INDENTURE OF TRUST

Exhibit 10.47

 

 

_____________________________________________________________________________

 

INDENTURE OF TRUST

 

 

between

 

 

CITY OF BLUFFTON, INDIANA

 

 

and

 

 

U.S. BANK NATIONAL ASSOCIATION, as Trustee

 

 

providing for the issuance of

 

 

$22,000,000

CITY OF BLUFFTON, INDIANA

SUBORDINATE SOLID WASTE DISPOSAL FACILITY REVENUE BONDS, SERIES 2007A (INDIANA BIO-ENERGY, LLC ETHANOL PLANT PROJECT)

 

 

 

 

 

 

 

Dated as of March 1, 2007

_____________________________________________________________________________

 

 

TABLE OF CONTENTS

 

 

ii

 

 

 

iii

 

 

 

 

iv

 

 

 

 

 

v

 

 

 

 

INDENTURE OF TRUST

 

THIS INDENTURE OF TRUST (this “Indenture” ) is made and entered into as of March 1, 2007, between the CITY OF BLUFFTON, INDIANA, a municipal corporation of the State of Indiana (the “Issuer” ), and U.S. BANK NATIONAL ASSOCIATION, as trustee (the “Trustee” ).

RECITALS

 

A.

In furtherance of its public purposes, the Issuer has entered into a Loan Agreement, dated as of March 1, 2007, with Indiana Bio-Energy, LLC, an Indiana limited liability company (the “Company” ), providing for the issuance by the Issuer of the Bonds for the purpose of loaning the proceeds thereof to the Company in order to provide funds (i) to finance a portion of the costs of the Project (hereinafter defined), (ii) to pay a portion of the interest accruing on the Bonds during construction of the Project, (iii) to fund a debt service reserve fund for the Bonds, and (iv) to pay certain costs of issuance relating to the Bonds.

 

B.

The execution and delivery of this Indenture and the issuance and sale of the Bonds have been in all respects duly and validly authorized by proper action duly adopted by the governing body of the Issuer.

 

C.

The execution and delivery of the Bonds and of this Indenture have been duly authorized and all things necessary to make the Bonds, when executed by the Issuer and authenticated by the Registrar, valid and binding legal obligations of the Issuer and to make this Indenture a valid and binding agreement have been done.

 

NOW, THEREFORE, THIS INDENTURE OF TRUST WITNESSETH:

 

GRANTING CLAUSES

 

The Issuer, in consideration of the premises and the acceptance by the Trustee of the trusts hereby created and of the purchase and acceptance of the Bonds by the Owners thereof, and for other good and valuable consideration, the receipt of which is hereby acknowledged, in order to secure the payment of the principal of, and premium, if any, and interest on, the Bonds according to their tenor and effect and to secure the performance and observance by the Issuer of all the covenants expressed or implied herein and in the Bonds, does hereby grant, bargain, sell convey, mortgage and warrant, and assign, pledge and grant a security interest in, the Trust Estate to the Trustee, and its successors in trust and assigns forever for the benefit of the Owners:

 

TO HAVE AND TO HOLD all and singular the Trust Estate, whether now owned or hereafter acquired, to the Trustee and its respective successors in trust and assigns forever;

 

IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the equal and proportionate benefit, security and protection of all present and future Owners of the Bonds issued under and secured by this Indenture without privilege, priority or distinction as to the lien or otherwise of any of the Bonds over any of the other Bonds, subordinate to the rights of the Senior Lender under the Senior Loan;

 

1

 

 

PROVIDED, HOWEVER, that if the Issuer, its successors or assigns, shall well and truly pay, or cause to be paid, the principal of, and premium, if any, and interest on, the Bonds due or to become due thereon, at the times and in the manner mentioned in the Bonds and as provided in Article VII hereof according to the true intent and meaning thereof, and shall cause the payments to be made as required under Article IV hereof, or shall provide, as permitted hereby, for the payment thereof in accordance with Article VII hereof, and 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, the principal of, and premium, if any, and interest on, the Bonds due or to become due in accordance with the terms and provisions hereof, then and in that case this Indenture and the rights hereby granted shall cease, terminate and be void and the Trustee shall thereupon cancel and discharge this Indenture and execute and deliver to the Issuer and the Company such instruments in writing as shall be reasonably requested to evidence the discharge hereof, otherwise this Indenture shall be and remain in full force and effect.

 

THIS INDENTURE OF TRUST FURTHER WITNESSETH, and it is expressly declared, that all Bonds issued and secured hereunder are to be issued, authenticated and delivered, and all of the Trust Estate is to be dealt with and disposed of, under, upon and subject to the terms, conditions, stipulations, covenants, agreements, trusts, uses and purposes hereinafter expressed, and the Issuer has agreed and covenanted, and does hereby agree and covenant, with the Trustee and with the respective Owners, from time to time, of the Bonds, or any part thereof, as follows:

 

ARTICLE I

 

DEFINITIONS AND RULES OF CONSTRUCTION

 

Section 1.01 .

General Definitions . The terms defined in this Section 1.01 shall have the meanings provided herein for all purposes of this Indenture and the Agreement, unless the context clearly requires otherwise.

 

“Act” means Indiana Code Sections 36-7-11.9-1 et seq. , as supplemented and amended, and Indiana Code Sections 36-7-12-1 et seq., as supplemented and amended heretofore and hereafter.

 

“Additional Payments” means the amounts required to be paid by the Company pursuant to the provisions of Section 5.01(b) of the Agreement.

 

“ Additional Senior Indebtedness” means any indebtedness of the Company which is in addition to the indebtedness under the Senior Loan Agreement which additional indebtedness is or will be secured by a mortgage lien against all or part of the Plant, or any other asset of the Company, having priority over the Subordinate Mortgage and the Subordinate Security Agreement.

 

2

 

“Administration Expenses” means reasonable compensation and reimbursement of reasonable expenses and advances (including, without limitation, reasonable attorneys’ fees and expenses) payable to the Issuer, the Trustee, the Registrar and the Securities Depository.

 

“Agreement” means the Loan Agreement, dated as of March 1, 2007, between the Issuer and the Company, as amended and supplemented from time to time as permitted therein.

 

“ Authorized Company Representative” means each person at the time designated to act on behalf of the Company by written certificate furnished to the Issuer and the Trustee containing the specimen signature of such person and signed on behalf of the Company by its President, any Vice President, its Secretary, any Assistant Secretary, its Treasurer or any Assistant Treasurer. Such certificate may designate an alternate or alternates.

 

“Authorized Denomination” means $5,000 or any integral multiple thereof.

 

“Authorized Senior Lender Representative” means each person at the time designated to act on behalf of the Senior Lender by written certificate furnished to the Company, the Issuer and the Trustee containing the specimen signature of such person and signed on behalf of the Senior Lender by its President, any Vice President, its Secretary, any Assistant Secretary, its Treasurer or any Assistant Treasurer. Such certificate may designate an alternate or alternates.

 

“Beneficial Owner” has, when the Bonds are held in book-entry form, the meaning ascribed to such term in Section 2.10 hereof.

 

“Bond” or “Bonds” means the Issuer’s Subordinate Solid Waste Disposal Facility Revenue Bonds, Series 2007A (Indiana Bio-Energy, LLC Ethanol Plant Project), issued pursuant to this Indenture in the aggregate principal amount of $22,000,000.

 

“Bond Counsel” means Chapman and Cutler LLP or any other firm of nationally recognized bond counsel familiar with the type of transactions contemplated under this Indenture selected by the Company and acceptable to the Trustee.

 

“Bond Documents” means this Indenture, the Agreement, the Subordinate Mortgage, the Subordinate Security Agreement, the Subordination Agreement and the Bonds.

 

“Bond Fund” means the trust fund by that name created pursuant to Section 5.01(a) hereof.

 

“Bond Ordinance” means Ordinance No. 1254 adopted by the Common Council of the Issuer on the 14th day of November, 2006, authorizing the issuance of the Bonds.

 

“Bond Payment Date” means any Interest Payment Date, any Principal Payment Date and any other date on which the principal of, and premium, if any, and interest on, the Bonds is to be paid to the Owners thereof, whether upon redemption, at maturity or upon acceleration of maturity of the Bonds.

 

 

3

 

“Business Day” means any day on which interbank wire transfers can be made on the Fedwire System, except a Saturday, Sunday or other day (a) on which commercial banks located in the cities in which the Principal Office of the Trustee or the Principal Office of the Company are located are required or authorized by law or regulation to remain closed or are closed, or (b) on which The New York Stock Exchange is closed.

 

“Capitalized Interest Account” means the trust account of that name created pursuant to Section 5.01(a) hereof.

 

“Capitalized Interest Period” means the period from the Issue Date until (i) December 1, 2008 or (ii) the Completion Date, if such date is earlier.

 

“Closing” and “Closing Date” means the date of the first authentication and delivery of fully executed and authenticated Bonds under this Indenture being March 22, 2007.

 

“Code” means the Internal Revenue Code of 1986, as amended. Each reference to a section of the Code herein shall be deemed to include the United States Treasury Regulations, including temporary and proposed regulations, relating to such section which is applicable to the Bonds or the use of the proceeds thereof.

 

“Collateral” means the property pledged by the Company to the Trustee pursuant to the Subordinate Security Agreement.

 

“Company” means Indiana Bio-Energy, LLC, a limited liability company organized and existing under the laws of the State of Indiana, or its successors and assigns pursuant to Section 6.01 of the Agreement.

 

“Company’s Certificate” means a certificate signed on behalf of the Company by an Authorized Company Representative.

 

“Completion Certificate” means the certificate of that name defined in Section 5.02(b) hereof.

 

“Completion Date” means the date when all portions of the Project have been fully completed in accordance with the plans and specifications therefor, as then amended, and as identified in the Notice of Completion.

 

“Condemnation and Awards Fund” means the trust fund of that name created pursuant to Section 5.01(d) hereof.

 

“Construction Fund” means the trust fund of that name created pursuant to Section 5.02(a) hereof.

 

“Costs of Issuance Fund” means the trust fund of that name created pursuant to Section 5.02(a) hereof.

 

4

 

 

“Dated Date” means the date of initial issuance of the Bonds.

 

“Debt Service Coverage Ratio” means for any period, the ratio of EBITDA to interest expense and scheduled principal payments payable during such period in respect of the Senior Loan Agreement, any Additional Senior Indebtedness, and the Bonds existing at the time the calculation is made.

 

“Debt Service Reserve Fund” means the trust fund by that name created pursuant to Section 5.01(b) hereof.

 

“ Debt Service Reserve Fund Requirement” means the lesser of (i) $2,200,000; (ii) the maximum annual debt service on the Bonds for any year or (iii) 125% of average annual debt service on the Bonds.

 

“Determination of Taxability” shall have the meaning set forth in Section 9.02 of the Agreement. The Trustee shall give notice of a Determination of Taxability as provided in Section 9.05 hereof.

 

“DTC” means The Depository Trust Company and its successors and assigns.

 

“DTC Participants” means those brokers, securities dealers, banks, trust companies, clearing corporations and certain other organizations from time to time for which DTC holds Bonds as securities depository.

 

“DTC Representation Letter” has the meaning assigned thereto in Section 2.l0(c) hereof.

 

“EBITDA” means for any period, an amount determined in accordance with generally accepted accounting principles, equal to (a) Net Income for such period, plus (b) to the extent deducted in determining Net Income for such period, the sum of (1) interest expense, (2) payments to the members of the Company in respect of estimated tax amounts (payments of estimated tax amounts shall be deemed to have been made in the tax fiscal quarter to which the applicable payment related), (3) depreciation and amortization and (4) all other non-cash charges, in each case for such period.

 

“Event of Default” means any occurrence or event specified in Section 8.01 hereof.

 

“Executive Officer” means the Mayor of the Issuer.

 

“Exempt Facilities” means facilities which qualify as “solid waste disposal facilities” as defined in Section 142(a)(6) of the Code and which qualify as “pollution control facilities” under the Act.

 

5

 

 

“Favorable Opinion of Bond Counsel” means an opinion of Bond Counsel addressed to the Issuer and the Trustee to the effect that the proposed action is not prohibited by the Act or this Indenture or the Agreement, as applicable, and will not adversely affect the Tax-Exempt status of the Bonds. Bond Counsel, with the consent of the Company, may take such actions as it deems necessary in order to enable it to deliver a Favorable Opinion of Bond Counsel, including, but not limited to, the filing of a Form 8038 with the Internal Revenue Service. See Section 9.03.

 

“Government Obligations” means direct obligations of, or obligations the principal of and interest on which are unconditionally guaranteed as to full and timely payment by, the United States of America, which are not subject to redemption or prepayment prior to stated maturity.

 

“Indenture” means this Indenture of Trust between the Issuer and the Trustee relating to issuance of the Bonds, as amended or supplemented from time to time as permitted herein.

 

“Independent Engineer” means R.W. Beck, Inc., Malcolm Pirnie, Inc., Stone & Webster, Inc., or such other recognized firm acceptable to the Company and the Trustee, and its successors and assigns.

 

“ Independent Engineer’s Certificate” means a certificate of a representative of the Independent Engineer.

 

“Information Services” means Financial Information, Inc.’s “Daily Called Bond Service,” 30 Montgomery Street, 10th Floor, Jersey City, New Jersey 07302, Attention: Editor; Kenny Information Services’ “Called Bond Service,” 55 Water Street, 45th Floor, New York, New York 10041; Moody’s “Municipal and Government,” 99 Church Street, 8th Floor, New York, New York 10007, Attention: Municipal News Reports; the Municipal Securities Rulemaking Board, CDI Pilot, 1640 King Street, Suite 300, Alexandria, Virginia 22314 and XCITE, Inc. “Called Bond Dept.,” 5 Hanover Square, New York, New York 10004; or, in accordance with then-current guidelines of the Securities and Exchange Commission, such other addresses and/or such other services providing information with respect to called bonds, or no such services, as the Company may designate in a certificate delivered to the Trustee.

 

“Interest Account” means the trust account by that name established within the Bond Fund pursuant to Section 5.01(a) hereof.

 

“Interest Payment Date” means each of the dates specified in Section 2.02 hereof on which interest is due and payable with respect to the Bonds.

 

“Investment Securities” means any of the following obligations or securities, to the extent permitted by law and subject to the provisions of Article VI hereof:

 

6

 

 

(a)

Direct obligations of the United States of America and Canada and obligations fully guaranteed by any agency thereof;

 

(b)

Direct obligations of, and obligations fully guaranteed by, any of the 50 states of the United States of America or the ten provinces of Canada rated a minimum of A1 or AA by S&P or any equivalent rating by any equivalent rating service (such rating requirement can be met by an attached letter of credit from any bank meeting the requirements stated in clause (e) below or by municipal bond insurance);

 

(c)

Indebtedness of any county or other local government body within the United States of America rated at least A1 or AA by S&P or any equivalent rating by any equivalent rating service (such rating requirement can be met by an attached letter of credit from any bank meeting the requirements stated in clause (e) below or by municipal bond insurance);

 

(d)

Indebtedness of any corporation rated A1 or AA by S&P or any equivalent rating by any equivalent rating service;

 

(e)

Certificates of deposit, banker’s acceptances, trust deposits, demand deposits, including interest bearing money market accounts, or time deposits of any commercial bank, branch or Edge Act (12 USC 611 et seq .) branch which is a member of the Federal Reserve System, including the Trustee or any of its affiliates, has a net worth of at least $100 million and whose short term bank deposits have an A prefix by Moody’s or S&P or any equivalent rating by any equivalent rating service;

 

(f)

Repurchase agreements or reverse repurchase agreements with financial institutions whose commercial paper is Al or whose debt rating is AA, or any bank who meets the requirements as stated in clause (e) above, provided that in all cases the market value of the collateral used for such transactions must be adequate to insure safety; liquidity and preservation of capital: AAA-102%, AA-110%;

 

(g)

Securities and Exchange Commission Rule 2a-7 money market funds with a net asset value of one dollar and a parent company rating of A1 or better by S&P or any equivalent rating by any equivalent rating service, including, without limitation, any mutual fund for which the Trustee or an affiliate of the Trustee serves as investment manager, administrator, shareholder servicing agent, and/or custodian or subcustodian, notwithstanding that (a) the Trustee or an affiliate of the Trustee receives fees from such funds for services rendered, (b) the Trustee charges and collects fees for services rendered pursuant to the Indenture, which fees are separate from the fees received from such funds, and (c) services performed for such funds and pursuant to this Indenture may at times duplicate those provided to such funds by the Trustee or its affiliates; and

 

(h)

any other obligations or securities approved by the Senior Lender.

 

7

 

 

“Issue Date” means the date of the initial authentication and delivery of the Bonds.

 

“Issuer” means City of Bluffton, Indiana and its successors, and any municipal corporation resulting from or surviving any consolidation or merger to which it or its successors may be a party.

 

“Loan” means the loan by the Issuer to the Company of the proceeds received from the sale of the Bonds.

 

“Loan Documents” means the Agreement, the Subordinate Mortgage, the Subordinate Security Agreement, that certain Environmental Indemnity Agreement dated as of March 1, 2007 between the Company and the Trustee, that certain Assignment of Design-Build Contract (Fagen, Inc.) dated as of March 1, 2007 by and between the Company and the Trustee, that certain Assignment of Design-Build Contract (Jackson-Briner Joint Venture, LLC) dated as of March 1, 2007 by and between the Company and the Trustee, that certain the Assignment of License Agreement (ICM, Inc.) dated as of March 1, 2007 by and between the Company and the Trustee, that certain Collateral Assignment of Corn Supply Agreement (Cargill, Incorporated) dated as of March 1, 2007 by and between the Company and the Trustee, that certain Assignment of Ethanol Marketing Agreement (Aventine Renewable Energy, Inc.) dated as of March 1, 2007 by and between the Company and the Trustee, that certain Assignment of Distiller’s Grain Marketing Agreement (Commodity Specialist Company) dated as of March 1, 2007 by and between the Company and the Trustee, and any future assignments of an electric service agreement and a natural gas agreement by and between the Company and the Trustee.

 

“Loan Payments” means the payments required to be made by the Company pursuant to Section 5.01(a) of the Agreement.

 

“Mail” means by first-class mail postage prepaid.

 

“Moody’s” means Moody’s Investors Service, a corporation organized and existing under the laws of the State of Delaware, its successors and assigns, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, “Moody’s” shall be deemed to refer to any other nationally recognized rating agency designated by the Company by notice to the Issuer and the Trustee.

 

“Net Income” means for any period, the net income (or loss) of the Company for such period determined in accordance with generally accepted accounting principles, but excluding therefrom (to the extent otherwise included therein) (a) any extraordinary gains or losses, (b) any gains attributable to write-ups of assets, (c) any equity interest in the unremitted earnings of any Person that is not a subsidiary of the Company, and (d) any income (or loss) of any Person accrued prior to the date it becomes a subsidiary of, or is merged into or consolidated with, the Company on the date that such Person’s assets are acquired by the Company.

 

8

 

 

“Net Proceeds” means the gross proceeds of an insurance claim or a condemnation award after payment of all expenses (including attorneys’ fees and any extraordinary fees or expenses of the Trustee) incurred in its collection.

 

“Net Worth” of any Person means, as of any given date, the aggregate of capital, surplus and retained earnings (including any cumulative translation adjustment) of such Person as would be shown on a consolidated balance sheet of such Person prepared as of such date in accordance with generally accepted accounting principles which may be in part established with respect to asset value by an appraisal firm established in accordance with generally accepted accounting principles.

 

“Notice of Completion” means the written notice provided by and signed on behalf of the Company by an Authorized Company Representative substantially in the form attached to the Agreement as Exhibit B .

 

“ Outstanding” or “Bonds Outstanding” or “Outstanding Bonds” means, as of any given date, all Bonds which have been authenticated and delivered by the Registrar under this Indenture, except:

 

(a)

Bonds canceled or purchased by or delivered to the Trustee for cancellation;

 

(b)

Bonds that have become due (at maturity or upon redemption, acceleration or otherwise) and for the payment, including premium if any, and interest accrued to the due date, of which sufficient moneys are held by the Trustee;

 

(c)

Bonds deemed paid in accordance with Article VII hereof;

 

(d)

Bonds in lieu of which others have been authenticated under Section 2.05 (relating to transfer and exchange of Bonds) or Section 2.07 (relating to mutilated, lost, stolen or destroyed Bonds) or Bonds paid pursuant to the Indenture; and

 

(e)

for purposes of any direction, consent or waiver under this Indenture, Bonds owned as described in Section 12.05.

 

“Person” means one or more individuals, estates, joint ventures, joint-stock companies, partnerships, associations, corporations, limited liability companies, trusts or unincorporated organizations, and one or more governments or agencies or political subdivisions thereof.

 

“Plant” means the 100,000,000 gallon-per-year dry mill ethanol plant to be located at 1441 S. Adams Street, Bluffton, Indiana and owned by the Company.

 

9

 

 

“Principal Account” means the trust account by that name established within the Bond Fund pursuant to Section 5.01(a) hereof.

 

“Principal Payment Date” means the maturity date of the Bonds and each of the dates on which a Sinking Fund Installment is due and payable with respect to the Bonds.

 

“Principal Office of the Company” means the office of the Company, as follows: 969 North Main Street, Bluffton, Indiana 46714.

 

“Principal Office of the Registrar” means the office or offices designated as such by the Registrar in writing to the Trustee, the Company and the Issuer.

 

“Principal Office of the Trustee” means the office designated as such by the Trustee in writing to the Registrar, the Issuer and the Company.

 

“Project” means the facilities financed from the proceeds of the Bonds and described in Exhibit A to the Agreement, as Exhibit A may be modified in accordance with Section 3.02 of the Agreement.

 

“Project Certificate” means the certificate or certificates, delivered by the Company on the Closing Date, with respect to certain facts which are within the knowledge of the Company to enable Bond Counsel to determine whether interest on the Bonds is includible in the gross income of the Owners thereof under applicable provisions of the Code.

 

“Project Costs” has the meaning ascribed thereto in Section 5.02(a) hereof.

 

“Rebate Fund” means the trust fund by that name created pursuant to Section 5.01 (c) hereof.

 

“Record Date” means the fifteenth day of the month immediately preceding each Interest Payment Date.

 

“Redemption Account” means the trust account of that name created pursuant to Section 5.01(a) hereof.

 

“Registered Owner” or “Bondholder” or “Owner” or “Holder” when used in reference to the Bonds means the person or persons in whose name or names a Bond shall be registered in the books of Issuer maintained by the Registrar in accordance with the terms of this Indenture; provided, however , that when used in the context of the Tax-Exempt status of the Bonds, such terms shall include a Beneficial Owner.

 

“Registrar” means U.S. Bank National Association, Indianapolis, Indiana, or any successor Registrar appointed in accordance with Section 9.20.

 

 

 

10

 

“Reserve Fund Credit Instrument” means an insurance policy, surety bond or irrevocable letter of credit which may be delivered to the Trustee in lieu of or in partial substitution for cash or securities required to be on deposit in the Debt Service Reserve Fund. In the case of an insurance policy or surety bond, the company providing the same shall be an insurer which, at the time of issuance of the policy, has been assigned the highest rating accorded insurers by Moody’s and S&P, and the policy or bond shall be subject to the irrevocable right of the Trustee to draw thereon in a timely fashion upon satisfaction of any conditions set forth in this Indenture. In the case of a letter of credit, the letter of credit shall be irrevocable and shall be payable to the Trustee and shall be issued by a banking institution having a credit rating on its long-term unsecured debt within one of the two highest rating categories from Moody’s and S&P.

 

“Revenues” means (a) the Loan Payments, (b) all other moneys pledged hereunder and paid or payable to the Trustee for the account of the Issuer in accordance with the Agreement, and (c) all receipts credited under the provisions of this Indenture against such payments; provided, however , that “Revenues” shall not include moneys held by the Trustee in the Rebate Fund, or any moneys held by the Issuer raised by taxation or otherwise.

 

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., a corporation organized and existing under the laws of the State of New York, its successors and assigns, and, if such corporation shall for any reason no longer perform the functions of a securities rating agency, “S &P” shall be deemed to refer to any other nationally recognized securities rating agency designated by the Company by notice to the Issuer and the Trustee.

 

“Securities Depositories” means The Depository Trust Company, Call Notification Department, 711 Stewart Avenue, Garden City, New York 11530, Telephone: (516) 227-4070, Fax: (516) 227-4190, or, in accordance with then-current guidelines of the Securities and Exchange Commission, such other addresses and/or such other securities depositories, or no such depositories, as the Company may designate in a certificate delivered to the Trustee.

 

“Senior Lender” means AgStar Financial Services, PCA, and its successors and assigns.

 

“Senior Loan” means the loan in the initial principal amount of $90,000,000 from the Senior Lender to the Company.

 

“Senior Loan Agreement” means the Master Loan Agreement dated as of February 27, 2007 between the Senior Lender and the Company, as supplemented and amended in accordance with its terms.

 

“Senior Mortgage” means the Construction/Permanent Mortgage, Security Agreement, Assignment of Leases and Rents, Financing Statement and Fixture Filing dated February 27, 2007 made by the Company in favor of the Senior Lender, as amended and supplemented from time to time.

 

 

11

 

“Sinking Fund Installment” means the amount designated pursuant to Section 3.03(a) for mandatory redemption on the date specified therein. This amount may be reduced pursuant to Section 5.03(b) hereof.

 

“State” means the State of Indiana.

 

“Subordinate Mortgage” means the Subordinate Construction/Permanent Mortgage, Subordinate Security Agreement, Assignment of Leases and Rents, Financing Statement and Fixture Filing dated as of March 1, 2007 made by the Company in favor of the Trustee, as amended and supplemented from time to time.

 

“Subordinate Security Agreement” means the Subordinate Security Agreement dated as of March 1, 2007 from the Company to the Trustee, as amended and supplemented from time to time.

 

“Subordination Agreement” means the Intercreditor Agreement dated as of February 27, 2007 between the Trustee and the Senior Lender.

 

“Supplemental Indenture” means any indenture supplemental to this Indenture entered into between the Issuer and the Trustee pursuant to the provisions of Section 11.01 or Section 11.02 hereof.

 

“Tax Agreement” means the Tax Exemption Certificate and Agreement relating to the Bonds, dated the Closing Date, among the Company and the Issuer, as amended and supplemented from time to time as permitted therein.

 

“Tax-Exempt” means, with respect to interest on any obligations of a state or local government, including the Bonds, that such interest is not includible in gross income of the owners of such obligations for federal income tax purposes, except for interest on any such obligations for any period during which such obligations are owned by a person who is a “substantial user” of any facilities financed with such obligations or a “related person” within the meaning of Section 147(a) of the Code, whether or not such interest is includible as an item of tax preference or otherwise includible directly or indirectly for purposes of calculating other tax liabilities, including any alternative minimum tax under the Code.

 

“Treasury Regulations” means the United States Treasury Regulations dealing with the tax-exempt bond provisions of the Code.

 

12

 

 

“Trust Estate” means (i) all right, title and interest of the Issuer in and to the Agreement (except for Unassigned Rights), including, without limitation, all right, title and interest of the Issuer in the Revenues, all moneys and other obligations which are, from time to time, deposited or required to be deposited with or held or required to be held by or on behalf of the Trustee in trust in the Bond Fund and the Debt Service Reserve Fund under any of the provisions of this Indenture (except moneys or obligations deposited with or paid to the Trustee for payment or redemption of Bonds that are deemed no longer Outstanding hereunder); (ii) all right, title and interest in and to the Subordinate Mortgage (including the real estate described therein) and the other Loan Documents; (iii) all proceeds of any casualty insurance or condemnation awards payable with respect to the Plant; and (iv) all other property of any kind conveyed, transferred, mortgaged, pledged, assigned or hypothecated at any time as and for additional security under this Indenture in favor of the Trustee, which is authorized to receive all such property at any time and to hold it and apply it subject to the terms of this Indenture; provided, however , that the “Trust Estate” shall not include moneys held by the Trustee in the Rebate Fund or any moneys held by the Issuer raised by taxation or otherwise.

 

‘Trustee” means U.S. Bank National Association, as trustee and paying agent under this Indenture, and any successor Trustee appointed hereunder.

 

“Unassigned Rights” means the rights of the Issuer under Section 5.03 (relating to fees and expenses), Section 6.06 (relating to no recourse to Issuer), Section 6.07 (relating to indemnification), Section 6.08 (relating to exemption from personal liability) and Section 8.05 (relating to expenses of collection) of the Agreement and any rights of the Issuer to receive notices, certificates, requests, requisitions, directions and other communications under the Agreement.

 

Section 1.02.

Rules of Construction . Unless the context otherwise requires:

 

(a)

an accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;

 

(b)

references to Articles and Sections are to the Articles and Sections of this Indenture or the Agreement, as the case may be;

 

(c)

words importing the singular number shall include the plural number and vice versa and words importing the masculine shall include the feminine and vice versa; and

(d)

the headings and Table of Contents herein are solely for convenience of reference and shall not constitute a part of this Indenture nor shall they affect its meanings, construction or effect.

 

13

 

ARTICLE II

 

THE BONDS

 

 

Section 2.01.

Authorization of Bonds. There is hereby authorized and created under this Indenture an issue of bonds designated as “City of Bluffton, Indiana Subordinate Solid Waste Disposal Facility Revenue Bonds, Series 2007A (Indiana Bio-Energy, LLC Ethanol Plant Project)”. The total aggregate principal amount of Bonds that may be issued and Outstanding under this Indenture is expressly limited to $22,000,000, exclusive of Bonds executed and authenticated as provided in Section 2.07 hereof; provided, however , that no Bonds shall be delivered hereunder until the Registrar receives a request and authorization of the Issuer signed by the Executive Officer to authenticate and deliver the principal amount of the Bonds therein specified to the purchaser or purchasers therein identified upon payment to the Trustee, for the account of the Issuer, of the sum specified in such request and authorization.

 

Section 2.02.

Date, Denomination, Interest Rate, and Maturity. (a) The Bonds shall be dated as of the Dated Date. The Bonds shall be issued as registered bonds without coupons. The Bonds shall be issued only in Authorized Denominations. The Bonds shall be numbered consecutively from R-1 upwards.

 

The Bonds shall mature on September 1, 2019 and bear interest at the rate of 7.50% per annum, payable on March 1 and September 1 of each year, commencing September 1, 2007. The Bonds shall bear interest from the Dated Date or from and including the most recent Interest Payment Date with respect to which interest has been paid or duly provided for. Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months.

 

(b) Each Bond shall bear interest from the Interest Payment Date next preceding the date of registration and authentication thereof unless it is registered and authenticated on or prior to the first Interest Payment Date, in which event it shall bear interest from the Dated Date; provided, however , that if, as shown by the records of the Trustee, interest on the Bonds shall be in default, Bonds issued in exchange for Bonds surrendered for registration of transfer or exchange shall bear interest from the last date to which interest has been paid in full or duly provided for on the Bonds, or, if no interest has been paid or duly provided for on the Bonds, from the Dated Date. Payment of the interest on any Bond shall be made to the person appearing on the bond registration books of the Registrar as the registered Owner thereof on the Record Date (except that, if and to the extent that there shall be a default in the payment of the interest due on an Interest Payment Date, such defaulted interest shall be paid to the Owners in whose name any such Bonds are registered as of a special record date to be fixed by the Trustee, notice of which shall be given to such Owners not less than ten days prior thereto), such interest to be paid by the Trustee to such registered Owner, as follows:

 

(1)

in respect of any Bond which is registered in the book-entry system pursuant to Section 2.10 hereof, in immediately available funds by no later than 2:30 p.m., New York City time, and

 

 

14

 

(2)

in respect of any Bond which is not registered in the book-entry system pursuant to Section 2.10 hereof, (i) by bank check mailed by first-class mail on the Interest Payment Date, to such Owner’s address as it appears on the registration books of the Registrar or at such other address as has been furnished to the Registrar in writing by such Owner, or (ii) by wire transfer on the Interest Payment Date to any owner of at least $1,000,000 in aggregate principal amount of Bonds (or such lesser amount if such Bonds constitute all of the Bonds then outstanding).

 

Both the principal of and premium, if any, on the Bonds shall be payable upon surrender thereof in lawful money of the United States of America at the Principal Office of the Trustee.

 

Section 2.03.

Form of Bonds. The Bonds and the certificate of authentication to be executed thereon shall be in substantially the form attached hereto as Exhibit A, with such appropriate variations, omissions and insertions as are permitted or required by this Indenture.

 

Section 2.04.

Execution of Bonds. The Bonds shall be signed in the name and on behalf of the Issuer with the manual or facsimile signature of its Mayor and attested by the manual or facsimile signature of the Clerk-Treasurer. The Bonds shall then be delivered to the Registrar for authentication by it. In case any officer who shall have signed any of the Bonds shall cease to be such officer before the Bonds so signed or attested shall have been authenticated or delivered by the Registrar or issued by the Issuer, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issuance, shall be as binding upon the Issuer as though those who signed and attested the same had continued to be such officers of the Issuer. Also, any Bond may be signed on behalf of the Issuer by such persons as on the actual date of the execution of such Bond shall be the proper officers although on the nominal date of such Bond any such person shall not have been such officer.

 

Only such of the Bonds as shall bear thereon a certificate of authentication in the form set forth in Exhibit A hereto, manually executed by an authorized signatory of the Registrar, shall be valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the Registrar shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. Upon authentication of any Bond, the Registrar shall set forth on such Bond the date of such authentication.

 

15

 

 

Section 2.05.

Transfer and Exchange of Bonds. Registration of any Bond may, in accordance with the terms of this Indenture, be transferred at the Principal Office of the Registrar, upon the books of the Registrar required to be kept pursuant to the provisions of Section 2.06 hereof, by the Person in whose name it is registered, in person or by its attorney duly authorized in writing, upon surrender of such Bond for cancellation, accompanied by a written instrument of transfer in a form approved by the Registrar, duly executed. The Registrar shall require the payment by the Owner of the Bond requesting such transfer of any tax or other governmental charge required to be paid and there shall be no other charge to any Owners for any such transfer. Whenever any Bond shall be surrendered for registration of transfer, the Issuer shall execute and the Registrar shall authenticate and deliver a new Bond or Bonds of the same tenor and of Authorized Denominations. No registration of transfer of Bonds shall be required to be made for a period of 15 days next preceding the date on which the Trustee sends by Mail any notice of redemption, nor shall any registration of transfer of Bonds called for redemption be required, except the unredeemed portion of any Bond being redeemed in part.

 

In the event any Owner fails to provide a correct taxpayer identification number to the Trustee, the Trustee may make a charge against the Owner sufficient to pay any government charge required to be paid as a result of such failure. In compliance with Section 3406 of the Code, this amount may be deducted by the Trustee from amounts payable to the Owner under this Indenture or the Bonds.

 

Bonds may be exchanged at the Principal Office of the Registrar for a like aggregate principal amount of Bonds of the same tenor and of Authorized Denominations. The Registrar shall require the payment by the Owner of the Bond requesting such exchange of any tax or other governmental charge required to be paid with respect to such exchange, and there shall be no other charge to any Owners for any such exchange. No exchange of Bonds shall be required to be made for a period of 15 days next preceding the date on which the Trustee Mails notice of redemption, nor shall any exchange of Bonds called for redemption be required, except the unredeemed portion of any Bond being redeemed in part.

 

The Issuer, the Registrar, the Trustee and any agent of the Issuer, the Registrar or the Trustee may treat the person in whose name the Bond is registered as the owner thereof for the purpose of receiving payment as herein provided and for all other purposes, whether or not the Bond be overdue, and neither the Issuer, the Registrar, the Trustee, nor any such agent shall be affected by notice to the contrary.

 

Section 2.06.

Bond Register. The Registrar will keep or cause to be kept at its Principal Office sufficient books for the registration and the registration of transfer of the Bonds, which shall at all times, during regular business hours, be open to inspection by the Issuer, the Trustee and the Company; and, upon presentation for such purpose, the Registrar shall under such reasonable regulations as it may prescribe, register the transfer or cause to be registered the transfer, on said books, Bonds as hereinbefore provided.

 

16

 

 

Section 2.07.

Bonds Mutilated, Lost, Destroyed or Stolen . If any Bond shall become mutilated, the Issuer, upon the request and at the expense of the Owner of said Bond, shall execute, and the Registrar shall thereupon authenticate and deliver, a new Bond of like tenor and number in exchange and substitution for the Bond so mutilated, but only upon surrender to the Registrar of the Bond so mutilated. Every mutilated Bond so surrendered to the Registrar shall be canceled by it and delivered to the Company. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Issuer, the Company and the Registrar, and if such evidence shall be satisfactory to them and indemnity satisfactory to them shall be given, the Issuer, at the expense of the Owner, shall execute, and the Registrar shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall be about to mature, instead of issuing a substitute Bond the Registrar may pay the same without surrender thereof). The Issuer may require payment of a reasonable fee for each new Bond issued under this Section and payment of the expenses which may be incurred by the Issuer and the Registrar. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the Issuer whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Indenture with all other Bonds secured by this Indenture.

 

To the extent permitted by law, the provisions of this Section are exclusive and shall preclude all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or stolen Bonds.

 

Section 2.08.

Bonds; Limited Obligations. The Bonds, together with premium, if any, and interest thereon, shall be limited and not general obligations of the Issuer not constituting or giving rise to a pecuniary liability of the Issuer nor any charge against its general credit or taxing powers nor an indebtedness of or a loan of credit thereof within the meaning of any provision or limitation of the State Constitution or laws, shall be payable solely from the Revenues and other moneys pledged therefor under this Indenture, and shall be a valid claim of the respective Owners thereof only against the Bond Fund, the Revenues and other moneys held by the Trustee as part of the Trust Estate, subordinate to the rights of the Senior Lender under the Senior Loan. The Issuer shall not be obligated to pay the purchase price of Bonds from any source.

 

17

 

 

THE BONDS AND THE OBLIGATION TO PAY INTEREST THEREON AND PREMIUM WITH RESPECT THERETO ARE SPECIAL, LIMITED OBLIGATIONS OF THE ISSUER PAYABLE SOLELY OUT OF THE REVENUES AND INCOME DERIVED FROM THE AGREEMENT AND AS OTHERWISE PROVIDED IN THIS INDENTURE, AND SHALL NOT BE DEEMED TO CONSTITUTE AN INDEBTEDNESS OR AN OBLIGATION OF THE ISSUER, THE STATE OF INDIANA, OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE PURVIEW OF ANY CONSTITUTIONAL LIMITATION OR STATUTORY PROVISION. THE BONDS DO NOT NOW OR SHALL NEVER CONSTITUTE A CHARGE AGAINST THE GENERAL CREDIT OF THE ISSUER. THE BONDS ARE NOT IN ANY RESPECT A GENERAL OBLIGATION OF THE ISSUER, NOR ARE THEY PAYABLE IN ANY MANNER FROM REVENUES RAISED BY TAXATION.

 

No recourse shall be had for the payment of the principal of, or premium, if any, or interest on any of the Bonds or for any claim based thereon or upon any obligation, covenant or agreement contained in this Indenture, the Bonds, the Agreement or any other related documents, against any past, present or future officer, elected official agent or employee of the Issuer, or any incorporator, officer, director or member of any successor corporation, as such, either directly or through the Issuer or any successor corporation, under any rule of law or equity, statute or constitution or by the enforcement of any assessment or penalty or otherwise, and all such liability of any such incorporator, officer, director or member as such is hereby expressly waived and released as a condition of and in consideration for the execution of this Indenture and the issuance of any of the Bonds.

 

Section 2.09.

Disposal of Bonds. Upon payment of the principal of, premium, if any, and interest represented thereby or transfer or exchange pursuant to Section 2.05 hereof or replacement pursuant to Section 2.07 hereof, any Bond shall be canceled and such Bond shall be disposed of by the Registrar in accordance with its customary procedures and the Registrar shall provide evidence satisfactory to the Company of such cancellation and disposition.

 

Section 2.10.

Book-Entry System. (a) Unless otherwise determined by the Issuer, the Bonds shall be issued in the form of a single certificated fully-registered Bond, registered in the name of Cede & Co., as nominee of DTC, or any successor nominee (the “Nominee” ). The actual owners of the Bonds (the “Beneficial Owners” ) will not receive physical delivery of Bond certificates except as provided herein. Except as provided in paragraph (d) below, all of the outstanding Bonds shall be so registered in the registration books kept by the Registrar, and the provisions of this Section shall apply thereto.

 

18

 

 

(b)

With respect to Bonds registered on the registration books kept by the Registrar in the name of the Nominee, the Issuer, the Company, the Registrar and the Trustee shall have no responsibility or obligation to any DTC Participant or the Beneficial Owners. Without limiting the immediately preceding sentence, the Issuer, the Company, the Registrar and the Trustee shall have no responsibility or obligation to DTC, any DTC Participant or any Beneficial Owner with respect to (l) the accuracy of the records of DTC, the Nominee or any DTC Participant with respect to any ownership interest in the Bonds, (2) the delivery by DTC or any DTC Participant of any notice with respect to the Bonds, including any notice of redemption, or (3) the payment to any DTC Participant or Beneficial Owner of any amount with respect to principal or purchase price of, or premium, if any, or interest on, the Bonds. The Issuer, the Company, the Registrar and the Trustee may treat and consider the person in whose name each Bond is registered in the registration books kept by the Registrar as the absolute owner of such Bond for the purpose of payment of principal, purchase price, premium 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 shall pay all principal of and premium if any, and interest on, the Bonds only to or upon the order of the respective Owners, as shown in the registration books kept by the Registrar, 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, and premium, if any, and interest on, the Bonds to the extent of the sum or sums so paid. No person other than an Owner, as shown in the registration books kept by the Registrar, shall receive a certificated Bond evidencing the obligation of the Issuer to make payments of principal, premium, if any, and interest pursuant to this Indenture.

 

(c)

The Issuer has executed and delivered to DTC a letter of representations in customary form with respect to the Bonds in book-entry form (the “DTC Representation Letter” ).

 

(d)

DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving reasonable notice to the Issuer or the Trustee and discharging its responsibilities with respect thereto under applicable law. The Issuer, with the consent of the Company, may terminate the services of DTC with respect to the Bonds. Upon the discontinuance or termination of the services of DTC with respect to the Bonds, unless a substitute securities depository is appointed to undertake the functions of DTC hereunder, the Issuer, at the expense of the Company, is obligated to deliver Bond certificates to the Beneficial Owners of such Bonds, as described in this Indenture, and such Bonds shall no longer be restricted to being registered in the registration books kept by the Registrar in the name of the Nominee, but may be registered in whatever name or names Owners transferring or exchanging Bonds shall designate, in accordance with the provisions of this Indenture. The Trustee, the Registrar and the Issuer may conclusively rely on information provided by DTC and DTC Participants as to the identity of the Owners and the amount owed.

 

 

19

 

(e)

Notwithstanding any other provision of this Indenture to the contrary, so long as any Bond is registered in the name of the Nominee, all payments with respect to principal of, or 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 DTC Representation Letter. Owners shall have no lien or security interest in any rebate or refund paid by DTC to the Trustee which arises from the payment by the Trustee of principal of, or premium, if any, or interest on, the Bonds in immediately available funds to DTC.

 

Section 2.11.

CUSIP Numbers . The Issuer in issuing the Bonds may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Owners; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Bonds or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Bonds, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer or the Company will promptly notify the Trustee and the Registrar of any change in any CUSIP number(s).

 

None of the Issuer, the Registrar nor the Trustee shall have any responsibility for any defect in the CUSIP number that appears on any Bond, check, advice of payment or redemption notice, and any such document may contain a statement to the effect that CUSIP numbers have been assigned by an independent service for convenience of reference and that none of the Issuer, the Registrar nor the Trustee shall be liable for any inaccuracy in such matters.

 

ARTICLE III

 

REDEMPTION OF BONDS

 

Section 3.01.

Redemption of Bonds Generally. (a) The Bonds are subject to redemption if and to the extent the Company is entitled or required to make and makes a prepayment pursuant to Article IX of the Agreement. Except as specifically provided in Section 3.03 hereof, the Trustee shall not give notice of any redemption under Section 3.05 hereof unless the Company has so directed in accordance with Section 9.01 of the Agreement; provided that the Trustee may require prepayment of Loan Payments under Section 5.01 of the Agreement in the case of mandatory redemption.

 

(b)

If the Bonds are to be redeemed in part, they shall only be redeemed in Authorized Denominations and in such manner that the unredeemed portion shall also be in Authorized Denominations.

 

20

 

 

Section 3.02.

Redemption upon Optional Prepayment. (a) Extraordinary Optional Redemption. The Bonds shall be redeemed in whole or in part, and if in part by such method as the Trustee may deem fair and appropriate, at any time at a redemption price equal to 100% of the principal amount thereof plus accrued interest to the redemption date, upon receipt by the Trustee of a written notice from the Company stating that any of the following events has occurred and that the Company therefore intends to exercise its option to prepay the payments due under the Agreement in whole or in part pursuant to Section 9.01 of the Agreement and thereby effect the redemption of Bonds in whole or in part out of moneys available pursuant to this Indenture and, if necessary, other Company funds:

 

(i)

the Company shall have determined or concurred in a determination that the continued operation of the Plant is impracticable, uneconomical or undesirable for any reason;

 

(ii)

all or substantially all of the Plant shall have been condemned or taken by eminent domain;

 

(iii)

the operation of the Plant shall have been enjoined or shall have otherwise been prohibited by, or shall conflict with, any order, decree, rule or regulation of any court or of any federal, state or local regulatory body, administrative agency or other governmental body; or

 

(iv)

unreasonable burdens or excessive liabilities shall have been imposed upon the Company in respect of all or a part of the Project or the Plant including, without limitation, federal, state or other ad valorem, property, income or other taxes not being imposed on the date of the Agreement, as well as any statute or regulation enacted or promulgated after the date of the Agreement that prevents the Company from deducting interest in respect of the Agreement for federal income tax purposes.

 

(b)

Optional Redemption. The Bonds shall be subject to redemption in whole, or in part by lot, prior to their maturity, following receipt by the Issuer and the Trustee of a written notice from the Company pursuant to Section 9.01 of the Agreement and upon prepayment of the Loan Payments at the option of the Company, on any date during the redemption periods specified below, in each case in whole or in part, at the redemption prices (expressed as percentages of principal amount) hereinafter indicated plus accrued interest, if any, to the redemption date:

 

 

21

 

 

 

 

Section 3.03.

Redemption upon Mandatory Prepayment. (a) Mandatory Sinking Fund Redemption. The Bonds shall be subject to mandatory redemption by the Issuer prior to maturity, in part by lot (or such other random means selected by the Trustee), at a redemption price equal to the principal amount thereof, together with accrued interest to the date of redemption on each March 1 and September 1 as set forth below:

 

 

 

22

 

 

(b)

Mandatory Redemption upon Determination of Taxability. The Bonds shall be subject to mandatory redemption in whole on any date from amounts which are to be prepaid by the Company under Section 9.02 of the Agreement, at a redemption price equal to 100% of the principal amount thereof plus interest accrued, if any, to the redemption date within 180 days following a Determination of Taxability; provided that if, in the opinion of Bond Counsel delivered to the Trustee, the redemption of a specified portion of the Bonds outstanding would have the result that interest payable on the Bonds remaining outstanding after such redemption would remain Tax-Exempt, then the Bonds shall be redeemed in part by such method as the Trustee may deem fair and appropriate (in Authorized Denominations), in such amount as Bond Counsel in such opinion shall have determined is necessary to accomplish that result.

 

(c)

Special Mandatory Redemption. Following an occurrence in which the Plant is taken by eminent domain, or is damaged or destroyed, the Bonds shall be subject to mandatory redemption, in whole or in part by lot (or such other random means selected by the Trustee), on the earliest practicable date thereafter (which date shall be not less than 45 days from the date the Trustee transfers any moneys in the Condemnation and Awards Fund to the Redemption Account pursuant to Section 5.02(d) hereof), at a redemption price equal to the principal amount thereof, together with accrued interest to the date of redemption, from Net Proceeds of title insurance claims, casualty insurance and eminent domain awards in the Condemnation and Awards Fund; provided that, the Net Proceeds exceed $100,000; provided, further , that, the Net Proceeds are, in fact, available for said redemption of the Bonds in accordance with Section 5.02(d) hereof (i) after (A) completing the repair, replacement, rebuilding or restoration of the Plant and paying the costs thereof, a portion of the original Net Proceeds remain in the Condemnation and Awards Fund, or (B) it is determined by an Independent Engineer that the Net Proceeds, along with Company funds, would be insufficient to repair, replace, rebuild or restore the Plant and, consequently, such repair, replacement, rebuilding or restoration is not undertaken, and (ii) after making any transfer of said moneys to the Rebate Fund pursuant to Section 4.2 of the Tax Agreement and Section 6.04 hereof.

 

Section 3.04.

Selection of Bonds for Redemption. Except as described in Section 3.03 for partial redemptions upon a Determination of Taxability, if less than all of the Bonds are called for redemption the Trustee shall select the Bonds or any given portion thereof to be redeemed, from the outstanding Bonds or such given portion thereof not previously called for redemption, by such method as the Trustee may deem fair and appropriate. For the purpose of any such selection the Trustee shall (to the extent practicable) assign a separate number for each minimum Authorized Denomination of each Bond of a denomination of more than such minimum; provided that, following any such selection, both the portion of such Bond to be redeemed and the portion remaining shall be in Authorized Denominations. The Trustee shall promptly notify the Issuer and the Company in writing of the numbers of the Bonds or portions thereof so selected for redemption.

 

23

 

 

Section 3.05.

Notice of Redemption. (a) The Trustee, for and on behalf of the Issuer, shall give notice of the redemption of any Bond by Mail, postage prepaid, not less than 30 days nor more than 60 days prior to the redemption date, to the Owner of such Bond at the address shown on the registration books of the Registrar on the date such notice is mailed and to the Securities Depositories and one or more of the Information Services. Notice of redemption shall also be given to DTC in accordance with the DTC Representation Letter. Notice of redemption to the Securities Depositories shall be given by registered mail and notices to the Information Services shall be given by facsimile transmission. Each notice of redemption shall state the date of such notice, the date of issue of the Bonds to be redeemed, the redemption date, the redemption price, the place of redemption (including the name and appropriate address or addresses of the Trustee), the principal amount, the CUSIP number (if any) of the maturity and, if less than all, the distinctive certificate numbers of the Bonds to be redeemed and, in the case of Bonds to be redeemed in part only, the respective portions of the principal amount thereof to be redeemed. Each such notice shall also state that the interest on the Bonds designated for redemption shall cease to accrue from and after such redemption date and that on said date there will become due and payable on each of said Bonds the principal amount thereof to be redeemed, interest accrued thereon, if any, to the redemption date and the premium, if any, thereon (such premium to be specified) and shall require that such Bonds be then surrendered at the address or addresses of the Trustee specified in the redemption notice. Notwithstanding the foregoing, failure by the Trustee to give notice pursuant to this Section 3.05 to anyone or more of the Information Services or Securities Depositories or the insufficiency of any such notices shall not affect the sufficiency of the proceedings for redemption. Failure to give any required notice of redemption as to any particular Bond shall not affect the validity of the call for redemption of any Bonds in respect of which no such failure has occurred.

 

(b)

With respect to any notice of optional redemption of Bonds in accordance with Section 3.02(b) hereof, unless, upon the giving of such notice, such Bonds shall be deemed to have been paid within the meaning of Article VII hereof, such notice may state that such redemption is conditioned upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of moneys sufficient to pay the principal of, and premium, if any, and interest on, such Bonds to be redeemed. In the event such moneys are not so received, the redemption shall not be made and the Trustee shall within a reasonable time thereafter give notice, in the manner in which the notice of redemption was given, that such redemption will not take place.

 

Section 3.06.

Partial Redemption of Bonds. Upon surrender of any Bond redeemed in part only, the Registrar shall exchange the Bond redeemed for a new Bond of like tenor and in an Authorized Denomination without charge to the Owner in the principal amount of the portion of the Bond not redeemed. In the event of any partial redemption of a Bond which is registered in the name of Cede & Co., DTC may elect to make a notation on the Bond certificate which reflects the date and amount of the reduction in the principal amount of said Bond in lieu of surrendering the Bond certificate to the Registrar for exchange. The Issuer, the Company and the Trustee shall be fully released and discharged from all liability to the extent of payment of the redemption price for such partial redemption.

 

 

 

24

 

Section 3.07.

No Partial Redemption after Default. Anything in this Indenture to the contrary notwithstanding, if there shall have occurred and be continuing an Event of Default (other than an Event of Default described in Section 8.01(c) hereof) of which an authorized officer of the corporate trust department of the Trustee has actual knowledge, there shall be no redemption of less than all of the Bonds at the time Outstanding.

 

Section 3.08.

Payment of Redemption Price. For the redemption of any of the Bonds, the Trustee shall deposit in the Principal Account or the Redemption Account of the Bond Fund, as the case may be, solely out of the Revenues and any other moneys constituting the Trust Estate, an amount sufficient to pay the principal of, and premium, if any, and interest to become due on, the Bonds called for redemption on the date fixed for such redemption. Such deposit shall be reduced by the amount of moneys in the Principal Account or the Redemption Account of the Bond Fund, as the case may be, or any fund in Article VII hereof available for and used on such redemption date for payment of the principal of, and premium, if any, and accrued interest on, the Bonds to be redeemed.

 

Section 3.09.

Effect of Redemption. Notice of redemption having been duly given as aforesaid, and moneys for payment of the redemption price being held by the Trustee if such redemption was conditioned thereon, the Bonds so called for redemption shall, on the redemption date designated in such notice, become due and payable at the redemption price specified in such notice, interest on the Bonds so called for redemption shall cease to accrue, said Bonds shall cease to be entitled to any lien, benefit or security under this Indenture, and the Owners of said Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof, without interest accrued on any funds held to pay such redemption price accruing after the date of redemption.

 

All Bonds fully redeemed pursuant to the provisions of this Article III shall be canceled upon surrender thereof to the Trustee, which shall upon the written request of the Company, deliver to the Company a certificate evidencing such cancellation.

 

ARTICLE IV

 

GENERAL COVENANTS

 

Section 4.01.

Payment of Bonds. (a) The Issuer covenants that it will promptly pay or cause to be paid the principal of, and premium, if any, and interest on, every Bond issued under this Indenture at the place, on the dates and in the manner provided herein and in the Bonds, provided that the principal, premium if any, and interest are payable by the Issuer solely from the Revenues, and nothing in the Bonds or this Indenture shall be considered as assigning or pledging any other funds or assets of the Issuer other than the Trust Estate.

 

25

 

 

(b)

Each and every covenant made herein by the Issuer is predicated upon the condition that the Issuer shall not in any event be liable for the payment of the principal of, or premium, if any, or interest on the Bonds, or the performance of any pledge, mortgage, obligation or agreement created by or arising under this Indenture or the Bonds from any property other than the Trust Estate; and, further, that neither the Bonds nor any such obligation or agreement of the Issuer shall be construed to constitute an indebtedness or a lending of credit of the Issuer within the meaning of any constitutional or statutory provision whatsoever, or constitute or give rise to a pecuniary liability of the Issuer or a charge against its general credit.

 

(c)

For the payment of interest on the Bonds, the Trustee shall deposit in the Interest Account on or prior to each Interest Payment Date, solely out of Revenues and other moneys pledged therefor, an amount sufficient to pay the interest to become due on such Interest Payment Date. Such deposit shall be reduced by the amount of moneys in the Interest Account available on the Interest Payment Date for the payment of the interest on the Bonds.

 

(d)

For payment of the principal of the Bonds upon redemption, maturity or acceleration of maturity, the Trustee shall deposit in the Principal Account, on or prior to the redemption date, the Principal Payment Date or the maturity date (whether accelerated or not) of the Bonds, solely out of Revenues and other moneys pledged therefor, an amount sufficient to pay the principal of the Bonds. Such deposit shall be reduced by the amount of moneys in the Principal Account available on the redemption date, the Principal Payment Date or the maturity date (whether accelerated or not) for the payment of the principal of the Bonds.

 

Section 4.02.

Performance of Covenants by Issuer; Authority; Due Execution. The Issuer covenants that it will faithfully perform at all times any and all covenants, undertakings, stipulations and provisions contained in this Indenture, in any and every Bond executed, authenticated and delivered hereunder and in all of its proceedings pertaining thereto. The Issuer represents that it is duly authorized under the Constitution and laws of the State to issue the Bonds and to execute this Indenture, to execute and deliver the Agreement, to assign the Agreement and amounts payable thereunder, and to pledge the amounts hereby pledged in the manner and to the extent herein set forth. The Issuer further represents that all action on its part for the issuance of the Bonds and the execution and delivery of this Indenture has been duly and effectively taken, and that the Bonds in the hands of the Owners thereof are and will be valid and binding limited obligations of the Issuer.

 

The Issuer shall fully cooperate with the Trustee and with the Owners of the Bonds to the end of fully protecting the rights and security of the Owners of any Bonds.

 

Except to the extent otherwise provided in this Indenture, the Issuer shall not enter into any contract or take any action by which the rights of the Trustee or the Owners of the Bonds may be impaired and shall, from time to time, execute and deliver such further instruments and take such further action as may be reasonably required to carry out the purposes of this Indenture.

 

 

26

 

Anything contained in this Indenture to the contrary notwithstanding, it is hereby understood and agreed that all of the representations and warranties or covenants of the Issuer contained in this Indenture are subject to the limitations set forth in Section 2.08 hereof and are not intended to and do not create a general obligation of the Issuer. The Bonds are issued pursuant to the Act and do not and shall never become general obligations of the Issuer, but are limited obligations payable solely and only from the Trust Estate, and as authorized by the Act and provided herein. No covenant or agreement contained in the Bonds, in this Indenture or in any other agreement referred in this Indenture shall be deemed to be the covenant or agreement of any trustee, officer, member, agent or employee of the Issuer in his or her individual capacity, and neither such persons 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 4.03.

Defense of Issuer’s Rights. The Issuer agrees that the Trustee may defend the Issuer’s rights to the payments and other amounts due under the Agreement, for the benefit of the Owners of the Bonds, against the claims and demands of all persons whomsoever. The Issuer covenants that it will do, execute, acknowledge and deliver, or cause to be done, executed, acknowledged and delivered, such indentures supplemental hereto and such further acts, instruments and transfers as the Trustee may reasonably require for the better assuring, transferring, pledging, assigning and confirming to the Trustee all and singular the rights assigned hereby and the amounts pledged hereby to the payment of the principal of, and premium, if any, and interest on, the Bonds. The Issuer covenants and agrees that, except as herein and in the Agreement provided, it will not sell, convey, assign, pledge, encumber or otherwise dispose of any part of the Trust Estate.

 

Section 4.04.

Recording and Filing; Further Instruments. (a) The Issuer and the Trustee shall cooperate with the Company in causing to be filed and recorded all documents, notices and financing statements related to this Indenture and to the Agreement which are necessary, as required by law, in order to perfect the lien of this Indenture in the Trust Estate.

 

(b)

The Issuer shall upon the reasonable request of the Trustee, from time to time execute and deliver such further instruments and take such further action as may be reasonable (and consistent with the Bond Documents) and as may be required to effectuate the purposes of this Indenture or any provisions hereof, provided, however , that no such instruments or actions shall pledge the general credit or the full faith of the Issuer.

 

27

 

 

Section 4.05.

Rights under Agreement. The Agreement, a duly executed counterpart of which has been filed with the Trustee, sets forth the covenants and obligations of the Issuer and the Company, including provisions that, subsequent to the issuance of the Bonds and prior to the payment in full or provision for payment thereof in accordance with the provisions hereof, the Agreement (except as expressly provided therein) may not be effectively amended, changed, modified, altered or terminated without the concurring written consent of the Trustee, as provided in Article XI hereof, and reference is hereby made to the Agreement for a detailed statement of such covenants and obligations of the Company, and the Issuer agrees that the Trustee in its name or (to the extent required by law) in the name of the Issuer may enforce all rights of the Issuer and all obligations of the Company under and pursuant to the Agreement, whether or not the Issuer is in default hereunder. The Issuer shall cooperate with the Trustee in enforcing the obligations of the Company to pay or cause to be paid all amounts payable by the Company under the Agreement.

 

Section 4.06.

Arbitrage and Tax Covenants. Subject to the Company’s direction of the investment of moneys on deposit in certain funds pursuant to Section 6.01 hereof, the Issuer covenants that it will not take or fail to take any action and within the reasonable control of the Issuer that would impair the exclusion of interest on the Bonds from gross income for federal income tax purposes. Subject to the appropriate direction by the Company of the investment of moneys on deposit in certain funds pursuant to Section 6.01 hereof, the Issuer further will not knowingly act or fail to act so as to cause the proceeds of the Bonds, any moneys derived, directly or indirectly, from the use or investment thereof and any other moneys on deposit in any fund or account maintained in respect of the Bonds (whether such moneys were derived from the proceeds of the sale of the Bonds or from other sources) to be used in a manner which would cause the Bonds to be treated as “arbitrage bonds” within the meaning of Section 148 of the Code, or which would otherwise adversely affect the Tax-Exempt status of the Bonds. The Issuer shall be deemed to have complied with the requirements of this Section 4.06, so long as, the Issuer acts on the written direction of the Company, and the Issuer shall be required to take action only based upon the written direction of the Company.

 

Section 4.07.

No Disposition of Trust Estate. Except as permitted by this Indenture, the Issuer shall not sell lease, pledge, assign or otherwise encumber or dispose of its interest in the Trust Estate and will promptly pay (but only from the Revenues) or cause to be discharged, or make adequate provision to discharge, any lien or charge on any part thereof not permitted hereby.

 

Section 4.08.

Access to Books. All books and documents in the possession of the Issuer relating to the Revenues and the Trust Estate shall at all reasonable times be open to inspection by such accountants or other agencies as the Trustee may from time to time designate.

 

28

 

 

Section 4.09.

Source of Payment of Bonds. The Bonds are not general obligations of the Issuer, nor are they payable in any manner from revenues raised by taxation, but are limited obligations payable solely from the Revenues. The Revenues have been pledged and assigned as security for the equal and ratable payment of the Bonds and shall be used for no other purpose than to pay the principal of, and premium, if any, and interest on, the Bonds, except as may be otherwise expressly authorized in this Indenture, the Agreement, the Subordinate Mortgage, the Subordinate Security Agreement or the Subordination Agreement.

 

ARTICLE V

 

FUND AND ACCOUNTS; DEPOSIT AND APPLICATION

OF BOND PROCEEDS; REVENUES

 

Section 5.01.

Creation of Bond Fund and Accounts; Debt Service Reserve Fund; Rebate Fund; Condemnation and Awards Fund. (a) There is hereby created by the Issuer and ordered established a separate Bond Fund, to be held by the Trustee and to be designated “City of Bluffton, Indiana Subordinate Solid Waste Disposal Facility Revenue Bonds, Series 2007A (Indiana Bio-Energy, LLC Ethanol Plant Project) Bond Fund” and therein created (i) a Principal Account, (ii) an Interest Account, (iii) a Redemption Account and (iv) a Capitalized Interest Account.

 

(b)

For purposes of satisfying (i) any deficiency in the Interest Account or the Principal Account, and (ii) a deficiency in the Redemption Account solely in connection with the mandatory redemption in whole of the Bonds upon a Determination of Taxability, there is hereby created by the Issuer and ordered established a separate Debt Service Reserve Fund, to be held by the Trustee and to be designated “City of Bluffton, Indiana Subordinate Solid Waste Disposal Facility Revenue Bonds, Series 2007A (Indiana Bio-Energy, LLC Ethanol Plant Project) Debt Service Reserve Fund.”

 

The Bonds shall be secured by the Debt Service Reserve Fund. The Debt Service Reserve Fund Requirement may be satisfied by the use of a Reserve Fund Credit Instrument.

 

(c)

For purposes of complying with the requirements of Section 148 of the Code, the Rebate Fund is hereby established with the Trustee to make arbitrage payments as contemplated by the Tax Agreement. The Trustee shall deposit such amounts into the Rebate Fund and pay such amounts from the Rebate Fund as it shall be directed by an Authorized Company Representative, in accordance with the Tax Agreement and Section 6.04 hereof. To the extent the amount in the Rebate Fund exceeds the Rebate Amount (as defined in the Tax Agreement), the Trustee shall withdraw such excess in accordance with Section 6.04(c) herein and apply such excess as provided therein. The Trustee shall have no responsibility for calculating the amount of arbitrage rebate with respect to the Bonds.

 

29

 

 

(d)

There is hereby established with the Trustee a “City of Bluffton, Indiana Subordinate Solid Waste Disposal Facility Revenue Bonds, Series 2007A (Indiana Bio-Energy, LLC Ethanol Plant Project) Condemnation and Awards Fund.”

 

Section 5.02.

Application of Bond Proceeds and Equity Contribution. (a) The Issuer will cause the proceeds of the initial sale of the Bonds to be deposited with the Trustee as described below. The Company will cause an equity contribution in the amount of $515,300 (the “Equity Contribution” ) to be deposited with the Trustee on the Closing Date and applied as described below. The Trustee will hold those proceeds and the Equity Contribution in trust for the benefit of the Company and the Bondholders and will apply the proceeds and the Equity Contribution in accordance with this Section.

 

The Trustee shall deposit into the Interest Account of the Bond Fund all accrued interest, if any, received from the proceeds of the sale of the Bonds, to be held by the Trustee and applied solely to the payment of interest when due on the Bonds.

 

The Trustee shall deposit into the Capitalized Interest Account, capitalized interest in the amount of $2,476,352.66. On the Business Day preceding each Interest Payment Date during the Capitalized Interest Period, the Trustee shall transfer from the Capitalized Interest Account to the Interest Account an amount sufficient to pay the interest on the Bonds coming due on the next succeeding Interest Payment Date. Upon receipt of the Notice of Completion, the Trustee shall transfer any balance remaining in the Capitalized Interest Account to the Construction Fund, unless the Trustee has received a Favorable Opinion of Bond Counsel with respect to the continued use of moneys in the Capitalized Interest Account to pay interest on the Bonds.

 

If, on the Business Day preceding any Interest Payment Date, the amount on deposit in the Capitalized Interest Account is not sufficient to pay the interest coming due on the Bonds on such Interest Payment Date, the Trustee shall first transfer from the Debt Service Reserve Fund, and second, if needed for any Interest Payment Date occurring prior to the Completion Date, transfer from the Construction Fund to the Interest Account, without further authorization, an amount which, after giving effect to any transfer from the Capitalized Interest Account, is sufficient to pay interest on the Bonds due on such Interest Payment Date.

 

The Trustee shall deposit into the Debt Service Reserve Fund the amount of $2,200,000 to satisfy the initial Debt Service Reserve Requirement for the Bonds.

 

30

 

 

The Trustee will deposit $515,300 of the Company’s Equity Contribution into the “Costs of Issuance Fund” which is hereby created with the Trustee, to pay a portion of the costs of issuing the Bonds, including, without limitation, all printing and recording expenses in connection with this Indenture, the Agreement, the Subordinate Mortgage, the Subordinate Security Agreement, the Subordination Agreement, the Bonds, the preliminary official statement and official statement for the Bonds; legal fees; compensation to the underwriter (payable solely from the Company’s Equity Contribution); and the initial fees of the Issuer and the Trustee. The costs described above are payable upon submission of a written request from an Authorized Company Representative stating that the amount indicated thereon is justly due and owing, has not been the subject of another written request which has been paid and is a proper cost of issuing the Bonds. The Trustee may conclusively rely on such requisitions. Any moneys remaining in the Costs of Issuance Fund on the earlier of the payment of all costs of issuance of the Bonds or June 1, 2007 shall be transferred to the Construction Fund and applied as described below.

 

The Trustee will deposit all remaining proceeds from the initial sale of the Bonds and any excess proceeds from the Costs of Issuance Fund into the “Construction Fund,” which is hereby created with the Trustee. Moneys in the Construction Fund will be disbursed to pay the Project Costs (as defined below), or to reimburse the Company for Project Costs paid by it. Other than for disbursements from the Construction Fund to be used for the payment of capitalized interest on the Bonds during the Capitalized Interest Period as to which no further authorization for the Trustee is required, the Trustee shall disburse moneys in the Construction Fund upon receipt of a requisition, substantially in the form as attached hereto as Exhibit B , signed by an Authorized Company Representative and approved by an Authorized Senior Lender Representative stating with respect to each disbursement to be made, the following:

 

(i)

the requisition number;

 

(ii)

the name and address of the person, firm or corporation to whom payment is due or has been made (which may include the Company) is set forth on Schedule I attached thereto;

 

(iii)

the amount to be or which has been paid is set forth on Schedule I attached thereto;

 

(iv)

that the costs of an aggregate amount set forth in such requisition have been made or incurred or financed and were necessary for the Project and were made or incurred in accordance with the construction contracts, plans and specifications and building permits therefor then in effect;

 

(v)

that the amount paid or to be paid, as set forth in such requisition, represents a part of the amount due and payable for Project Costs and that such payment was not paid in advance of the time, if any, fixed for payment and was made in accordance with the terms of any contracts applicable thereto and in accordance with usual and customary practice under existing conditions;

 

31

 

(vi)

that no part of the Project Costs was included within the costs referred to in any requisition previously filed with the Trustee under the provisions of this Indenture;

 

(vii)

that (A) the withdrawal of moneys from the Construction Fund and the use of the property financed or reimbursed therefrom has not and will not result in a violation of any representation, term or covenant in the Tax Agreement or Project Certificate and (B) the Favorable Opinion of Bond Counsel required to be delivered as a result of changes to the Project pursuant to Section 3.02 of the Agreement has been delivered to the Trustee and the Issuer;

 

(viii)

that the amount remaining in the Construction Fund, together with (A) moneys then on hand at the Company or committed to the Company which are or will be available, and are anticipated by the Company to be applied, to pay the Project Costs and (B) expected investment earnings to be deposited into the Construction Fund pursuant to this Indenture, will, after payment of the amount requested in said requisition, be sufficient to pay the costs of completing the Project substantially in accordance with the construction contracts, plans and specifications and building permits therefor, if any, then in effect; and

 

(ix)

that the amounts paid or to be paid as set forth in the requisition are properly payable under the terms of this Indenture and that all conditions precedent to payment as prescribed in this Indenture have been satisfied.

 

The Company shall attach to each requisition a list of invoices or bills of sale covering all items for which payment is being requested in such requisition issued by the manufacturers, suppliers or other sellers of such items. The invoices or bills shall be available for review by the Trustee in the offices of the Company; provided that the Trustee shall have no duty or obligation to review such invoices and may conclusively rely on such requisitions.

 

To the extent that the Company leases from third parties or otherwise provides items for the Project from sources other than funds on deposit in the Construction Fund, the costs thereof shall not be included in the Project Costs referred to above.

 

The Trustee will maintain adequate records pertaining to the proceeds of the Bonds held by it and all disbursement from them made by the Trustee.

 

“Project Costs” means all costs properly chargeable to the acquisition, construction, installation or equipping of the Project or to its financing, including, without limitation, the following:

 

(i)

The cost of construction and acquisition of all lands, structures, real or personal property, rights, rights-of-way, franchises, easements and interests acquired or used for the Project.

 

(ii)

The cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which such buildings or structures may be moved.

 

32

 

 

(iii)

The cost of all machinery and equipment.

 

(iv)

Interest during construction of the Project that is not paid from the Capitalized Interest Account and the Debt Service Reserve Fund.

 

(v)

Reserves for extensions, enlargements, additions, replacements, renovations and improvements.

 

(vi)

The cost of architectural, engineering, financial and legal services, plans, specifications, studies, surveys, estimates, administrative expenses and other expenses necessary or incident to determining the feasibility of constructing the Project or incident to its construction, acquisition or financing.

 

(b)

Completion Date . The Company is required to deliver to the Issuer and the Trustee within 90 days after the completion of the Project a certificate as described below (the “Completion Certificate” ) signed by an Authorized Company Representative stating the following:

 

(i)

All portions of the Project have been fully completed in accordance with the plans and specifications