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EXHIBIT 10.47
TRUST INDENTURE
between
COUNTY OF HAMILTON, OHIO
and
THE FIFTH THIRD BANK, as Trustee
SECURING:
$2,980,000
COUNTY OF HAMILTON OHIO
ECONOMIC DEVELOPMENT REVENUE REFUNDING BONDS, SERIES 1994
(ADAM WUEST, INC. PROJECT)
AND ADDITIONAL BONDS (IF ISSUED) ON A
PARITY THEREWITH, AS PROVIDED HEREIN
Dated as of February 1, 1994
THIS INSTRUMENT ALSO CONSTITUTES A SECURITY AGREEMENT
UNDER THE OHIO UNIFORM COMMERCIAL CODE
This instrument prepared by:
Timothy J. Quinn, Esq.
Taft, Stettinius & Hollister
1800 Star Bank Center
Cincinnati, Ohio 45202
(513)381-2828
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TABLE OF CONTENTS
Page
Section 1. Definitions................................................................................... 2
Section 2. Determinations of Legislative Authority...................................................... 12
Section 3. Authorization and Terms of Project Bonds..................................................... 12
Section 4. Terms of all Bonds........................................................................... 14
Section 5. Security Pledged for Bonds................................................................... 15
Section 6. Sale of Project Bonds; Allocation of Purchase Price.......................................... 15
Section 7. Source of Payment - Bond Fund................................................................ 16
Section 8. Additional Bonds............................................................................. 17
Section 9. Covenants of Issuer.......................................................................... 18
Section 10. Investment of Bond Fund and Construction Fund............................................... 19
Section 11. Indenture, Agreement and Bond Purchase Agreement............................................ 20
Section 12. Other Documents............................................................................. 20
Section 13. Compliance with Section 121.22, Ohio Revised Code........................................... 20
Section 14. Temporary Project Bonds..................................................................... 20
Section 15. Effective Date.............................................................................. 21
ARTICLE I
DEFINITIONS...................................................................................... 34
ARTICLE II
FORM, EXECUTION, AUTHENTICATION,
REGISTRATION AND EXCHANGE OF BONDS................................................................. 35
Section 2.01 Form of Bonds and Temporary Bonds................................................. 35
Section 2.02 Terms of Additional Bonds......................................................... 35
Section 2.03 Execution and Authentication of Bonds............................................. 35
Section 2.04 Transfer, Exchange and Registration of Bonds...................................... 35
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Section 2.05 Mutilated, Lost, Wrongfully Taken or Destroyed Bonds.............................. 37
Section 2.06 Safekeeping and Cancellation of Bonds............................................. 37
Section 2.07 Delivery of the Project Bonds..................................................... 38
Section 2.08 Delivery of Additional Bonds...................................................... 39
Section 2.09 Book Entry-Only System............................................................ 41
ARTICLE III
REDEMPTION OF BONDS............................................................................ 43
Section 3.01 Privilege of Redemption and Redemption Price...................................... 43
Section 3.02 Issuer's Election to Redeem....................................................... 43
Section 3.03 Notice of Redemption.............................................................. 43
Section 3.04 Payment of Redeemed Bonds......................................................... 43
ARTICLE IV
FURTHER PROVISIONS AS TO FUNDS,
PAYMENTS, PROJECT AND AGREEMENT................................................................ 44
Section 4.01 Provisions for Payment............................................................ 44
Section 4.02 Non-presentment of Bonds.......................................................... 44
Section 4.03 Extension of Payment of Bonds..................................................... 44
Section 4.04 Payments to Trustee and Paying Agents............................................. 45
Section 4.05 Moneys to be Held in Trust........................................................ 45
Section 4.06 Insurance and Condemnation Proceeds............................................... 45
Section 4.07 Repayment to the Borrowers or the Letter of Credit Bank from the Bond Fund........ 45
Section 4.08 Records of Construction Fund...................................................... 46
Section 4.09 Completion of the Project......................................................... 46
Section 4.10 Amendments to Agreement and Letter of Credit Not Requiring Consent of
Bondholders....................................................................... 46
Section 4.11 Amendments to Agreement Requiring Consent of Bondholders.......................... 46
Section 4.12 Subordination to Rights of the Borrowers.......................................... 47
Section 4.13 Removal of Portions of Project.................................................... 47
Section 4.14 Amendments to Letter of Credit Requiring Consent of Bondholders................... 47
Section 4.15 Letter of Credit.................................................................. 47
Section 4.16 Extension of Letter of Credit; Alternate Letter of Credit......................... 49
Section 4.17 Release of Documents Upon Termination of Letter of Credit......................... 49
ARTICLE V
THE TRUSTEE AND PAYING AGENTS.................................................................. 51
Section 5.01 Trustee's Acceptance and Responsibilities......................................... 51
Section 5.02 Fees, Charges and Expenses of Trustee and Paying Agents........................... 53
Section 5.03 Notice to Bondholders if Default Occurs........................................... 53
Section 5.04 Intervention by Trustee........................................................... 53
Section 5.05 Successor Trustee................................................................. 54
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Section 5.06 Resignation by the Trustee........................................................ 54
Section 5.07 Removal of the Trustee............................................................ 54
Section 5.08 Appointment of Successor Trustee.................................................. 54
Section 5.09 Concerning Any Successor Trustee.................................................. 54
Section 5.10 Successor Trustee as Custodian of Funds, Bond Registrar and Paying Agent.......... 55
Section 5.11 Adoption of Authentication........................................................ 55
Section 5.12 Trustee Protected in Relying Upon Instruments..................................... 55
Section 5.13 Designation and Succession of Paying Agents....................................... 55
Section 5.14 Dealing in Bonds.................................................................. 56
Section 5.15 No Transfer of Note or Notes held by the Trustee.................................. 56
Section 5.16 Investment of Construction Fund and Bond Fund..................................... 56
Section 5.17 Allocation of Income from Investments............................................. 57
Section 5.18 Interpleader...................................................................... 57
Section 5.19 Survival of Certain Provisions.................................................... 57
ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS..................................................................... 58
Section 6.01 Defaults; Events of Default....................................................... 58
Section 6.02 Acceleration...................................................................... 59
Section 6.03 Other Remedies; Rights of Bondholders............................................. 60
Section 6.04 Right of Bondholders to Direct Proceedings........................................ 60
Section 6.05 Appointment of Receivers.......................................................... 61
Section 6.06 Allocation of Moneys.............................................................. 61
Section 6.07 Remedies Vested in Trustee........................................................ 62
Section 6.08 Rights and Remedies of Bondholders................................................ 63
Section 6.09 Termination of Proceedings........................................................ 63
Section 6.10 Waivers of Events of Default...................................................... 63
Section 6.11 Expense and Services After an Event of Default.................................... 64
ARTICLE VII
SUPPLEMENTAL INDENTURES........................................................................ 65
Section 7.01 Supplemental Indentures Not Requiring Consent of Bondholders...................... 65
Section 7.02 Supplemental Indentures Requiring Consent of Bondholders.......................... 66
Section 7.03 Consent of the Borrowers.......................................................... 67
Section 7.04 Authorization to Trustee; Effect of Supplement.................................... 67
Section 7.05 Opinion of Counsel................................................................ 68
Section 7.06 Modification by Unanimous Consent................................................. 68
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ARTICLE VIII
DISCHARGE OF LIEN.............................................................................. 69
Section 8.01 Release of Indenture.............................................................. 69
Section 8.02 Payment and Discharge of Bonds.................................................... 69
ARTICLE IX
MISCELLANEOUS.................................................................................. 71
Section 9.01 Instruments of Bondholders........................................................ 71
Section 9.02 Limitation of Rights.............................................................. 71
Section 9.03 Severability...................................................................... 71
Section 9.04 Notices........................................................................... 72
Section 9.05 Payments Due on Saturdays, Sundays and Holidays................................... 72
Section 9.06 Priority Over Other Liens......................................................... 72
Section 9.07 Extent of Covenants; No Personal Liability........................................ 72
Section 9.08 Power to Issue Bonds and Make Pledges............................................. 72
Section 9.09 Binding Effect.................................................................... 73
Section 9.10 Counterparts...................................................................... 73
Section 9.11 Cautions.......................................................................... 73
Section 9.12 Governing Law..................................................................... 73
Section 9.13 Security Agreement................................................................ 73
Section 9.14 Continuing Obligation............................................................. 73
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TRUST INDENTURE
THIS TRUST INDENTURE (hereinafter called the "Indenture") dated as of
the first day of February 1994, by and between the COUNTY OF HAMILTON, OHIO (the
"Issuer"), a county and political subdivision organized and existing under the
laws of the State of Ohio, and THE FIFTH THIRD BANK, CINCINNATI, OHIO, a banking
corporation organized and existing under the laws of the State of Ohio and duly
authorized to exercise corporate trust powers within the State of Ohio, with its
principal place of business located in Cincinnati, Ohio (the "Trustee"), as
Trustee;
W I T N E S S E T H:
WHEREAS, by virtue of the authority of the Constitution and laws of the
State of Ohio, and particularly Article III, Section 13 of the Constitution and
Chapter 165 of the Ohio Revised Code, and pursuant to the Bond Legislation
referred to below, the Issuer is authorized to enter into this Indenture and to
do or cause to be done all the acts and things herein provided or required to be
done, and to issue the Bonds, all as hereinafter defined and provided for; and
WHEREAS, the Issuer has, in order to assist in the financing of the
Project (as hereinafter defined), determined to issue the Project Bonds, as
hereinafter defined, in the principal amount of $2,980,000 to the Original
Purchaser, as hereinafter defined, and the Issuer has determined to enter into
this Indenture to secure the Bonds, as hereinafter defined, issuable hereunder,
by the pledge and assignment of revenues derived by the Issuer from the Project
(as hereinafter defined), together with the right to receive Loan Payments under
the Agreement, including the payments of principal, interest and any premium on
the Note, all as hereinafter defined, all as set forth and declared in the Bond
Legislation incorporated herein;
WHEREAS, the Bonds to be issued hereunder do not constitute a debt, or
a pledge of the faith and credit of the Issuer, the State or any political
subdivision or taxing district thereof, and the holders or owners thereof have
no right to have taxes levied by the General Assembly of the State, or the
taxing authority or any political subdivision of the State, for the payment of
the principal thereof or interest or any premium thereon, but such Bonds are
payable solely from revenues pledged for their payment; and
WHEREAS, said Bond Legislation is incorporated herein, constitutes an
integral part of this Indenture, and provides, in its entirety, as follows:
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A RESOLUTION AUTHORIZING THE ISSUANCE OF $2,980,000 ECONOMIC
DEVELOPMENT REVENUE REFUNDING BONDS, SERIES 1994 OF THE COUNTY OF
HAMILTON, OHIO, IN ORDER TO ASSIST ADAM WUEST, INC. AND ADAM WUEST
REALTY, INC. IN THE FINANCING COSTS OF REFUNDING BONDS PREVIOUSLY
ISSUED TO FINANCE THE COSTS CERTAIN MANUFACTURING FACILITIES LOCATED IN
THE COUNTY OF HAMILTON, OHIO; AUTHORIZING THE ISSUANCE OF ADDITIONAL
BONDS; PROVIDING FOR THE PLEDGE OF REVENUES FOR THE PAYMENT OF SAID
BONDS; AUTHORIZING A LOAN AGREEMENT WITH RESPECT TO THE PROCEEDS
DERIVED FROM THE SALE OF SAID BONDS; AUTHORIZING A TRUST INDENTURE
APPROPRIATE FOR THE PROTECTION AND DISPOSITION OF SUCH REVENUES AND
FURTHER TO SECURE THE PAYMENT OF SAID BONDS; AUTHORIZING A BOND
PURCHASE AGREEMENT; AUTHORIZING THE ASSIGNMENT BY THE COUNTY OF
HAMILTON, OHIO, OF A NOTE FROM ADAM WUEST, INC. AND ADAM WUEST REALTY,
INC.
WHEREAS, the County of Hamilton, Ohio is by virtue of the laws of the
State of Ohio, including Section 13 of Article VIII of the Ohio Constitution and
Chapter 165 of the Ohio Revised Code, and other authorities mentioned therein,
authorized and empowered, among other things, (a) to assist in the financing of
costs of refunding bonds previously issued to finance the costs manufacturing
facilities (the "Prior Bonds") located within the boundaries of the Issuer, (b)
to enter into an agreement with the owner of such facilities providing for
revenues, as defined in 165.01(I) of the Ohio Revised Code, sufficient to pay
the principal of and interest and any premium on such revenue bonds, (c) to
secure such revenue bonds by a trust agreement or indenture between the Issuer
and a corporate trustee, and by a pledge and assignment of such revenues, as
provided for herein, and (d) to enact the Bond Legislation and enter into the
Indenture and the Agreement, as hereinafter identified, upon the terms and
conditions provided therein; and
WHEREAS, Adam Wuest Realty, Inc. (the "Realty") is an Ohio corporation
and Adam Wuest, Inc. (the "Company") is an Ohio corporation duly qualified to do
business in the State of Ohio (the Realty and the Company are sometimes herein
collectively referred to as the "Borrowers"); and
WHEREAS, it is hereby determined by this Legislative Authority that the
refunding of the Prior Bonds will require the issuance, sale and delivery of
Project Bonds in the principal amount of $2,980,000 and hereafter may require
the Issuer's issuance, sale and delivery of Additional Bonds on a parity
therewith, all of which Bonds shall be equally and ratably payable and secured
as provided herein and in the Indenture authorized herein:
Section 1. Definitions. In addition to the words and terms elsewhere
defined in this Bond Legislation or in the Agreement, hereinafter identified,
and used herein as defined words and terms, the following words and terms as
used in this Bond Legislation and in the Indenture authorized herein shall have
the following meanings unless the context or use clearly indicates another or
different meaning or intent:
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"Act" means Chapter 165 of the Ohio Revised Code, enacted and amended
pursuant to Section 13 of Article VIII and other provisions of the Ohio
Constitution.
"Additional Bonds" means Bonds issued pursuant to Section 8 of this
Bond Legislation.
"Additional Payments" means the amounts required to be paid by the
provisions of Section 2.2 of the Agreement.
"Agreement" means the Loan Agreement, provided for in Section 11
hereof, between the Issuer and the Borrowers, dated as of February 1, 1994, as
the same may be duly amended, modified or supplemented in accordance with the
provisions thereof.
"Alternate Letter of Credit" means an irrevocable letter of credit
authorizing drawings thereunder by the Trustee, the terms of which shall be the
same in all material respects (except as to expiration date) as the Letter of
Credit, and issued by a savings and loan association or a national bank or other
commercial bank which satisfies the requirements of Section 4.16 of the
Indenture, or a surety bond, a bond insurance policy or other credit enhancement
instrument, which Alternate Letter of Credit shall, in the opinion of the
Remarketing Agent, provide the Bondholders with comparable or better security
than the Letter of Credit.
"Assignment of Rents and Leases" means the Assignment of Rents and
Leases dated as of February 1, 1994, from the Realty to the Trustee and the
Letter of Credit Bank, as amended or supplemented.
"Authorized Borrowers Representative" means any person reasonably
acceptable to the Letter of Credit Bank from time to time designated to act on
behalf of the Borrowers by written certificate furnished to the Issuer and the
Trustee, containing the specimen signature of such person and signed on behalf
of the Borrowers by the Borrowers. Such certificate may designate an alternate
or alternates who shall have the same authority, duties and powers as such
Authorized Borrowers Representative.
"Authorized Issuer Representative" means the person from time to time
designated to act on behalf of the Issuer by written certificate furnished to
the Borrowers and Trustee, containing the specimen signature of such person and
signed on behalf of the Issuer by a member of its Legislative Authority of the
Issuer or his authorized delegate. Such certificate may designate an alternate
or alternates who shall have the same authority, duties and powers as the
Authorized Issuer Borrowers Representative.
"Bonds" means the Project Bonds and any Additional Bonds issued and to
be issued pursuant to the Indenture.
"Bond Fund" means the Bond Fund created in Section 7 of this Bond
Legislation.
"Bond Fund Payment" means as to the Project Bonds an amount equal to
the interest accrued on the Project Bonds from their date to the date of their
delivery to the Original Purchaser and payment therefor, and as to Additional
Bonds the amount specified in this Bond Legislation
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authorizing such Additional Bonds, provided that the Bond Fund Payment for any
Additional Bonds shall not be less than an amount equal to the interest accrued
on such Additional Bonds from their date to the date of delivery of such
Additional Bonds to their original purchaser and payment therefor.
"Bond Purchase Agreement" means the Bond Purchase Agreement by and
among the Issuer, the Borrowers, the Letter of Credit Bank and the Original
Purchaser.
"Bondholder" or "Holder" or "holder" or "holder of Bonds" means any
person in whose name a Bond is registered.
"Bond Legislation" means this Resolution adopted by the Legislative
Authority of the Issuer authorizing the Project Bonds, except that when used
with reference to an issue of Additional Bonds it shall mean this Resolution to
the extent applicable and other legislation providing for the issuance of such
Additional Bonds, and except that when used with reference to Bonds when
Additional Bonds are outstanding, it shall mean the Resolution first referred to
above and the Bond Legislation providing for the issuance of Additional Bonds,
all as the same may from time to time be lawfully amended, modified or
supplemented.
"Bond Redemption Date" means any date, other than an Interest Payment
Date, upon which Bonds shall be redeemed pursuant to the Indenture.
"Bond service charges" for any time period or with respect to any date
means the principal, including mandatory sinking fund redemption requirements,
interest, and redemption premium, if any, required to be paid by the Issuer on
the - Bonds for such time period or on such date.
"Borrowers" mean collectively Realty and Company, both as hereinafter
defined.
"Business Day" means any day of the year, other than a Saturday or a
Sunday, on which banks located in the cities in which the principal corporate
trust office of the Trustee and the principal office of the Letter of Credit
Bank are located are not required or authorized by law to remain closed and on
which The New York Stock Exchange is not closed.
"Code" means the Internal Revenue Code of 1986, and with respect to a
specific section thereof such reference shall be deemed to include (i) the
regulations prescribed under such section, (ii) any predecessor or successor
provision of similar import hereafter enacted, (iii) any corresponding provision
of any subsequent or previous Internal Revenue Code, and (iv) the regulations
prescribed under the provisions described in (ii) and (iii).
"Company" means Adam Wuest, Inc., an Ohio corporation, the lessee of
the Project Site.
"Construction Fund" means the Construction Fund created in Section 6 of
this Bond Legislation.
"DTC" means Depository Trust Company, New York, New York, and any
successor corporation.
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"DTC Participant" means those broker-dealers, banks, and other
financial institutions reflected on the books of DTC.
"Determination of Taxability" means (i) the enactment of legislation or
the adoption of final regulations or a final decision, ruling or technical
advice by any Federal judicial or administrative authority which has the effect
of requiring interest on the Bonds to be included in the gross income of the
holders for Federal income tax purposes (other than a holder who is a
"substantial user" of the Project or a "related person" as those terms are used
in Sections 147(a) and 144(a), respectively of the Code and other than Bonds
held by or pledged to the Letter of Credit Bank); (ii) the delivery to the
Trustee of a written statement signed by the Authorized Borrowers Representative
to the effect that the Borrowers has exceeded or will exceed the maximum amount
of capital expenditures permitted under Section 144 (a) (4) of the Code;
provided that no decision by any court or decision, ruling or technical advice
by any administrative authority shall be considered final (a) unless the holder
involved in the proceeding or action giving rise to such decision, ruling or
technical advice (i) gives the Borrowers and the Trustee prompt notice of the
commencement thereof, and (ii) offers the Borrowers the opportunity to control
the contest thereof, provided the Borrowers shall have agreed to bear all
expenses in connection therewith and to indemnify that holder against all
liabilities in connection therewith, and (b) until the expiration of all periods
for judicial review or appeal.
"Eligible Investments" means:
(i) Obligations of, or guaranteed as to principal and
interest by, the United States or any agency or
instrumentality thereof when such obligations are
backed by the full faith and credit of the United
States;
(ii) Federal Home Loan Mortgage Corporation (FHLMC) and
Farm Credit Banks (Federal Land Banks, Federal
Intermediate Credit Banks and Banks for Cooperatives)
participation certificates and senior debt
obligations;
(iii) Federal National Mortgage Association's (FNMA)
mortgage backed securities and senior debt
obligations;
(iv) Student Loan Marketing Association (Sallie Mae)
letter of credit backed issues and senior debt
obligations;
(v) Federal funds, certificates of deposit, time deposits
and bankers' acceptances (having original maturities
of not more than 365 days) of any bank (including the
Trustee or its affiliates) the debt obligations of
which (or, in the case of the principal bank in a
bank holding company, debt obligations of the bank
holding company) have been rated "A-1+" (or its
equivalent) by one of the Rating Services (including
the Trustee or its affiliates);
(vi) Commercial paper (having original maturities of not
more than 365 days) rated "A-1+" (or its equivalent)
by one of the Rating Services;
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(vii) Obligations rated "AAA" (or its equivalent) by one of
the Rating Services (or those investments specified
in (ii) above with banks which have debt obligations
rated "AAA");
(viii) Deposits which are fully insured by the Federal
Savings and Insurance Corporation (FDIC);
(ix) Repurchase agreements with any AAA rated institution;
insured by FDIC provided: (1) the collateral which is
the subject of the repurchase agreement is at a level
acceptable to Standard & Poor's Corporation and the
pricing and cure period are also acceptable to
Standard & Poor's Corporation, (2) the Trustee or a
third party acting solely as agent for the Trustee
has possession of the collateral, (3) the Trustee has
a perfected first security interest in the
collateral, (4) the collateral is free and clear of
third party liens, and (5) failure to maintain the
requisite collateral percentage in (1) above will
require the Trustee to liquidate the collateral;
(x) obligations of any state, or political subdivision
thereof, or any municipality, which obligations are
rated in any of the four highest generic long-term
rating categories by the Rating Services; and
(xi) Money market mutual funds, provided that such funds
shall be invested solely in obligations or securities
described in (i) through (x) above.
"Engineer" means an engineer or engineering firm or an architect or
architectural firm qualified to practice the profession of engineering or
architecture under the laws of the State of Ohio, and who or which is acceptable
to the Letter of Credit Bank and is not an officer or full-time employee of the
Issuer or the Borrowers.
"Event of Taxability" means the occurrence of circumstances on the
basis of which a Determination of Taxability shall have been found to have
occurred, or which shall constitute a Determination of Taxability, and which
result in the interest payable on the Bonds becoming includable in the gross
income for Federal income tax purposes of the holders of the Bonds (other than a
holder who is a "substantial user" of the Project or a "related person" as such
are defined or used in Sections 147(a) and 144(a), respectively, of the Code,
and other than a holder of Bonds which are held by or pledged to the Letter of
Credit Bank).
"Indenture" means the Trust Indenture between the Issuer and The Fifth
Third Bank, Cincinnati, Ohio, as Trustee, dated as of February 1, 1994, as the
same may be duly amended, modified or supplemented in accordance with the
provisions thereof.
"Independent Counsel" means any attorney or firm of attorneys
acceptable to the Trustee and to the Issuer and who is not an officer or a
full-time employee of the Issuer or the Borrowers, and in the case of a firm,
none of the attorneys or members of which is an officer, partner or a full-time
employee of the Issuer or the Borrowers.
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"Interest Payment Date" means the first day of each March and
September, commencing September 1, 1994.
"Interest Rate for Advances" means a rate per annum which is equal to
the sum of the Prime Rate plus two percent (2%).
"Lease" means the Lease Agreement between Realty and the Company
relating to the Project and the Project Site.
"Legislative Authority" means the Board of County Commissioners of the
Issuer.
"Letter of Credit" means (A) the irrevocable letter of credit to be
issued by the Letter of Credit Bank and delivered to the Trustee on the same
date as the delivery of the Bonds to the Original Purchaser thereof and being an
irrevocable obligation to make payment to the Trustee of up to the amounts
therein specified with respect to (a) the principal amount of the Project Bonds
outstanding to enable the Trustee to pay (i) the principal amount of the Project
Bonds when due at maturity or upon redemption or acceleration on the occurrence
of an event of default, (b) the amount of interest due on the Project Bonds but
not to exceed one hundred ninety-five (195) days maximum accrued interest (at
the rate of interest on the Bonds maximum) to enable the Trustee to pay interest
due on the Project Bonds, as the same may be transferred, reissued, extended or
replaced in accordance with the Indenture and the Letter of Credit and (B) upon
the issuance thereof, any Alternate Letter of Credit.
"Letter of Credit Bank" means, as to the Project Bonds, The Fifth Third
Bank, Cincinnati, Ohio and its successors under the Letter of Credit, and the
issuer of any Alternate Letter of Credit.
"Letter of Credit Termination Date" means the expiration date of the
Letter of Credit or any Alternate Letter of Credit, initially September 15,
1995.
"Loan" means the loan by the Issuer to the Borrowers of the proceeds
from the sale of the Project Bonds to the Original Purchaser as the same may
hereafter be increased from the proceeds from the sale of Additional Bonds.
"Loan Payment Date" means each Bond Redemption Date, each Interest
Payment Date, each Principal Payment Date, each Mandatory Redemption Date and
the date upon which any advance payment of principal or interest is required by
the provisions of Section 2.1 of the Agreement; and any date on which any
principal of, premium, if any, or interest on the Bonds shall be due and payable
upon mandatory redemption because of acceleration.
"Loan Payments" means the amounts required to be paid and/or prepaid by
the provisions of Section 2.1 of the Agreement, as the same may hereafter be
amended or supplemented.
"Mandatory Redemption Date" means as to any Additional Bonds, the date
or dates specified in the applicable Bond Legislation on which such Additional
Bonds are to be retired prior to maturity pursuant to Mandatory Sinking Fund
Requirements. As appropriate, a maturity date for any series of Project Bonds
shall also be deemed to be a "Mandatory Redemption Date".
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"Mandatory Sinking Fund Requirements" means amounts required by this
Bond Legislation to be deposited in the Bond Fund for the purpose of retiring,
on a specified date, principal maturities of Bonds which by their terms are due
and payable, if not called for prior to redemption, at a subsequent date.
"Mortgage" means the Open-End Mortgage and Security Agreement from the
Borrowers to the Trustee and the Letter of Credit Bank with respect to the
Project, dated as of February 1, 1994, as the same may be duly amended, modified
or supplemented in accordance with the provisions thereof.
"Net Proceeds" means, as to any insurance proceeds or any condemnation
award, the amount remaining after deducting therefrom all expenses (including
attorneys' fees and any Extraordinary Expenses, as defined in the Indenture, of
the Trustee) incurred in the collection of such proceeds or award.
"Note" or "Notes" means the promissory note dated as of February 1,
1994, constituting the promise of the Borrowers to repay the Loan to the Issuer,
which Note shall be in substantially the form attached to the Agreement as
Exhibit A, and any additional promissory note or notes executed and delivered
with respect to Additional Bonds.
"Notice Address" means:
(a) As to the Issuer: County of Hamilton, Ohio
Administration Building, Room 603
138 East Court Street
Cincinnati, Ohio 45202
Attention: President, Board of County
Commissioners
(b) As to the Borrowers: Adam Wuest Realty, Inc.
645 Lynn Street
Cincinnati, Ohio 45204
Attention: Chief Financial Officer
and
Adam Wuest, Inc.
645 Lynn Street
Cincinnati, Ohio 45204
Attention: Chief Financial Officer
(c) As to the Trustee: The Fifth Third Bank
Fifth Third Bank Center
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attention: Corporate Trust Department
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(d) As to the Original Purchaser: Gradison Division of McDonald
& Company Securities, Inc.
580 Walnut Street
Cincinnati, Ohio 45202
Attention: Mr. Daniel R. Blank
Vice President
(e) As to the Letter of Credit Bank: The Fifth Third Bank
Fifth Third Center
38 Fountain Square Plaza
Cincinnati, Ohio 45263
Attention: Mr. Thomas Schiller,
Vice President
or such different address notice of which is given under Section 10.3 of the
Agreement, but no such notice shall thereby be required to be sent to more than
two addresses.
"Original Purchaser" means, as to the Project Bonds, Gradison Division
of McDonald & Company Securities, Inc., Cincinnati, Ohio and, as to any
Additional Bonds, the person or persons identified as such in the Bond
Legislation providing for the issuance of such Additional Bonds.
"Outstanding Bonds" or "Bonds outstanding" or "outstanding" as applied
to Bonds, means, as of any date, all Bonds which have been authenticated and
delivered, or are then being delivered, by the Trustee under the Indenture
except:
(a) Bonds surrendered for and replaced upon exchange or
transfer, or cancelled because of payment or
redemption, at or prior to such date;
(b) Bonds which are deemed to have been paid and
discharged pursuant to the provisions of Section 8.02
of the Indenture; provided that if such Bonds are to
be redeemed prior to the maturity thereof, notice of
such redemption shall have been given or arrangements
satisfactory to the Trustee shall have been made
therefor, or waiver of such notice satisfactory in
form to the Trustee shall have been filed with the
Trustee; and
(c) Bonds in lieu of which others have been authenticated
(or payment, when due, of which is made without
replacement) under Section 2.05 of the Indenture;
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and also except that
(d) For the purpose of determining whether the holders of
the requisite principal amount of Bonds have made or
concurred in any notice, request, demand, direction,
consent, approval, order, waiver, acceptance,
appointment or other instrument or communication
under or pursuant to the Indenture, Bonds owned by or
for the account of the Borrowers or any person owned,
controlled by, under common control with or
controlling the Borrowers, but specifically excluding
Bonds, if any, held or owned by, or pledged to, the
Letter of Credit Bank, shall be disregarded and
deemed to be not outstanding. The term "control"
(including the terms "controlling", "controlled by"
and "under common control with") means the
possession, directly or indirectly, of the power to
direct or cause the direction of the management and
policies of a person, whether through the ownership
of voting securities, by contract, or otherwise.
Ownership of 5% or more of a class of securities
having general voting power to elect a majority of
the board of directors of a corporation shall be
conclusive evidence of control of such corporation.
"Paying Agents" means any banks or trust companies designated,
initially The Fifth Third Bank, as the paying agencies or places of payment for
Bonds by or pursuant to the applicable Bond Legislation, and their successors
designated pursuant to the Indenture.
"Person" means an individual, a partnership, a corporation, a trust, an
unincorporated organization, a joint stock company, an association and a
government or any department or agency thereof.
"Pledged Receipts" means (a) the Loan Payments, including the payments
of principal of and interest and any premium on the Note, (b) subject to the
provisions of Sections 3.04, 4.02 and 8.02 of the Indenture with respect to the
Trustee holding moneys for the benefit of the holders of particular Bonds, all
other moneys received by the Issuer or the Trustee for the account of the Issuer
including condemnation awards, insurance proceeds, and other payments pursuant
to the Agreement or in respect to the Loan, (c) the proceeds of the Bonds and
any moneys deposited in the Construction Fund and the Bond Fund from whatever
source, including any draws under the Letter of Credit, and (d) the income and
profit from the investment of the Loan Payments and such moneys deposited in the
Construction Fund and the Bond Fund. Moneys in the Excess Investment Earnings
Account shall constitute Pledged Receipts.
"Prime Rate" shall have the meaning assigned to such term in the
Reimbursement Agreement.
"Prior Bonds" means the $3,450,000 Economic Development Revenue Bonds,
Series 1990 (Adam Wuest, Inc. Project), of the Issues.
"Principal Payment Date" means, as to the Project Bonds the first day
of each September in the years in which the Project Bonds mature as provided in
Section 3 of this Bond Legislation, and
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as to Additional Bonds, the date or dates identified as such in the Bond
Legislation authorizing such Additional Bonds.
"Project" means the real, personal or real and personal property,
including undivided or other interests therein, identified in Exhibit A of the
Mortgage and Exhibits B and C of the Agreement.
"Project Bonds" means the Bonds initially issued by the Issuer pursuant
to the Indenture and designated "Economic Development Revenue Refunding Bonds,
Series 1994 (Adam Wuest, Inc.
Project)".
"Project Equipment" means the personal property described in Exhibit B
of this Agreement. The Project Equipment shall be owned by Adam Wuest, Inc., an
Ohio corporation.
"Project Purposes" means the purposes of a manufacturing facility as
described in the Act.
"Project Site" means the real property described in Exhibit C of this
Agreement. The Project Site, which includes the buildings and fixtures located
thereon, is owned by Adam Wuest Realty, Inc., an Ohio corporation.
"Rating Services" means Standard & Poor' s Corporation or Moody's
Investors Service or their successors and assigns, or if both are dissolved or
no longer assigning credit ratings to long term debt, then such other nationally
recognized service assigning credit ratings to long term debt designated by the
Borrowers and acceptable to the Remarketing Agent and the Letter of Credit Bank.
"Realty" means Adam Wuest Realty, Inc., an Ohio corporation, the owner
of the Project Site, and Realty's assigns including any transferee corporation
or other entity as provided in Section 6.3 of the Agreement.
"Registered Bonds" means Bonds registered in the name of the holder.
"Regular Record Date" means, with respect to any Bond, the 15th day
preceding an Interest Payment Date applicable to that Bond.
"Reimbursement Account" means the Reimbursement Account in the Bond
Fund created pursuant to Section 4.01 of the Indenture.
"Reimbursement Agreement" or "Letter of Credit Agreement" means the
Reimbursement Agreement by and between Realty, the Company and the Letter of
Credit Bank pursuant to which the Letter of Credit is to be issued and pursuant
to which the Realty and Company must jointly and severally reimburse the Letter
of Credit Bank for funds advanced pursuant to the Letter of Credit, as from time
to time replaced, supplemented or amended.
"Termination Date" means September 1, 2010 subject to earlier
termination as provided in the Agreement.
"Trustee" means the bank or trust company at the time serving as
Trustee under the Indenture.
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Any reference herein to the Issuer, to the Legislative Authority, or to
any officers thereof, shall include any person or entity which succeeds to its
or their duties or responsibilities pursuant to or by operation of law. Any
reference to a section or provision of the Ohio Constitution or the Act or to a
section, provision or chapter of the Ohio Revised Code shall include such
section or provision or chapter as from time to time amended, modified, revised,
supplemented, or superseded; provided, however, that no such change in the
Constitution or laws (a) shall alter the obligation to pay the Bond service
charges in the amounts and manner, at the times, and from the sources provided
in this Bond Legislation and the Indenture, except as otherwise herein permitted
or (b) shall be deemed applicable by reason of this provision if such change
would in any way constitute an impairment of the rights of the Issuer, the
Trustee, the Letter of Credit Bank or the Borrowers under the Agreement or the
Indenture.
Unless the context shall otherwise indicate, words importing the
singular number shall include the plural number, and vice versa, and the terms
"hereof", "hereby", "hereto", "hereunder", and similar terms, mean this Bond
Legislation and the Indenture.
Section 2. Determinations of Legislative Authority. The Legislative
Authority hereby determines that the Project is a "project" as that term is
defined in Section 165.01 of the Ohio Revised Code, is consistent with the
purposes of Section 13 of Article VIII of the Ohio Constitution and the Act and
will benefit the people of the Issuer by creating or preserving jobs and
employment opportunities and promoting the commercial and economic development
of the Issuer and the State.
Section 3. Authorization and Terms of Project Bonds.
(a) Authorization. It is hereby determined to be necessary to, and the
Issuer shall, issue, sell and deliver, as provided and authorized herein and
pursuant to the authority of the Act, $2,980,000 aggregate principal amount of
Project Bonds for the purpose of making a loan to provide funds to assist the
Borrowers in the refunding of the Prior Bonds, including costs incidental
thereto and to the financing thereof. The Project Site will be owned by Realty
and leased to the Company. The Project Equipment is owned by the Company and
placed on the Project Site. Said Project Bonds shall be designated "Economic
Development Revenue Refunding Bonds, Series 1994 (Adam Wuest, Inc. Project)".
The Issuer may also issue, sell and deliver Additional Bonds on a parity with
the Project Bonds for the purposes and in the manner provided in Section 8 of
this Bond Legislation. The proceeds of the Project Bonds shall be applied
exclusively to the costs of the refunding of the Prior Bonds and paying certain
of the costs of issuance of the Project Bonds.
(b) Form, Denominations, Dates and Interest Rates. The Project Bonds
shall be issued in fully registered book-entry form in the manner and on the
terms provided in the Indenture, and shall be numbered from 1 upward. Project
Bonds shall be in the denomination of $5,000 or any integral multiple thereof.
The Project Bonds shall mature on September 1, 1994 through 2010 in the
principal amounts set forth in Exhibit A to the Indenture. Project Bonds shall
initially be dated as of February 1, 1994, and thereafter shall be dated as of
the Interest Payment Date next preceding the date of their authentication,
unless authenticated upon an Interest Payment Date in which case they shall be
dated as of the date of their authentication; provided, however, that if at the
time of authentication of any Bond interest thereon is in default, such Bond
shall be dated as of the date to which interest has been paid. The Project Bonds
shall bear interest at the rates set forth in Exhibit A
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to the indenture. Interest on the Project Bonds shall be calculated on the basis
of 360-day years consisting of twelve 30-day months.
(c) General Optional Redemption. The Borrowers have an option,
exercisable the dates and at the prices set forth in accordance with Section 2.1
of the Agreement, upon giving notice in accordance with Section 8.4 of the
Agreement, to prepay all or part (in the amount of $5,000 or any integral
multiple thereof) of the Loan Payments.
The exercise of any such prepayment option by the Borrowers shall be
conditioned on the deposit by the Borrowers of sufficient funds with the Letter
of Credit Bank in accordance with Section 2.1 of the Agreement or waiver of such
requirement by the Letter of Credit Bank.
Notice from the Borrowers to the Trustee pursuant to Section 8.4 of the
Agreement that the Borrowers shall exercise its general option to prepay the
Loan pursuant to Section 8.2 of the Agreement, shall constitute the direction
from the Issuer to the Trustee to call all or part of the then outstanding Bonds
for general optional redemption pursuant to this paragraph, and no separate
notice from the Issuer to the Trustee shall be required.
(d) Special Mandatory Redemption Upon Unenforceability or Taxability.
The Project Bonds are also subject to special mandatory redemption by the Issuer
prior to stated maturity at any time in whole if and when (i) the Agreement
shall have become void or unenforceable or impossible of performance in
accordance with the intent and purpose of the parties as expressed in the
Agreement by reason of any changes in the Constitution of the State or the
Constitution of the United States of America or by reason of legislative or
administrative action (whether state or Federal) or any final decree, judgment
or order of any court or administrative body (whether state or Federal) entered
after the contest thereof by the Issuer or the Borrowers in good faith to the
effect that the Note and the obligations evidenced thereby are no longer
enforceable by the holder thereof, or (ii) interest on the Project Bonds shall
have become subject to Federal income tax because of a Determination of
Taxability. The redemption price in any such events shall be 100% of the
principal amount of the Project Bonds outstanding plus accrued interest to the
redemption date. Any such redemption shall be made not more than 120 days
following the effective date of such constitutional amendment, legislation,
administrative action or decree, judgment or order, or following the date of the
Determination of Taxability (excluding any final determination that interest is
subject to Federal income tax with respect to any Project Bond because such
Project Bond is held by a "substantial user" of the Project or by a "related
person", as those terms are used in Section 144 Ca) of the Code or held by or
pledged to the Letter of Credit Bank). Notice from the Borrowers to the Trustee
pursuant to Section 8.4 of the Agreement that the Borrowers shall prepay the
Loan in full as required under Section 8.3 of the Agreement, shall constitute
the direction from the Issuer to the Trustee to call all the then outstanding
Project Bonds for special mandatory redemption pursuant to this paragraph, and
no separate notice from the Issuer to the Trustee shall be required.
(e) Mandatory Sinking Fund Redemption. The Project Bonds are not
subject to mandatory sinking fund redemption prior to maturity.
(f) Special Mandatory Redemption Upon Expiration of Letter of Credit.
The Project Bonds are subject to mandatory redemption in whole on the Letter of
Credit Termination Date or any
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subsequent date to which the Letter of Credit Termination Date shall have been
extended at a redemption price of 100% of the principal amount thereof plus
accrued interest to the redemption date unless, (a) at least forty-five (45)
days prior to any such Letter of Credit Termination Date, (b) the Letter of
Credit Bank shall have agreed to an extension or further extension of the Letter
of Credit Termination Date to a date not earlier than one (1) year from the
Letter of Credit Termination Date being extended or (c) at least thirty-five
(35) days prior to any such Letter of Credit Termination Date, the Borrowers
shall have obtained approval of an Alternate Letter of Credit with a termination
date not earlier than one (1) year from the Letter of Credit Termination Date
for the Letter of Credit it replaces.
(g) Method of Redemption. Notice of the call for any redemption of
Project Bonds, identifying by designation, letters, numbers, or other
distinguishing marks, the Project Bonds to be redeemed, the redemption price to
be paid, the date fixed for redemption and the place or places where the amounts
due upon such redemption are payable, shall be given by the Trustee on behalf of
the Issuer by mailing a copy of the redemption notice by first class mail at
least thirty days prior to the date fixed for redemption to the registered owner
of each Bond to be redeemed at the address shown on the registration books kept
by the Trustee; provided, however, that failure to give such notice by mailing,
or any defect in such notice, shall not affect the validity of any proceedings
for the redemption of the Project Bonds.
If less than the entire unmatured portion of the Project Bonds be
called for redemption at any time or from time to time, the Project Bonds to be
redeemed shall be selected in the inverse order of their maturities, and within
any maturity the selection of such Project Bonds or portion of fully registered
Project Bonds shall be made by lot in such manner as may be designated by the
Trustee in its sole discretion; provided, however, that if Project Bonds have
been pledged to the Letter of Credit Bank, Project Bonds so held by the Letter
of Credit Bank will be selected for redemption by the Trustee prior to any
selection by lot.
(h) Place of Payment. Bond service charges on Project Bonds shall be
payable, without deduction for services of the Paying Agent, in the manner
provided in the Project Bonds.
(i) Execution. The Project Bonds shall be executed by at least two
members of the Legislative Authority, provided that either or both of such
signatures may be facsimiles.
Section 4. Terms of all Bonds. All Bonds shall bear such designation as
may be necessary to distinguish them from Bonds of any other series. Bond
service charges on all Bonds shall be payable in lawful money of the United
States of America. Bonds shall be issued as fully registered Bonds. All Bonds
shall be negotiable instruments within the meaning of Chapter 165 of the Ohio
Revised Code, subject to applicable provisions for registration, and shall
express on their faces the purpose for which they are issued and such other
statements or legends as may be required by law.
All Bonds shall be executed in the manner provided in the Bond
Legislation authorizing their issuance or in the manner provided by the
applicable law in effect at the time of their issuance. In case any officer
whose signature or a facsimile of whose signature shall appear on any Bonds
shall cease to be such officer before the issuance, authentication or delivery
of such Bonds, such signature
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or such facsimile shall nevertheless be valid and sufficient for all purposes,
the same as if he or she had remained in office until that time.
Unless otherwise provided in the Bond Legislation authorizing the
issuance of Additional Bonds, notice of call for redemption of all Bonds shall
be given in the manner provided in Section 3 hereof for the notice of call for
redemption of the Project Bonds. If Bonds or portions of fully registered Bonds
are duly called for redemption and if on such redemption date moneys for the
redemption of all the Bonds to be redeemed, together with accrued interest to
the redemption date, shall be held by the Trustee or Paying Agents so as to be
available therefor, then from and after such redemption date such Bonds or
portions of fully registered Bonds shall cease to bear interest.
Section 5. Security Pledged for Bonds. As provided herein, the Project
Bonds shall be equally and ratably payable solely from the Pledged Receipts and
secured by a pledge of and lien on moneys deposited in the Construction Fund and
the Bond Fund, and a pledge and assignment of other moneys constituting Pledged
Receipts, and further secured by the Indenture and by the pledge and assignment
of the Note and by the Mortgage and the Assignment of Leases and Rents, and
anything in this Bond Legislation, the Bonds, the Agreement, the Mortgage or
Indenture to the contrary notwithstanding, neither this Bond Legislation, the
Bonds, the Agreement, Mortgage, nor the Indenture shall constitute a debt or a
pledge of the faith and credit of the Issuer or of the State or any political
subdivision thereof and the holders or owners of the Bonds shall have no right
to have taxes levied by the General Assembly of the State or the taxing
authority of the Issuer or of any other political subdivision of the State for
the payment of the principal of, premium, if any, or interest on the Bonds, but
such Bonds are payable solely from the Pledged Receipts and the Bonds shall
contain on the face thereof a statement to that effect.
Section 6. Sale of Project Bonds; Allocation of Purchase Price. The
Legislative Authority is hereby authorized and directed to offer for sale the
Project Bonds to the Original Purchaser for purchase by the Original Purchaser
at the price set forth in the Bond Purchase Agreement, plus accrued interest, in
accordance with the terms and provisions of this Bond Legislation, and to make
the necessary arrangements on behalf of the Issuer with the Original Purchaser
to establish the date, location, procedure and conditions for the delivery of
the Project Bonds to the original Purchaser. The Legislative Authority further
is hereby authorized and directed to take all steps necessary to effect due
authentication, delivery and security of the Project Bonds under the terms of
this Bond Legislation and the Indenture, and it is hereby determined that the
aforesaid purchase price and the interest rate for the Project Bonds and the
manner of sale, as provided in this Bond Legislation, are in compliance with all
legal requirements. The Legislative Authority shall furnish to the Original
Purchaser a true transcript of proceedings had with reference to the issuance cf
the Project Bonds, certified by the Clerk of the Legislative Authority along
with such information from his or her records as is necessary to determine the
regularity and validity of the issuance of said Bonds.
The Issuer has not confirmed, and assumes no responsibility for the
accuracy, sufficiency or fairness of, any statements in the Preliminary Offering
Circular or the final Offering Circular or any supplements thereto, or in any
reports, financial information, offering or disclosure documents or other
information in any way relating to the Project, the Borrowers, the Letter of
Credit Bank or the Original Purchaser.
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At the time of issuance, delivery of and payment for the Project Bonds,
the Bond Fund Payment shall be deposited from the purchase price for the Project
Bonds into the Bond Fund.
There is hereby created by the Issuer and ordered maintained as a
separate deposit account (except when invested as hereinafter provided) in the
custody of the Trustee a trust fund to be designated "County of Hamilton,
Ohio--Adam Wuest, Inc. Construction Fund" (herein called the "Construction
Fund"). The Bond proceeds, after payment of bond discounts, shall be used to
fund the Bond Fund with the Bond Fund Payment and the balance to fund the
Construction Fund. Moneys in the Construction Fund shall be disbursed by the
Trustee in accordance with the provisions of the Agreement, and the Trustee is
hereby authorized and directed to issue its check for each disbursement required
by the provisions of the Agreement. The Issuer covenants and agrees promptly to
take whatever action, if any, is necessary in approving and ordering all such
disbursements.
The moneys to the credit of the Construction Fund shall, pending
application thereof as above set forth, be subject to a lien and charge in favor
of the holders of the Project Bonds, but only to the extent of their interest
therein.
Moneys in the Construction Fund from the proceeds of the Project Bonds
shall be disbursed as provided in Section 4.2 of the Agreement.
Moneys in the Construction Fund may be disbursed by the Trustee only in
accordance with the Agreement and the Reimbursement Agreement.
There is hereby also created by the Issuer and ordered maintained as a
separate deposit account in the custody of the Trustee, a trust fund to be
designated "County of Hamilton, Ohio--Adam Wuest Inc. Excess Investment Earnings
Account" (the "Excess Investment Earnings Account") and therein a Principal
Subaccount and an Interest Subaccount as provided in the Indenture.
Section 7. Source of Payment - Bond Fund. As provided in the Agreement,
moneys sufficient in time and amount to pay the Bond service charges as they
come due are to be drawn by the Trustee from the Letter of Credit Bank pursuant
to the Letter of Credit (or paid by the Borrowers directly to the Trustee,
including payments received on the Note) for the account of the Issuer and
deposited in the Bond Fund. Under the provisions of the Agreement, payments with
respect to the Note received by the Trustee shall be deposited into the
Reimbursement Account in the Bond Fund for the account of the Issuer and shall
constitute Loan Payments.
There is hereby created by the Issuer and ordered maintained, as a
separate deposit account (except when invested as hereinafter provided) in the
custody of the Trustee, a trust fund to be designated "County of Hamilton,
Ohio--Adam Wuest, Inc. Revenue Bond Fund" (herein called the "Bond Fund"). The
Bond Fund (and accounts therein provided for in the Indenture or in the
Agreement) and the moneys and investments therein are hereby pledged to and
shall be used for the payment of Bond service charges, all as provided herein
and in the Indenture and the Agreement, provided that no part thereof (except as
may otherwise be provided for herein and in the Indenture or the Agreement)
shall be used to redeem or purchase, prior to maturity, any Bonds.
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On or before each date when Bond service charges are due and payable,
the Trustee shall transmit from moneys in the Bond Fund applicable thereto to
any other Paying Agents, as appropriate, amounts sufficient to meet payments to
be made by them of Bond service charges then to be due and payable; provided
that to the extent that the amount needed by any other Paying Agent is not
sufficiently predictable, the Trustee may, but shall not be required to, make
such credit arrangements with such Agent as to permit meeting such payments.
There shall be deposited into the Bond Fund (and credited, if required
by the Indenture or the Agreement, to appropriate accounts therein), as and when
received, (a) all Loan Payments, (b) all moneys drawn by the Trustee under the
Letter of Credit for the payment of principal of or interest on the Project
Bonds, and (c) all other Pledged Receipts, except those amounts required by the
Indenture or the Agreement to be deposited in the Construction Fund or any other
separate insurance or condemnation proceeds account.
The Issuer hereby covenants and agrees that so long as any of the Bonds
are outstanding it will deposit or cause to be deposited in the Bond Fund,
Pledged Receipts sufficient in time and amount to pay the Bond service charges
as the same become due and payable, and to this end the Issuer covenants and
agrees that, so long as any Bonds are outstanding, it will diligently and
promptly proceed in good faith and use its best efforts to enforce the
Agreement, and that, should there be an event of default under the Agreement,
the Issuer shall fully cooperate with the Trustee and with the Bondholders to
protect fully the rights and security of the Bondholders hereunder. Nothing
herein shall be construed as requiring the Issuer to use or apply to the payment
of Bond service charges any funds or revenues from any source other than Pledged
Receipts.
The Issuer covenants and agrees, whenever the moneys and investments in
the Bond Fund (or otherwise held by the Trustee for such purpose) are sufficient
in amount to redeem all of the Bonds then outstanding and to pay interest to
accrue thereon to the date or dates of such redemption, to take and cause to be
taken, at the direction of the Borrowers, the necessary steps to redeem all of
said Bonds on the next succeeding redemption date or dates for which the
required notice of call for redemption may be given.
Section 8. Additional Bonds. At the request of the Borrowers with the
prior written consent of the Letter of Credit Bank, which consent may be
withheld in its absolute discretion, if the Borrowers is not then in default
under the Agreement, upon delivery to the Trustee of an irrevocable letter of
credit, substantially in the form of the Letter of Credit, the Issuer, to the
extent permitted by law (including the Act) then in effect and for purposes
consistent with the Act, shall use its best efforts to issue Additional Bonds
from time to time to provide loans to the Borrowers for: (i) completion of the
Project, including additional costs incurred in acquiring, constructing and
equipping the Project, or (ii) restoring or repairing the Project following any
condemnation thereof or damage thereto to the extent the Net Proceeds of any
insurance or condemnation award are insufficient to pay for same, or (iii)
acquiring or constructing improvements to the Project, (iv) refunding the
Project Bonds or any one or more series of Additional Bonds, or (v) any
combination of the foregoing; provided, that the proceeds of any Additional
Bonds shall, except to the extent issued for the purpose described in clause
(iv), be used solely to pay permissible costs under the Act. Such Additional
Bonds shall be on a parity with the Project Bonds and any Additional Bonds
theretofore or thereafter issued, except with respect to any moneys drawn by the
Trustee under
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the Letter of Credit and deposited in the Bond Fund, which shall be used only
for the payment of principal of and interest on the Project Bonds. Before any
Additional Bonds are authenticated there shall be delivered to the Trustee the
items required by Section 2.08 of the Indenture and (a) any necessary amendment
of the Agreement to provide for increased Loan Payments so that the aggregate of
the Loan Payments thereafter payable under the Agreement shall be sufficient in
an amount to make all required payments into the Bond Fund in order to pay when
due Bond service charges on all Bonds then to be outstanding, and for all
Additional Payments (as defined in the Agreement) by the Borrowers under the
provisions of the Agreement and the Bond Legislation, and (b) either the opinion
of nationally recognized bond counsel or a ruling of the Internal Revenue
Service of the United States Department of Treasury that the issuance of such
series of Additional Bonds will not adversely affect the exemption from Federal
income taxation of the interest paid or payable on any outstanding Bonds.
Section 9. Covenants of Issuer. In addition to other covenants of the
Issuer contained in this Bond Legislation and the Indenture, the Issuer further
covenants and agrees as follows:
(a) Payment of Bond Service Charges. The Issuer will, solely from
Pledged Receipts pay or cause to be paid the Bond service charges on each and
all Bonds on the dates, at the places and in the manner provided herein, in the
applicable Bond Legislation and in the Bonds.
(b) Performance of Covenants, Authority and Actions. The Issuer will at
all times faithfully observe and perform all agreements, covenants,
undertakings, stipulations and provisions contained in the Bond Legislation, the
Agreement, the Indenture and in any and every Bond executed, authenticated and
delivered under the Indenture, and in all proceedings of the Issuer pertaining
to the Bonds, the Indenture or the Agreement. The Issuer warrants and covenants
that it is, and upon delivery of the Project Bonds will be, duly authorized by
the Constitution and laws of the State, including particularly and without
limitation the Act, to issue the Project Bonds and to execute the Indenture, the
Agreement and the Bond Purchase Agreement, to provide the security for payment
of the Bond service charges in the manner and to the extent herein and in the
Indenture set forth; that all actions on its part for the issuance of the
Project Bonds and execution and delivery of the Indenture, the Agreement and the
Bond Purchase Agreement have been or will be duly and effectively taken; and
that the Project Bonds in the hands of the holders thereof will be valid and
enforceable special obligations of the Issuer according to the terms thereof.
Each provision of the Bond Legislation, the Indenture, the Agreement, the Bond
Purchase Agreement and the Bonds is binding upon each such officer of the Issuer
as may from time to time have the authority under law to take such actions as
may be necessary to perform all or any part of the duties required by such
provision; and each duty of the Issuer and of its officers undertaken pursuant
to such proceedings for the issuance of the Bonds is established as a duty of
the Issuer and of each such officer having authority to perform such duty,
specifically enjoined by law and resulting from an office, trust, or station
within the meaning of Section 2731.01 of the Ohio Revised Code, providing for
enforcement by writ of mandamus.
(c) Pledged Receipts. Except as otherwise provided in the Bond
Legislation, the Indenture and the Agreement, the Issuer will not create or
suffer to be created any debt, lien or charge thereon, or make any pledge or
assignment of or create any debt, lien or charge thereon, or make any pledge or
assignment of or create any lien or encumbrance upon the Pledged Receipts,
including the
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moneys in the Bond Fund and Construction Fund, other than the pledge and
assignment thereof under this Bond Legislation, the Indenture and the Agreement.
(d) Recordings and Filings. The Issuer will, at the expense of the
Borrowers, cause (to the extent required by the laws of the State to perfect
such instruments and/or the lien created thereby) all necessary financing
statements, amendments thereto, continuation statements and instruments of
similar character relating to the pledges and assignments made by it to secure
the Bonds, to be recorded and filed in such manner and in such places and to the
extent required by law in order to fully preserve and protect the security of
the holders of the Bonds and the rights of the Trustee under the Indenture.
(e) Inspection of Project Books. All books and documents in the
Issuer's possession relating to the Project or the Pledged Receipts shall at all
times be open to inspection by such accountants or other agents of the Trustee
or the Letter of Credit Bank as the Trustee or the Letter of Credit Bank may
from time to time designate.
(f) Rights Under Agreement. The Trustee, in its name or in the name of
the Issuer, may, for and on behalf of the Bondholders, enforce all rights of the
Issuer and all obligations of the Borrowers under and pursuant to the Agreement
and Note, whether or not the Issuer is in default of the pursuit or enforcement
of such rights and obligations.
(g) Maintenance of Agreement. The Issuer shall do all things and take
all actions on its part necessary to comply with the obligations, duties and
responsibilities on the part of the Issuer under the Agreement, and will take
all actions within its authority to maintain the Agreement in effect in
accordance with the terms thereof and to enforce and protect the rights of the
Issuer thereunder, including actions at law and in equity, as may be
appropriate.
(h) Arbitrage Provisions. The Issuer will, to the extent that it is in
a position to control or direct such matters, restrict the use of the proceeds
of the Project Bonds in such manner and to such extent, if any, as may be
necessary, after taking into account reasonable expectations at the time the
Project Bonds are delivered to the original Purchaser, so that they will not
constitute "arbitrage bonds" under Section 148(a) of the Internal Revenue Code
of 1986, and the regulations promulgated under that section. A member of the
Legislative Authority or any other officer having responsibility with respect to
the issuance of the Project Bonds, is authorized and directed, alone or in
conjunction with any of the foregoing or with any other officer, employee,
consultant or agent of the Legislative Authority, or any officer of the
Borrowers, and upon receipt of satisfactory indemnities, to give an appropriate
certificate on behalf of the Issuer, for inclusion in the transcript of
proceedings for the Project Bonds, setting forth the facts, estimates and
circumstances and reasonable expectations pertaining to said Section 148(a) and
regulations thereunder. The Issuer also will, to the extent it is in a position
to control or direct such matters, comply with Section 148(a) of the Code.
Section 10. Investment of Bond Fund and Construction Fund. Except as
otherwise provided in the Indenture, moneys in the Bond Fund and the
Construction Fund shall be invested and reinvested by the Trustee in Eligible
Investments, in accordance with and subject to the orders (if verbal, to be
confirmed in writing) of the Authorized Borrowers Representative with respect
thereto, provided that investments of moneys in the Bond Fund shall mature or be
redeemable at the option
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of the Trustee at the times and in the amounts necessary to provide moneys
hereunder to pay Bond service charges as they fall due at stated maturity or by
redemption or pursuant to any Mandatory Sinking Fund Requirements, and further
provided that moneys in the Reimbursement Account in the Bond Fund shall mature
or be redeemable at the option of the Trustee at the times and in the amounts
necessary to reimburse the Letter of Credit Bank for draws under the Letter of
Credit, and provided that each investment of moneys in the Construction Fund
shall in any event mature or be redeemable at the option of the Trustee at such
time as may be necessary to make timely payments from said Construction Fund.
Any such investments may be purchased from the Trustee or its affiliates. The
Trustee shall sell or redeem investments standing to the credit of the Bond Fund
to produce sufficient moneys hereunder at the times required for the purpose of
paying Bond service charges when due as aforesaid, and shall do so without
necessity for any order on behalf of the Issuer and without restriction by
reason of any such order. For purposes of the Indenture and this Bond
Legislation, such investments shall be valued at face amount or market value,
whichever is less.
Section 11. Indenture, Agreement and Bond Purchase Agreement. In order
better to secure the payment of the Bond service charges as the same shall
become due and payable, at least two members of the Legislative Authority are
hereby authorized and directed, on behalf of the Issuer, to execute and deliver
the Indenture, the Agreement and the Bond Purchase Agreement in substantially
the forms submitted to the Issuer, and to endorse upon the Note the assignment
thereof to the Trustee, which instruments are hereby approved, with such changes
therein not inconsistent with this Bond Legislation and not substantially
adverse to the Issuer as may be permitted by the Act and approved by the
officers executing the same. The approval of such changes by said officers, and
that such are not substantially adverse to the Issuer, shall be conclusively
evidenced by the execution of the Indenture, the Agreement and the Bond Purchase
Agreement respectively, and by endorsement of the Note, by such officers.
This Bond Legislation shall constitute a part of the Indenture as
therein provided and for all purposes of said Indenture, including, without
limitation thereto, application to this Bond Legislation of the provisions in
the Indenture relating to amendment, modification and supplementation, and
provisions for severability.
Section 12. Other Documents. At least two members of the Legislative
Authority are hereby further authorized and directed to execute financing
statements, other assignments and any other instruments as are, in the opinion
of bond counsel to the Issuer, necessary to perfect the pledges set forth in the
Indenture and to consummate the transactions provided for in the Indenture, the
Agreement and the Bond Purchase Agreement.
Section 13. Compliance with Section 121.22, Ohio Revised Code. It is
hereby found and determined that all formal actions of this Legislative
Authority concerning and relating to the passage of this Bond Legislation were
taken in an open meeting of this Legislative Authority, and that all
deliberations of this Legislative Authority and of any of its committees, if
any, that resulted in such formal action, were taken in meetings open to the
public, in full compliance with applicable legal requirements, including Section
121.22 of the Ohio Revised Code.
Section 14. Temporary Project Bonds. Pending the preparation of
definitive Project Bonds, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Project
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Bonds in printed or typewritten form. Temporary Project Bonds shall be issuable
in fully registered form, of any denomination, and substantially in the form of
the definitive Project Bonds but with such omissions, insertions and variations
as may be appropriate for temporary Project Bonds, all as may be determined by
the Board, their execution of any such temporary Project Bonds to be conclusive
evidence of his determinations as aforesaid. Every temporary Project Bond shall
be executed on behalf of the Issuer, and be authenticated by the Trustee upon
the same conditions and in substantially the same manner, and with like effect,
as the definitive Project Bonds. If one or more temporary Project Bonds are
issued, then without unnecessary delay the Issuer shall execute and furnish
definitive Project Bonds and thereupon temporary Project Bonds may be
surrendered to the Trustee in exchange therefor without charge to the holder
thereof, and the Trustee shall authenticate and deliver in exchange for such
temporary Project Bonds an equal aggregate principal amount of definitive
Project Bonds. Until so exchanged the temporary Project Bonds shall be entitled
to the same benefits under the Indenture as definitive Project Bonds.
Section 15. Effective Date. This resolution shall take effect
immediately upon its passage. Mr. Dowlin moved the passage of the foregoing
resolution, and Mr. Chabot seconded the motion. The vote thereon resulted as
follows:
Mr. Chabot. AYE Mr. Dowlin. AYE Mr. Guckenberger. AYE
Passed: February 16, 1984
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CERTIFICATE
The undersigned, Clerk of the Board of County Commissioners of the
County of Hamilton, Ohio, hereby certifies that the foregoing is a true and
complete copy of a resolution passed on the 16th day of February, 1994, and has
not been amended or rescinded as of this date.
February 16, 1994 _____________________________________
Clerk, Board of County Commissioners
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WHEREAS, all acts, conditions and things required to happen, exist, and
be performed precedent to and in the issuance of the Project Bonds and the
execution and delivery of this Indenture have happened, exist and have been
performed in order to make the Project Bonds, when issued, delivered and
authenticated, valid obligations of the Issuer in accordance with the terms
thereof and hereof, and in order to make this Indenture a valid, binding and
legal trust agreement for the security of the Bonds in accordance with its
terms; and
WHEREAS, the Trustee has accepted the trusts created by this Indenture,
and in evidence thereof has joined in the execution hereof; and
WHEREAS, the texts of the Project Bonds, the certificate of
authentication of the Trustee to be endorsed thereon and other provisions to be
included therein are to be substantially in the following forms with appropriate
omissions, insertions and variations as in this Indenture provided or permitted:
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(BOND FORM)
REGISTERED REGISTERED
NO. $
(FORM OF FACE OF BOND)
United States of America
State of Ohio
County of Hamilton, Ohio
Economic Development
Revenue Refunding Bonds,
Series 1994 (Adam Wuest, Inc. Project)
Maturity Date: Dated as of: CUSIP:
September 1, ___________ __________ __________
The County of Hamilton, Ohio (the "Issuer"), a county and political
subdivision organized and existing under the laws of the State of Ohio, for
value received, promises to pay to ________________________ or registered
assigns, but solely from the sources and in the manner hereinafter referred to
______________ DOLLARS
on the aforesaid Maturity Date, unless this Bond is called for earlier
redemption, and to pay from those sources interest thereon at the Interest Rate
per annum set forth above, payable on the first day of each March and September,
commencing September 1, 1994, or if any such day is not a Business Day, as
hereinafter defined, on the immediately succeeding Business Day (the "Interest
Payment Dates"), until the principal amount is paid or duly provided for.
Interest on the Bonds will accrue from and including the date set forth above to
and including the day preceding the next Interest Payment Date, and thereafter
from and including each Interest Payment Date to and including the date
preceding each succeeding Interest Payment Date (each such period hereinafter
called an "Interest Period"). Interest shall be calculated on the basis of
360-day years and twelve 30-day months. This Bond will bear interest from the
most recent date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from its date. The term "Business
Day", as used herein, means any day of the year, other than a Saturday or a
Sunday, on which banks located in the cities in which the principal corporate
trust office of the Trustee (hereinafter identified) and the principal office of
the Letter of Credit Bank (hereinafter identified) are located are not required
or authorized by law to remain closed and on which The New York Stock Exchange
is not closed.
The principal of and any premium on this Bond are payable when due upon
presentation and surrender hereof at the principal corporate trust office of the
trustee, presently The Fifth Third Bank, Cincinnati, Ohio (the "Trustee").
Interest is payable on each Interest Payment Date by check or draft mailed to
the person in whose name this Bond is registered (the "Holder") at the close of
business
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on the 15th day preceding that Interest Payment Date (the "Regular Record Date")
on the registration hooks for this issue maintained by the Trustee, as
Registrar, at the address appearing therein. The principal of and interest and
any premium on this Bond are payable in lawful money of the United States of
America, without deduction for the services of the paying agent.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS BOND SET FORTH
ON THE REVERSE SIDE. THOSE PROVISIONS SHALL HAVE THE SAME EFFECT FOR ALL
PURPOSES AS IF SET FORTH HERE.
It is certified and recited that there have been performed and have
happened in regular and due form, as required by law, all acts and conditions
necessary to be done or performed by the Issuer or to have happened (i)
precedent to and in the issuing of the Bonds in order to make them legal, valid
and binding special obligations of the Issuer, and (ii) precedent to and in the
execution and delivery of the Indenture and the Agreement; that payment in full
for the Bonds has been received; and that the Bonds do not exceed or violate any
constitutional or statutory limitation.
[FORM OF CERTIFICATE OF IN WITNESS OF THE ABOVE, THE
AUTHENTICATION] COUNTY OF HAMILTON, OHIO has
This Bond is one of the Bonds caused this Bond to be executed in the
described in the within mentioned name of the Issuer by at least two members
Indenture of its Board of County Commissioners by
their manual or facsimile signatures,
acting in their official capacities, as of
the date shown above.
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THE FIFTH THIRD BANK COUNTY OF HAMILTON, OHIO
By: ________________________________ By: _____________________________
Authorized Signer County Commissioner
By: _____________________________
County Commissioner
By: _____________________________
County Commissioner
Registerable at: THE FIFTH THIRD
BANK, Cincinnati, Ohio
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[FORM OF REVERSE OF BOND]
This Bond is one of a duly authorized issue of Economic Development
Revenue Refunding Bonds, Series 1994 (Adam Wuest, Inc. Project) (the "Project
Bonds"), issuable under the Trust Indenture, dated as of February 1, 1994 (the
"Indenture"), between the Issuer and the Trustee, aggregating in principal
amount $2,980,000 and issued for the purpose of making a loan (the "Loan") to
assist Adam Wuest Realty, Inc. ("Realty") and Adam Wuest, Inc. ("Company")
(Realty and Company are sometimes collectively referred to as "Borrowers") in
financing the costs of refunding the bonds of the Issuer (the "Prior Bonds")
which were issued to finance the costs of acquiring, constructing and equipping
a Project (the "Project"). Realty owns the land and building portion of the
Project ("Project Site") and Company owns the equipment portion of the Project
("Project Equipment"). Realty leases the Project Site to Company. The Project
Bonds, together with any Additional Bonds which may be issued on a parity
therewith under the Indenture (collectively, the "Bonds"), are special
obligations of the Issuer, issued or to be issued under and are to be secured
and entitled equally and ratably to the protection given by the Indenture. The
Project Bonds are issued pursuant to Section 13 of Article VIII of the
Constitution of the State of Ohio and to the laws of that State, particularly
Chapter 165, Ohio Revised Code, and to a resolution duly adopted by the Issuer.
Reference is made to the Indenture for a more complete description of
the Project, the provisions, among others, with respect to the nature and extent
of the security for the Bonds, the rights, duties and obligations of the Issuer,
the Trustee and the Holders of the Bonds, and the terms and conditions upon
which the Bonds are issued and secured. Each Holder assents, by its acceptance
hereof, to all of the provisions of the Indenture.
Pursuant to the Agreement, the Borrowers has executed and delivered to
the Issuer, and the Issuer has endorsed to the Trustee, the Borrowers'
promissory note, dated as of February 1, 1994 (the "Note"), in the principal
amount of $2,980,000. The Borrowers are jointly and severally required by the
Agreement and the Note to make payments to the Trustee in the amounts and at the
times necessary to pay the principal of and interest and any premium (the "Bond
service charges") on the Project Bonds. The Borrowers' obligations thereunder
are secured by the Open-End Mortgage and Security Agreement, dated as of
February 1, 1994 (the "Mortgage"), and an Assignment of Leases and Rents, dated
as of February 1, 1994 (the "Assignment"), both from the Borrowers to the
Trustee and The Fifth Third Bank, Cincinnati, Ohio, in its capacity as issuer of
a Letter of Credit (the "Letter of Credit Bank"). Realty's liabilities under the
Note and the other aforementioned documents is limited as provided in Section
2.1 of the Agreement. In the Indenture, the Issuer has assigned to the Trustee,
to provide for the payment of the Bond service charges on the Project Bonds, the
Issuer's right, title and interest in and to the Agreement, except for
Unassigned Issuer's Rights as defined in the Agreement.
Pursuant to the Agreement, the Borrowers have caused to be issued and
delivered to the Trustee by the Letter of Credit Bank an irrevocable letter of
credit (the "Letter of Credit"), pursuant to which the Trustee is entitled to
draw up to (a) the principal amount of the Project Bonds outstanding to enable
the Trustee to pay (i) the principal amount of the Project Bonds when due at
maturity or upon redemption or acceleration, plus (b) the amount of interest due
on the Bonds but not to exceed one hundred ninety-five (195) days maximum
accrued interest (at the maximum rate of interest due on the Project Bonds. To
provide for the issuance of the Letter of Credit, the
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Borrowers have entered into a Reimbursement Agreement, dated as of February 1,
1994 (the "Reimbursement Agreement"), with the Letter of Credit Bank pursuant to
which the Company and Realty are jointly and severally obligated to reimburse
the Letter of Credit Bank for all drawings made under the Letter of Credit.
However, Realty's obligation is limited to the proceeds realized from the
disposition of the Project Site. The Letter of Credit shall expire on September
15, 1995, unless extended, and may be replaced by an Alternate Letter of Credit
(as defined in the Indenture). The issuer of the Alternate Letter of Credit must
satisfy the requirements of Section 4.16 of the Indenture. As used herein, the
term "Letter of Credit" shall refer to the Letter of Credit and any Alternate
Letter of Credit.
Copies of the Indenture, the Agreement, the Mortgage, the Note, the
Letter of Credit, the Assignment and the Reimbursement Agreement are on file at
the principal corporate trust office of the Trustee.
The Bond service charges on the Project Bonds are payable solely from
the Pledged Receipts, as defined and as provided in the Indenture (being,
primarily, the amounts to be drawn on the Letter of Credit to pay Bond service
charges), and are an obligation of the Issuer only to the extent of such Pledged
Receipts.
THE BONDS ARE NOT SECURED BY AN OBLIGATION OR PLEDGE OF ANY MONEYS
RAISED BY TAXATION AND DO NOT REPRESENT OR CONSTITUTE A DEBT OR PLEDGE OF THE
FAITH AND CREDIT OF THE STATE OF OHIO, THE COUNTY OF HAMILTON, OHIO OR ANY OTHER
POLITICAL SUBDIVISION OR TAXING DISTRICT OF THE STATE OF OHIO.
The Project Bonds are issuable only as fully registered bonds in the
denominations of $5,000 and any integral multiple thereof and are exchangeable
for Bonds of other authorized denominations in equal aggregate principal amounts
at the office of the Registrar specified on the face hereof, but only in the
manner and subject to the limitations provided in the Indenture. This Project
Bond is transferable at the office of the Registrar, by the Holder in person or
by his attorney, duly authorized in writing, upon presentation and surrender
hereof to the Registrar. The Registrar is not required to transfer or exchange
any Bond during a period beginning at the opening of business 15 days before any
Interest Payment Date.
PART VII. GENERAL PROVISIONS.
The Bonds are subject to optional redemption on or after September 1,
2003 in whole at any time or in part on any Interest Payment Date (in integral
multiples of $5,000) by the Issuer, at the Borrowers's option as provided in
Section 2.1 of the Agreement, at the redemption prices (expressed as percentages
of the principal amount of bonds to be redeemed) set forth below, plus accrued
interest to the redemption date:
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Redemption Date Redemption Price
--------------- ----------------
September 1, 2002 through August 31, 2003 101%
September 1, 2003 thereafter 100%
The Bonds are subject to mandatory redemption by the Issuer in whole on
any Interest Payment Date which next precedes a Letter of Credit Termination
Date (as defined in the Indenture) or a subsequent date to which the Letter of
Credit Termination Date shall have been extended (or if the Letter of Credit
Termination Date is on an Interest Payment Date, then such date), at a
redemption price of 100% of the principal amount thereof plus accrued interest
to the redemption date unless, at least forty-five (45) days prior to such
Interest Payment Date (a) the Letter of Credit Bank shall have agreed to an
extension or further extension of the Letter of Credit Termination Date to a
date not earlier than one (1) year from the Letter of Credit Termination Date
being extended or (b) the Borrowers shall have obtained an Alternate Letter of
Credit with a termination date not earlier than one (1) year from the Letter of
Credit Termination Date for the Letter of Credit it replaces.
The Bonds are subject to redemption prior to stated maturity pursuant
to first class mailed notice thereof given at least 30 days prior to the
redemption date, as follows:
The Bonds are subject to mandatory redemption prior to stated maturity
at any time in whole at a redemption price of 100% of the principal amount
thereof plus accrued interest to the redemption date if and when (i) the
Agreement shall have become void or unenforceable or impossible of performance
in accordance with the intent and purpose of the parties as expressed in the
Agreement by reason of any changes in the Constitution of the State or the
Constitution of the United States of America or by reason of legislative or
administrative action (whether state or Federal) or any final decree, judgment
or order of any court or administrative body (whether state or Federal) entered
after the contest thereof by the Issuer or the Borrowers in good faith to the
effect that the Note and the obligations evidenced thereby are no longer
enforceable by the holder thereof, or (ii) interest on the Bonds shall have
become subject to Federal income tax because of a Determination of Taxability
(as defined in the Indenture). Any such redemption shall be made not more than
120 days following the effective date of such constitutional amendment,
legislation, administrative action or decree, judgment or order, or following
the date of the Determination of Taxability (excluding any final determination
that interest is subject to Federal income tax with respect to any Bond because
such Bond is held by a "substantial user" of the Project or by a "related
person", as those terms are used in Section 144 (a) of the Internal Revenue Code
of 1986, as amended.).
If less than all Bonds are to be redeemed at one time, the selection of
Bonds, or portions thereof in amounts of $5,000 or any integral multiple
thereof, to be redeemed shall be selected in the inverse order of their
maturities, and within any maturity the selection of such Bonds or portion of
such fully registered Bonds shall be made by lot by the Trustee, in its sole
discretion. If Bonds or portions thereof are called for redemption and if on the
redemption date moneys for the redemption thereof are held by the Trustee,
thereafter those Bonds or portions thereof to be redeemed shall cease to bear
interest, and shall cease to be secured by, and shall not be deemed to be
outstanding under, the Indenture.
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In addition to the provision contained in the Indenture authorizing the
Issuer and the Trustee, without the consent of or notice to any of the
Bondholders, to enter into supplemental indentures not inconsistent with the
Indenture and for certain purposes specified therein, the Indenture contains
provisions permitting such parties, with the consent of the Holders of not less
than 66 2/3% in aggregate principal amount of the Bonds at the time outstanding,
to execute supplemental indentures for the purpose of modifying, altering,
amending, adding to or rescinding, in any particular, any of the terms or
provisions of the Indenture or any indenture supplemental thereto; provided,
however, that no such supplemental indenture shall (a) without the consent of
the Holder of each Bond so affected extend the maturity of the principal of or
the interest on any Bond, reduce the principal amount of any Bond or the rate of
interest or redemption premium thereon, or reduce the amount or extend the time
of payment required by any Mandatory Sinking Fund Requirements (as defined in
the Indenture), or (b) without the consent of the Holders of all Bonds then
outstanding permit a privilege or priority of any Bond or Bonds over any other
Bond or Bonds or reduce the aggregate principal amount of the Bonds required for
consent to such supplemental indenture. For purposes of this paragraph consent
of the Holders of not less than 66 2/3% in aggregate principal amount of the
Bonds with respect to supplemental indentures shall have been deemed to have
been obtained if the Trustee does not receive letters of protest or objections
to such supplemental indentures signed by or on behalf of the Holders of 33 1/3%
or more of the aggregate principal amount of the Bonds then outstanding within
60 days from the date the Trustee mails notice of any proposed supplemental
indenture to the Holders of the Bonds as more specifically provided in the
Indenture.
The Holder of each Bond has only those remedies provided in the
Indenture.
The Bonds shall not constitute the personal obligation, either jointly
or severally, of the members of the Legislative Authority of the Issuer or of
any other officer of the Issuer.
This Bond shall not be entitled to any security or benefit under the
Indenture or be valid or become obligatory for any purpose until the certificate
of authentication herein shall have been signed.
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[FORM OF ASSIGNMENT]
ASSIGNMENT
For value received, the undersigned sells, assigns and transfers unto
____________ the within Bond and irrevocably constitutes and appoints attorney
to transfer that Bond on the books kept for registration thereof, with full
power of substitution in the premises.
Dated: ____________________ ______________________________
Signature Guaranteed:
__________________________
Notice: The assignor's signature to this assignment must correspond with the
name as it appears upon the face of the within Bond in every
particular, without alteration or any change whatever.
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NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the
payment of the Bond service charges on the Bonds according to their true intent
and meaning, and to secure the performance and observance of all the covenants
and conditions therein and herein contained and to declare the terms and
conditions upon and subject to which the Bonds are and are intended to be
issued, held, secured, and enforced, the Issuer, in consideration of the
premises and the acceptance by the Trustee of the trusts hereby created and of
the purchase and acceptance of the Project Bonds by the holders and owners
thereof, and for other good and valuable considerations, the receipt of which is
hereby acknowledged, has executed and delivered this Indenture and does hereby
pledge and assign to The Fifth Third Bank, Cincinnati, Ohio, as Trustee, and to
its successors in trust, and its and their assigns, for the securing of the
performance of the obligations of the Issuer hereinafter set forth, the Issuer's
right, title and interest in Pledged Receipts, including without limitation all
payments and other amounts receivable by or on behalf of the Issuer under the
Agreement (except for Unassigned Issuer's Rights as defined in the Agreement)
and in respect to the Loan, and all moneys and investments in the Construction
Fund and Bond Fund, and in particular the payments to be received under and
pursuant to and subject to the provisions of the Agreement and the Note,
pursuant to the terms of which payments are to be paid directly to the Trustee
at the corporate trust office of the Trustee for the account of the Issuer and
deposited in the Bond Fund, all subject to and in accordance with this
Indenture;
TO HAVE AND TO HOLD to the Trustee and its successors in said trust and
to its and their assigns forever;
BUT IN TRUST, NEVERTHELESS, for the equal and proportionate benefit,
except as to the Letter of Credit and subject to the terms hereof, security and
protection of all present and future holders and owners of the Bonds issued or
to be issued under and secured by this Indenture, and for the enforcement of the
payment of the Bond service charges on the Bonds, when payable, according to the
true intent and meaning thereof and of this Indenture and to secure the
performance of and compliance with the covenants, terms and conditions of this
Indenture, without preference, priority or distinction, as to lien or otherwise,
of any one Bond over any other by reason of designation, number, date of
authorization, issuance, sale, execution or delivery, date of the Bonds or of
maturity, or otherwise, so that each and all Bonds shall have the same right,
lien and privilege under this Indenture, and shall be equally and ratably
secured hereby, as if all the Bonds had been made, issued and negotiated
simultaneously with the delivery of this Indenture, it being intended that the
lien and security of this Indenture shall take effect from the date hereof,
without regard to the date of actual issue, sale or disposition of the Bonds as
though upon such date all the Bonds were actually issued, sold and delivered to
purchasers for value; provided, however, that if the Issuer, its successors or
assigns, shall well and truly pay, or cause to be paid, the principal of the
Bonds and the interest due or to become due thereon together with any premium
required by redemption of any of the Bonds prior to maturity, at the times and
in the manner mentioned in the Bonds according to the true intent and meaning
thereof, or shall cause the payment to be made into the Bond Fund as required
under Section 7 of the Bond Legislation authorizing the Project Bonds and the
Bond Legislation authorizing any Additional Bonds, or shall have caused the
Bonds to have been paid and discharged in accordance with Sections 8.01 and 8.02
of this Indenture, shall well and truly keep, perform and observe all the
covenants and conditions pursuant to the terms of this Indenture to be kept,
performed and observed by it, and shall pay or cause to be paid to the Trustee
and Paying Agents all sums of money due or to become due to them in accordance
with the terms and provisions hereof, then this
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Indenture and the rights hereby granted shall cease, determine and be void,
otherwise, this Indenture shall be and remain in full force and effect.
And it is expressly declared that the Bond Legislation set forth above
is part of this Indenture and that all Bonds issued and secured hereunder are to
be issued, authenticated and delivered, and all Pledged Receipts hereby pledged
and the Construction Fund and the Bond Fund are to be dealt with and disposed of
under, upon and subject to the terms, conditions, stipulations, covenants,
agreements, trusts, uses and purposes provided in this Indenture, and the Issuer
has agreed and covenanted, and does hereby further agree and covenant, with the
Trustee and with the respective holders and owners from time to time, of the
Bonds or any part thereof, as follows:
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ARTICLE I
DEFINITIONS
In addition to the words and terms elsewhere defined, directly or by
reference to the Agreement, in this Indenture, including the Bond Legislation,
the following words and terms as used in this Indenture shall have the following
meanings unless the context or use clearly indicates another or different
meaning or intent:
"Bond Registrar" means the Trustee acting as Bond Registrar with
respect to the Bonds pursuant to the provisions of the Indenture.
"Extraordinary Services" and "Extraordinary Expenses" means all
services rendered and all reasonable expenses properly incurred under this
Indenture other than Ordinary Services and Ordinary Expenses, including but not
limited to services rendered and expenses incurred in the administration of an
Event of Default.
"Ordinary Services" and "Ordinary Expenses" mean those services
normally rendered and those expenses normally incurred by a trustee under
instruments similar to this Indenture.
"Redemption Price" means principal and premium, if any, as set forth in
Section 3 of the Bond Legislation.
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ARTICLE II
FORM, EXECUTION, AUTHENTICATION,
REGISTRATION AND EXCHANGE OF BONDS
Section 2.01 Form of Bonds and Temporary Bonds. The Bonds and Trustee's
certificate of authentication shall be substantially in the forms set forth in
the preambles to this Indenture with, in the case of Additional Bonds, such
omissions, insertions and variations as may be authorized or permitted by the
Bond Legislation authorizing, or supplemental indenture entered into in
connection with, such Additional Bonds, all consistent with this Indenture.
Bonds of any series may be initially issued in temporary form
exchangeable for definitive Bonds of the same series when ready for delivery.
The temporary Bonds shall be of such denomination or denominations as may be
determined by the Legislative Authority in accordance with the Bond Legislation,
and may contain such reference to any of the provisions of this Indenture as may
be appropriate. Every temporary Bond shall be executed and authenticated upon
the same conditions and in substantially the same manner as the definitive
Bonds. If temporary Bonds are issued, the Issuer will thereafter execute and
furnish definitive Bonds and thereupon the temporary Bonds may be surrendered
for cancellation in exchange therefor at the principal office of the Trustee,
and the Trustee shall authenticate and deliver in exchange for such temporary
Bonds an equal aggregate principal amount of definitive Bonds of the same series
and maturity of authorized denominations. Until so exchanged, the temporary
Bonds shall be entitled to the same benefits under this Indenture as definitive
Bonds authenticated and delivered hereunder.
Section 2.02 Terms of Additional Bonds. Any series of Additional Bonds
shall have maturities, interest rates, interest payment dates, redemption
provisions, denominations, registration provisions and other terms as provided
in the Bond Legislation authorizing the issuance thereof, and the proceeds
thereof shall be held, invested and paid out as therein provided, provided that
such terms and provisions shall not be otherwise inconsistent with this
Indenture.
Section 2.03 Execution and Authentication of Bonds. The Bonds shall be
executed in the manner provided in the Bond Legislation authorizing such Bonds;
provided, however, that such manner of execution shall not be inconsistent with
any requirements of law or of this Indenture.
No Bond shall be valid or become obligatory for any purpose or shall be
entitled to any security or benefit under this Indenture unless and until an
authentication certificate, substantially in the form hereinabove set forth in
connection with the Project Bonds, shall have been duly endorsed upon such Bond.
Such authentication by the Trustee upon any Bond shall be conclusive evidence
that the Bond so authenticated has been duly authenticated and delivered
hereunder and is entitled to the security and benefit of this Indenture. Such
certificate of the Trustee may be executed by any person duly authorized by the
Trustee, but it shall not be necessary that the same person sign the
authentication certificate on all of the Bonds.
Section 2.04 Transfer, Exchange and Registration of Bonds. Each Bond
shall be of a single maturity of the same series; provided, however, that the
Issuer with approval of the Trustee may authorize issuance of one or more Bonds
representing more than one maturity of the same series with
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appropriate changes in the bond form to cover more than one maturity, such
authorization and approval in each case to be evidenced by the facsimile or
original signature of the appropriate officer of the Issuer and authentication
by the Trustee. Except as otherwise provided in the Bond Legislation, each Bond
shall bear interest from its date and shall be dated as of February 1, 1994 if
authenticated prior to the first Interest Payment Date, and otherwise shall be
dated as of the Interest Payment Date next preceding the date of its
authentication, unless authenticated upon an Interest Payment Date in which case
it shall be dated as of the date of its authentication; provided, however, that
if at the time of authentication of any Bond interest thereon is in default,
such Bond shall be dated as of the date to which interest has been paid.
Unless otherwise provided in the Bond Legislation, the principal of and
any premium on all registered Bonds shall be payable at the corporate trust
office of the Trustee upon presentation and surrender of such registered Bonds,
and payment of the interest on the Bonds shall be made on each Interest Payment
Date to the person in whose name the Bond is registered at the close of business
on the Regular Record Date applicable to each Interest Payment Date on the
registration books hereinafter provided for as the registered holder thereof, by
check or draft mailed or delivered by the Trustee to such registered holder at
his address as it appears on such registration books.
Any Bonds, upon surrender thereof at the corporate trust office of the
Bond Registrar, together with an assignment duly executed by the holder or his
duly authorized attorney in such form as shall be satisfactory to the Bond
Registrar, may, if and to the extent permitted by law, at the option of the
registered holder thereof, be exchanged for Bonds of the same series of any
denomination or denominations authorized by the applicable Bond Legislation in
an aggregate principal amount equal to the unmatured and unredeemed principal
amount of such Bonds, and bearing interest at the same rate and maturing on the
same date or dates.
Any Bond may be transferred upon the books kept for the registration
and transfer of Bonds, only upon surrender thereof at the corporate trust office
of the Bond Registrar together with an assignment duly executed by the
registered holder or his duly authorized attorney in such form as shall be
satisfactory to the Bond Registrar. Upon the transfer of any such Bond and on
request of the Bond Registrar, the Issuer shall execute in the name of the
transferee, and the Trustee shall authenticate and deliver, a new Bond or Bonds
of the same series, of any denomination or denominations permitted by this
Indenture and the applicable Bond Legislation, in an aggregate principal amount
equal to the unmatured and unredeemed principal amount of such fully registered
Bond, and bearing interest at the same rate and maturing on the same date or
dates.
In all cases in which Bonds shall be exchanged or fully registered
Bonds shall be transferred hereunder, the Issuer shall execute and the Trustee
shall authenticate and deliver Bonds in accordance with the provisions of this
Indenture. Except as otherwise provided in the applicable Bond Legislation as to
the series of Bonds authorized by such Bond Legislation, the Issuer and Bond
Registrar may make a charge for every such exchange or transfer of Bonds
sufficient to reimburse them for any tax, fee or other governmental charge
required to be paid with respect to such exchange or to reimburse them for all
other costs and expenses incurred in connection with such exchange or transfer,
and such charge or charges shall be paid before any such new Bond shall be
delivered; provided, however, that if any fully registered Bonds shall have been
initially delivered in temporary form to the Original Purchaser of the same
series of Bonds, there shall be no charge to the Original
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Purchaser for the exchange of temporary Bonds for definitive Bonds. Neither the
Issuer nor the Bond Registrar shall be required to make any such exchange or
transfer of any Bond during the fifteen days next preceding an Interest Payment
Date on the Bonds of the same series or next preceding any selection of Bonds of
the same series to be redeemed, or after such Bond has been selected for partial
or complete redemption.
In case any Bond is redeemed in part only, the Issuer, on or after the
redemption date and upon surrender of such Bond, shall cause execution of and
the Trustee shall authenticate and deliver a new Bond or Bonds in authorized
denominations and in aggregate principal amount equal to the unredeemed portion
of such Bond.
So long as any of the Bonds remain outstanding, the Issuer will cause
to be maintained and kept, at the corporate trust office of the Trustee as Bond
Registrar, books for the aforesaid registration and transfer of Bonds except
that as to any series of Bonds an additional or different Bond Registrar may be
designated in the applicable Bond Legislation.
Section 2.05 Mutilated, Lost, Wrongfully Taken or Destroyed Bonds. In
the event any temporary or definitive Bond is mutilated, lost, wrongfully taken
or destroyed, the Issuer shall execute and the Trustee shall authenticate a new
Bond of like date, maturity and denomination as that mutilated, lost, wrongfully
taken or destroyed, provided that, in the case of any mutilated Bond such
mutilated Bond shall first be surrendered to the Trustee, and in the case of any
lost, wrongfully taken or destroyed Bond there shall be first furnished to the
Trustee evidence of such loss, wrongful taking or destruction satisfactory to
the Issuer, the Authorized Borrowers Representative, the Letter of Credit Bank
and the Trustee, together with indemnity satisfactory to them. In the event such
lost, wrongfully taken or destroyed Bond shall have matured, instead of issuing
a new Bond the Issuer, by its Chairman, may direct the Trustee to pay the same
without surrender thereof upon the furnishing of the satisfactory evidence and
indemnity as in the case of issuance of a new Bond. The Issuer and the Trustee
may charge the holder of such Bond with their customary fees and reasonable
expenses in connection with their action pursuant to this Section.
Every new Bond issued pursuant to this Section shall, with respect to
such Bond constitute an additional contractual obligation of the Issuer, whether
or not the lost, wrongfully taken or destroyed Bond shall be found at any time,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Bonds duly issued hereunder. All Bonds
shall be held and owned on the express condition that the foregoing provisions
of this Section are exclusive with respect to the replacement or payment of
mutilated, lost, wrongfully taken or destroyed Bonds and shall preclude any and
all rights or remedies, notwithstanding any law or statute existing or hereafter
enacted to the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
Section 2.06 Safekeeping and Cancellation of Bonds. Any Bond
surrendered for the purpose of payment or retirement, or for exchange, or for
replacement or payment pursuant to Section 2.05, shall be cancelled upon
surrender thereof to the Trustee or Paying Agents. Any such Bonds cancelled by a
Paying Agent other than the Trustee shall promptly be transmitted by such Paying
Agent to the Trustee. Certification of such surrender and Cancellation shall be
made to the Issuer by the Trustee at least once each calendar year. Unless
otherwise directed by the Issuer or
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other lawful authority, cancelled Bonds shall promptly be destroyed by shredding
or cremation by the Trustee, and certificates of such destruction (describing
the manner thereof) provided by the Trustee to the Borrowers.
Section 2.07 Delivery of the Project Bonds. Upon the execution and
delivery of this Indenture and subject to Section 6 of the Bond Legislation, the
Issuer shall execute and deliver to the Trustee, and the Trustee shall
authenticate, the Project Bonds and deliver them to, or for the account of, the
Original Purchaser thereof as may be directed by the Issuer as hereinafter in
this Section 2.07 provided.
Prior to the delivery by the Trustee of any of the Project Bonds there
shall be filed with the Trustee:
1. A copy, duly certified by the Clerk of the Legislative Authority, of
the Bond Legislation authorizing the execution and delivery of the Indenture,
Agreement, Bond Purchase Agreement, and the issuance and sale of the Project
Bonds.
2. Original executed counterparts of the Indenture, Agreement, and the
Reimbursement Agreement.
3. The original executed Letter of Credit.
4. The original executed Note.
5. A written opinion or opinions of one or more legal counsel
acceptable to the Trustee to the effect that:
(a) The Indenture has been duly authorized, executed and
delivered by the Issuer and constitutes a valid and
legally binding instrument enforceable in accordance
with its terms (except as the same may be subject to
limitations upon the right to obtain judicial orders
requiring specific performance and may be limited by
applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws in effect from time to
time affecting the rights of creditors generally),
and the Project Bonds have been validly authorized
and executed and are (or when authenticated and
delivered will be) valid and legally binding special
obligations of the Issuer in accordance with their
terms (except as aforesaid);
(b) the Agreement and the Bond Purchase Agreement have
been duly authorized, executed and delivered and
constitute valid and legally binding instruments
enforceable in accordance with their terms, except as
the same may be subject to limitations upon the right
to obtain judicial orders requiring specific
performance and may be limited by bankruptcy,
insolvency, reorganization or other laws relating to
or affecting generally the enforcement of creditors'
rights;
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(c) the Reimbursement Agreement and the Note have been
duly authorized, executed and delivered and are valid
and legally binding obligations of the Borrowers;
(d) all recordings and filings required to be made under
the Bond Legislation authorizing the Project Bonds
have been made; and
(e) all conditions precedent to the delivery of the
Project Bonds and the Note have been fulfilled.
6. A request and authorization to the Trustee on behalf of the Issuer,
signed by a member of the Legislative Authority, to authenticate and deliver the
Project Bonds to, or on the order of, the Original Purchaser upon payment to the
Trustee, but for account of the Issuer, of the sum specified therein plus
accrued interest, which shall be deposited as provided in Section 6 of the Bond
Legislation.
7. An opinion of nationally recognized bond counsel that interest on
the Project Bonds is excludable from gross income of the recipients thereof for
Federal tax purposes.
8. An opinion of counsel with respect to the validity and
enforceability of the Letter of Credit and opining that draws under the Letter
of Credit will not constitute an avoidable preference in the hands of the
Trustee in the event of bankruptcy of the Borrowers.
Section 2.08 Delivery of Additional Bonds. Before any Additional Bonds
authorized by Section 8 of the Bond Legislation authorizing the Project Bonds
shall be authenticated and delivered by the Trustee, there shall be filed with
the Trustee those items required by Section 8 of the Bond Legislation, and:
1. A copy, duly certified by the Clerk of the Legislative Authority, of
the Bond Legislation authorizing the issuance and sale of such Additional Bonds.
2. An original executed counterpart of any amendment or supplement to
the Indenture, Agreement, Assignment and Mortgage.
3. A copy of the written request from the Borrowers to the Issuer for
issuance of the Additional Bonds.
4. An original executed letter of credit as required by Section 8 of
the Bond Legislation.
5. The original executed Note or Notes with such variations in
principal amounts, interest rates, interest payment and maturity dates and
prepayment provisions as may be appropriate to correspond to such provisions of
the Additional Bonds.
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6. A written opinion or opinions of one or more counsel acceptable to
the Trustee to the effect that:
(a) The indenture supplemental hereto providing for the
issuance of the Additional Bonds has been duly
authorized, executed and delivered by the Issuer and
constitutes a valid and legally binding instrument
enforceable in accordance with its terms (except as
the same may be subject to limitations upon the right
to obtain judicial orders requiring specific
performance and may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium
and similar laws in effect from time to time
affecting the rights of creditors generally), and the
Additional Bonds have been validly authorized and
executed and are (or when authenticated and delivered
pursuant to the request of the Issuer, will be) valid
and legally binding special obligations of the Issuer
in accordance with their terms (except as aforesaid);
(b) the Agreement as amended or supplemented in
connection with the issuance of the Additional Bonds,
has been duly authorized, executed and delivered and
constitutes a valid and legally binding instrument
enforceable in accordance with its terms, except as
the same may be subject to limitations upon the right
to obtain judicial orders requiring specific
performance and may be limited by bankruptcy,
insolvency, reorganization or other laws relating to
or affecting generally the enforcement of creditors'
rights or the enforcement of the security provided by
the Agreement, as amended or supplemented as
aforesaid;
(c) the Note or Notes delivered under paragraph 5 above
have been duly authorized, executed and delivered and
are valid and legally binding obligations of the
Borrowers;
(d) all recordings and filings required to be made under
the Bond Legislation authorizing the Project Bonds
and such Additional Bonds have been made; and
(e) all conditions precedent to the delivery such
Additional Bonds and the Note or Notes delivered
under paragraph 5 above have been fulfilled.
7. A request and authorization to the Trustee on behalf of the Issuer,
signed by a member of the Legislative Authority, to authenticate and deliver
such Additional Bonds to, or on the order of, the Original Purchaser thereof
upon payment to the Trustee, but for the account of the Issuer, of the sum
specified therein plus accrued interest, which shall be deposited as provided in
the Bond Legislation authorizing such Additional Bonds.
8. An opinion of nationally recognized bond counsel or a ruling of the
Internal Revenue Service that the issuance of such Additional Bonds will not
affect the Federal income tax exemption an any outstanding Bonds and that
interest on such Additional Bonds will be exempt from gross income for Federal
Tax purposes.
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9. Consent of the Letter of Credit Bank to the issuance of Additional
Bonds.
10. An opinion of counsel that draws under the letter of credit issued
with respect to Additional Bonds would not constitute an avoidable preference in
the event of bankruptcy of the Borrowers.
Section 2.09 Book Entry-Only System. The Bonds shall be initially
issued in the form of a separate single fully registered bond. Upon initial
issuance, the initial issuance, the ownership of each such Bond shall be
registered in the Bond Register in the name of Cede & Co., as nominee of DTC,
and except as hereafter provided, all of the outstanding Bond shall be
registered in the Bond Register in the name of Cede & Co., as nominee of DTC.
With respect to Bonds registered in the Bond Register in the name of
Cede & Co., as nominee of DTC, the Issuer, the Trustee, the Remarketing Agent
and the Company shall have no responsibility or obligation to any DTC
Participant or to any person on behalf of whom such a DTC participant holds an
interest in the Bonds. Without limiting the immediately preceding sentence, the
Issuer, the Trustee and the Borrowers shall have no responsibility or obligation
with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC
Participant with respect to any ownership interest in the Bonds, (ii) the
delivery to any OTC Participant or any other Person, other than a Holder, as
shown in the Bond Register, or any notice with respect to the Bonds, including
any notice of redemption, or (iii) the payment to any DTC Participant or any
other Person, other than a Holder, as shown in the Bond Register, of any amount
with respect to principal of, premium, if any, or interest on, the Bonds.
Notwithstanding any other provision of this Bond Indenture to the
contrary, the Issuer, the Trustee and each Paying Agent, if any, shall be
entitled to treat and consider the Person in whose name each Bond is registered
in the Bond Register as the absolute owner of such Bond for the purpose of
payment of principal, premium, if any, and interest with respect to such Bond,
for the purpose of giving notices of redemption and other matters with respect
to such Bond, for the purpose of registering transfers with respect to such
Bond, and for all other purposes whatsoever. The Trustee and each Paying Agent,
if any, shall pay all principal of, premium, if any, and interest on the Bonds
only to or upon the order of the respective Bond owners, as shown in the Bond
Register as provided in this Indenture, or their respective attorneys duly
authorized in writing, and all such payments shall be valid and effective to
fully satisfy and discharge the Issuer's obligations with respect to payment of
principal of, premium, if any, and interest on the Bonds to the extent of the
sum or sums so paid. No Person other than a Holder, as shown in the Bond
Register, shall receive a Bond certificate evidencing the obligation of the
Issuer to make payments of principal, premium, if any, and interest pursuant to
this Indenture.
The Issuer and the Trustee shall execute the Letter of Representations
to DTC in connection with the issuance of the Bonds. Such Representation Letter
is for the purpose of effectuating the Book-Entry-Only System only and shall not
be deemed to amend, supersede or supplement the terms of this Indenture which
are intended to be complete without reference to the Representation Letter. In
the event of any conflict between the terms of the Representation Letter and the
terms of this Indenture, the terms of this Indenture shall control. DTC may
exercise the rights of a Holder hereunder only in accordance with the terms
hereof applicable to the exercise of such rights.
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Notwithstanding any other provision of this Indenture to the contrary,
so long as any of the Bonds is registered in the name of Cede & Co., as nominee
of DTC, all payments with respect to principal of, premium, if any, and interest
on such Bond and all notices with respect to such Bond shall be made and given,
respectively, in the manner provided in the Representation Letter. The Trustee
shall request in each notice sent to Cede & Co. pursuant to the terms of this
Bond Indenture that Cede & Co. forward or cause to be forwarded such notice to
the DTC Participants.
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ARTICLE III
REDEMPTION OF BONDS
Section 3.01 Privilege of Redemption and Redemption Price. The Bonds
shall be subject to redemption prior to maturity at such times, to the extent
and in the manner provided in the applicable Bond Legislation, all subject to
this Indenture.
Section 3.02 Issuer's Election to Redeem. The Issuer, except in the
case of redemption pursuant to any mandatory redemption provisions provided in
the Bond Legislation, and except as otherwise provided in the Bond Legislation,
shall give written notice to the Trustee of its election to redeem in the manner
provided in and in accordance with the applicable Bond Legislation, of the
places where the amounts due upon such redemption are payable, and of the
redemption date and of the principal amount of each maturity of each series of
redeemable Bonds to be redeemed, which notice shall be given at least forty five
days prior to the redemption date or such shorter period as shall be acceptable
to the Trustee. In the event notice of redemption shall have been given as
provided in the Bond Legislation or Section 3.03, the Issuer shall, and hereby
covenants that it will on or prior to the redemption date, if sufficient funds
shall have been provided for the purpose by the Borrowers under the Agreement or
the Letter of Credit, pay or cause to be paid to the Trustee an amount in cash
which, in addition to other moneys, if any, available therefor held by the
Trustee, will be sufficient to redeem at the applicable redemption price
thereof, plus interest accrued to the redemption date, all of the redeemable
Bonds which the Issuer has so elected to redeem.
Section 3.03 Notice of Redemption. When the Trustee shall receive
notice from or on behalf of the Issuer of its election to redeem Bonds, or in
order to carry out any mandatory redemption provisions of any Bond Legislation,
the Trustee shall give notice of call for redemption as provided for in the
applicable Bond Legislation.
Section 3.04 Payment of Redeemed Bonds. Notice having been given in the
manner provided in Section 3.03, the Bonds so called for redemption shall become
due and payable on the redemption date at the applicable redemption price, plus
interest accrued to the redemption date, and, upon presentation and surrender
thereof at the place or places specified in such notice, such Bonds shall be
paid at the applicable redemption price plus interest accrued to the redemption
date. If, on the redemption date, moneys for the redemption of all such Bonds to
be redeemed, together with interest to the redemption date, are held by the
Trustee so as to be available therefor on said date and if notice of redemption
shall have been given as aforesaid, then, from and after the redemption date
such Bonds so called for redemption shall cease to bear interest, and said Bonds
shall no longer be considered as outstanding hereunder. If said moneys shall not
be so available on the redemption date, such Bonds shall continue to bear
interest until paid at the same rate as they would have borne had they not been
called for redemption.
All moneys deposited in the Bond Fund and held by the Trustee or Paying
Agents for the redemption of particular Bonds shall be held in trust for the
account of the holders thereof and shall be paid to them respectively upon
presentation and surrender of such Bonds.
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ARTICLE IV
FURTHER PROVISIONS AS TO FUNDS,
PAYMENTS, PROJECT AND AGREEMENT
Section 4.01 Provisions for Payment. The Issuer hereby authorizes and
directs the Trustee to cause withdrawal of sufficient funds from the Bond Fund
available for such purpose to pay the Bond service charges on the Bonds as the
same become due and payable (whether at stated maturity or by redemption or
pursuant to any Mandatory Sinking Fund Requirements or otherwise), for the
purposes of paying, or transferring necessary funds to Paying Agents to pay,
said Bond service charges, which authorization and direction the Trustee hereby
accepts. The Trustee shall create and maintain a separate Reimbursement Account
("Reimbursement Account") within the Bond Fund which Reimbursement Account shall
be used by the Trustee to reimburse the Letter of Credit Bank, as provided
herein or in the Agreement.
Section 4.02 Non-presentment of Bonds. In the event any Bond shall not
be presented for payment when the principal thereof becomes due, whether at
maturity, at the date fixed for redemption thereof, or otherwise, if funds
sufficient to pay such Bond shall have been made available to the Trustee for
the benefit of the holder or holders thereof, all liability of the Issuer to the
holder thereof for the payment of such Bond shall thereupon cease and be
completely discharged, and it shall be the duty of the Trustee to hold such
funds, without liability for interest thereon, in a separate account in the Bond
Fund for the benefit of the holder of such Bond, who shall thereafter be
restricted exclusively to such funds for any claim of whatever nature on his
part under this Indenture or on, or with respect to, said Bond; provided that
any funds which shall be so held by the Trustee and which remain unclaimed by
the holder of the Bond not presented for payment for a period of three years
after such die date thereof, shall be paid first to the Letter of Credit Bank to
the extent of any amounts due and payable to the Letter of Credit Bank under the
Reimbursement Agreement and then to the Borrowers free of any trust or lien and
thereafter the holder of such Bond shall look only to the Borrowers for payment
and then only to the amounts so received by the Letter of Credit Bank or the
Borrowers without any interest thereon, and the Trustee shall have no further
responsibility with respect to such moneys.
Section 4.03 Extension of Payment of Bonds. The Issuer shall not
directly or indirectly extend or assent to the extension of the maturity of any
of the Bonds or the time of payment of any claims for interest, by the purchase
or funding of such Bonds or claims for interest or by any other arrangement, and
in case the maturity of any of the Bonds or the time for payment of any such
claims for interest shall be extended, such Bonds or claims for interest shall
not be entitled in case of any event of default under this Indenture to the
benefit of the Indenture or to any payment out of the funds (except funds held
for the payment of particular Bonds or claims for interest pursuant to this
Indenture held by the Trustee or any Paying Agent) except subject to the prior
payment of the principal of all Bonds issued and outstanding the maturity of
which has not been extended and of such portion of the accrued interest on the
Bonds as shall not be represented by such extended claims for interest. Nothing
herein shall be deemed to limit the right of the Issuer to issue any duly
authorized refunding Bonds and such issuance shall not be deemed to constitute
an extension of maturity of the Bonds.
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Section 4.04 Payments to Trustee and Paying Agents. Pursuant to the
provisions of the Agreement, the Borrowers has agreed to pay to the Trustee,
continuing until the outstanding Bonds shall have been fully paid and discharged
in accordance with the provisions of the Indenture, the customary fees,
reasonable charges and expenses of the Trustee, as Trustee (for Ordinary and
Extraordinary Services and Expenses), Bond Registrar and Paying Agent, and of
other Paying Agents, as and when the same become due, provided, that the
Borrowers may, without creating a default thereunder, contest in good faith the
necessity for any such Extraordinary Services and Extraordinary Expenses and the
reasonableness of any such fees, charges or expenses. The initial or acceptance
fees of the Trustee and the fees, charges and expenses of the Trustee or other
Paying Agents referred to in the first sentence of this Section, which may
become due and payable during the Construction Period (as defined in the
Agreement) may be paid by the Trustee from the Construction Fund as and when the
same shall become due and payable as provided in the Agreement.
Section 4.05 Moneys to be Held in Trust. All moneys required or
permitted to be deposited with or paid to the Trustee or any Paying Agent under
any provision of this Indenture, the Letter of Credit or the Agreement, and any
investments thereof, shall be held by the Trustee or such Paying Agent in trust
and, except for moneys deposited with or paid to the Trustee or any Paying Agent
for the redemption of Bonds, notice of the redemption of which has been duly
given, and moneys held by the Trustee pursuant to Section 4.02 hereof, shall,
while held by the Trustee or Paying Agent, be subject to the lien hereof.
Section 4.06 Insurance and Condemnation Proceeds. In the event that Net
Proceeds, or an amount equal to Net Proceeds, of any insurance or condemnation
award shall be paid to the Trustee for the account of the Issuer and deposited
in a special account or in the Reimbursement Account in the Bond Fund, in
accordance with the provisions of Section 5.8 of the Agreement, the Trustee
hereby agrees to accept and disburse such Net Proceeds or amount as directed by
the Issuer with the consent of the Letter of Credit Bank and the Borrowers. Any
such Net Proceeds or amount equal thereto deposited in the Reimbursement Account
in the Bond Fund, in accordance with the provisions of said Section 5.8 shall be
applied in the manner provided in Section 2.9 of the Agreement.
Section 4.07 Repayment to the Borrowers or the Letter of Credit Bank
from the Bond Fund. Except as provided in Section 4.02 of this Indenture, any
amounts remaining in the Bond Fund, after all of the outstanding Bonds shall be
deemed to have been paid and discharged under the provisions of this Indenture,
and the fees, charges and expenses of the Trustee and the Paying Agents and all
other amounts required to be paid under this Indenture and the Agreement shall
have been paid, shall be paid first to the Letter of Credit Bank in satisfaction
of any outstanding obligations of the Borrowers or the Company to the Letter of
Credit Bank under the terms of the Reimbursement Agreement and then to the
Borrowers upon the expiration or sooner termination of the Agreement, provided
that nothing contained herein shall impair any right of the Issuer or the
Trustee under this Agreement, this Indenture or 'Law to recover from such
amounts prior to such payment to the Borrowers any loss, cost or expense
incurred as a result of any default by the Borrowers in any payment of Loan
Payments.
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Section 4.08 Records of Construction Fund. The Trustee shall cause to
be kept and maintained adequate records pertaining to the Construction Fund and
all disbursements therefrom. After the Project has been completed and a
certificate of payment of all costs is filed as provided in Section 4.09 hereof,
the Trustee shall as soon as practicable, if requested by the Issuer, the Letter
of Credit Bank or the Borrowers, file an accounting thereof with the Issuer, the
Letter, of Credit Bank and with the Borrowers.
Section 4.09 Completion of the Project. In the event the Project is
repaired or reconstructed following damage or destruction, the repair or
reconstruction of the Project and payment of all costs and expenses incident
thereto shall be evidenced by the filing with the Trustee and the Letter of
Credit Bank of (i) the certificate of the Authorized Borrowers Representative
required by Section 3.3 of the Agreement and (ii) a certificate signed by the
Authorized Borrowers Representative, stating that all obligations and costs in
connection with the Project and payable out of the Construction Fund have been
paid and discharged except for amounts retained by the Trustee as provided under
the Agreement for the payment of costs of the Project not then due and payable.
After the Completion Date, any balance remaining in the Construction Fund (other
than the amounts retained by the Trustee referred to in the preceding sentence)
shall be deposited or applied in accordance with Section 4.2 of the Agreement.
Section 4.10 Amendments to Agreement and Letter of Credit Not Requiring
Consent of Bondholders. The Trustee shall, without the consent of or notice to
the Bondholders, but only with the consent of the Letter of Credit Bank, consent
to any amendment, change or modification of the Agreement or the Letter of
Credit as may be required (i) by the provisions of the Agreement, the Letter of
Credit and this Indenture, (ii) in connection with the issuance of Additional
Bonds as specified in Section 2.08 hereof, (iii) for the purpose of curing any
ambiguity, inconsistency or formal defect or omission in the Agreement or the
Letter of Credit, or (iv) in connection with any other change therein which, in
the judgment of the Trustee, is not to the prejudice of the Trustee, the Issuer
or the holders of the Bonds. No duties or responsibilities of the Trustee shall
be amended, changed or modified without the written consent of the Trustee.
Section 4.11 Amendments to Agreement Requiring Consent of Bondholders.
Except for the amendments, changes or modifications as provided in Section 4.10
hereof, neither the Issuer nor the Trustee shall consent to (i) any amendment,
change or modification of the Agreement which would change the Loan Payments
under the Agreement or the Borrowers' covenant not to adversely affect the tax
exempt status of the Bonds without the mailing of notice as provided in this
Section of such proposed amendment, change or modification and the written
approval or consent thereto of the holders of all of the then outstanding Bonds,
or (ii) any other amendment, change or modification of the Agreement without the
mailing of notice as provided in this Section of such proposed amendment, change
or modification and the written approval or consent thereto of the holders of
not less than 662/3% in aggregate principal amount of the Bonds then
outstanding. Such approval or consent of the Bondholders shall be procured as
provided in Section 7.02 hereof with respect to supplemental indentures. If at
any time the Borrowers shall request the consent of the Trustee to any such
proposed amendment, change or modification of the Agreement as provided in
clause (i) or (ii) of the first sentence of this Section, the Trustee shall,
upon being satisfactorily indemnified with respect to expenses, cause notice of
such proposed amendment, change or modification to be mailed in the same manner
as provided by Section 7.02 hereof with respect to
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notice of supplemental indentures, which notice shall briefly set forth the
nature of such proposed amendment, change or modification and shall state that
copies of the instrument embodying the same are on file at the corporate trust
office of the Trustee for inspection by all Bondholders. Anything herein to the
contrary notwithstanding, no amendment, change or modification to the Agreement
under this Section 4.11 shall be given without the prior written consent of the
Letter of Credit Bank. No duties or responsibilities of the Trustee shall be
amended, changed or modified without the written consent of the Trustee.
Section 4.12 Subordination to Rights of the Borrowers. As provided in
Section 7.2 of the Agreement, this Indenture and the assignments and pledges
hereunder are subject and subordinate to the rights of the Borrowers under the
Agreement so long as no event of default has occurred thereunder.
Section 4.13 Removal of Portions of Project. Reference is made to the
provisions of the Agreement, including without limitation Section 5.2 thereof,
whereby the Borrowers may remove portions of the Project upon compliance with
the terms and conditions of the Agreement. The Trustee shall, at the request of
the Borrowers and upon such provisions of the Agreement being complied with,
certify that any such portions are no longer part of the Project for purposes of
this Indenture.
Section 4.14 Amendments to Letter of Credit Requiring Consent of
Bondholders. Except for the amendments to the Letter of Credit as provided in
Section 4.10 hereof, neither the Issuer nor the Trustee shall consent to any
other amendment to the Letter of Credit without consent of the Letter of Credit
Bank and the holders of not less than 662/3% in aggregate principal amount of
the Bonds then outstanding. If at any time the Issuer and the Borrowers shall
request the consent of the Trustee to any proposed amendment of the Letter of
Credit, the Trustee shall, upon being satisfactorily indemnified with respect to
expenses, cause notice to be given in the same manner as provided in Section
7.02 hereof with respect to supplemental indentures.
Section 4.15 Letter of Credit. Except as otherwise provided in this
Section, the Trustee shall deposit in the Bond Fund upon receipt all Pledged
Receipts, all moneys received upon drawings made under the Letter of Credit, all
amounts representing proceeds from the sale or liquidation of any collateral
pursuant to the Mortgage, and any other amounts which, under the terms of this
Indenture, the Note, the Agreement, the Mortgage, or the Letter of Credit are to
be applied to the payment of Bond service charges. Except as provided in this
Section 4.15 and Sections 4.02 and 4.16 hereof, the Bond Fund (and accounts
therein for which provision is made herein or in the Agreement) and the moneys
and Eligible Investments therein shall be used solely and exclusively for the
payment of Bond service charges as they fall due at stated maturity, or by
redemption or pursuant to any Mandatory Sinking Fund Requirements or upon
acceleration, all as provided herein and in the Agreement.
The Trustee shall establish separate accounts within the Bond Fund to
the extent required so that the Trustee may at all times ascertain the date and
source of deposit of the funds in each account. Moneys in the Bond Fund shall be
used to pay Bond service charges with respect to the Bonds and for the
redemption of Bonds prior to maturity and as otherwise provided in this
Indenture only in the following order:
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FIRST: Amounts derived from the proceeds of the initial sale and
delivery of the Bonds representing any accrued interest thereon, and
proceeds from the investment thereof;
SECOND: Amounts drawn by the Trustee under the Letter of Credit; and
THIRD: Any other amounts available in the Bond Fund.
The Issuer hereby authorizes and directs the Trustee to draw on the
Letter of Credit pursuant to its terms, in the amounts and at the times
necessary to pay Bond service charges on the Bonds pursuant to this Section
4.15.
The Trustee shall draw upon the Letter of Credit in accordance with the
terms thereof under the following circumstances:
(a) On or before 11:00 A.M., local time, on the fourth
Business Day prior to any Interest Payment Date the Trustee shall
determine the amount necessary to make all required payments of
principal and interest on the Bonds on the next succeeding Interest
Payment Date and shall present a draft to the Letter of Credit Bank
(together with required certificates under the Letter of Credit) in
such amount, so as to permit the timely transfer of funds (which in the
case of any payment of principal or interest on the Bonds, shall
require that such funds be in the Trustee's possession on the Business
Day immediately preceding the date such principal or interest is due on
the Bonds) from the Letter of Credit Bank to the Trustee for payment of
the principal of and interest on the Bonds when due, whether at
maturity or upon prior redemption or acceleration or otherwise.
(b) Upon acceleration of the Bonds upon the occurrence of an
Event of Default under Section 6.01 hereof, the Trustee shall, on or
before the Business Day following the date of declaration of the
acceleration of the Bonds, present a draft to the Letter of Credit Bank
(together with required certificates under the Letter of Credit) for
payment of the entire amount due under Section 6.02 hereof.
(c) If the Letter of Credit Bank has not transferred funds in
accordance with the Letter of Credit upon the presentment of any such
draft, the Trustee shall (i) resubmit such draft properly and take such
other action as may be necessary to cause the Letter of Credit Bank to
honor its obligations under the Letter of Credit and (ii) promptly
notify, by oral or telephonic communication confirmed in writing, the
Borrowers of the failure of the Letter of Credit Bank to transfer
funds.
In calculating the amount to be drawn on the Letter of Credit for the
payment of principal of and interest on the Bonds, whether at maturity or upon
redemption or acceleration, the Trustee shall not take into account the
potential receipt of funds from the Borrowers under the Agreement on or before
the corresponding Interest Payment Date, or the existence of any other moneys in
the Bond Fund (other than accrued interest, if any, received at the time of the
issuance and delivery of the Bonds), but shall draw on the Letter of Credit for
the full amount of principal and interest coming due on the Bonds. Upon receipt
of such moneys from the Letter of Credit Bank, the Trustee shall (i) deposit the
amount representing a drawing on the Letter of Credit for the payment of
principal and
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interest on the Bonds in the Bond Fund, and apply the same to the payment of
such principal and interest due on the Bonds on the next succeeding Interest
Payment Date, (ii) so long as there does not exist the Event of Default
described in Section 6.01(j) hereof, pay, on behalf of the Borrowers, but only
from and to the extent of Loan Payments and any other amounts then on deposit in
the Reimbursement Account in the Bond Fund and not derived from drawings under
the Letter of Credit, to the Letter of Credit Bank any and all amounts then due
and payable under the Reimbursement Agreement. Any payment made by the Trustee
on behalf of the Borrowers described in clause (iii) of the immediately
preceding sentence shall be made by wire transfer of immediately available funds
to the account of the Letter of Credit Bank on the date the Trustee receives
moneys pursuant to a drawing upon the Letter of Credit.
The Trustee shall transmit to any Paying Agents, as appropriate from
moneys in the Bond Fund applicable thereto, amounts sufficient to make timely
payments of principal of and any premium on the Bonds to be made by those Paying
Agents and then due and payable. To the extent that the amount needed by any
Paying Agent is not sufficiently predictable, the Trustee may, but shall not be
required to, make any credit arrangements with that Paying Agent which will
permit those payments to be made. The Issuer authorizes and directs the Trustee
to cause withdrawal of moneys from the Bond Fund which are available for the
purpose of paying, and are sufficient to pay, the principal of and any premium
on the Bonds as they become due and payable (whether at stated maturity, by
redemption or pursuant to any Mandatory Sinking Fund Requirements), for the
purposes of paying or transferring moneys to the Paying Agents which are
necessary pay such principal and premium.
Section 4.16 Extension of Letter of Credit; Alternate Letter of Credit.
The Letter of Credit expires upon the earliest to occur of (i) the Trustee's
making of the final drawing available to be made thereunder, (ii) receipt by the
Letter of Credit Bank of written notice from the Trustee that the Indenture has
been discharged and all outstanding Bonds have been deemed to be paid in full in
accordance with the Indenture or (iii) subject to the provision for extension,
and for substitution of an Alternate Letter of Credit provided for herein,
September 15, 1995.
The Letter of Credit Bank may, at its election, provide for an
extension of the expiration date of the Letter of Credit to a date not earlier
than one (1) year from the Letter of Credit Termination Date being extended. The
Borrowers may, at its option, provide for the delivery to the Trustee of an
Alternate Letter of Credit, which shall have an expiration date of not earlier
than one (1) year from the Letter of Credit Termination Date for the Letter of
Credit it replaces and shall otherwise comply with the terms of the Alternate
Letter of Credit Agreement. The issuer of the Alternate Letter of Credit must be
organized under Federal or state laws with a net worth at the time of issuance
of the Alternate Letter of Credit of an amount satisfactory to the Remarketing
Agent (or any successor entity thereto under the Letter of Credit) at such time.
If the Letter of Credit is so extended to a date not earlier than one (1) year
from the Letter of Credit Termination Date being extended, or if the Borrowers
so provides such an Alternate Letter of Credit complying with the requirements
of this paragraph, the mandatory redemption pursuant to the terms of this
Indenture shall not occur.
Section 4.17 Release of Documents Upon Termination of Letter of Credit.
Upon the termination of the Letter of Credit, and upon full payment of the
Bonds, the Trustee, upon written
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direction from the Borrowers, shall unconditionally and timely release and
discharge the lien of the Mortgage and any other documents or instruments given
as security by the Borrowers.
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ARTICLE V
THE TRUSTEE AND PAYING AGENTS
Section 5.01 Trustee's Acceptance and Responsibilities. The Trustee
hereby accepts the trusts imposed upon it by this Indenture and the Agreement,
and agrees to perform the trusts and its obligations under this Indenture and
the Agreement, but only upon and subject to the following express terms and
conditions:
(a) 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 appointed by the Trustee, in the exercise of
reasonable care, but shall be answerable for the conduct of the same in
accordance with the standard specified above, and shall be entitled to
advice of counsel concerning all matters of trusts hereof and duties
hereunder, and may in all cases pay reasonable compensation to all such
attorneys, agents, receivers and employees as may reasonably be
employed in connection with the trusts hereof. The Trustee may act upon
the opinion or advice of any attorney (who may be the attorney or
attorneys for the Issuer or the Borrowers), approved by the Trustee in
the exercise of reasonable care. The Trustee shall not be responsible
for any loss or damage resulting from any action taken or not taken in
good faith in reliance upon such opinion or advice. The Trustee shall,
however, be responsible for loss or damage resulting from any gross
negligence or willful misconduct on its part.
(b) Except for its certificate of authentication on the Bonds,
the Trustee shall not be responsible for any recital herein or in the
Bonds, or for the validity, priority, recording or rerecording, filing
or refiling of this Indenture or the Agreement or any financing
statements, amendments thereto or continuation statements, or for
insuring the Project or collecting any insurance moneys, or for the
validity of the execution by the Issuer of this Indenture or of any
supplements thereto or instruments of further assurance, or for the
sufficiency of the security hereof. The Trustee shall not be bound to
ascertain or inquire as to the performance or observance of any
covenants, conditions or agreements on the part of the Issuer or on the
part of the Borrowers under the Agreement in connection with the
matters referred to in Section 5.1 of the Agreement, except as
hereinafter set forth; but the Trustee may require of the Issuer or the
Borrowers full information and advice as to the performance of the
covenants, conditions and agreements aforesaid. Except as otherwise
provided in Section 6.03 hereof, the Trustee shall have no obligation
from any of the duties of the Issuer under the Agreement.
(c) The Trustee shall not be accountable for the application
by the Borrowers of the proceeds of any Bonds authenticated or
delivered hereunder.
(d) The Trustee shall be protected in acting upon any notice,
request, consent, certificate, order, affidavit, letter, telegram or
other paper or document believed to be genuine and correct and to have
been signed or sent by the proper person or persons. Any action taken
by the Trustee pursuant to this Indenture upon the request or authority
or consent of any person who at the time of making such request or
giving such authority or consent is the
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holder of any Bonds, shall be conclusive and binding upon all future
holders of the same Bond and of Bonds issued in exchange therefor or in
place thereof.
(e) As to the existence or nonexistence of any fact or as to
the sufficiency or validity of any instrument, paper or proceeding, the
Trustee shall be entitled to rely upon a certificate signed on behalf
of the Issuer by an authorized officer thereof, or by the Borrowers as
sufficient evidence of the facts therein contained, and, prior to the
occurrence of a default of which the Trustee has been notified as
provided in paragraph (g) of this Section, or of which by said
paragraph it is deemed to have notice, shall also be entitled to rely
upon a similar certificate to the effect that any particular dealing,
transaction or action is necessary or expedient, but may at its
discretion obtain such further evidence deemed necessary or advisable,
but shall in no case be bound to secure the same. The Trustee may
accept a certificate of an officer, or an assistant thereto, of the
Issuer having charge of the appropriate records to the effect that
legislation or any resolution in the form therein set forth has been
adopted by the Legislative Authority of the Issuer, as conclusive
evidence that such legislation or resolution has been duly adopted and
is in full force and effect.
(f) The permissive right of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty and the
Trustee shall not be answerable for other than its gross negligence or
willful misconduct.
(g) The Trustee shall not be required to take notice or be
deemed to have notice of any default hereunder, except events of
default described in paragraphs (a), (b), (h), (i) or (j) of Section
6.01 hereof, unless the Trustee shall be specifically notified by
writing delivered to it of such default by the Issuer, the Letter of
Credit Bank or the Borrowers or by the holders of at least twenty-five
percent in aggregate principal amount of Bonds then outstanding, and in
the absence of such notice so delivered the Trustee may conclusively
assume there is no default except as aforesaid.
(h) The Trustee shall not be personally liable for any debts
contracted, or for injury or damage to persons or to personal property,
or for salaries or nonfulfillment of contracts, relating to the
Project.
(i) At any and all reasonable times the Trustee and the Letter
of Credit Bank, and their duly authorized agents, attorneys, experts,
engineer accountants and representatives shall have the rightfully to
inspect the Project and any and all books, papers and records of the
Issuer pertaining to the Project and the Bonds, and to take such
memoranda from and in regard thereto and make copies thereof as may be
desired.
(j) The Trustee shall not be required to give any bond or
surety in respect of the execution of the said trusts and powers or
otherwise in respect of the premises.
(k) Notwithstanding anything elsewhere in this Indenture
contained, the Trustee shall have the right, but shall not be required,
to demand, in respect of the authentication of any Bonds, the
withdrawal of any cash, the release of any property, or any action
whatsoever within the purview of this Indenture, any showings,
certificates, opinions, appraisals or other
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information, or corporate action or evidence thereof, in addition to
that by the terms hereof required as a condition of such action by the
Trustee, deemed desirable for the purpose of establishing the right of
the Issuer to the authentication of any Bonds, the withdrawal of any
cash, the release of any property, or the taking of any other action by
the Trustee.
(l) Before taking action under Article VI or Section 5.04
hereof, the Trustee may require that a satisfactory indemnity bond be
furnished for the reimbursement of all expenses to which it may be put
and to protect it against all liability, except liability which is
adjudicated to have resulted from its negligence or willful misconduct
by reason of any action so taken.
(m) Unless otherwise provided herein, all moneys received by
the Trustee under this Indenture shall, until used or applied or
invested as herein provided, be held in trust for the purposes for
which they were received but need not be segregated from other funds
except to the extent required by this Indenture or by law. The Trustee
shall not be under liability for interest on any moneys received
hereunder except such as may be agreed upon with the Issuer or the
Borrowers.
Section 5.02 Fees, Charges and Expenses of Trustee and Paying Agents.
Subject to the provisions of Section 4.04 hereof, the Trustee, upon demand,
shall be entitled to timely payment and/or reimbursement for customary fees for
its Ordinary Services rendered hereunder and all advances, counsel fees and
other Ordinary Expenses reasonably and necessarily made or incurred by the
Trustee in connection with such Ordinary Services and, in the event that it
should become necessary that the Trustee perform Extraordinary Services, it
shall be entitled to customary extra compensation therefor, and to reimbursement
for reasonable and necessary Extraordinary Expenses in connection therewith;
provided, that if such Extraordinary Services or Extraordinary Expenses are
occasioned by the neglect or willful misconduct of the Trustee, it shall not he
entitled to compensation or reimbursement therefor. The Trustee and any Paying
Agent shall also be entitled to payment and reimbursement, but only from the
applicable Construction Fund or from the Additional Payments by the Borrowers
pursuant to the Agreement or from Pledged Receipts available therefor, but not
from moneys derived from drawings on the Letter of Credit, for their customary
fees and reasonable charges as Paying Agents.
Section 5.03 Notice to Bondholders if Default Occurs. If a default
occurs of which the Trustee has, pursuant to Section 5.01(g) of this Indenture,
notice, then the Trustee shall give written notice thereof within three Business
Days to the Letter of Credit Bank and to the holders of all Bonds then
outstanding as shown by the registration books maintained pursuant to Section
2.04 hereof.
Section 5.04 Intervention by Trustee. In any judicial proceeding to
which the Issuer, Letter of Credit Bank or the Borrowers is a party and which in
the opinion of the Trustee and its attorney has a substantial bearing on the
interest of holders of the Bonds, the Trustee may intervene on behalf of the
Bondholders and shall do so if requested in writing by the of at least
twenty-five percent in the aggregate principal amount of Bonds then outstanding.
The rights and obligations of the Trustee under this Section are subject to the
approval of such intervention by a court of competent jurisdiction.
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Section 5.05 Successor Trustee. Any corporation or association into
which the Trustee may be converted or merged, or with which it or any successor
to it may be consolidated, or to which it may sell or transfer its assets and
trust business as a whole or substantially as a whole, or any corporation or
association resulting from any such conversion, sale, merger, consolidation or
transfer to which it is a party, ipso facto, shall be and become successor
Trustee hereunder and vested with all of the title to the trust estate hereunder
and all the trusts, powers, discretions, immunities, privileges and all other
matters as was its predecessor, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided, however, that any such
successor Trustee shall be trust company, a bank or a banking association
authorized to exercise corporate trust powers within the County of Hamilton,
Ohio, having a reported capital and surplus or undivided profits of not less
than $50,000,000.
Section 5.06 Resignation by the Trustee. The Trustee may at any time
resign from the trusts hereby created by giving at least sixty (60) days'
written notice thereof to the Issuer, the Letter of Credit Bank, the Borrowers
and the Original Purchaser of each series of Bonds then outstanding, and by
giving such notice in the same manner as provided for in the Bond Legislation
for giving notice of call for redemption, not less than forty-five (45) days
before such resignation is to take effect, and such resignation shall take
effect at the appointment of a successor Trustee by the Bondholders or by the
Issuer and acceptance by the successor Trustee of such trusts.
Section 5.07 Removal of the Trustee. The Trustee may be removed at any
time by an instrument or concurrent instruments in writing delivered to the
Trustee, to the Issuer, the Letter of Credit Bank and to the Borrowers and
signed by or on behalf of the holders of a majority in aggregate principal
amount of Bonds then outstanding; provided however, that the removal of the
Trustee shall not be effective until a successor Trustee has been appointed
pursuant to Section 5.08 hereof.
Section 5.08 Appointment of Successor Trustee. In case the Trustee
hereunder shall resign or be removed, or be dissolved, or otherwise become
incapable of acting hereunder, or in case it shall be taken under the control of
any public officer or officers, or of a receiver appointed by a court, a
successor shall be appointed by the Issuer with the written consent of the
Borrowers and the Letter of Credit Bank; provided that if a successor Trustee is
not so appointed within ten days after notice of resignation is mailed or
instrument of removal is delivered as provided in sections 5.06 and 5.07,
respectively, or within ten days after the Trustee is dissolved, taken under
control or otherwise incapable of action as above provided, then the holders of
a majority in aggregate principal amount of Bonds then outstanding, by an
instrument or concurrent instruments in writing signed by or on behalf of such
holders, may designate a successor Trustee. Every such successor Trustee
appointed pursuant to the provisions of this section shall be a trust company, a
bank or a banking association in good standing, duly authorized to exercise
corporate trust powers within the County of Hamilton, Ohio, having a reported
capital and surplus or undivided profits of not less than $50,000,000 and
willing to accept the trusteeship under the terms and conditions of this
Indenture.
Section 5.09 Concerning Any Successor Trustee. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to its predecessor
and also to the Issuer, the Letter of Credit Bank and the Borrowers, an
instrument in writing accepting such appointment hereunder,
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and thereupon such successor without any further act shall become fully vested
with all the rights, powers, trusts, duties and obligations of its predecessor;
but such predecessor shall, nevertheless, on the written request of its
successor or the Issuer, execute and deliver an instrument transferring to such
successor Trustee all the estates, properties, rights, powers and trusts of such
predecessor hereunder, and shall duly assign, transfer and deliver all property,
securities and moneys held by it as Trustee to its successor. Should any
instrument in writing from the Issuer be required by any successor Trustee for
more fully and certainly vesting in such successor the rights, powers and duties
hereby vested or intended to be vested in the predecessor, any and all such
instruments in writing shall, on request, be executed, acknowledged and
delivered by the Issuer.
Section 5.10 Successor Trustee as Custodian of Funds, Bond Registrar
and Paying Agent. In the event of a change in the office of Trustee, the
predecessor Trustee which has resigned or been removed shall cease to be
custodian of any funds it may hold pursuant to the Indenture, and cease to be
Bond Registrar and Paying Agent for any of the Bonds, and the successor Trustee
shall become such custodian, Bond Registrar and Paying Agent.
Section 5.11 Adoption of Authentication. In case any of the Bonds
contemplated to be issued hereunder shall have been authenticated but not
delivered, any successor Trustee may adopt the certificate of authentication of
the original Trustee or of any successor of it as Trustee hereunder and deliver
the said Bonds so authenticated as hereinbefore provided; and in case any of
such Bonds shall not have been authenticated, any successor Trustee may
authenticate such Bonds either in the name of any predecessor or in its own
name. In all such cases such certificate of authentication shall have the same
force and effect as provided in the Bonds or in this Indenture with respect to
the certificate of authentication of the Trustee.
Section 5.12 Trustee Protected in Relying Upon Instruments.
Legislation, resolutions, opinions, certificates and other instruments provided
for in this Indenture may be accepted by the Trustee as conclusive evidence of
the facts and conclusions stated therein and shall be full warrant, protection
and authority to the Trustee for its actions taken hereunder.
Section 5.13 Designation and Succession of Paying Agents. The Trustee
and the other banks or trust companies, if any, designated as Paying Agent or
Paying Agents in the Bond Legislation pertaining to a particular series of Bonds
shall be the Paying Agent or Paying Agents for the applicable series of Bonds,
and in the absence of such designation the Trustee shall be the sole Paying
Agent.
Any bank or trust company with or into which any Paying Agent other
than the Trustee may be merged or consolidated, or to which the assets and
business of such Paying Agent may be sold, shall be deemed the successor of such
Paying Agent for the purposes of this Indenture. If the position of such Paying
Agent shall become vacant for any reason, the Issuer shall, within thirty days
thereafter, appoint a bank or trust company located in the same city as such
Paying Agent to fill such vacancy; provided, however, that if the Issuer shall
fail to appoint such Paying Agent within said period, the Trustee shall make
such appointment.
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The Paying Agents shall enjoy the same protective provisions in the
performance of their duties hereunder as are specified in Section 5.01 hereof
with respect to the Trustee, insofar as such provisions may be applicable.
Section 5.14 Dealing in Bonds. The Trustee, the Letter of Credit Bank,
the Remarketing Agent and Paying Agents and any of their directors, officers,
employees or agents, may in good faith become the owners of Bonds secured hereby
with the same rights which it or they would have hereunder if not the Trustee,
the Letter of Credit Bank, the Remarketing Agent or Paying Agent.
Section 5.15 No Transfer of Note or Notes held by the Trustee. Except
as required to effect an assignment to a successor trustee or the Letter of
Credit Bank, or in the event of default under the Agreement, the Reimbursement
Agreement or this Indenture the Trustee shall not sell, assign, pledge or
transfer the Note or Notes held by it, and the Trustee is authorized to. enter
into an agreement with the Borrowers to such effect.
Section 5.16 Investment of Construction Fund and Bond Fund. Subject to
Article VI hereof, any moneys (except moneys in the Bond Fund derived from
drawings under the Letter of Credit) held as part of the Construction Fund, Bond
Fund or any special trust fund created pursuant to Article IV of the Agreement
shall, to the extent permitted by law, at the written or verbal (if verbal, to
be confirmed in writing) request of and as specified by the Authorized Borrowers
Representative be invested and reinvested by the Trustee in accordance with the
provisions of Section 4.5 of the Agreement and Section 10 of the Bond
Legislation. Any such investments shall be held by or under the control of the
Trustee and shall be deemed at all times a part of the Construction Fund, Bond
Fund or any such special trust fund, as the case may be, and the interest
accruing thereon and any profit realized from such investments shall be credited
as set forth in Section 5.17 of this Indenture and any loss resulting from such
investments shall be charged to such fund. The Trustee is directed to sell and
reduce to cash funds a sufficient amount of such investments whenever the cash
balance in the Construction Fund is insufficient to pay a requisition when
presented or whenever the cash balance in the Bond Fund or special trust fund is
insufficient for the uses prescribed for moneys held in the Bond Fund or special
trust fund, respectively.
The Borrowers has covenanted and agreed that it will (a) prepare and
file with the Trustee and the Issuer a report setting forth the "Rebate Amount"
determined in accordance with this Agreement, and (b) deposit or cause to be
deposited in the Excess Investment Earnings Account (as defined in the
Agreement) any and all Rebate Amounts promptly following a determination of any
such Rebate Amount.
The Trustee, as Construction Fund and Bond Fund custodian, covenants
and agrees that it will, on or before each anniversary of the date of issuance
of the Bonds, prepare and file with the Issuer and the Borrowers a report with
respect to the Construction Fund and the Bond Fund setting forth the total
amounts invested during the preceding bond year, the investments made with the
moneys in the Construction Fund and the Bond Fund and the investment earnings
(and losses) resulting from the investments in each such Fund, respectively,
together with such additional information concerning such Funds and the
investments therein, respectively, as the Issuer or the Borrowers shall
reasonably request.
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The Trustee agrees that it will, to the extent practicable, keep all
moneys in the Excess Investment Earnings Account fully invested in Eligible
Investments and it will disburse all moneys in the Excess Investment Earnings
Account to the United States at the times and in the manner set forth in Section
6.2 of the Agreement.
Moneys in the Excess Investment Earnings Account, including investment
earnings thereon, if any, shall be subject to the pledge of this Indenture and
shall not constitute moneys held for the benefit of the Holders of the Bonds.
Section 5.17 Allocation of Income from Investments. All interest
accruing therefrom and any profit realized from investments of moneys in the
Construction Fund and Bond Fund shall, subject to the requirements of Section
6.2 of the Agreement, be allocated as follows:
(a) Interest and profits from investment of Construction Fund
moneys shall be retained in the Construction Fund until the
redemption of the Prior Bonds, then transferred to the Bond
Fund;
(b) interest and profits from investment of Bond Fund moneys shall
be retained in the Bond Fund and shall be used for the
purposes for which the Bond Fund is created;
(c) interest and profits from investment of moneys in the Excess
Investment Earnings Account shall be applied as required in
Section 6.2 of the Agreement; and
(d) interest and profits from investment of other funds or
accounts, if any, shall be paid into the Reimbursement Account
in the Bond Fund; provided that such payment shall not, in the
opinion of nationally recognized bond counsel, impair the
tax-exempt status of interest on the Bonds.
Section 5.18 Interpleader. In the event of a dispute between any of the
parties hereto with respect to the disposition of any funds held by the Trustee
hereunder, or the Trustee receives conflicting demands made upon the Trustee
with respect to the Trustee's duties hereunder or any other document related to
the Bonds, the Trustee shall be entitled to file a suit In Interpleader In a
court of competent Jurisdiction seeking to require the parties to Interplead and
Litigate In such court their several claims and rights among themselves. Upon
the filing of such a suit and the deposit of the applicable funds to such court,
the Trustee will ipso facto be fully released and discharged from all
obligations to further perform any and all duties imposed hereunder or any other
document related to the Bonds regarding such matter and/or such funds that are
the subject of such Interpleader suit. In the event that the Trustee remains as
Trustee under this Indenture and receives a court order directive or other
request regarding the Interpleader suit, the Trustee shall be entitled to rely
upon such instruction without incurring any obligation or liability and the
parties hereto release, hold harmless and indemnify the Trustee for any
obligation or liability for so relying on such court Instruction.
Section 5.19 Survival of Certain Provisions. The provisions of Article
V of this Indenture shall survive the release, discharge and satisfaction of
this Indenture.
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ARTICLE VI
DEFAULT PROVISIONS AND REMEDIES
OF TRUSTEE AND BONDHOLDERS
Section 6.01 Defaults; Events of Default. If any of the following
events occur, subject to the provisions of Section 6.10 hereof, it is hereby
defined as and declared to be and to constitute an "event of default" hereunder:
(a) Failure to pay any interest on any Bond when and as the same
shall have become due and payable;
(b) failure to pay the principal of or any premium on any Bond
when and as the same shall become due and payable, whether at
stated maturity or by acceleration or by mandatory or optional
redemption;
(c) failure by the Issuer to perform or observe any other
covenant, agreement or condition on the part of the Issuer
contained in this Indenture or in the Bonds, which failure
shall have continued for a period of thirty days after written
notice, by registered or certified mail, to the Issuer and to
the Borrowers specifying the failure and requiring the same to
be remedied, which notice may be given by the Trustee in its
discretion and which notice shall be given by the Trustee at
the written request of the holders of not less than
twenty-five percent in aggregate principal amount of Bonds
then outstanding;
(d) the occurrence of an event of default by the Borrowers as
defined in the Mortgage;
(e) the occurrence of an event of default by the Borrowers under
the Note;
(f) the occurrence of an event of default by the Borrowers under
the Agreement;
(g) receipt by the Borrowers, the Issuer and the Trustee of a
notice from the Letter of Credit Bank that an event of default
exists and is subsisting under the Reimbursement Agreement;
(h) the Letter of Credit Bank shall: (i) commence a proceeding
under any Federal or state insolvency, liquidation, custodial,
reorganization or similar law, or proceeding commenced against
it and either have an order of insolvency or reorganization
entered against it or have the proceeding remain undismissed
and unstayed for ninety (90) days, or (ii) have a receiver,
liquidator, custodian or trustee appointed for it or for the
whole or any substantial part of its property; provided,
however, that the Borrowers have not obtained an Alternate
Letter of Credit within forty-five (45) days following such
event;
(i) subsequent to any drawing by the Trustee under the Letter of
Credit (referred to hereinafter as a "Drawing"), if the
Trustee shall receive notice from the Letter of
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Credit Bank that the amount available to be drawn by the
Trustee under the letter of credit has not been reinstated
within ten (10 days to an amount not less than the principal
of, and one hundred ninety-five (195) days accrued interest on
the outstanding Project Bonds; provided, however, that the
Borrowers have not obtained an Alternate Letter of Credit
within twenty-five (25) days following such event; or
(j) failure of the Letter of Credit Bank to honor any proper
drawing (including Principal or Interest Drawings) in timely
fashion so that the funds necessary to pay such principal and
interest are in the possession of the Trustee on the Interest
Payment Date on which such principal and interest is due to
the holders of the Project Bonds; provided, however, that the
Borrowers has not obtained an Alternate Letter of Credit
within twenty-five (25) days following such event.
Upon the occurrence of any event of default, the Trustee shall within
five days after notice of such event of default as provided in Section 5.01(g)
hereof, give written notice of the event of default, by registered or certified
mail, to the Issuer, the Borrowers, the Letter of Credit Bank and the Original
Purchaser.
Section 6.02 Acceleration. Upon the occurrence of an Event of Default,
as defined in Section 6.01 hereof, as specified in Subsections (a), (b), (i) or
(j), of Section 6.01 hereof, the Trustee shall declare, by a notice in writing
delivered to the Borrowers, the principal of all Bonds then outstanding (if not
then due and payable), together with interest accrued thereon, to be due and
payable immediately. Upon the occurrence of any other Event of Default, other
than an Event of Default under Subsection (h), the Trustee shall, upon the
written direction of the Letter of Credit Bank, declare, by a notice in writing
delivered to the Borrowers, the principal of all Bonds then outstanding (if not
then due and payable), together with interest accrued thereon, to be due and
payable immediately. Upon the occurrence of an Event of Default described in
Subsection (h) of Section 6.01 hereof, if there is not then an existing Event of
Default described in Subsections (a), (b), (i), or (j) of Section 6.01 hereof,
then the Trustee, without the written request of the Letter of Credit Bank may,
and upon the written request of the holders of not less than 25 percent in
aggregate principal amount of Bonds then outstanding shall, declare the
principal of all Bonds then outstanding, together with interest accrued thereon,
to be due and payable immediately. Upon any such declaration, principal and
interest shall become and be due and payable immediately. Interest on the Bonds
shall accrue to the date determined by the Trustee for the tender of payment to
the holders pursuant to that declaration which date must be within the period
for which principal of and interest on the Bonds is covered by the amount
available under the Letter of Credit; provided, that interest on any unpaid
principal of Bonds outstanding shall continue to accrue from the date determined
by the Trustee for the tender of payment to the holders of those Bonds.
Any such declaration shall be by notice in writing to the Issuer, the
Letter of Credit Bank and the Borrowers, and, upon said declaration, principal
and interest on all Bonds shall become and be immediately due and payable. The
Trustee immediately upon such declaration shall give notice thereof in the same
manner and within the same time period as provided in Section 3.03 hereof with
respect to redemption of the Bonds. Such notice shall specify the date on which
payment of principal and interest shall be tendered to the holders of the Bonds.
Upon any declaration of acceleration hereunder, the Trustee shall (i)
immediately exercise such rights as it may have under the Agreement
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and the Notes to declare all payments thereunder to be immediately due and
payable and (ii) immediately draw upon the Letter of Credit to the full extent
permitted by the terms thereof.
Anything herein to the contrary notwithstanding, if the Borrowers fail
to provide the Trustee with a written statement to the effect that a
Determination of Taxability has occurred as a result of a violation of the
capital expenditure limit under section 144(a) of the Code, the Trustee may, at
the expense of the Borrowers, request an opinion of nationally-recognized bond
counsel acceptable to the Borrowers with regard to the tax-exempt status of the
Bonds, and if in the opinion of such bond counsel the Bonds are taxable, the
Trustee shall declare, by a notice in writing delivered to the Borrowers, the
principal of all Bonds then outstanding (if not then due and payable), together
with interest accrued thereon, to be due and payable immediately.
Section 6.03 Other Remedies; Rights of Bondholders. Upon the happening
and continuance of an event of default the Trustee may, with or without taking
action under section 6.02 hereof, pursue any available remedy, including without
limitation actions at law or in equity, to enforce the payment of Bond service
charges or to remedy any event of default.
Upon the happening and continuance of an event of default, and if
requested so to do by the holders of at least twenty-five percent in aggregate
principal amount of Bonds then outstanding and indemnified at its option, as
provided in Section 5.01 hereof, the Trustee shall exercise such of the rights
and powers conferred by this Section and by Section 6.02 as the Trustee being
advised by counsel, shall deem most effective to enforce and protect the
interests of the Bondholders.
No remedy conferred upon or reserved to the Trustee (or to the
Bondholders) hereby is intended to be exclusive of any other remedy, but each
and every such remedy shall be cumulative and shall be in addition to any other
remedy given to the Trustee or to the Bondholders hereunder or now or hereafter
existing.
No delay or omission to exercise any right or power accruing upon any
default or event of default shall impair any such right or power or shall be
construed to be a waiver of any such default or event of default or acquiescence
therein; and every such right and power may be exercised from time to time and
as often as may be deemed expedient.
No waiver of any default or event of default hereunder, whether by the
Trustee or by the Bondholders, shall extend to or shall affect any subsequent
default or event of default or shall impair any rights or remedies consequent
thereon.
The Trustee, as the assignee of all right, title and interest of the
Issuer in and to the Agreement (except Unassigned Issuer Rights) and the Note,
shall enforce each and every right granted to the Issuer under the Agreement and
the Note. In exercising such rights and the rights given the Trustee under this
Article VI, the Trustee shall take such action as, in the judgment of the
Trustee, applying the standards described in Section 5.01 hereof, would best
serve the interests of the Bondholders.
Section 6.04 Right of Bondholders to Direct Proceedings. Anything in
this Indenture to the contrary notwithstanding, the holders of more than fifty
percent (50%) in aggregate principal
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amount of Bonds then outstanding shall have the right at any time, by an
instrument or instruments in writing executed and delivered to the Trustee, to
direct the method and place of conducting all proceedings to be taken in
connection with the enforcement of the terms and conditions of this indenture or
for the appointment of a receiver or any other proceedings hereunder; provided,
that such direction shall not be otherwise than in accordance with the
provisions of law and of this Indenture, and provided that the Trustee shall be
indemnified to its satisfaction.
Section 6.05 Appointment of Receivers. 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 Trustee and of the Bondholders under
this Indenture, the Agreement, and the Note, the Trustee shall be entitled, as a
matter of right, to the appointment of a receiver or receivers of the Pledged
Receipts, pending such proceedings, with such power as the court making such
appointment shall confer.
Upon the occurrence of an event of default, to the extent such rights
may then lawfully be waived, neither the issuer, nor the Borrowers, nor anyone
claiming through or under either of them, shall set up, claim, or seek to take
advantage of any stay, extension, moratorium or redemption laws now or hereafter
in force, in order to prevent or hinder the enforcement of this Indenture, but
the Issuer, for itself and all who may claim through or under it, hereby waives,
to the extent it may lawfully do so, the benefit of all such laws and all right
of redemption to which it may be entitled.
Section 6.06 Allocation of Moneys. All moneys received by the Trustee
or a receiver pursuant to any right given or action taken under the provisions
of this Article shall, after payment of the Trustee's fees and expenses, subject
to any provision made pursuant to Sections 3.04 or 4.02 hereof, be deposited in
the Bond Fund and all moneys in the Bond Fund shall be applied as follows:
(a) Unless the principal of all the Bonds shall have become or
have been declared due and payable, all such moneys shall be
applied:
First--To the payment to the persons entitled thereto of all
installments of interest then due on the Bonds, in the order of
maturity of the installments of such interest beginning with the
earliest such maturity and, if the amount available shall not be
sufficient to pay in full any particular installment, then to the
payment thereof ratably, according to the amounts due on such
installment, to the persons entitled thereto, without any
discrimination or privilege except as to any difference in the
respective rates of interest specified in the Bonds; and
Second--To the payment to the persons entitled thereto of the unpaid
principal of any of the Bonds which shall have become due (other than
Bonds previously called for redemption for the payment of which moneys
are held pursuant to the provisions of this Indenture) whether at
maturity or by call for redemption, in the order of their due dates and
beginning with the earliest such due date, with interest on such Bonds
from the respective dates upon which they became due and if the amount
available shall not be sufficient to pay in full all Bonds due on any
particular date, together with such interest, then to the payment
thereof ratably, according to the amount of principal due on such date,
to the persons entitled thereto without any discrimination or
privilege.
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(b) If the principal of all the Bonds shall have become due or
shall have been declared due and payable pursuant to this
Article, all such moneys shall be applied to the payment of
the principal and interest then due and unpaid upon the Bonds,
without preference or priority of principal over interest or
of interest over principal, or of any installment of interest
over any other installment of interest, or of any Bond over
any other Bond, ratably, according to the amounts due
respectively for principal and interest, to the persons
entitled thereto without any discrimination or privilege
except as to any difference in the respective rates of
interest specified in the Bonds.
(c) If the principal of all the Bonds shall have been declared due
and payable pursuant to this Article, and if such declaration
shall thereafter have been rescinded and annulled under the
provisions of Section 6.10 hereof, then, subject to the
provisions of paragraph (b) of this Section in the event that
the principal of all the Bonds shall later become due or be
declared due and payable, the moneys shall be applied in
accordance with the provisions of paragraph (a) of this
Section;
provided, however, that prior to any application of moneys as set forth above,
the Trustee shall be entitled to its customary fees and reasonable expenses
incurred in the enforcement of any remedies under this Indenture.
The Letter of Credit is issued by the Letter of Credit Bank only with
respect to the payment of principal and interest on the Project Bonds for the
benefit of the Trustee on behalf of the holders of such Project Bonds. Proceeds
of draws on the Letter of Credit shall not be used for any other purpose.
Whenever moneys are to be applied pursuant to the provisions of this
Section, such moneys shall be applied at such times, and from time to time, as
the Trustee shall determine, having due regard to the amount of such moneys
available for application and the likelihood of additional moneys becoming
available for such application in the future. Whenever the Trustee shall apply
such funds, it shall fix the date (which shall be an Interest Payment Date
unless it shall deem another date more suitable) upon which such application is
to be made and upon such date interest on the amounts of principal to be paid on
such dates, and for which moneys are available, shall cease to accrue. The
Trustee shall give notice as it may deem appropriate of the deposit with it of
any moneys and of the fixing of any such date, and shall not be required to make
payment to the holder of any unpaid Bond until such Bond shall be presented to
the Trustee for cancellation if fully paid.
The provisions of this section are in all respects subject to the
provisions of Section 4.03 hereof.
Whenever all Bonds and interest thereon have been paid under the
provisions of this Section and all fees, expenses and charges of the Trustee and
Paying Agents and all other expenses payable under this Indenture have been
paid, any balance remaining in the Bond Fund shall be paid as provided in
Section 4.07 hereof.
Section 6.07 Remedies Vested in Trustee. All rights of action
(including the right to file proof of claims) under this Indenture or under any
of the Bonds may be enforced by the Trustee
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without the possession of any of the Bonds or the production thereof in any
trial or other proceeding relating thereto and any such suit or proceeding
instituted by the Trustee shall be brought in its name as Trustee without the
necessity of joining as plaintiffs or defendants any holders of the Bonds, and
any recovery of judgment shall be for the benefit of the holders of the
outstanding Bonds, subject, however, to the provisions of this Indenture.
Section 6.08 Rights and Remedies of Bondholders. No holder of any Bond
shall have any right to institute any suit, action or proceeding for the
enforcement of this Indenture or for the execution of any power or trust thereof
or for the appointment of a receiver or any other remedy hereunder, unless an
event of default hereunder has occurred and is continuing, of which the Trustee
has been notified as provided in section 5.01(g), or of which by said paragraph
it is deemed to have notice, and the holders of at least twenty-five percent in
aggregate principal amount of Bonds then outstanding shall have made written
request to the Trustee and shall have afforded the Trustee reasonable
opportunity to proceed to exercise the powers or trusts hereinbefore granted or
to institute such action, suit or proceeding in its own name; and have offered
to the Trustee indemnity as provided in Section 5.01, and the Trustee shall
thereafter fail or refuse to exercise the powers or trusts hereinbefore granted
or to institute such action, suit or proceeding in its own name; and such
notification, request and offer of indemnity are hereby declared in every case
at the option of the Trustee to be conditions precedent to the execution of the
powers and trusts of this Indenture, and to any action or cause of action for
the enforcement of this Indenture, or for the appointment of a receiver or for
any other remedy hereunder; it being understood and intended that no one or more
holders of the Bond shall have any right in any manner whatsoever to affect,
disturb or prejudice the lien of this Indenture by its, his, or her action or to
enforce any right hereunder except in the manner herein provided and that
proceedings shall be instituted, had and maintained in the manner herein
provided and for the benefit of the holders and owners of all Bonds then
outstanding. Subject to the foregoing, each Bondholder shall have a right of
action to enforce the payment of the principal of and interest on any Bond held
or owned by him at and after the maturity thereof at the place, from the sources
and in the manner in said Bond expressed.
Section 6.09 Termination of Proceedings. In case the Trustee shall have
proceeded to enforce any right under this Indenture by the appointment of a
receiver or otherwise, and such proceeding shall have been discontinued or
abandoned for any reason, or shall have been determined adversely, then and in
every such case the Issuer, the Trustee and the Bondholders shall be restored to
their former positions and rights hereunder, respectively, and all rights,
remedies and powers of the Trustee shall continue unimpaired as before.
Section 6.10 Waivers of Events of Default. The Trustee with the consent
of the Letter of Credit Bank, other than in the case of an event of default
described in Section 6.01(a), (b), (h), (i) or (j) hereof, may in its discretion
waive any event of default under this Indenture and its consequences and rescind
any declaration of maturity of principal, and shall do so at the written request
of (1) the Letter of Credit Bank and (2) the holders of at least 25% in
aggregate principal amount of all Project Bonds and Additional Bonds then
outstanding; provided, however, that there shall not be waived any event of
default described in paragraphs (a) or (b) of Section 6.01 hereof or any such
declaration in connection therewith rescinded. In case of any such waiver or
rescission, or in case any proceeding taken by the Trustee on account of any
such event of default shall have been discontinued or abandoned or determined
adversely, then and in every such case the Issuer, the
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Trustee, the Letter of Credit Bank and the Bondholders shall be restored to
their former positions and rights hereunder respectively, but no such waiver or
rescission shall extend to any subsequent or other event of default, or impair
any right consequent thereon.
Section 6.11 Expense and Services After an Event of Default. When the
Trustee incurs expenses or renders services after the occurrence of an Event of
Default described in this Article VI, the expenses and compensation for services
are intended to constitute expenses of administration under any bankruptcy law.
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ARTICLE VII
SUPPLEMENTAL INDENTURES
Section 7.01 Supplemental Indentures Not Requiring Consent of
Bondholders. The Issuer and the Trustee may without the consent of, or notice
to, any of the Bondholders, but only with the consent of the Letter of Credit
Bank, enter into indentures supplemental to this Indenture and financing
statements or other instruments evidencing the existence of a lien and/or
security interests and amendments to the Letter of Credit as shall not, in the
opinion of the Issuer and the Trustee, be inconsistent with the terms and
provisions hereof for any one or more of the following purposes:
(a) To cure any ambiguity, inconsistency or formal defect or
omission in this Indenture or the Letter of Credit;
(b) To grant to or confer upon the Trustee for the benefit of the
Bondholders any additional rights, remedies, powers, or
authority that may lawfully be granted to or conferred upon
the Bondholders or the Trustee;
(c) To subject additional revenues, additional notes or interests
in real estate to the liens and pledge of the Indenture;
(d) To add to the covenants and agreements of the Issuer contained
in the Indenture other covenants and agreements thereafter to
be observed for the protection of the Bondholders, or to
surrender or limit any right, power or authority reserved to
or conferred upon the Issuer in the Indenture, including the
limitation of rights of redemption so that in certain
instances Bonds of different series will be redeemed in some
prescribed relationship to one another;
(e) To evidence any succession to the Issuer and the assumption by
such successor of the covenants and agreements of the Issuer
contained in the Indenture, the Agreement and the Bonds or of
the Letter of Credit Bank contained in the Letter of Credit;
(f) To modify, amend or supplement the Indenture in such manner as
to permit the qualification thereof under the Trust Indenture
Act of 1939, as amended, or to comply with any similar
requirements of any other law;
(g) In connection with the issuance of Additional Bonds in
accordance with Section 2.08 hereof and Section 8 of the Bond
Legislation for the Project Bonds; and
(h) Any other change not to the detriment of the holders of the
Bonds.
The Trustee may also accept, without the consent of or notice to any of the
Bondholders, an Alternate Letter of Credit or any amendments to the Letter of
Credit necessary to continue the effectiveness of the letter of Credit as
originally intended or which in the judgment of the Trustee are not to the
prejudice of the Bondholders.
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Section 7.02 Supplemental Indentures Requiring Consent of Bondholders.
Exclusive of supplemental indentures referred to in. Section 7.01 hereof and
subject to the terms and provisions and limitations contained in this section,
and not otherwise, the holders of not less than 662/3% in aggregate principal
amount of the Bonds then outstanding shall have the right, from time to time,
anything contained in any other Section or provision of this Indenture to the
contrary notwithstanding, with the consent of the Letter of Credit Bank, to
consent to and approve the execution by the Issuer and the Trustee of such other
indenture or indentures supplemental to this Indenture as shall be deemed
necessary and desirable by the Issuer and the Trustee for the purpose of
modifying, altering, amending, adding to or rescinding, in any particular, any
of the terms or provisions contained in this Indenture; provided, however, that
nothing in this Section or elsewhere shall permit, or be construed as
permitting, a supplemental indenture providing for (a) an extension of the
maturity of the principal or of the interest on any Bond, or a reduction in the
principal amount of any Bond or the rate of interest or redemption premium
thereon, or a reduction in the amount or extension of the time of any payment
required by any Mandatory Sinking Fund Requirements provided for in the Bond
Legislation, without the consent of the holder of each Bond so affected, or (b)
a privilege or priority of any Bond or Bonds over any other Bond or Bonds, a
reduction in the aggregate principal amount of the Bonds required for consent to
such supplemental indenture, or (c) an extension of the time for or reduction in
the amount of any payment under the Letter of Credit without the consent of the
Letter of Credit Bank and the holders of all of the then outstanding Bonds.
If at any time the Issuer shall request the Trustee to enter into any
such supplemental indenture for any of the purposes of this Section, the Trustee
shall, if any Bonds are at the time outstanding, upon being satisfactorily
indemnified with respect to expenses, cause notice of the proposed execution of
such supplemental indenture to be mailed by first-class mail, postage prepaid,
to the Original Purchaser of each series of Bonds and to all registered holders
of Bonds then outstanding at their addresses as they appear on the registration
books herein provided for. The Trustee shall not, however, be subject to any
liability to any Bondholder by reason of its failure to mail, or the failure of
such Bondholder to receive, the notice required by this section, and any such
failure shall not affect the validity of such supplemental indenture when
consented to and approved as provided in this Section. Such notice shall briefly
set forth the nature of the proposed supplemental indenture and shall state that
copies thereof are on file at the office of the Trustee for inspection by all
Bondholders. Such notice or notices may be waived by an instrument or concurrent
instruments executed by the holders or owners of all Bonds at, the time
outstanding.
If, within 60 days or such longer period as shall be prescribed by the
Trustee following the mailing of such notice the holders of not less than 662/3%
of the aggregate principal amount of the Bonds then outstanding shall have
consented to the adoption thereof, such supplemental indenture may be executed
and this Indenture shall be deemed to be modified and amended in accordance
therewith. The holders of not less than 662/3% of the aggregate principal amount
of the Bonds then outstanding shall be deemed to have consented to and approved
the adoption of such supplemental indenture if the Trustee does not receive
letters of protest or objections thereto signed by or on behalf of the holders
of 331/3% or more of the aggregate principal amount of the Bonds then
outstanding on or before 3:30 P.M. local time at the principal corporate trust
office of the Trustee on the 60th day after mailing of the aforesaid notice.
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Any such consent shall be binding upon the holder of the Bond giving
such consent and, anything in Section 9.01 hereof to the contrary
notwithstanding, upon any subsequent holder of such Bond and of any Bond issued
in exchange therefor (whether or not such subsequent holder has notice thereof),
unless such consent is revoked by the holder of such Bond giving such consent or
by a subsequent holder thereof by filing with the Trustee, prior to the
execution by the Trustee of such supplemental indenture, such revocation and, if
such Bond or Bonds are transferable by delivery, proof that such Bonds are held
by the signer of such revocation in the manner permitted by Section 9.01. At any
time after the holders of the required percentage of Bonds shall have consented
to the supplemental indenture, the Trustee shall make and file with the Issuer a
written statement that the holders of such required percentage of Bonds have so
consented. Such written statement shall be conclusive that such consents have
been so filed.
If the holders of the required percentage in aggregate principal amount
of the Bonds outstanding shall have consented to and approved the execution
thereof as herein provided, no holder of any Bond shall have any right to object
to the execution of such supplemental indenture, or to object to any of the
terms and provisions contained therein or the operation thereof, or in any
manner to question the propriety of the execution thereof, or to enjoin or
restrain the Trustee or the Issuer from executing the same or from taking any
act ion pursuant to the provisions thereof. Notwithstanding any provision to the
contrary contained in this section, no supplemental indenture shall amend,
change or modify any duty or duties of the Trustee without the written consent
of the Trustee.
Section 7.03 Consent of the Borrowers. Anything herein to the contrary
notwithstanding, a supplemental indenture under this Article VII which affects
any rights or obligations of the Borrowers shall not become effective unless and
until the Borrowers shall have consented in writing to the execution and
delivery of such supplemental indenture. In this regard, the Trustee shall cause
notice of the proposed execution and delivery of any supplemental indenture
together with a copy of the proposed supplemental indenture to be mailed as
provided in Section 9.04 hereof to the Borrowers at least ten days before the
date of its proposed execution and delivery in the case of a supplemental
indenture referred to in Section 7.01 hereof, and not later than five days after
such mailing of the notice of the proposed execution and delivery in the case of
a supplemental indenture provided for in Section 7.02 hereof.
Section 7.04 Authorization to Trustee; Effect of Supplement. The
Trustee is authorized to join with the Issuer in the execution of any
supplemental indenture provided for in this Article and to make the further
agreements and stipulations which may be contained therein. Any supplemental
indenture executed in accordance with the provisions of this Article shall
thereafter form a part of this Indenture; all the terms and conditions contained
in any such supplemental indenture as to any provision authorized to be
contained therein shall be deemed to be part of the terms and conditions of this
Indenture for any and all purposes; this Indenture shall be and be deemed to be
modified and amended in accordance therewith; and the respective rights, duties
and obligations under this Indenture of the Issuer, the Borrowers, the Trustee,
the Letter of Credit Bank, the Remarketing Agent, the Indexing Agent, the Paying
Agents and all holders of Bonds then outstanding shall thereafter be determined,
exercised and enforced thereunder, subject in all respects to such modifications
and amendments. Express reference to such executed supplemental indenture may be
made in the text of any Bonds issued thereafter, if deemed necessary or
desirable by the Trustee or
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the Issuer. A copy of any supplemental indenture provided for in this Article,
except such as may be entered into pursuant to clause (g) of Section 7.01
hereof, shall be mailed by the Trustee to the Original Purchaser of each and
every series of Bonds affected thereby.
Section 7.05 Opinion of Counsel. The Trustee shall be entitled to
receive, and shall be fully protected in relying upon, the opinion of any
counsel approved by it, who may be counsel for the Issuer, as conclusive
evidence that any such proposed supplemental indenture complies with the
provisions of this Indenture, and that it is proper for the Trustee, under the
provisions of this Article, to join in the execution of such supplemental
indenture.
Section 7.06 Modification by Unanimous Consent. Notwithstanding
anything contained elsewhere in this Indenture, the rights and obligations of
the Issuer and of the holders of the Bonds, and the terms and provisions of the
Bonds and this Indenture or any supplemental indenture, may be modified or
altered in any respect with the consent of the Issuer, the consent of the
Trustee, the consent of the Letter of Credit Bank and the consent of the holders
of all of the Bonds then outstanding and, if required by Section 7.03 hereof,
the consent of the Borrowers.
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ARTICLE VIII
DISCHARGE OF LIEN
Section 8.01 Release of Indenture. If the Issuer shall pay or cause to
be paid and discharged all the outstanding Bonds or there shall otherwise be
paid to the holders of the outstanding Bonds all Bond service charges due or to
become due thereon, and provision shall also be made for paying all other sums
payable hereunder by the Issuer or by the Borrowers, including the fees or
expenses of the Trustee, then and in that event this Indenture (except for
Sections 4.01, 4.02, 4.07 and 8.02 hereof) shall cease, determine and become
null and void, and the covenants, agreements and other obligations of the Issuer
hereunder shall be discharged and satisfied, and thereupon the Trustee shall
release this Indenture, including the cancellation and discharge of the lien
hereof, and execute and deliver to the Issuer such instruments in writing as
shall be requisite to satisfy the lien hereof and to enter on the records such
satisfaction and discharge and such other instruments to evidence such release
and discharge as may be reasonably required by the Issuer; and the Trustee and
Paying Agents shall assign and deliver to the Issuer any property, other than
the Note or Notes, at the time subject to the lien of this Indenture which may
then be in their possession, except amounts in the Bond Fund required to be paid
to the Borrowers or the Letter of Credit Bank under Section 4.07 hereof, or to
be held by the Trustee and Paying Agents under Section 4.02 hereof or otherwise
for the payment of Bond service charges.
Section 8.02 Payment and Discharge of Bonds. All the outstanding Bonds
of one or more series or of one or more maturities within any series shall be
deemed to have been paid and discharged within the meaning of this Indenture,
including, without limitation, Section 8.01 hereof, if:
(a) The Trustee and the Paying Agents shall hold in the Bond Fund
in trust for and irrevocably committed thereto, sufficient
moneys drawn under the Letter of Credit plus any premium
deposited by the Borrowers with the Trustee for at least 91
days, or
(b) the Trustee shall hold in the Bond Fund in trust for and
irrevocably committed thereto, direct obligations of, or
obligations guaranteed by, the United States (or securities or
receipts evidencing ownership interests in such obligations)
which have been purchased from moneys drawn under the Letter
of Credit plus any premium deposited by the Borrowers with the
Trustee for at least 91 days certified by an independent
accounting firm of national reputation to be of such
maturities and interest payment dates and to bear such
interest as will, without further investment or reinvestment
of either the principal amount thereof or the interest
earnings therefrom (likewise to be held in trust and
committed, except as hereinafter provided), be sufficient
together with moneys (if any) referred to in (a) above, for
the payment, at their maturities or redemption dates, of all
Bond service charges thereon to the date of maturity or
redemption, as the case may be, or if default in such payment
shall have occurred on such date then to the date of the
tender of such payment; provided, that if any of such Bonds
are to be redeemed prior to the maturity thereof, notice of
such redemption shall have been duly given or irrevocable
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provision satisfactory to the Trustee shall have been duly
made for the giving of such notice. Any moneys held by the
Trustee in accordance with the provisions of this section may
be invested by the Trustee, but only in direct obligations of,
or obligations guaranteed by, the United states the maturities
or redemption dates of which, at the option of the holder,
shall coincide as nearly as practicable with, but not later
than, the time or times at which said moneys will be required
for the aforesaid purposes. Any income or interest earned by,
or increment to, the investments held under this Section
shall, to the extent determined from time to time by the
Trustee to be in excess of the amount required to be held by
it for the purposes of this Section, be transferred at the
time of such determination as provided in Section 4.07 hereof
for transfers of remaining amounts in the Bond Fund. In the
event of non-presentment as referred to in Section 4.02
hereof, the moneys held pursuant to this Section to which
Section 4.02 would apply but for the release of this Indenture
shall be held and paid as provided for in said Section 4.02.
Bonds so paid and discharged shall thereafter be secured
solely by the moneys and investments so deposited and held for
their payment, and shall no longer be secured by the Pledged
Receipts or a lien upon the Note or Notes, provided that if
payment or provision therefor has been made in accordance with
this section 8.02 with respect to all the Bonds of any series
of Bonds or of one or more maturities within any series, the
Trustee shall surrender the Note or Notes relating to such
Bonds to the Borrowers.
In the event that this Indenture is satisfied and discharged in
accordance with the first paragraph of this Section and Section 8.01 hereof, the
holders of any Bonds then outstanding, the maturity or redemption dates thereof
having not then arrived, shall have the right (to the extent that such will not
result in insufficient moneys to pay Bond service charges on other Bonds at
maturity or redemption) as of and on any Interest Payment Date to surrender said
Bonds to a Paying Agent designated in such Bonds, and, upon such surrender, to
be paid the principal amount of any Bond surrendered, plus the redemption
premium, if any, held in accordance with this section on account of the
surrendered Bond, plus interest accrued on any such Bond so surrendered computed
to such Interest Payment Date; provided that such right may be exercised only
after the holders of any such Bonds to be surrendered have given written notice
to the Trustee, at least sixty days before the Interest Payment Date on which
they request such payment, of their intent to so surrender the Bonds for such
payment and setting forth in such notice the Bonds to be surrendered. If any
Bond as to which such notice of intent has been given is not surrendered on or
before such Interest Payment Date, surrender thereof for payment need not be
accepted for a period of one year from said date. The Trustee shall give notice
within thirty days after such discharge and satisfaction of this Indenture in
the same manner as provided in Section 3 of the Bond Legislation for the Project
Bonds for notice of call for redemption, to the holders of such Bonds provided
for in this paragraph of their rights under this paragraph; provided that
failure so to mail any such notice shall not impose any liability on the Trustee
nor affect the satisfaction and discharge of this Indenture.
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ARTICLE IX
MISCELLANEOUS
Section 9.01 Instruments of Bondholders. Any consent, request,
direction, approval, objection or other instrument required by the Indenture to
be signed and executed by the Bondholders may be in any number of concurrent
writings of similar tenor and may be signed or executed by such Bondholders in
person or by agent appointed in writing. Proof of the execution of any such
consent, request, direction, approval, objection or other instrument or of the
writing appointing any such agent and of the ownership of Bonds, if made in the
following manner shall be sufficient for any of the purposes of this Indenture,
and shall be conclusive in favor of the Trustee with regard to any action taken
under such request or other instrument, namely:
(a) The fact and date of the execution by any person of any such
writing may be proved by the certificate of any officer in any
jurisdiction, who by law has power to take acknowledgments
within such jurisdiction, that the person signing such writing
acknowledged before him the execution thereof, or by affidavit
of any witness to such execution.
(b) The fact of ownership of fully registered Bonds shall be
proved by the registration books maintained by the Bond
Registrar.
Nothing contained herein shall be construed as limiting the Trustee to
such proof, it being intended that the Trustee may accept any other evidence of
the matter herein stated which it deems to be sufficient. Any request or consent
of the holder of any Bond shall bind every future holder of the same Bond in
respect to anything done or suffered to be done by the Issuer, the Trustee or
any Paying Agent in pursuance of such request or consent.
Section 9.02 Limitation of Rights. With the exception of rights herein
expressly conferred, nothing expressed or mentioned in or to be implied from the
Indenture or the Bonds is intended or shall be construed to give to any person
other than the parties hereto, the Borrowers, the Letter of Credit Bank and the
holders of the Bonds, any legal or equitable right, remedy or claim under or in
respect to this Indenture or any covenants, conditions and provisions herein
contained; this Indenture and all of the covenants, conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of the
parties hereto, the Borrowers, the Letter of Credit Bank and the holders of the
Bonds as herein provided.
Section 9.03 Severability. In case any clause, provision or section of
this Indenture, or in case any covenant, stipulation, obligation, agreement,
act, or action, or part thereof, made, assumed, entered into, or taken under
this Indenture, or any application thereof, is for any reason held to be
illegal, invalid or inoperable, such illegality or invalidity or inoperability
shall not affect the remainder thereof or any other clause, provision or section
of this Indenture or any other covenant, stipulation, obligation, agreement,
act, or action, or part thereof, made, assumed, entered into, or taken under
this Indenture, which shall at the time be construed and enforced as if such
illegal or invalid or inoperable portion were not contained herein, nor shall
such illegality or invalidity or inoperability or any application thereof affect
any legal and valid and operable application from time
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to time, and each such section, provision, covenant, stipulation, obligation,
agreement, act, or action, or part thereof, shall be deemed to be effective,
operative, made, entered into or taken in the manner and to the full extent from
time to time permitted by law.
Section 9.04 Notices. Except as provided in Section 6.01 hereof, it
shall be sufficient service or giving of any notice, request, complaint, demand
or other paper if the same shall be duly mailed by first class mail addressed to
the Notice Addresses. Duplicate copies of each notice, certificate or other
communication given hereunder by the Issuer, Trustee, Remarketing Agent, Letter
of Credit Bank or the Borrowers to one or more of the others shall also be given
to the others. The Issuer, the Borrowers, the Letter of Credit Bank, the
Remarketing Agent and the Trustee may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates or
other communications shall be sent, but no such notice shall thereby be required
to be sent to more than two addresses.
Section 9.05 Payments Due on Saturdays, Sundays and Holidays. In any
case where the date of maturity of interest on or principal of the Bonds or the
date fixed for redemption of any Bonds shall be a Saturday or Sunday or a day on
which the Trustee or any Paying Agent is required, or authorized or not
prohibited, by law (including executive orders) to close and is closed, then
payment of such interest or principal and any redemption premium need not be
made by such Paying Agent 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, and no interest shall accrue for the period
after such date.
Section 9.06 Priority Over Other Liens. This Indenture is given in
order to secure funds to pay for new acquisition, construction or equipping and
by reason thereof it is intended that this Indenture shall be superior to any
liens which may be placed upon the Bond Fund or Construction Fund.
Section 9.07 Extent of Covenants; No Personal Liability. All covenants,
stipulations, obligations and agreements of the Issuer contained in the
Indenture shall be effective to the extent authorized and permitted by
applicable law. No such covenant, stipulation, obligation or agreement shall be
deemed to be a covenant, stipulation, obligation or agreement of any present or
future member, officer, agent or employee of the Issuer or its Legislative
Authority in his individual capacity, and neither the members of the Legislative
Authority nor any official 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.
Section 9.08 Power to Issue Bonds and Make Pledges. The Issuer is duly
authorized pursuant to law to create and issue the Bonds and enter into this
Indenture and to pledge the Pledged Receipts, the Bond Fund and all its right,
title and interest in and under the Agreement and the Note in the manner and to
the extent provided in this Indenture. The Bonds are and will be the valid and
legally enforceable special obligations of the Issuer and the provisions of this
Indenture are and will be the valid and legally enforceable obligations of the
Issuer, all in accordance with their terms and the terms of this Indenture. The
issuer shall at all times, to the extent permitted by law, defend, preserve and
protect the pledge of the Pledged Receipts, the Bond Fund and all its right,
title and
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interest in and under the Agreement and the Note and all the rights of the
Bondholders under this Indenture against all claims and demands of all persons
whomsoever.
Section 9.09 Binding Effect. This instrument shall inure to the benefit
of and shall be binding upon the Issuer and the Trustee and their respective
successors and assigns, subject, however, to the limitations contained in this
Indenture.
Section 9.10 Counterparts. This Indenture may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original, and all of which
when taken together and bearing the signatures of each of the parties hereto
shall constitute but one and the same instrument.
Section 9.11 Cautions. The captions or headings in this Indenture are
for convenience only and in no way define, limit or describe the scope or intent
of any provisions or sections of this Indenture.
Section 9.12 Governing Law. This Indenture and the Bonds shall be
deemed to be contracts made under the laws of the state and for all purposes
shall be governed by and construed in accordance with the laws of the State.
Section 9.13 Security Agreement. This Indenture constitutes a security
agreement and the Trustee as secured party shall have all the remedies available
to a secured party under the Ohio Uniform Commercial Code.
Section 9.14 Continuing Obligation. The parties hereto acknowledge and
agree that the Loan Agreement, the Reimbursement Agreement, the Note and the
Mortgage are continuing obligations and will (i) be binding upon the Borrowers,
its successors and assigns, and (ii) inure to the benefit of and be enforceable
by the Trustee and the Letter of Credit Bank and their respective successors,
transferees and assigns; provided that the Borrowers may not assign all or any
part of the foregoing instruments without the prior written consent of the
Letter of Credit Bank. Except as set forth in the preceding sentence and except
with respect to the holder(s) of any participation made by the Letter of Credit
Bank of the Reimbursement Agreement and the Letter of Credit, no Person not a
party to this Agreement will be entitled to the benefit of this Agreement.
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IN WITNESS WHEREOF, the Issuer and the Trustee have caused this Trust
Indenture to be executed in their respective names by their duly authorized
officers, all as of the day and year first above written.
COUNTY OF HAMILTON, OHIO
By: _______________________________
County Commissioner
By: _______________________________
County Commissioner
By: _______________________________
County Commissioner
THE FIFTH THIRD BANK,
as Trustee
By: _______________________________
Title: _______________________________
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