interest Rates of the
Bonds.................................................................. 17
Section 2.3 Optional Tender Provisions of the Bonds................................ 21
Section 2.4 Registered Bonds Required: Bond Registrar and Bond Register............ 22
Section 2.5 Transfer and Exchange.................................................. 22
Section 2.6 Execution.............................................................. 23
Section 2.7 Authentication; Authenticating Agent................................... 23
Section 2.8 Payment of Principal and Interest; Interest Rights Preserved........... 24
Section 2.9 Persons Deemed Owners.................................................. 25
Section 2.10 Mutilated, Destroyed, Lost, Stolen or Undelivered Bonds................ 25
Section 2.11 Temporary Bonds........................................................ 26
Section 2.12 Cancellation of Surrendered Bonds...................................... 26
Section 2.13 Conditions of Issuance................................................. 26
Section 2.14 Book Entry............................................................. 28
ARTICLE 3
PURCHASE AND REMARKETING OF TENDERED BONDS............................................... 29
Section 3.1 Remarketing of Tendered Bonds.......................................... 29
Section 3.2 Purchase of Bonds Delivered to the Tender Agent........................ 30
Section 3.3 Delivery of Purchased Bonds............................................ 32
Section 3.4 Delivery of the Proceeds of the Sale of Remarketed Bonds............... 32
Section 3.5 No Remarketing After Certain Events.................................... 33
ARTICLE 4
APPLICATION OF BOND PROCEEDS; PROJECT FUND............................................... 33
Section 4.1 Application of Bond Proceeds........................................... 33
Section 4.2 Creation of and Deposits to the Project Fund........................... 33
Section 4.3 Payments from the Project Fund......................................... 34
Section 4.4 Trustee May Rely on Requisitions....................................... 34
Section 4.5 Completion Date........................................................ 34
Section 4.6 Transfers to the Bond Fund............................................. 34
Section 4.7 Trustee's Records...................................................... 35
Section 4.8 Disposition of Balance in Project Fund................................. 35
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ARTICLE 5
REVENUES AND APPLICATION THEREOF......................................................... 35
Section 5.1 Revenues to be Paid Over to Trustee.................................... 35
Section 5.2 The Bond Fund.......................................................... 35
Section 5.3 Revenues to Be Held for All Bondholders; Certain Exceptions............ 37
Section 5.4 Rebate Fund............................................................ 37
ARTICLE 6
DEPOSITARIES OF MONEYS; SECURITY FOR DEPOSITS AND INVESTMENT
OF FUNDS................................................................................. 38
Section 6.1 Security for Deposits.................................................. 38
Section 6.2 Investment of Moneys................................................... 38
Section 6.3 The Credit Facility.................................................... 39
ARTICLE 7
REDEMPTION OR PURCHASE OF THE BONDS...................................................... 42
Section 7.1 Redemption or Purchase Dates and Prices................................ 42
Section 7.2 Company to Direct Optional Redemption.................................. 44
Section 7.3 Selection of Bonds to be Called for Redemption......................... 44
Section 7.4 Notice of Redemption or Purchase....................................... 44
Section 7.5 Bonds Redeemed or Purchased in Part.................................... 45
ARTICLE 8
PARTICULAR COVENANTS AND PROVISIONS...................................................... 45
Section 8.1 Covenant to Pay the Bonds; Bonds Limited Obligations of the
Issuer................................................................. 45
Section 8.2 Covenants to Perform Obligations Under this Indenture.................. 46
Section 8.3 Covenant to Perform Obligations Under the Loan Agreement............... 46
Section 8.4 Trustee May Enforce the Issuer's Rights Under the Loan
Agreement.............................................................. 46
Section 8.5 Covenant Against Arbitrage............................................. 47
Section 8.6 Inspection of the Bond Register........................................ 47
Section 8.7 Priority of Pledge and Security Interest............................... 47
Section 8.8 Maintenance of Insurance; Payment of Taxes, Charges etc................ 47
Section 8.9 Maintenance and Repair................................................. 47
Section 8.10 Insurance and Condemnation Proceeds.................................... 48
ARTICLE 9
DEFAULT AND REMEDIES..................................................................... 48
Section 9.1 Defaults............................................................... 48
Section 9.2 Acceleration and Annulment Thereof..................................... 49
Section 9.3 Other Remedies......................................................... 50
Section 9.4 Legal Proceedings by the Credit Facility Trustee....................... 50
Section 9.5 Discontinuance of Proceedings by the Credit Facility Trustee........... 50
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Section 9.6 Credit Facility Issuer or Bondholders May Direct Proceedings........... 50
Section 9.7 Limitations on Actions by the Bondholders.............................. 51
Section 9.8 Credit Facility Trustee May Enforce Rights Without Possession of the
Bonds.................................................................. 51
Section 9.9 Remedies Not Exclusive................................................. 52
Section 9.10 Delays and Omissions Not to Impair Rights.............................. 52
Section 9.11 Application of Moneys in the Event of Default.......................... 52
Section 9.12 Credit Facility Trustee and Bondholders Entitled to All Remedies
Under the Act.......................................................... 52
Section 9.13 Credit Facility Trustee May File Claim in Bankruptcy................... 53
Section 9.14 Receiver............................................................... 53
ARTICLE 10
CONCERNING THE TRUSTEE................................................................... 54
Section 10.1 Acceptance of the Trusts............................................... 54
Section 10.2 Acceptance of Trusts by Credit Facility Trustee........................ 55
Section 10.3 Trustee or Credit Facility Trustee to Give Notice...................... 56
Section 10.4 Trustee and The Credit Facility Trustee Entitled to Indemnity.......... 57
Section 10.5 Trustee nor Credit Facility Trustee Responsible for Insurance, Taxes,
Execution of Indenture, Acts of Issuer or Application of Moneys
Applied in Accordance with Indenture................................... 58
Section 10.6 Compensation........................................................... 59
Section 10.7 Trustee to Preserve Records............................................ 59
Section 10.8 Trustee or Credit Facility Trustee May Be a Bondholder................. 59
Section 10.9 Trustee and Credit Facility Trustee Not Responsible for Recitals....... 59
Section 10.10 No Responsibility for Recording or Filing.............................. 59
Section 10.11 Trustee and Credit Facility Trustee May Require Information............ 60
Section 10.12 Trustee and Credit Facility Trustee May Rely on Certificates........... 60
Section 10.13 Trustee or Credit Facility Trustee Bond................................ 60
Section 10.14 Segregation of Funds; Interests........................................ 60
Section 10.15 Qualification of the Trustee and the Credit Facility Trustee........... 60
Section 10.16 Resignation and Removal of the Trustee or Credit Facility Trustee...... 61
Section 10.17 Successor Trustee or Credit Facility Trust............................. 62
Section 10.18 Co-Trustee............................................................. 63
Section 10.19 Notice to Moody's or S&P............................................... 64
ARTICLE 11
EXECUTION OF INSTRUMENTS BY THE BONDHOLDERS
AND PROOF OF OWNERSHIP OF THE BONDS...................................................... 64
Section 11.1 Execution of Instruments by the Bondholders and Proof of Ownership
of the Bonds........................................................... 64
Section 11.2 Preservation of Information............................................ 65
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ARTICLE 12
THE REMARKETING AGENT; THE
TENDER AGENT; THE PLACEMENT AGENT........................................................ 65
Section 12.1 The Remarketing Agent.................................................. 65
Section 12.2 The Tender Agent....................................................... 66
Section 12.3 The Placement Agent.................................................... 66
Section 12.4 Notices................................................................ 67
ARTICLE 13
AMENDMENTS AND SUPPLEMENTS............................................................... 67
Section 13.1 Amendments and Supplements Without the Bondholders' Consent............ 67
Section 13.2 Amendments With the Bondholders' and the Credit Facility Issuer's
Consent................................................................ 68
Section 13.3 Supplemental Indentures Affecting the Rights of the Credit Facility
Issuer................................................................. 69
Section 13.4 Amendment of the Loan Agreement........................................ 69
Section 13.5 Amendment of the Loan Agreement Requiring the Consent of the
Credit Facility Issue.................................................. 70
Section 13.6 Amendment of the Credit Facility....................................... 70
Section 13.7 Trustee and the Credit Facility Trustee Authorized to Join in
Amendments and Supplements: Reliance on Counsel........................ 70
ARTICLE 14
DEFEASANCE; OTHER PAYMENTS............................................................... 71
Section 14.1 Defeasance............................................................. 71
Section 14.2 Deposit of Funds for Payment of the Bonds.............................. 72
Section 14.3 Effect of Purchase of the Bonds........................................ 73
ARTICLE 15
MISCELLANEOUS PROVISIONS................................................................. 73
Section 15.1 Covenants of the Issuer to Bind its Successors......................... 73
Section 15.2 Notices................................................................ 73
Section 15.3 Trustee as the Paying Agent and the Bond Registrar..................... 74
Section 15.4 Rights Under this Indenture............................................ 74
Section 15.5 Form of Certificates and Opinions...................................... 74
Section 15.6 Severability........................................................... 75
Section 15.7 Covenants of Issuer Not Covenants of Officials Individually............ 75
Section 15.8 State Law Governs...................................................... 75
Section 15.9 Payments Due on Days Other Than Business Days.......................... 75
Section 15.10 Execution in Counterparts.............................................. 75
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EXHIBIT A Notice of Conversion........................................................... A-1
EXHIBIT B Book Entry Agreement .......................................................... B-1
EXHIBIT C Form of Bond................................................................... C-1
Attachment C-1 Form of Bondholder's Optional Retention Notice C-16
Attachment C-2 Form of Bondholder's Optional Tender Notice C-18
EXHIBIT D Requisition and Certificate ................................................... D-1
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TRUST INDENTURE
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This TRUST INDENTURE, dated as of April 1, 1996, among PALM
BEACH COUNTY, FLORIDA, a political subdivision under the laws of the State of
Florida (the "Issuer"), FIRST UNION NATIONAL BANK OF FLORIDA, a national banking
association, having a corporate trust office in Miami, Florida, 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 is a political subdivision of the State of
Florida (the "State"), authorized under Chapter 159, Part H, Florida Statutes,
as amended (the "Act"), to finance the acquisition, construction,
reconstruction, improvement, rehabilitation, renovation, expansion and
enlargement, or additions to, furnishing and equipping of any capital project
for any "manufacturing plant" (as defined in the Act), including land, rights in
land, buildings and other structures, machinery, equipment, appurtenances and
facilities incidental thereto, and other improvements necessary or convenient
therefor, and to obtain funds to finance the cost thereof by the issuance of its
revenue bonds, for the purposes of enhancing and expanding the agriculture,
tourism, urban development, historic preservation, education and health care
industries, among others, enhancing other economic activity in the State by
attracting manufacturing development, business enterprise management and other
activities conducive to economic promotion, providing a stronger, more balanced
and stable economy in the State, improving the prosperity and welfare of the
State and its inhabitants, promoting and fostering the economic growth and
development of the Issuer and the State, increasing purchasing power and
opportunities for gainful employment, advancing and improving the economic
prosperity of the State and its inhabitants, fostering the industrial and
business development of the Issuer, improving education, living conditions and
health care, promoting the preservation of historic structures, the
rehabilitation of enterprise zones, improved transportation, effective and
efficient pollution control and the advancement of education and science and
research in the State, and otherwise providing for and contributing to the
health, safety and welfare of the people of the State, and the Issuer is further
authorized by the Act to pledge and assign as security for the payment of the
principal of and interest on such bonds any revenues derived by the Issuer
pursuant to financing agreements with respect to such projects; and
WHEREAS, Palm Beach Bedding Company, a Florida corporation
(the "Company"), has requested that the Issuer finance, pursuant to such
authority and in accordance with the Act, the construction of a 225,000 square
foot manufacturing facility and appurtenances in the unincorporated area of the
Issuer (the "Project"), to be owned and operated by the Company; and
WHEREAS, the Issuer and the Company will enter into a Loan
Agreement, dated as of April 1, 1996 (the "Loan 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
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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 construction and equipping 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 $7,650,000 as hereinafter provided; and
WHEREAS, the Company and First Union National Bank of Florida,
a national banking association (the "Bank"), have entered into a letter of
Credit and Reimbursement Agreement, dated as of April 1, 1996 (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 one hundred twenty (120) days accrued interest on the Bonds at an assumed
interest rate of twelve percent (12%) per annum, 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, for the purpose of providing security for the
obligations of the Company to the Bank under the Reimbursement Agreement, the
Company has entered into a Mortgage and Security Agreement, dated as of April 1,
1996 (the "Mortgage") constituting a valid first lien on the Mortgaged Property
(as defined in the Mortgage), together with all improvements and appurtenances
presently located or hereafter to be constructed thereon; 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 Loan 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, but excluding
the Rebate Fund; and (c) the 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 (as hereinafter defined) to the payment of the
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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 Loan 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
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 Loan 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 Loan Agreement whether
made at their respective due dates or as prepayments permitted or required by
the Loan 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 Loan Agreement:
(1) Section 6.5 (pertaining to the Issuer's non-exclusive
right to receive payment for certain advances);
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(2) Section 7.1 (pertaining to the Issuer's right of access to
the Project and certain records);
(3) Section 7.3 (pertaining to the Issuer's right to receive
certain information);
(4) Section 7.8 (pertaining to the Issuer's right to receive
payment for certain costs and expenses);
(5) Section 7.9 (pertaining to the Issuer's right to certain
indemnities);
(6) Section 7.10 (pertaining to the Issuer's right to release
and indemnification);
(7) Section 7.11 (pertaining to the Issuer's right to provide
certain information);
(8) Sections 7.12 and 8.1 (pertaining to the Issuer's right to
consent or withhold consent to assignment of rights of the Company
under the Loan Agreement or lease or sale of the Project);
(9) Sections 9.3 and 9.5 (pertaining to the Issuer's right to
reimbursement of expenses incurred upon a default);
(10) Sections 10.1(c), 10.2 and 10.3 (pertaining to the
Issuer's right to notice of prepayments and rights upon the occurrence
of certain events);
(11) Section 12.5 (pertaining to the Issuer's right to receive
notices);
(12) Section 12.13 (pertaining to the limitations on the
liability of the Issuer); and
(13) Section 12.14 (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, but excluding the Rebate
Fund; and
(c) the 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;
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
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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 14 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 14 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, and the Issuer has agreed and covenanted, and
does hereby agree and covenant, with the Trustee, the Credit Facility Trustee
and with the owners of said Bonds, as follows, that is to say:
ARTICLE 1
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1 Definitions. All words and terms defined in
Article 1 of the Loan 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 Part II, Chapter 159, Florida Statutes, 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 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.
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"Authorized Denominations" shall mean (i) during such time as
the Bonds bear interest at a Variable Rate, $100,000 or any integral multiple of
$5,000 in excess thereof, and (ii) during such time as the Bonds bear interest
at the Fixed Rate, $5,000 or any integral multiple thereof.
"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 4.2 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, the Company or any guarantor of
the Company's obligations under the Loan Agreement as
described in Article 3 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
(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 of Florida, 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 the Palm Beach County, Florida,
Variable Rate Demand Industrial Development Revenue Bonds (Palm Beach Bedding
Company Project), Series 1996, issued by the Issuer under this Indenture.
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"Bond Counsel" shall mean the firm of bond attorneys whose
opinion is set forth in the Bonds, or their 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 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 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.
"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; provided, that if the
Determination Date at the end of a Calculation Period is a Regular Record Date,
such Calculation Period will extend until the Business Day following such
Determination Date.
"Code" shall mean the Internal Revenue Code of 1986, as
amended. Reference herein to any specific provision of the Code shall be deemed
to include a reference to any successor provision to such provision and to any
Regulations issued or proposed under or with respect to such provision.
"Company" shall mean Palm Beach Bedding Company, a Florida
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.
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"Cost of Issuance Account" shall mean the account of that name
established pursuant to Section 4.1 hereof.
"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 6 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" shall mean 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.
"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.
"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 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 eight percent
(8%) per annum.
"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.
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"Governmental Obligations" shall mean:
(a) 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,
(b) 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
(c) securities or receipts evidencing ownership interests in
obligations or specified portions (such as principal or interest) of obligations
described in clause (a) or (b) above the full and timely payment of which
securities, receipts or obligations is unconditionally guaranteed by the United
States of America, which obligations, 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 Trust Indenture as amended or
supplemented at the time in question.
"Initial Interest Rate" shall mean the initial rate of
interest of three and six tenths percent (3.6%) per annum on the Bonds.
"Initial Rate Period" shall mean from and including the
Original Delivery Date to and including April 3, 1996.
"Interest Payment Date" shall mean the first Business Day of
each January, April, July and October commencing on July 1, 1996 and ending on
the Conversion Date and the Maturity Date.
"Investment Obligations" shall mean:
(a) any Government Obligations;
(b) any bonds or other obligations of the United States of
America which as to principal and interest constitute direct obligations of the
United States of America, or any obligations of subsidiary corporations of the
United States of America fully guaranteed as to payment by the United States of
America;
(c) obligations of the Federal Land Bank;
(d) obligations of the Federal Home Loan Bank;
(e) obligations of the Federal Intermediate Credit Bank;
(f) bonds or 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
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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;
(g) 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 the State which have
deposits insured by the Federal Deposit Insurance Corporation (including the
certificates of deposit of any bank, savings and loan association or building
and loan association acting as depository, custodian or trustee for any proceeds
of the Bonds); provided however, that the portion of such certificates of
deposit in excess of the amount insured by the Federal Deposit Insurance
Corporation, if any, shall be secured by deposit with the Federal Reserve Bank
of Miami, Florida, or with any national or state bank located within the State,
of any of the obligations included in (a), (b), (c), (d), (e) or (f) above;
(h) interest-bearing savings accounts (including those of the
Trustee), interest bearing certificates of deposit or interest-bearing time
deposits or any other investments constituting direct obligations of any bank
which has deposits insured by the Federal Deposit Insurance Corporation;
provided that such accounts, certificates of deposits, time deposits, or
investments are either (1) insured by the Federal Deposit Insurance Corporation,
or (2) secured by the deposit with any national or state bank located within the
State of any Government Obligations;
(i) short term obligations of corporations organized under the
laws of any state with assets exceeding $500,000,000 if (1) such obligations are
rated within the two (2) highest categories established by Moody's and S&P and
which mature no later than one hundred eighty (180) days from the date of
purchase and (2) the purchases do not exceed ten percent (10%) of such
corporation's outstanding obligations;
(j) money market mutual funds registered under the Investment
Company Act of 1940, as amended, provided that the portfolio of any such money
market fund is limited to Government Obligations and to agreements to purchase
Government Obligations; and
(k) repurchase agreements with respect to obligations included
in subsections (a) through (f) 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 Palm Beach County, Florida, a political
subdivision of the State organized and existing pursuant to the laws of the
State.
"Letter of Credit" shall mean the irrevocable direct pay
letter of credit, dated the date of delivery of the Bonds in the amount of
$7,956,000 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.
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"Loan Agreement" shall mean the Loan Agreement of even date
herewith between the Issuer and the Company and any amendments or supplements
thereof permitted by this Indenture.
"Majority of the Bondholders" shall mean the owners of a
majority of the aggregate principal amount of the Outstanding Bonds.
"Maturity Date" shall mean the first Business Day of April,
2016, 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.
"Maximum Rate" shall mean (i) during such time as the Bonds
bear interest at a Variable Rate, the lesser of the maximum rate permitted by
applicable law or 12% per annum, and (ii) during such time as the Bonds bear
interest at the Fixed Rate, the maximum rate permitted by applicable law.
"Moody's" shall mean Moody's Investors Service, Inc., a
Delaware corporation, its successors and assigns, and, if such corporation shall
be dissolved or liquidated or shall no longer perform the functions of a
securities rating agency, "Moody's" shall be deemed to refer to any other
nationally recognized securities rating agency designated by the Trustee, with
the consent of the Company and the Credit Facility Issuer.
"Mortgage" shall mean the Mortgage and Security Agreement,
dated as of April 1, 1996, by and between the Company and the Bank and any
amendments or supplements thereof permitted by this Indenture.
"Optional Retention Notice" shall mean a notice of the owner
of a Bond to the Trustee in the form attached to the Bond as Attachment C-1.
"Optional Tender Notice" shall mean a notice from the owner of
a Bond to the Tender Agent in the form attached to the Bond as Attachment C-2.
"Original Delivery Date" shall mean April 2, 1996.
"Outstanding" in connection with Bonds shall mean, as of the
time in question, all Bonds authenticated and delivered under the Indenture,
except:
(a) Bonds theretofore canceled or required to be canceled
under Section 2.12 hereof,
(b) Bonds which are deemed to have been paid in accordance
with Article 14 hereof, and
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(c) Bonds in substitution for which other Bonds have been
authenticated and delivered pursuant to Article 2 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 to
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.
"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 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 Loan 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 Loan 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 rate 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.
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"Project" shall mean the construction of a 225,000 square foot
manufacturing facility and appurtenances located in the unincorporated area of
the Issuer, as more particularly described in Exhibit A to the Loan Agreement,
and any other interests in real property, leasehold interest, easements,
licenses, and rights in real property hereafter acquired by the Company with
proceeds of the Bonds for use in connection with the Project.
"Project Fund" shall mean the trust fund so designated which
is established pursuant to Section 4.2 hereof
"Rebate Fund" shall mean the trust fund so designated which is
established pursuant to Section 5.4 hereof.
"Regular Record Date" shall mean:
(a) 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
(b) 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 of
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.
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"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:
(a) all amounts payable to the Trustee with respect to the
principal or redemption price of, or interest on the Bonds (1) by the Company
under the Loan Agreement, (2) by the Credit Facility Issuer under a Credit
Facility, and (3) by transfer from the Project Fund pursuant to Section 4.2
hereof, and
(b) 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 in the Mortgage and shall have the meaning
set forth in the U.C.C.
"S&P" shall mean Standard & Poor's Ratings Services, a
division of The 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 Florida.
"Substitute Bank" shall mean a commercial bank or savings and
loan association which has issued an Alternate Credit Facility.
"Tender Agent" shall mean First Union National Bank of Florida
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.
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"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 of Florida, 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 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
Florida.
"Undelivered Bond" shall mean:
(a) 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
(b) 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. In the event the
Remarketing Agent fails to certify such rate for four (4) consecutive
Calculation Periods, such rate for each Calculation Period thereafter (if none
is certified by the Remarketing Agent) shall be ninety percent (90%) of the
yield for United States Treasury bills maturing approximately thirty (30) days
after the Determination Date for such Calculation Period as published by The
Wall Street Journal on such Determination Date (or the next preceding Business
Day on which The Wall Street Journal is published if The Wall Street Journal is
not published on the Determination Date) (or, if The Wall Street Journal is no
longer published, then any reasonably equivalent financial publication selected
by the Remarketing Agent) (or the next Business Day on which The Wall Street
Journal or such other publication is published if not published on the
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 eight percent (8%) per annum.
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"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 "Bond," "owner,"
"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 the Code or any particular
provision or section thereof shall be deemed to refer to any successor, or
successor provision or section, thereof, as the case maybe.
(f) All references herein to time shall be Charlotte, North
Carolina time.
ARTICLE 2
THE BONDS
Section 2.1 Amount, Terms, and Issuance of the Bonds.
(a) The Bonds shall be limited to $7,650,000 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 2. No additional
bonds shall be issued under this Indenture.
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(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 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 "$7,650,000 Palm Beach County, Florida, Variable Rate Demand
Industrial Development Revenue Bonds (Palm Beach Bedding Company Project),
Series 1996." The Bonds shall be issuable as fully registered Bonds in
Authorized Denominations. 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 7 hereof, on the first Business Day of April, 2016. 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; provided, however, that the Bonds shall never
bear interest at a rate in excess of the Maximum Rate. On each Interest Payment
Date, interest accrued through the day immediately preceding such Interest
Payment Date shall be payable by the Company. 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.
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(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:
(i) 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
(ii) 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 and
will not, in and of itself, cause interest on the
Bonds to be includable in the gross income of the
owners thereof for federal income tax purposes. 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 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:
(i) 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,
(ii) 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,
(iii) state the Preliminary Fixed Rate,
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(iv) state that depending on market
conditions, the Fixed Rate may be higher but in no
event lower than the Preliminary Fixed Rate,
(v) state that payment of the Bonds will not
be supported by a Credit Facility after the
Conversion Date,
(vi) state that the rating on the Bonds (if
any) may be reduced or withdrawn on the Conversion
Date,
(vii) 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,
(viii) 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
(ix) 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. (Charlotte, North Carolina
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
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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:
(i) if any of the Bonds have been tendered
or deemed tendered for purchase, then:
a) 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 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
b) 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
(ii) 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. There
is not a Credit Facility in effect."
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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 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
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notice from and including the date payment of the Bonds is accelerated following
an Event of Default pursuant to Article 9 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 trustee imposed by Section 10.15
hereof. The Issuer hereby appoints First Union National Bank of Florida 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
Miami, Florida 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 3, which
shall be effected at the corporate trust office of the Tender Agent in Miami,
Florida, Bonds shall be surrendered for transfer at the corporate trust office
of the Trustee in Miami, Florida. 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
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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 3 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.
(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 3 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 Chair-man 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 Clerk 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 14 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.
(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.
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(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 14 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.
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,
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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 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
specially provided this Indenture, shall be Outstanding Bonds.
Section 2.13 Conditions of Issuance.
(a) Prior to or simultaneously with the authentication and
delivery of the 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 7 of the Reimbursement Agreement have been satisfied and there shall be
filled with the Trustee such documents, certificates and opinions as the Trustee
(or in the case of the Letter of Credit, the Credit Facility Trustee) may
require, including, the following:
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(1) A copy, certified by the Clerk of the Issuer, of
the resolution 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 Loan
Agreement, the Letter of Credit, the 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 Loan Agreement
and this Indenture have been duly authorized by the Issuer,
that the Loan 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 Loan Agreement by the Company, the
Loan 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 Loan Agreement,
the Reimbursement Agreement, the Remarketing Agreement and the
Tender Agency Agreement have been duly authorized by the
Company, that the Loan Agreement, the Reimbursement Agreement,
the Remarketing Agreement and the Tender Agency Agreement have
been duly executed and delivered by the Company, and that the
Loan Agreement, 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 Counsel to the Company to the
effect that copies of such instruments and financing
statements (described in such opinion) as are necessary have
been recorded and filed in the manner and places required by
State law with the effect that the lien on this Indenture has
been perfected and creates, as to the rights of the Issuer
under the Loan Agreement assigned under this Indenture, a
valid security interest.
(6) 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 all conditions
precedent to the delivery of the Bonds have been fulfilled and
that the
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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.
(7) Evidence satisfactory to the Trustee of
compliance by the Company with the insurance requirements of
Section 6.3 of the Loan Agreement.
(8) A written request and authorization of the Issuer
addressed to the Trustee directing the Trustee to authenticate
and deliver the Bonds.
(9) Such other documents as the Trustee may
reasonably require.
(10) A favorable opinion of Bond Counsel as to the
tax-exempt status of interest on the Bonds.
(b) When the documents mentioned in paragraphs (1) through
(10) 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 4 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 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 Indirect Participants (as each is
defined in the Book Entry Agreement contained as Exhibit B hereto) or the
beneficial owners with respect to (1) the accuracy of any records maintained by
DTC or any DTC Participant or DTC Indirect Participant; (2) 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; (3) 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; (4) the
selection of the beneficial owners to receive payment in the event of any
partial redemption of the Bonds; or (5) any consent given or other action taken
by DTC as registered owner.
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The Trustee shall issue Bonds directly to beneficial owners of
Bonds other than DTC, or its nominee, in the event that:
(a) DTC determines not to continue to act as securities
depository for the Bonds; or
(b) 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
(c) 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 (a) or (b) above,
the Company shall attempt to locate another qualified securities depository.
In the event the Issuer makes the determination noted in (c)
above, or if the Company fails to locate another qualified securities depository
to replace DTC upon occurrence of the events described in (a) or (b) 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.
The Trustee reserves the right to initially issue the Bonds
directly to the beneficial owners of the Bonds if the Trustee receives an
opinion of Bond Counsel that determines that use of the book-entry system would
cause the interest on the Bonds to be included in gross income of the
bondholders for federal income tax purposes pursuant to Section 103 of the Code.
ARTICLE 3
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
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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 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 a "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, the Issuer or any guarantor of the
Company's obligations under the Loan Agreement) shall be deposited by the
Remarketing Agent or the Placement Agent, as the case may be, in the Remarketing
Account. At or prior to 9:00 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
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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
be delivered by the Credit Facility Trustee 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 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;
(3) any other Available Moneys; and
(4) 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 9:30 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 10:00 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 3. 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. 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. The Trustee and Credit Facility Trustee shall notify the Tender
Agent promptly after receipt of notice from the Credit Facility Issuer
reinstating the Credit Facility.
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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 or
the Credit Facility Issuer designee as pledgee of the Company
pursuant to the terms of the Reimbursement Agreement and the
Pledge Agreement.
(3) Bonds purchased with draws under the Credit
Facility for which the Credit Facility Issuer has been
reimbursed from excess moneys transferred from the Project
Fund to the Bond Fund pursuant to Section 4.8 hereof shall be
canceled by the Trustee.
(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
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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 3 after the Conversion Date or the date on which
principal of the Bonds shall have been accelerated pursuant to Section 9.2
hereof unless such acceleration has been rescinded as provided in Section 9.2
hereof.
ARTICLE 4
APPLICATION OF BOND PROCEEDS; PROJECT FUND
Section 4.1 Application of Bond Proceeds. The proceeds derived
from the sale of the Bonds shall, simultaneously with the delivery of the Bonds
to the purchaser or purchasers thereof, be applied by the Trustee as follows:
(a) A special account is hereby created and designated "Palm
Beach County, Florida, Variable Rate Demand Industrial Development Revenue Bonds
(Palm Beach Bedding Company Project), Series 1996 Cost of Issuance Account" (the
"Cost of Issuance Account"), which shall be used only for the payment of costs
and expenses described in this subsection. The sum of $175,072 shall be
deposited to the credit of the Costs of Issuance Account to pay (i) Letter of
Credit fees in the amount of $30,250 and (ii) costs and expenses in connection
with the preparation, issuance and sale of the Bonds, including fees of
financial advisors, engineering and other consulting fees, legal fees, printing
fees, rating agency fees and other similar costs, and all such costs and
expenses shall be promptly paid by the Trustee, at the written direction of the
Company, to the persons respectively entitled to receive the same. When all
moneys on deposit to the credit of the Costs of Issuance Account shall have been
disbursed by the Trustee for the payment of such costs and expenses, the Costs
of Issuance Account shall be closed; provided, however, that if any balance
shall remain in the Costs of Issuance Account six months after issuance of the
Bonds, such moneys shall be transferred by the Issuer to the Project Fund and
the Costs of Issuance Account shall be closed.
(b) The balance of the Bond proceeds shall be deposited in the
Project Fund.
Section 4.2 Creation of and Deposits to the Project Fund.
(a) A special fund is hereby created and designated "Palm
Beach County, Florida, Variable Rate Demand Industrial Development Revenue Bonds
(Palm Beach Bedding Company Project), Series 1996 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 Costs
of the Project, including all proceeds of the sale of the Bonds and insurance
and condemnation proceeds as provided in the Loan Agreement, shall be deposited
to the credit of the Project Fund.
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(b) The moneys in the Project Fund shall be held by the
Trustee in trust and, subject to the provisions of Section 4.6 and 9.2 of this
Indenture, shall be applied to the payment of the Costs 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 4.3 Payments from the Project Fund.
(a) Payment of the Costs 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 D 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 4.3, duly executed by the Company
Representative and in the manner provided for herein.
(c) The representations in the Requisition and Certificate
attached as Exhibit D may be deleted or modified with the written approval of
the Credit Facility Issuer (as evidenced by its signature on such Requisition
and Certificate); provided however that no material deviation form the language
in clauses (a), (d), (e), (f) or (h) of the Requisition and Certificate shall be
made without an approving opinion of Bond Counsel acceptable to the Trustee.
Section 4.4 Trustee May Rely on Requisitions. All requisitions
in the form provided by Section 4.3 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 4.7, subject at all reasonable times to examination by the Company (so
long as the Mortgage shall remain in force and effect), the Issuer, any
Bondholder and the agents and representatives thereof.
Section 4.5 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 Loan
Agreement, respectively.
Section 4.6 Transfers to the Bond Fund. In the event that the
Company should elect or be required to prepay the loan payments pursuant to
Section 10.1, Section 10.2 or Section 10.3 of the Loan Agreement or that the
Trustee shall declare the Bonds to be due and payable
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pursuant to Section 9.2 hereof, the Trustee shall, without further
authorization, forthwith transfer any balance remaining in the Project Fund to
the Repayments Account in the Bond Fund.
Section 4.7 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 Issuer and the Company a final
accounting.
Section 4.8 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, approved in writing by the Credit
Facility Issuer, stating the Completion Date and what items of the Costs 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, to the extent such funds constitute Available Moneys, 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, to the extent such
funds constitute Available Moneys, 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, or (c) provided that the Trustee shall have received an opinion of
Bond Counsel that such deposit shall not cause interest on the Bonds to be
includable in gross income for Federal income tax purposes under Section 103 of
the Code, such amounts may be transferred to the Bond Fund and, to the extent
such funds constitute Available Moneys, used 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.
ARTICLE 5
REVENUES AND APPLICATION THEREOF
Section 5.1 Revenues to be Paid Over to Trustee. The Issuer
has caused the Revenues to be paid directly to the Trustee. If, notwithstanding
these arrangements, the Issuer receives any payments under the Loan 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 "Palm Beach County, Florida, Variable Rate Demand
Industrial Development Revenue Bonds (Palm Beach Bedding Company Project),
Series 1996 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
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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 Loan 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. 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 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;
provided, however, that in the event the Determination Date shall fall between
the third (3rd) Business Day preceding the Payment Date and the Payment Date,
the Trustee shall provide such notification on the Business Day preceding the
Payment Date. Not later than 10:00 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
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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 written 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 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 7 of this Indenture, shall be held for the
benefit of the owners of such Bonds only.
Section 5.4 Rebate Fund. In the event that the Company
provides for the deposit of amounts from time to time for rebate to the United
States pursuant to the Loan Agreement, the Trustee is hereby authorized to
create a special fund to be designated as the "Rebate Fund." The Rebate Fund
shall be held separate and apart from all other funds under this Indenture and
shall not be subject to the lien and pledge granted hereunder for the benefit of
Bondholders. The Trustee shall remit money deposited in the Rebate Fund to the
United States or otherwise as directed in writing by the Company. All moneys
deposited in the Rebate Fund shall be held and invested at the sole direction of
the Company. In making investments hereunder, or in selling or disposing of
investments as required hereby, the Trustee shall have no duty or responsibility
to independently verify compliance with Sections 148 and 148(f) of the Code and
the regulations promulgated thereunder and the Trustee and the Issuer shall be
fully protected in relying solely upon the written directions of the Company as
aforesaid. Under no circumstances whatsoever shall the Trustee be liable to the
Issuer, the Company or any holder for any loss of tax-exempt status of the
Bonds, or any claims, demands, damages, liabilities, losses, costs or expenses
resulting therefrom or in any way connected therewith, so long as the Trustee
acts only in accordance with the written directions of the
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Company as provided hereunder. Neither the Trustee nor the Issuer shall be
responsible for any losses in the investment of money in the Rebate Fund made at
the direction of the Company.
ARTICLE 6
DEPOSITARIES 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 Loan Agreement shall
be held in trust and applied only in accordance with the provisions of this
Indenture and the Loan 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 Cost of
Issuance Account, 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. In making investments
hereunder, or in selling or disposing of investments as required hereby, the
Trustee shall have no duty or responsibility to independently verify compliance
with Sections 148(d) and 148(f) of the Code and the regulations promulgated
thereunder and the Trustee shall be fully protected in relying solely upon the
written directions of the Company as aforesaid. Under no circumstances
whatsoever shall the Trustee be liable to the Issuer, the Company or any holder
for any loss of tax-exempt status of the Bonds, or any claims, demands, damages,
liabilities, losses, costs or expenses resulting therefrom or in any way
connected therewith, so long as the Trustee acts only in accordance with the
written directions of the Company as provided hereunder.
(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, 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.
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(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.
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
$7,956,000 of which (A) $7,650,000 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) $306,000 shall support the
payment of up to one hundred twenty (120) days interest at an
assumed rate of twelve percent (12%) per annum 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 "Stated Termination 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
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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 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 one hundred twenty (120)
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
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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:
(i) a permanent withdrawal of its rating of
the Bonds, or
(ii) 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; provided, however, if the Company
provides the Credit Facility Trustee with an opinion of Bond
Counsel that a change in the then current rating on the Bonds
or a change in the Credit Facility Issuer to a bank or
institution the obligations of which are rated in a different
category than those obligations of equivalent term of the
issuer of the Credit Facility being replaced will not
adversely affect the exclusion of the interest on the Bonds
from gross income from federal tax purposes, then such
evidence need not be provided, but the Company shall instead
provide the Credit Facility Trustee with written evidence (or
such other evidence as shall be satisfactory to the Credit
Facility Trustee) that the commercial paper of the bank or
institution issuing the proposed Alternate Credit Facility is
rated P-3 or higher by Moody's or A-3 or higher by S&P.
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 7
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
7. 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 Period
----------------- -----------------
The Business Day four (4) years 103% declining by 1/2% on each succeeding
from the Conversion Date anniversary date of the first day of the
redemption period until reaching 100% and
thereafter at 100%
(b) Extraordinary Optional Redemption Due to Casualty or
Eminent Domain.
(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:
(i) The Project shall have been damaged or
destroyed to such extent that the amount of Net
Proceeds of insurance exceeds $50,000 and the
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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
(ii) 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) Determination of Taxability. The Bonds shall be
subject to mandatory redemption in whole on any date at a
redemption price equal to one hundred percent (100%) of the
principal amount thereof plus accrued interest to the
redemption date which shall not be more than one hundred
eighty (180) days following the receipt by the Trustee of a
written notice of a Determination of Taxability.
(2) 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 6 hereof.
(3) Excess Moneys in Project Fund. The Bonds shall be
subject to mandatory redemption in whole or in part from
moneys drawn under the Credit Facility for which the Credit
Facility Issuer has been reimbursed from excess moneys in the
Project Fund in accordance with the provisions of Section 4.4
of the Loan Agreement, which redemption date shall be no more
am sixty (60) days following the date of transfer of moneys to
the Bond Fund from the Project Fund.
(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.
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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 Loan 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 7 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.
Section 7.4 Notice of Redemption or Purchase.
(a) When required to redeem or purchase Bonds under any
provision of this Article 7, 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, respectively, at the office of the Trustee or the
Tender Agent, respectively, 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
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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 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.
(e) Purchases under Section 7. l(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.
ARTICLE 8
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 Loan Agreement and other Revenues.
(b) The Issuer shall not in any event be liable for the
payment of the principal of or interest on the Bonds, or for the performance of
any pledge, mortgage, obligation or agreement
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of any kind whatsoever which may be undertaken by the Issuer, and neither the
Bonds nor any of the agreements or obligations of the Issuer shall be construed
to constitute an indebtedness of the Issuer within the meaning of any
constitutional or statutory provision whatsoever. The Bonds and the interest
thereon shall never constitute an indebtedness or a charge against the general
credit 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 shall be limited obligations of the Issuer payable
solely from the revenues and other funds pledged therefor and shall not be
payable from any other assets or funds of the Issuer, 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
the Bonds.
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, undertaking, 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
Loan 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 Loan Agreement and other Revenues in the manner and to the extent herein set
forth, and to assign its interest in the Loan 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.
Section 8.3 Covenant to Perform Obligations Under the Loan
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 Loan 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 Loan
Agreement; that it will not execute or agree to any change, amendment or
modification of or supplement to the Loan 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 8 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 loan payments and to meet its other obligations as provided
in the Loan 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 Loan 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 Loan Agreement.
Section 8.4 Trustee May Enforce the Issuer's Rights Under the
Loan Agreement. The Loan 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
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12.9 thereof that subsequent to the issuance of the Bonds and prior to Payment
of the Bonds (as defined in the Loan Agreement) the Loan Agreement may not be
effectively amended, changed, modified, altered or terminated except as provided
in Article 8 of this Indenture, and reference is hereby made to the Loan
Agreement for a detailed statement of said covenants and obligations of the
Company under the Loan Agreement, and the Issuer agrees that the Trustee,
subject to the provisions of the Loan 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 Loan Agreement for and on
behalf of the Bondholders whether or not the Issuer is in default hereunder.
Section 8.5 Covenant Against Arbitrage. The Issuer covenants
and agrees that it will not make or authorize any use, and directs the Trustee
not to make or permit any use, of the proceeds of the Bonds which would cause
any Bond to be an "arbitrage bond" within the meaning of Section 148 of the Code
and the applicable regulations promulgated from time to time thereunder, and
further covenants that it will observe and not violate the requirements of
Section 148 of the Code and any such applicable regulations to the extent
necessary so that the interest on the Bonds will not cease to be excluded from
the gross income of the recipients thereof for federal income tax purposes by
reason of such use of proceeds; provided that neither the Issuer, the Credit
Facility Trustee, nor the Trustee shall be liable for any investment of moneys
under this Indenture made at the direction of the Company Representative.
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 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 Loan 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 Sections 6.3 and 6.4 of the Loan
Agreement and Sections 1.4, 1.5 and 1.8 of the Mortgage, 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 Loan Agreement or the Mortgage.
Section 8.9 Maintenance and Repair. Pursuant to the provisions
of Section 6.1 of the Loan 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
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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 Loan Agreement.
Section 8.10 Insurance and Condemnation Proceeds. Reference is
hereby made to Section 6.8 of the Loan 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.
ARTICLE 9
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 Loan 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 this subsection (g) of this Section 9.1 shall
constitute an Event of Default until written notice specifying such failure and
requiring the same to be
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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 have corrected said failure
within the applicable period.
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), (d) 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), (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), 9.1(b), 9.1(c), 9.1(d),
9.1(e), 9.1(f) or 9.1(g), the Credit Facility Trustee shall (immediately, and in
no event later than 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 Loan 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 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. l(e) hereof unless the
Credit Facility has been reinstated in accordance with its terms to an amount
equal to the
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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 Loan Agreement and any supplements or amendments
thereto. In exercising such rights and the rights given the Credit Facility
Trustee under this Article 9, 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
Loan 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 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
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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 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.
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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 9 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 9 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, 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 9 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.
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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 Loan 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.
(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 amounts 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
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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 Loan 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.
ARTICLE 10
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 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 Loan Agreement, except as hereinafter set
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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 grossly negligent action, its own grossly 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 grossly 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 North Carolina banking corporation and that it is authorized under such laws
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 Loan Agreement, but only upon
the terms and conditions set forth in this Article and subject to the provisions
of this Indenture and the Loan Agreement 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
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.
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(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 grossly negligent action, its own grossly 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 grossly
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
of the Bondholders relating to the time, method and place of
conducting any proceeding for any remedy available to the
Credit Facility Trustee, or exercising any 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 5 or failure by the Issuer or the Company
to file with the Trustee any document required by this Indenture or the Loan
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.
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(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.
(c) Promptly upon receipt of notice of the occurrence of a
Determination of Taxability, the Credit Facility Trustee shall give notice
thereof to the Company, the Issuer, the Trustee, the Bondholders and former
Bondholders and to the Credit Facility Issuer.
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 gross negligence or bad faith.
(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
Loan 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:
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(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 Credit Facility Trustee Responsible
for Insurance, Taxes, Execution of Indenture, Acts of Issuer or Application of
Moneys Applied in Accordance with 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 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 depositary
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.
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(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 gross 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. Subject to the provisions of any
contracts relating to the compensation of the Trustee and the Credit Facility
Trustee, the Issuer shall cause the Company to pay to the Trustee and the Credit
Facility Trustee as administrative expenses its reasonable fees, charges and
out-of-pocket expenses in accordance with Section 7.8 of the Loan 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 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
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Indenture, the Loan 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.
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 Loan 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
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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 Baa/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 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
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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,
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 Trust.
(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 case may be, shall deliver all
property and moneys held
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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 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
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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 Loan Agreement,
or the Credit Facility Agreement.
ARTICLE 11
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
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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.
ARTICLE 12
THE REMARKETING AGENT; THE
TENDER AGENT; THE PLACEMENT AGENT
Section 12.1 The Remarketing Agent.
(a) The Issuer hereby appoints First Union National Bank of
North Carolina, 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 thirty (30)
Business Days' prior written notice to the Issuer, the Trustee, the Credit
Facility Trustee, the Credit Facility Issuer, the Tender Agent and
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the Company, may resign. The Remarketing 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. 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.
Section 12.2 The Tender Agent.
(a) The Issuer hereby appoints as Tender Agent under this
Indenture First Union National Bank of Florida, which agent has a corporate
trust office in Miami, Florida. 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 or 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 Dealers
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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.
ARTICLE 13
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 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; and
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(g) to amend the administrative provisions hereof to
accommodate the provisions of an Alternate Credit Facility.
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 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
such amendment or supplement will not adversely affect the
exclusion of the interest on the Bonds from the gross income
of the recipients thereof for federal income tax purposes,
and, unless the Trustee shall have otherwise given its consent
to such amendment or supplement, to the further effect that
such amendment or supplement will not otherwise adversely
affect the interests of the Bondholders.
Notwithstanding the foregoing, the Indenture may be amended or supplemented as
provided in this Section 13.1 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.
Section 13.2 Amendments With the Bondholders' and the Credit
Facility Issuer's Consent.
(a) This Indenture may be amended 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 13,
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 default has occurred and is continuing under the Credit
Facility) and by the Company and approved by a Majority of the Bondholders which
would be affected by the action proposed to be taken.
(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 default has occurred and is continuing under the
Credit Facility), the Company and the Issuer.
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(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 and the Credit Facility
Trustee and during the Variable Rate Period (if no 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 such amendment or supplement will not adversely affect
the exclusion of the interest on the Bonds from the gross
income of the recipients thereof for federal income tax
purposes, and, unless the Trustee shall have otherwise given
its consent to such amendment or supplement, to the further
effect that such amendment or supplement will not otherwise
adversely affect the interests of the Bondholders.
Notwithstanding the foregoing, the Indenture may be amended or supplemented as
provided in this Section 13.2 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.
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 13 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) 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 Loan Agreement.
(a) The Company and the Issuer may amend the Loan Agreement,
but as to any amendment to the Loan 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
and 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 to the effect that
such amendment will not adversely affect the exclusion of the
interest on the Bonds from the gross income of the recipients
thereof for federal income tax purposes, and, unless the
Trustee shall have otherwise given its consent to such
amendment, to the further 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 Loan
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.
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(b) If the Company proposes to amend the Loan Agreement in
such a manner as would adversely affect the interests of the Bondholders, the
Trustee shall 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 Loan
Agreement,
(2) change the due date of loan payments
corresponding with payment of principal of or interest on the
Bonds or change any of the prepayment provisions of the Loan
Agreement, or
(3) change Section 5.6 of the Loan Agreement.
Section 13.5 Amendment of the Loan Agreement Requiring the
Consent of the Credit Facility Issue. Anything herein to the contrary
notwithstanding, any amendment, change or modification of the Loan 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)
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 deliver 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 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 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 13 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.
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ARTICLE 14
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 2.3
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 14 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; provided that the Trustee shall have received
an opinion of Bond Counsel to the effect that such deposit will not affect the
exclusion of the interest on any of the Bonds from the gross income of the
recipients thereof for federal income tax purposes (e.g. by causing any of the
Bonds to be classified as an "arbitrage bond" within the meaning of Section 148
of the Code); and provided further, 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; and provided further, that in the case of Bonds bearing a
Variable Rate, the Trustee has received written evidence from each rating agency
then rating such Bonds that the rating currently assigned to such Bonds will not
be withdrawn or reduced as the result of a deposit under this subsection.
(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
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amounts deposited are sufficient to make all payments that might become due on
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 14 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
Article 14 hereof, all interest on such Bonds 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.
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Section 14.3 Effect of Purchase of the Bonds. No purchase of
Bonds pursuant to Section 3.2 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.
ARTICLE 15
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 in
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, to Board of County
Commissioners; Palm Beach County; 301 N. Olive Avenue, West
Palm Beach, Florida 33401, Attention: Chairman;
(2) if to the Trustee, to First Union
National Bank of Florida; 200 S. Biscayne Boulevard, 14th
Floor; Miami, Florida 33131, Attention: Corporate Trust Group;
(3) if to the Credit Facility Trustee, to
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 Palm Beach Bedding
Company; 1016 Clare Avenue; West Palm Beach, Florida 33401,
Attention: Max C. Harper, Vice President and Chief Financial
Officer;
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(6) if to the Bank, to First Union National
Bank of Florida; 200 S. Biscayne Boulevard, 14th Floor; Miami,
Florida 33131, Attention: International Operations; and
(7) if to any Credit Facility Issuer (other
than the Bank), addressed to it at its principal office,
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 payment agent
and Bond Registrar for and in respect of the Bonds and any amounts received
under the Credit Facility or the Loan 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
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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.
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 Covenants of Issuer Not Covenants of Officials
Individually. All covenants, stipulations, obligations and agreements of the
Issuer contained in this Indenture shall be deemed to be covenants,
stipulations, obligations and agreements of the Issuer to the full extent
permitted by the Constitution and laws of the State. No covenant, stipulation,
obligation or agreement contained herein shall be deemed to be a covenant,
stipulation, obligation or agreement of any present or future officer, member,
agent or employee of the Issuer in his individual capacity, and no officer of
the Issuer executing the Bonds shall be liable personally on the Bonds or be
subject to any personal liability or accountability by reason of the issuance
thereof. No officer, agent or employee of the Issuer shall incur any personal
liability in acting or proceeding or in not acting or not proceeding in
accordance with the terms of this Indenture.
Section 15.8 State Law Governs. This Indenture shall be
governed by and construed in accordance with the laws of the State.
Section 15.9 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 15.10 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.
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 Clerk 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.
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PALM BEACH COUNTY, FLORIDA
By: /s/ Ken Foster
----------------------
Chairman of its Board of County
Commissioners
ATTEST:
By /s/ John W. Dame
----------------------
Clerk of its Board of County
Commissioners
FIRST UNION NATIONAL BANK OF FLORIDA,
as Trustee
By: /s/ Holly Lee [illegible]
----------------------
Title: Asst Vice President
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
Paul F. King
----------------------
COUNTY ATTORNEY
BRANCH BANKING AND TRUST COMPANY, as
Credit Facility Trustee
By: /s/ Margaret D. Smith
----------------------
Title: Vice President
----------------------
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EXHIBIT A
NOTICE OF CONVERSION
[Name and Address of Owner]
Re: $7,650,000 Palm Beach County, Florida, Variable
Rate Demand Industrial Development Revenue Bonds
(Palm Beach Bedding Company Project), Series 1996
The undersigned officer of First Union National Bank of
Florida, 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 April 1, 1996, among Palm Beach County, Florida, 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 _____________________________
_____________________________
_____________________________
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 of Florida
200 S. Biscayne Boulevard, 14th Floor
Miami, Florida 33131
Attention: Corporate Trust Group
5. After the tenth (10th) day preceding the Conversion
Date, you will not be entitled to tender any Bond for
purchase.
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. (Charlotte, North
Carolina time) on the Conversion Date.
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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 (the form
of which is attached as Attachment C-1 to the Bond)
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.
This _____ day of ______________, 199_.
FIRST UNION NATIONAL BANK OF FLORIDA,
as Trustee
By:_______________________________________
Title:______________________________________
A copy of this Notice has been delivered to the Tender Agent
at the address above.
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EXHIBIT B
BOOK ENTRY AGREEMENT
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Blanket Issuer Letter of Representations
[To be Completed by Issuer]
Palm Beach County Florida
-------------------------
[Name of Issuer]
May 11, 1995
[Date]
Attention: Underwriting Department -- Eligibility
THE DEPOSITORY TRUST COMPANY
55 Water Street; 50th Floor
New York, NY 10041-0099
Ladies and Gentlemen:
This letter sets forth our understanding with respect to all issues
(the "Securities") that Issuer shall request be made eligible for deposit by The
Depository Trust Company ("DTC").
To induce DTC to accept the Securities as eligible for deposit at DTC,
and to act in accordance with DTC's Rules with respect to the Securities, Issuer
represents to DTC that Issuer will comply with the requirements stated in DTC's
Operational Arrangements, as they may be amended from time to time.
Note:
Schedule A contains statements that DTC believes accurately describe DTC, the
method of effecting book-entry transfers of securities distribution through DTC,
and certain related matters.
Very truly yours,
Palm Beach County Florida
- -------------------------
(Issuer)
By: /s/ Ken Foster
------------------
(Authorized Officer's Signature)
APPROVED AS TO FORM
AND LEGAL SUFFICIENCY
/s/ Paul F. King
- --------------------
COUNTY ATTORNEY
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By: /s/ James McGreeney
----------------------
Palm Beach County, Florida
301 North Olive Avenue, Suite 601
West Palm Beach, Florida 33401
Executed by Ken Foster, Chairman of the
Board of County Commissioners,
Palm Beach County, Florida and
Paul F. King, Esq., Assistant County Attorney
(407) 355-6337
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EXHIBIT C
FORM OF BOND
CUSIP _____
[The legend in the two paragraphs immediately following shall
appear so long as the Book-Entry System described in Section
2.14 of the Indenture has not been discontinued.]
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 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 PRINCIPAL OF, REDEMPTION PREMIUM, IF ANY, AND INTEREST ON THIS BOND ARE
LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY FROM THE SOURCES AND SPECIAL
FUNDS PLEDGED FOR THEIR BENEFIT PURSUANT TO THE INDENTURE. THIS BOND SHALL NOT
CONSTITUTE A DEBT OF THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF
OR THE ISSUER WITHIN THE MEANING OF ANY PROVISION OF THE CONSTITUTION OR LAWS OF
THE STATE AND SHALL NOT CONSTITUTE OR GIVE RISE TO A PECUNIARY LIABILITY OF THE
STATE OR ANY POLITICAL SUBDIVISION THEREOF OR THE ISSUER OR A CHARGE AGAINST THE
GENERAL CREDIT OR TAXING POWERS OF ANY OF THEM.
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
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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.
C-2
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PALM BEACH COUNTY, FLORIDA
VARIABLE RATE DEMAND INDUSTRIAL DEVELOPMENT REVENUE BOND
(PALM BEACH BEDDING COMPANY PROJECT),
SERIES 1996
No. R_____
Registered Owner: ______________________________
Principal Amount: ______________________________
Maturity Date: First Business Day of April, 2016
Initial Interest Rate: _____________%
Interest Payment Dates: The first Business Day of each January, April, July
and October, commencing the first Business Day of
July, 1996, and ending on the Conversion Date
(hereinafter defined) and the Maturity Date.
Original Delivery Date: April 2, 1996
Palm Beach County, Florida (herein called the "Issuer"), a
political subdivision of the State of Florida (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 or unless it is authenticated prior
to the first Business Day of April, 1996, in which event it will bear interest
from the Date of Authentication, 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 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
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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 of Florida, as trustee (said banking
institution and any successor trustee or co-trustee under the Indenture being
herein called the "Trustee"), in the City of Miami, Florida. 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 of Florida
in the City of Miami, Florida (in such capacity, herein called the "Tender
Agent"). This Bond is issued under and pursuant to the Constitution and laws of
the State of Florida (the "State"), particularly Part II, Chapter 159, Florida
Statutes, as supplemented and amended (the "Act"), and under and pursuant to a
resolution duly adopted by the Issuer on December 19, 1995.
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 Loan 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 CHARGE AGAINST THE GENERAL CREDIT OR TAXING POWER 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 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 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 $7,650,000 and designated Palm Beach County, Florida, Variable Rate
Demand Industrial Development Revenue Bonds (Palm Beach Bedding Company
Project), Series 1996 (the "Bonds").
The Bonds have been issued for the purpose of financing the
acquisition, construction and installation of a certain facilities (herein
called the "Project").
The Bonds are issued under and pursuant to a Trust Indenture,
dated as of April 1, 1996 (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
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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 Loan Agreement, dated as of
April 1, 1996 (herein called the "Loan Agreement"), with the Company, under
which the Issuer has agreed to use the proceeds of the Bonds to construct and
equip certain facilities and in consideration therefor, the Company has agreed
to make loan payments in installments, bearing interest at a rate or rates and
payable at times corresponding to the principal amount of, installments of
principal of, interest rates on and due dates of the Bonds. The Loan Agreement
also provides for the payment by the Company of certain fees and expenses of the
Issuer and the Trustee, and the Loan 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"). As
security for the payment of the Bonds, all right, title and interest of the
Issuer in (a) the Loan Agreement (except certain rights reserved by the Issuer
under the terms of the Indenture), (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), but excluding the Rebate 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 Loan 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 April 1, 1996 (herein called the
"Reimbursement Agreement"), by and between the Company and First Union National
Bank of Florida (in such capacity, herein called the "Bank").
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Pursuant to the Reimbursement Agreement, the Company has
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 $7,956,000 of which (a) $7,650,000 will be
available for the payment of principal or that portion of the purchase price
corresponding to principal of the Bonds and (b) $306,000 will support the
payment of up to one hundred twenty (120) days' interest or that portion of the
purchase price corresponding to interest on the Bonds at an assumed rate of
twelve percent (12%) per annum. 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 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.
For the purpose of providing security for the obligations of
the Company to the Bank under the Reimbursement Agreement the Company has
entered into a Mortgage and Security Agreement, dated as of April 1, 1996 (the
"Mortgage"), pursuant to the terms of which the Company has conveyed to the Bank
all of the Company's right, title and interest in and to the Project.
Source of Funds. The principal of, premium (if any) and
interest on the Bonds are payable solely from loan payments under the Loan
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 (and including) April 3, 1996 at the Initial Interest Rate.
Variable Rate.
After April 3, 1996, and prior to (and including) the
Conversion Date (hereinafter defined), the Bonds will bear interest at a rate
equal to a floating rate established as hereinafter provided (herein called the
"Variable Rate"). The Variable Rate will be equal to the rate of interest
certified in writing to the Trustee by First Union National Bank of North
Carolina as remarketing agent for the Bonds (herein, with its successors in such
capacity, called the "Remarketing Agent")
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on and as of each Wednesday (or the next succeeding Business Day (as defined in
the Indenture) if such Wednesday is not a Business Day) (herein called 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 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 Calculation Period or Periods (hereinafter defined) until
thereafter certified by the Remarketing Agent will remain the same as that most
recently established and certified by the Remarketing Agent. In the event the
Remarketing Agent fails to certify the rate for four (4) consecutive Calculation
Periods, the rate for each Calculation Period thereafter (if none is certified
by the Remarketing Agent) will be ninety percent (90%) of the yield for United
States Treasury bills maturing approximately thirty (30) days after the
Determination Date as published by The Wall Street Journal on such Determination
Date (or, if The Wall Street Journal is no longer published, then any reasonably
equivalent financial publication selected by the Remarketing Agent) (or the next
Business Day on which The Wall Street Journal or such other publication is
published if not published on the Determination Date). For purposes hereof,
"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 each such
period will be equal to eight percent (8%) per annum. Interest prior to the
Conversion Date (hereinafter defined) will be computed on the basis of a three
hundred sixty-five (365) or three hundred sixty-six (366) day year, as
applicable, for the number of days actually elapsed, and will 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
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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
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") in the form attached hereto as
Attachment C-1 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
eight percent (8%) 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
C-8
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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 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
- -----------------
The Business Day four (4) years from the
Conversion Date
Redemption Price
- ----------------
103% declining by 1/2% on each succeeding
anniversary date of 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.
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96
Mandatory Redemption.
(a) The Bonds will be subject to mandatory redemption in whole
on any date at a redemption price equal to one hundred percent (100%) of the
principal amount thereof plus accrued interest to the redemption date within one
hundred eighty (180) days after receipt by the Trustee of a written notice of a
Determination of Taxability (as defined in the Loan Agreement).
(b) 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.
(c) The Bonds are subject to redemption without premium from
moneys drawn under the Credit Facility for which the Credit Facility Issuer is
reimbursed from proceeds of the Bonds not used to complete the Project 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.
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 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
C-10
97
irrevocably elected to retain on the Conversion Date in accordance with the
Indenture by the delivery of an Optional Retention Notice in the form attached
hereto as Attachment C-1 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.
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 Attachment
C-2 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 a.m. 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 THEREOF. 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,
C-11
98
INTEREST WILL CEASE TO ACCRUE HEREON AS 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 of Florida
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. 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 of Florida, as Bond Registrar, in the City of Miami, Florida, 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 THIS 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 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.
C-12
99
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 Loan 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.
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 Florida.
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.
IN WITNESS WHEREOF, Palm Beach County, Florida has caused this
Bond to be executed with the manual or facsimile signature of the Chairman or
Vice Chairman of the Issuer, its official seal to be impressed or imprinted
hereon and the same to be attested by the manual or facsimile signature of the
Clerk of the Issuer, all as of April 2, 1996.
PALM BEACH COUNTY, FLORIDA
By:________________________________________
Chairman of its Board of County
Commissioners
(Official Seal)
ATTEST:
By:_____________________________________________
Clerk of its Board of County
Commissioners
C-13
100
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 OF FLORIDA,
as Trustee
By:_______________________________________
Its:________________________________________
Date of Authentication: April 2, 1996
C-14
101
[FORM OF ASSIGNMENT TO APPEAR ON REVERSE OF BOND]
FORM OF 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:
_______________________________________
[End of Form of Bond]
C-15
102
Attachment C-1
FORM OF BONDHOLDER'S OPTIONAL RETENTION NOTICE
Date:____________
First Union National Bank of Florida, as Trustee (the "Trustee") under the Trust
Indenture dated as of April 1, 1996 (the "Indenture") among the Trustee, Branch
Banking and Trust Company, as Credit Facility Trustee (the "Credit Facility
Trustee") and Palm Beach County, Florida
Attention: Corporate Trust Department
Re: $7,650,000 Palm Beach County, Florida, Variable
Rate Demand Industrial Development Revenue Bonds
(Palm Beach Bedding Company Project), Series 1996
1. The undersigned hereby certifies that it is the lawful
registered owner of the Bonds described above.
2. Pursuant to the provisions of the Indenture, the
undersigned hereby irrevocably elect(s) to hold the Bonds which will bear
interest at the Fixed Rate (as defined in, and to be determined as described in,
the Indenture), effective on the Conversion Date (as defined in the Indenture)
specified in the notice from the Trustee (the "Notice of Conversion").
3. The undersigned hereby acknowledges that it has received
the Notice of Conversion and that it acknowledges, without limitation, that (i)
the Bonds will not be supported by an Alternate Credit Facility after the
Conversion Date, (ii) the rating on the Bonds, if any, may be reduced or
withdrawn after the Conversion Date, and (iii) after the tenth day preceding the
Conversion Date the undersigned will not be entitled to deliver Bonds for
purchase pursuant to Section 2.3 of the Indenture.
4. The undersigned hereby acknowledges that, even if it fails
to deliver such Bonds as agreed pursuant to paragraph 5 hereof, the Bonds will
nevertheless bear the Fixed Rate effective on the Conversion Date.
5. The undersigned hereby undertakes to deliver the Bonds to
First Union National Bank of Florida, as Tender Agent, at its corporate trust
office in Miami, Florida, Attention: Corporate Trust Department, to be stamped
with the legend set forth in Section 2.2(e) of the Indenture not later than
10:00 a.m. Charlotte, North Carolina time on the Conversion Date.
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Name of Bondholder:
-------------------------------
(Type or Print)
Signature:
----------------------------------------
Guaranteed by
-------------------------------------
Name of Institution:
-------------------------------
Date:
---------------------------------------------
[End of Attachment C-1 to Form of Bond]
C-17
104
Attachment C-2
FORM OF BONDHOLDER'S OPTIONAL TENDER NOTICE
Date______________
First Union National Bank of Florida,
as Trustee (the "Trustee") under the
Trust Indenture dated as of April 1, 1996
(the "Indenture") among the Trustee, Branch
Banking and Trust Company, as Credit Facility
Trustee (the "Credit Facility Trustee") and
Palm Beach County, Florida
Attention: Corporate Trust Department
Re: $7,650,000 Palm Beach County, Florida, Variable
Rate Demand Industrial Development Revenue Bonds
(Palm Beach Bedding Company Project), Series 1996
1. The undersigned hereby certifies that it is the lawful
registered owner of the Bonds described above on the date hereof and that such
Bonds are free and clear of any lien or encumbrance.
2. Pursuant to the provisions of the Indenture, the
undersigned hereby irrevocably request(s) the purchase of the Bonds described
above.
3. The date on which the Bonds shall be purchased shall be
_______________, 19 [Note: This date must be a Business Day (as defined in the
Indenture) which is at least seven days after delivery of this notice to the
Tender Agent].
4. The person or persons to whom or to whose order the
proceeds of the purchase of the Bonds are to be paid is ___________________, and
the address or addresses of such payee or payees is
________________________________________________________________________________
________________________________________________________________________________
5. The undersigned hereby irrevocably authorizes and instructs
the Trustee or the Bond Registrar (as defined in the Bonds) to effect the
transfer of such Bonds (or any Bond(s) exchanged therefor), upon payment of the
purchase price therefor, to the purchaser(s) thereof, whether or not it delivers
such Bonds as agreed pursuant to paragraph 7 hereof.
6. The undersigned hereby acknowledges that, even if it fails
to deliver such Bonds, the Bonds may nevertheless be purchased pursuant to the
Indenture, and that, in any event, on and after the proposed purchase date set
forth in paragraph 3 hereof, the Bonds will cease to be
C-18
105
outstanding for all purposes under the Indenture, to evidence the indebtedness
of the Issuer with respect thereto and to bear interest.
7. The undersigned hereby undertakes to deliver the Bonds to
you, as Tender Agent, at 200 S. Biscayne Boulevard, 14th Floor, Miami, Florida
33131, Attention: Corporate Trust Group at least five days prior to the proposed
purchase date set forth in paragraph 3 above duly endorsed in blank for
transfer.
Name of Bondholder:
-------------------------------------
(Type or Print)
Signature:
----------------------------------------------
Guaranteed by
-------------------------------------------
Name of Institution:
------------------------------------
Date:
---------------------------------------------------
[End of Attachment C-2 to Form of Bond]
C-19
106
EXHIBIT D
$________________ No. ______________
REQUISITION AND CERTIFICATE
______________ 19__
First Union National Bank of
Florida, as Trustee
200 S. Biscayne Boulevard, 14th Floor
Miami, Florida 33131
Attention: Corporate Trust Group
Re: $7,650,000 Palm Beach County, Florida, Variable
Rate Demand Industrial Development Revenue Bonds
(Palm Beach Bedding Company Project) Series 1996
Ladies and Gentlemen:
On behalf of Palm Beach Bedding Company (the "Company"), I
hereby requisition, from the funds representing the proceeds of the sale of the
$7,650,000 Palm Beach County, Florida, Variable Rate Demand Industrial
Development Revenue Bonds (Palm Beach Bedding Company Project), Series 1996
issued by Palm Beach County, Florida (the "Issuer") and dated April 2, 1996 (the
"Bonds"), which funds are held by you in the Palm Beach County, Florida,
Variable Rate Demand Industrial Development Revenue Bonds (Palm Beach Bedding
Company Project), Series 1996 Project Fund in accordance with the Trust
Indenture (the "Indenture"), dated as of April 1, 1996, from the Issuer to you
the sum of $__________ from the Project Fund to be used to pay to the payees the
amounts designated on the schedule attached hereto.
I hereby certify that (a) the obligation to make such payment was
incurred by the Company in connection with the acquisition or construction of
the Project, is a proper charge against the Costs of the Project (as defined in
the Loan Agreement, dated as of April 1, 1996, between the Issuer and the
Company, hereinafter referred to as the "Loan Agreement"), and has not been the
basis for any prior requisition which has been paid; (b) neither the Company
nor, to the best of the Company's knowledge, the Issuer has received written
notice of any lien, right to lien or attachment upon, or claim affecting the
right of such payee to receive payment of, any of the money payable under this
requisition to any of the persons, firms or corporations named herein, or if any
notice of any such lien, attachment or claim has been received, such lien,
attachment or claim has been released or discharged or will be released or
discharged upon payment of this requisition; (c) this requisition contains no
items representing payment on account of any retained percentages which the
Company
D-1
107
is entitled to retain at this date; (d) the payment of this requisition will not
result in less than ninety-five percent (95%) of the proceeds of the Bonds
(determined by adding to the purchase price paid for the Bonds any investment
earnings on said proceeds) to be expended under this requisition and under all
prior requisitions having been used for the acquisition, construction,
reconstruction or improvement of land or property of a character subject to the
allowance for depreciation within the meaning of Section 144(a)(1)(A) of the
Internal Revenue Code of 1986, as amended, (e) the payment of this requisition
will not result in issuance costs equal to more than two percent (2%) of the
aggregate face amount of the Bonds being financed from the proceeds of the Bonds
(including any investment earnings on said proceeds), (f) this requisition
contains no items representing payment of any amounts paid or incurred before
September 8, 1995 (which is sixty (60) days prior to the date of adoption by the
Issuer of the preliminary resolution approving the issuance of the Bonds), (g)
no Event of Default (as defined in the Loan Agreement) or event of default which
after notice or lapse of time or both would constitute an Event of Default has
occurred and not been waived; and (h) the amount requisitioned hereby is being
expended in a manner consistent in all material respects with the
representations and warranties of the Company set forth in the Loan Agreement.
[The following paragraph is to be included when any requisition and certificate
includes any item for payment for labor, for indicated items of equipment or to
contractors, builders of materialmen.]
I hereby certify that insofar as the amount covered by the
above requisition includes payments to be made for labor or to contractors,
builders or materialmen, including payment for equipment, materials or supplies,
in connection with the acquisition or construction of the Project: (i) all
obligations to make such payments have been properly incurred, (ii) any such
labor was actually performed and any such equipment, materials or supplies were
actually furnished or installed on or about the Project and are a proper charge
against the Costs of the Project, and (iii) such equipment, materials or
supplies either are not subject to any lien or security interest or, if the same
are so subject, such lien or security interest will be released or discharged
upon payment of this requisition.
By:________________________________________
Company Representative
APPROVED BY:
FIRST UNION NATIONAL BANK
OF FLORIDA, West Palm Beach, Florida
By:____________________________________
Authorized Officer
D-2
108
SCHEDULE TO REQUISITION AND CERTIFICATE NO. _____
Payee Item Amount
D-3