EXHIBIT 4.3
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TRUST INDENTURE
BETWEEN
THE INDUSTRIAL DEVELOPMENT BOARD OF THE CITY OF MONTGOMERY
AND
REGIONS BANK,
AS TRUSTEE AND REGISTRAR
---------------------------------------------
RELATING TO
THE INDUSTRIAL DEVELOPMENT BOARD OF THE
CITY OF MONTGOMERY
$4,000,000 TAXABLE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(KINPAK INC. PROJECT) SERIES 1996A
AND
$990,000 INDUSTRIAL REFUNDING REVENUE BONDS
(KINPAK INC. PROJECT) SERIES 1996B
---------------------------------------------
DATED
AS OF
DECEMBER 1, 1996
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ROY S. GOLDFINGER, P.C.
MONTGOMERY, ALABAMA
BOND COUNSEL
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TRUST INDENTURE
INDEX
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Page
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PARTIES....................................................................
1
RECITALS...................................................................
1
GRANTING
CLAUSES...........................................................
2
ARTICLE I
DEFINITIONS
Section 101.
Definitions..................................................
4
Section 102.
Interpretation...............................................
15
Section 103. Captions and
Headings........................................ 16
ARTICLE II
THE BONDS
Section 201. Authorized Amounts of
Bonds.................................. 17
Section 202. Issuance of the Bonds; Terms
Thereof......................... 17
Section 203. Execution of
Bonds........................................... 20
Section 204. Authentication of
Bonds...................................... 20
Section 205. Payment and Ownership of
Bonds............................... 20
Section 206.
Redemption...................................................
21
Section 207. Notice of
Redemption......................................... 21
Section 208. Payment of Redeemed
Bonds.................................... 22
Section 209. Partial
Redemption........................................... 22
Section 210. Election to
Redeem........................................... 23
Section 211. Mutilated, Lost, Stolen or
Destroyed Bonds................... 23
Section 212. Transfer and Exchange of
Bonds............................... 23
Section 213. Safekeeping and Cancellation of
Bonds........................ 24
Section 214. Special Agreement with
Holders............................... 24
Section 215. Actions Regarding of Letter of
Credit........................ 25
Section 216. DTC Eligibility
Requirements................................. 25
ARTICLE III
TENDER PROVISIONS
Section 301. Optional
Tenders............................................. 26
Section 302. Mandatory
Tenders............................................ 27
Section 303. Procedures for Purchase and
Remarketing...................... 29
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ARTICLE IV
PROVISIONS AS TO FUNDS AND PAYMENTS
Section 401. Bond
Fund.................................................... 34
Section 402. Payment of Debt
Service...................................... 35
Section 403. Non-Presentment of
Bonds..................................... 35
Section 404. Release of Funds Upon Payment of
Bonds....................... 36
Section 405. Construction Fund;
Disbursements............................. 36
Section 406. Bond Purchase
Fund........................................... 37
Section 407. Rebate Fund
................................................. 39
Section 408. Refunding
Fund............................................... 40
Section 409. Investment of Fund
Moneys.................................... 40
Section 410. Moneys to be Held in
Trust................................... 41
ARTICLE V
FIDUCIARIES
Section 501. Trustee's Acceptance and
Responsibilities.................... 42
Section 502. Fees, Charges and Expenses of
Fiduciaries.................... 44
Section 503. Notices to
Holders........................................... 44
Section 504. Intervention by
Trustee...................................... 45
Section 505. Successor
Trustees........................................... 45
Section 506. Appointment of
Co-Trustee.................................... 45
Section 507. Resignation by the
Trustee................................... 46
Section 508. Removal of the
Trustee....................................... 46
Section 509. Appointment of Successor
Trustee............................. 47
Section 510. Concerning Any Successor
Trustee............................. 47
Section 511. Right of Trustee to Pay Taxes and
Other Charges.............. 47
Section 512. Adoption of
Authentication................................... 48
Section 513.
Registrars...................................................
48
Section 514. Designation and Succession of
Paying Agents.................. 50
Section 515. Designation and Succession of
Authenticating Agents.......... 50
Section 516. Dealing in
Bonds............................................. 51
Section 517. Tender
Agent................................................. 51
Section 518. Remarketing
Agent............................................ 51
ARTICLE VI
DEFAULT PROVISIONS AND
REMEDIES OF TRUSTEE AND HOLDERS
Section 601. Events of
Default............................................ 53
Section 602.
Acceleration.................................................
54
Section 603. Other Remedies; Rights of
Holders............................ 55
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Section 604. Application of
Moneys........................................ 56
Section 605. Remedies Vested in
Trustee................................... 57
Section 606. Rights and Remedies of
Holders............................... 57
Section 607. Remedies Subject to Applicable
Law........................... 58
ARTICLE VII
SUPPLEMENTAL INDENTURES; OTHER AMENDMENTS
Section 701. Supplemental Indentures Not
Requiring Consent of Holders..... 59
Section 702. Supplemental Indentures Requiring
Consent of Holders......... 60
Section 703. Additional Consents
Required................................. 61
Section 704. Amendments of Lease
Agreement................................ 61
Section 705. Amendments of Letter of
Credit............................... 62
ARTICLE VIII
DEFEASANCE
Section 801.
Defeasance...................................................
63
Section 802. Payment of
Bonds............................................. 63
Section 803. Survival of Certain
Provisions............................... 64
ARTICLE IX
COVENANTS BY THE ISSUER
Section 901. Payment of Debt Service and
Purchase Price................... 65
Section 902. Revenues and Assignment of
Revenues.......................... 65
Section 903. Performance of Covenants by
Issuer........................... 65
Section 904. Inspection of Project
Books.................................. 65
Section 905.
Register.....................................................
65
Section 906. Rights and Enforcement of the
Lease Agreement................ 65
Section 907. Further
Assurances........................................... 66
Section 908. Non-Taxable
Status........................................... 66
ARTICLE X
MISCELLANEOUS
Section 1001. Consents, Etc., of
Holders.................................. 67
Section 1002. Limitation of
Rights........................................ 67
Section 1003.
Severability................................................ 67
Section 1004. Limitation of
Liability..................................... 67
Section 1005. Payments Due on Other than
Business Days.................... 68
Section 1006.
Counterparts................................................ 68
Section 1007.
Notices..................................................... 68
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Section 1008. Suspension of
Mail.......................................... 69
Section 1009. Governing
Law............................................... 69
Section 1010. Opinions of Bond Counsel Not
Required....................... 69
Section 1011. Contest of Determination of
Taxability...................... 69
SIGNATURES.................................................................
70
ACKNOWLEDGMENTS............................................................
71
Exhibit A Forms of
Bonds
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TRUST INDENTURE
THIS TRUST INDENTURE made and entered into as of December 1, 1996
(as
the same may hereafter be amended or
supplemented, this "Indenture"), by and
between THE INDUSTRIAL DEVELOPMENT BOARD OF
THE CITY OF MONTGOMERY, its
successors and assigns (the "Issuer"), a
public corporation organized and
existing under the laws of the State of
Alabama (the "State"), and REGIONS BANK,
a state banking corporation authorized to
accept and execute trusts of the
character herein set forth, with its
principal corporate trust office for
purposes of discharging the trusts
hereunder being in the City of Montgomery,
Alabama, its successors and assigns (the
"Trustee"), under the circumstances set
forth in the following recitals (the
capitalized terms not defined in this
paragraph or the recitals having the
meanings given to them in Article I
hereof):
W I T N E S S E T H:
A. The Issuer has been heretofore organized under and is authorized
by
the Act to acquire, enlarge, improve,
replace, own, lease and dispose of
properties to the end that the Issuer may
be able to promote industry, develop
trade and further the use of the
agricultural products and natural and human
resources of the State and the development
and preservation of said resources.
B. On October 17, 1979, the Issuer issued the Prior Bonds pursuant
to
the Act and the Prior Indenture and applied
the proceeds thereof to acquire,
construct and equip the Existing Facilities
as a "project" under the Act, which
the Issuer leased to Kinark pursuant to the
Original Lease. Pursuant to the
Lease Assignments (as defined in the Lease
Agreement), the Company has succeeded
to the position of Kinark as lessee under
the Original Lease.
C. The Company has heretofore expressed to the Issuer its desire
(a) to
achieve interest rate savings by
refinancing the debt represented by the Prior
Bonds, (b) to renovate and upgrade the
Existing Facilities and (c) to acquire,
construct and equip the New Facilities. The
Issuer heretofore adopted the
Inducement Resolution which provided, among
other things, for the issuance of
the Bonds by the Issuer to refund (inter
alia) the Prior Bonds and to assist in
financing the costs of the Project.
D. Simultaneously with the execution and delivery of this
Indenture,
the Issuer, as lessor, and the Company, as
lessee, will enter into the Lease
Agreement which will amend, supplement and
restate the provisions of the
Original Lease under which the Existing
Facilities are leased to the Company.
Pursuant to the Lease Agreement, the
Company will agree to pay the Basic Rent at
such times and in such amounts as shall be
sufficient to pay when due the Debt
Service on and Purchase Price of the
Bonds.
E. The Bonds shall be limited obligations of the Issuer payable
solely
out of the Revenues. As additional security
for the payment of the Bonds, the
Company shall cause the Bank to issue the
Initial Letter of Credit in favor of
the Trustee in an amount equal to the sum
of (a) the aggregate principal amount
of the Bonds, to enable the Trustee to pay
the principal of the Bonds when due
and to pay the principal portion of the
Purchase Price of Bonds tendered (or
deemed tendered) for purchase, plus (b)
interest on the Bonds for a period of
120 days at the maximum rate of 15% per
annum, to enable the Trustee to pay
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interest on the Bonds when due and to pay
the interest portion of the Purchase
Price of Bonds tendered (or deemed
tendered) for purchase.
F. The execution and delivery of this Indenture and the issuance of
the
Bonds under the Act have been in all
respects duly and validly authorized by
resolutions duly adopted and approved by
the Issuer.
G. The Bonds to be issued hereunder and the authentication
certificate
thereon are to be substantially in the
forms thereof attached hereto as Exhibit
A, with appropriate omissions, insertions
and variations permitted or authorized
as hereinafter provided.
H. All things necessary to make the Bonds, when authenticated by
the
Trustee and issued as in this Indenture
provided, the valid, binding and legal
obligations of the Issuer according to the
import thereof, and to constitute
this Indenture a valid pledge of the
Revenues to the payment of the Debt Service
on and Purchase Price of the Bonds, have
been done and performed, and the
creation, execution and delivery of this
Indenture, and the execution and
issuance of the Bonds, subject to the terms
hereof, have in all respects been
duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
----------------
That the Issuer, in consideration of the premises and the
acceptance by
the Trustee and the Registrar of the trusts
created herein and the acceptance of
the Bonds by the Holders thereof, and for
other good and valuable
considerations, the receipt of which is
hereby acknowledged, in order to secure
the payment of the Debt Service on and
Purchase Price of the Bonds according to
their tenor and effect and 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 pledge
unto the Trustee and unto its
successors in trust, and to it and their
respective assigns forever, the
following:
I.
All right, title and interest of the Issuer in and to the Lease
Agreement, except for Unassigned Rights (as
therein defined).
II.
All Revenues
receivable by or for the account of the Issuer, including,
without limitation, all Basic Rent and
other payments in respect of payment of
Basic Rent to be received under and
pursuant to and subject to the provisions of
the Lease Agreement, which moneys are
(subject to the credits or offsets
provided for under the Lease Agreement) to
be paid directly to the Trustee at
the Trustee's Office for the account of the
Issuer and deposited as hereinafter
provided.
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TO HAVE AND TO HOLD all the same with all privileges and
appurtenances
hereby and hereafter conveyed and assigned,
or agreed or intended so to be, to
the Trustee and its successors in trust and
its and their respective assigns
forever;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth
for
the benefit, security and protection of the
Holders from time to time of the
Bonds issued under and secured by this
Indenture, without preference, priority
or distinction as to lien or otherwise of
any of such Bonds over any of the
others except as herein expressly
provided.
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns,
shall
well and truly pay, or cause to be paid,
the Debt Service due or to become due,
at the times and in the manner mentioned in
the Bonds according to the true
intent and meaning thereof, and shall cause
the payments to be made as required
hereunder, 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 to the Trustee and the other
Fiduciaries all sums of money due or to
become due to them in accordance with
the terms and provisions hereof; then upon
such final payments this Indenture
and the rights granted shall cease,
determine and be void; otherwise this
Indenture to be and remain in full force
and effect.
The terms and conditions upon which the Bonds are to be issued,
authenticated, delivered, secured and
accepted by all Persons who from time to
time shall be or become Holders thereof,
and the trusts and conditions upon
which the Revenues pledged are to be held
and disposed of, which said trusts and
conditions the Trustee and Registrar hereby
accept, and to all of which the
respective parties hereto covenant and
agree, are as follows:
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ARTICLE I
DEFINITIONS
-----------
Section 101. Definitions. In addition to the words and terms
elsewhere
defined in this Indenture (including in the
recitals hereto) or by reference to
the Lease Agreement or other document,
unless the context or use indicates
another or different meaning or intent:
"Act" means Article 4, Chapter 54, Title 11 of the Code of Alabama
of
1975, as amended.
"Act of Bankruptcy" means the filing of a petition in bankruptcy
(or
other commencement of a bankruptcy or
similar proceeding) by or against the
Company or by the Issuer, as debtor, under
any applicable bankruptcy,
reorganization, insolvency or other similar
law now or hereafter in effect.
"Affiliate" means, as to any specified Person, another Person
that
directly, or indirectly, through one or
more intermediaries, controls or is
controlled by, or is under common control
with, the specified Person.
"Alternate Credit Facility" means an irrevocable letter of credit,
a
surety bond, an insurance policy or other
credit facility delivered to the
Trustee pursuant to Section 5.8(f) of the
Lease Agreement.
"Authenticating Agent" means the Trustee and any bank, trust
company or
other Person designated as an
Authenticating Agent for the Bonds by or in
accordance with Section 515 of this
Indenture, each of which shall be a transfer
agent registered in accordance with Section
17A(c) of the Securities Exchange
Act of 1934, as amended.
"Authorized Denominations" means, as to the Bonds, the
denominations of
$100,000 and any integral multiple of
$5,000 in excess thereof.
"Available Moneys" shall mean: (a) with respect to any payment
date
occurring during any period that the Bonds
are entitled to the benefit of a
Letter of Credit, (i) any moneys which have
been paid to the Trustee by the
Company (including moneys transferred from
the Construction Fund pursuant to
Section 405(f) hereof) and which have been
on deposit with the Trustee for at
least 367 days during and prior to which no
Act of Bankruptcy shall have
occurred, and the proceeds from the
investment of such moneys after such moneys
have become Available Moneys, (ii) moneys
on deposit with the Trustee
representing proceeds from the resale by
the Remarketing Agent of Bonds to
persons other than the Issuer or the
Company as described in Article III hereof,
which, in each case, were at all times
since their deposit with the Trustee held
in a separate and segregated account or
accounts or sub-account or sub-accounts
in which no moneys which were not Available
Moneys were at any time held, and
the proceeds from the investment thereof,
and (iii) moneys drawn under a Letter
of Credit which in each case were at all
times since their deposit with the
Trustee held in a separate and segregated
account or accounts or sub-account or
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sub-accounts in which no moneys (other than
those drawn under a Letter of
Credit) were at any time held; and (b) with
respect to any payment date not
occurring during a period that the Bonds
are entitled to the benefit of a Letter
of Credit, any moneys furnished to the
Trustee and the proceeds from the
investment thereof. The Trustee may presume
that no Act of Bankruptcy has
occurred unless notified in writing to the
contrary by the Company, the Bank or
the owners of not less than 25% in
aggregate principal amount of Bonds
Outstanding.
"Bank" means First Union National Bank of Florida, Fort
Lauderdale,
Florida, and its successors and assigns, as
issuer of the Initial Letter of
Credit, until such time, if any, as a
Substitute Letter of Credit or Alternate
Credit Facility shall become effective
pursuant to Section 5.8 of the Lease
Agreement, and thereafter "Bank" shall mean
the issuer of such Substitute Letter
of Credit or Alternate Credit Facility.
"Basic Rent" means that portion of the rentals payable under the
Lease
Agreement in the amounts and at the times
sufficient, giving effect to any
credit therein provided for, to pay Debt
Service on or Purchase Price of the
Bonds.
"Bio-Chem" means Ocean Bio-Chem, Inc., a Florida corporation,
its
successors and assigns, of which the
Company is a wholly-owned subsidiary.
"Bond" or "Bonds" means, collectively, the Series 1996A Bonds and
the
Series 1996B Bonds.
"Bond Counsel" means Roy S. Goldfinger, P.C., Montgomery, Alabama,
or
any other attorney or firm of attorneys
nationally recognized on the subject of
municipal bonds and acceptable to the
Trustee.
"Bond Fund" means the fund created and described in Section 401
hereof.
"Bond Payment Date" means each date (including any date fixed
for
redemption of Bonds) on which Debt Service
on the Bonds is payable.
"Bond Purchase Fund" means the fund created and described in
Section
406 hereof.
"Bond Year" means, during the period the Series 1996B Bonds and (if
and
when issued) the Refunding Obligations
remain outstanding, the annual period
provided for the computation of Excess
Earnings under Section 148(f) of the Code
(except that the first and last Bond Years
may be less than 12 months long).
"Building" means that certain existing manufacturing facility
of
approximately 50,000 square feet, the
proposed new building of approximately
60,000 square feet and all other structures
and improvements which are required
or permitted by the Lease Agreement to
stand or be constructed on the Leased
Realty, as they may at any time exist.
"Business Day" means any day other than (1) a day on which the
payment
system of the Federal Reserve System is not
operational, or (2) a day on which
commercial banks are required or authorized
by law to close in any of the
following locations: (i) the city in which
the Trustee's Office is located, (ii)
the city in which the principal office of
the Remarketing Agent is located, or
(iii) the city in which the office of the
Bank at which drawings under the
Letter of Credit are to be made is
located.
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"Cap Rate" means the lower of (i) the rate of 15% per annum or (ii)
for
any period during which the Bonds are
supported by a Letter of Credit, the
maximum rate per annum, specified therein,
at which there has been calculated
the amount available to be drawn on such
Letter of Credit to pay interest on the
Bonds.
"City" means the City of Montgomery, Alabama.
"Code" means the Internal Revenue Code of 1986, as amended.
References
to the Code and Sections thereof include
relevant applicable temporary, proposed
or final regulations thereunder and under
any predecessor provisions of the
Internal Revenue Code of 1954, as
amended.
"Company" means KINPAK INC., formerly known as Kinbright, Inc.,
a
corporation for profit organized and
existing under the laws of the State, and
its successors and assigns.
"Company Account" means the account so named in the Bond Fund.
"Company Bonds" means Bonds registered in the name of the
Company
pursuant to Section 303(e) or (f)
hereof.
"Completion Date" means the date of completion of the Project to
be
established by the Company in accordance
with the provisions of the Lease
Agreement.
"Computation Date" means the last day of each Bond Year and the day
on
which the final payment in full of all the
Series 1996B Bonds and (if and when
issued) the Refunding Obligations is
made.
"Construction Fund" means the fund created and described in Section
405
hereof.
"Conversion Date" means a Proposed Conversion Date on which the
Fixed
Rate shall become effective.
"County" means Montgomery County, Alabama.
"Credit Facility Account" means the account so named in the Bond
Fund.
"Credit Facility Proceeds Account" means the account so named in
the
Bond Purchase Fund.
"DTC" means The Depository Trust Company, New York, New York.
"DTC-Eligible Obligations" means securities which are eligible
for
deposit at DTC.
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"Debt Service" means, for any period or payable at any time,
the
principal, interest and any premium due on
the Bonds for that period or payable
at that time.
"Determination of Taxability" means, with respect to the Series
1996B
Bonds and (if and when issued) the
Refunding Obligations, a determination that
interest on any such obligation is Taxable
because of (i) the receipt by any
Holder or any member of an "affiliated
group", as that term is defined in
Section 1504 of the Code, of a "30-day
letter" within the meaning of Treasury
Regulations Section 601.105(d)(1)(iv)
proposing a determination to that effect;
(ii) receipt by the Company of written
advice from the Commissioner or any
District Director of the Internal Revenue
Service to that effect; or (iii)
receipt by the Trustee or any Holder of a
written opinion of Bond Counsel that
there is substantial likelihood that such
interest is Taxable; subject, however,
in all such cases to the right on the part
of the Company set forth in Section
1011 hereof to contest the same.
"Eligible Investments" means (i) Government Obligations; (ii)
obligations issued or guaranteed by any
state or political subdivision thereof,
which obligations are rated by a Rating
Agency in the highest category if rated
as short-term obligations or not lower than
the third highest category if rated
as long-term obligations; (iii) commercial
or finance paper which is rated in
not lower than the second highest rating
category by a Rating Agency; (iv)
deposit accounts, bankers' acceptances,
certificates of deposit or bearer
deposit notes in one or more banks, trust
companies or savings and loan
associations (including without limitation,
the Trustee or any bank affiliated
with the Trustee) organized under the laws
of Canada or the United States of
America or any state or province thereof,
provided that the debt obligations of
each such bank, trust company or savings
and loan association are rated by a
Rating Agency in the highest category if
rated as short-term obligations or not
lower than the third highest category if
rated as long-term obligations; (v)
obligations of the Federal Land Bank, the
Federal Home Loan Bank or the Federal
Intermediate Credit Bank; (vi) money market
mutual funds registered under the
Investment Company Act of 1940, as amended,
provided that the portfolio of any
such money market fund is limited to
Government Obligations and to agreements to
purchase Government Obligations; and (vii)
repurchase agreements secured fully
by obligations of the type specified in
clause (i), which obligations must be
held by or under the control of the
Trustee, and issued by a bank or savings and
loan association which is insured by the
Federal Deposit Insurance Corporation
or the Federal Savings and Loan Insurance
Corporation; provided that any
investment or deposit described above is
not prohibited by applicable law.
"Equipment" means all items of machinery, equipment, fixtures
and
tangible personal property now or hereafter
constituting part of the Project,
and any item of machinery, equipment,
fixtures or tangible personal property
acquired in substitution therefor or as a
renewal or replacement thereof
pursuant to the provisions of the Lease
Agreement.
"Event of Default" means an Event of Default specified in and
defined
by Section 601 hereof.
"Excess Earnings" means, with respect to the proceeds from the
Series
1996B Bonds and (if and when issued) the
Refunding Obligations, as of each
Computation Date, an amount equal to the
sum of (a) plus (b) where:
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(a) is the excess of
(i) the aggregate amount earned from the Issue Date on all
nonpurpose investments in which gross proceeds of the Bonds are
invested (other than investments attributable to excess
earnings
described in this clause (a)), taking into account any gain or
loss on the disposition of nonpurpose investments, over
(ii) the amount that would have been earned if such
nonpurpose investments (other than amounts attributable to an
excess described in this clause (a)) had been invested at a
rate
equal to the yield on the Bonds; and
(b) is any income attributable to the excess described in
clause
(a), taking into account any gain or loss on the disposition of
nonpurpose investments.
The sum of (a) plus (b) shall be determined
in accordance with Sections
148(f)(2) and 148(f)(4) of the Code. As
used herein, the terms "gross proceeds",
"nonpurpose investments" and "yield" have
the meanings assigned to them for
purposes of Section 148 of the Code.
"Existing Facilities" means the land, buildings and equipment
financed
in part with the proceeds of the Prior
Bonds, previously leased by the Issuer to
and operated by Kinark and now constituting
a part of the Project.
"Existing Letter of Credit" means, as of any particular time,
the
Letter of Credit or Alternate Credit
Facility held by the Trustee at that time.
"Extension Letter of Credit" means a Substitute Letter of Credit
from
the same Bank which issued the Existing
Letter of Credit, substantially
identical to the Existing Letter of Credit
except that it has a Stated
Expiration Date at least one year later
than that of the Existing Letter of
Credit.
"Extraordinary Services" and "Extraordinary Expenses" mean all
services
rendered and all expenses incurred under
the Indenture other than Ordinary
Services and Ordinary Expenses.
"Fiduciaries" means the Trustee, the Tender Agent, the Registrar
and
any Paying Agent or Authenticating Agent,
and their respective successors and
assigns.
"Final Determination" means a Determination of Taxability deemed
final
by reason of the termination or forfeiture
of the Company's right to contest the
same under Section 1011 hereof.
"Fixed Rate" means, with respect to each Series of the Bonds,
the
interest rate to be borne by such Bonds on
and after the Conversion Date,
established pursuant to Section 202(g)
hereof.
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"Fixed Rate Period" means, with respect to each Series of the
Bonds,
the period beginning on the Conversion Date
and ending on the day immediately
prior to the maturity date of that
Series.
"Government Obligations" means (a) direct obligations of the
United
States of America for the full and timely
payment of which the full faith and
credit of the United States of America is
pledged; (b) obligations issued by a
person controlled or supervised by and
acting as an instrumentality of the
United States of America, the full and
timely payment of the principal of,
premium, if any, and interest on which is
fully and unconditionally guaranteed
as a full faith and credit obligation by
the United States of America; or (c)
securities or receipts evidencing ownership
interests in obligations or
specified portions (such as principal or
interest) of obligations described in
preceding clause (a) or (b), which
securities, receipts or portions of
obligations are not subject to redemption
prior to maturity at less than par at
the option of anyone other than the holder
thereof.
"Governmental Authority" means the United States, any state or
political subdivision thereof and any
court, agency, department, commission,
board, bureau or instrumentality of any of
the foregoing.
"Holder" or "Holder of a Bond" means the Person in whose name a
Bond is
registered on the Register.
"Initial Letter of Credit" means the initial Letter of Credit in
the
form attached to the Reimbursement
Agreement as Schedule I and delivered to the
Trustee on or prior to the Issue Date.
"Interest Payment Date" means, so long as the Bonds are
outstanding,
the first Business Day of each March, June,
September and December, commencing
on the first Business Day of March,
1997.
"Interest Rate for Advances" means the rate per annum which is
one
percent (1%) per annum in excess of the
Prime Rate.
"Interim Indebtedness" means the indebtedness in the principal
amount
of $220,000 incurred, in anticipation of
the issuance of the Series 1996B Bonds,
to pay a like principal amount of the Prior
Bonds which matured on September 1,
1996.
"Issue Date" means the date of the initial authentication and
delivery
of the Bonds.
"Kinark" means Kinark Corporation, a Delaware corporation, as
lessee
under the Original Lease.
"Lease
Agreement" means the Restated Lease Agreement of even date
herewith between the Issuer, as lessor, and
the Company, as lessee, as the same
may hereafter be amended and
supplemented.
9
<PAGE>
"Leased Realty" means the real estate and interests therein
constituting the site of the Project and
described in Exhibit A to the Lease
Agreement, together with any additions
thereto, less any removals therefrom.
"Letter of Credit" means the Initial Letter of Credit and, unless
the
context or use indicates another or
different meaning or intent, any Substitute
Letter of Credit.
"Letter of Credit Substitution Date" means any Business Day
specified
by the Company pursuant to Section 5.8 of
the Lease Agreement on which the
Company proposes (other than by reason of
the Conversion Date or the Stated
Expiration Date of the Existing Letter of
Credit) to furnish a Substitute Letter
of Credit (other than an Extension Letter
of Credit) or Alternate Credit
Facility in place of the then Existing
Letter of Credit.
"Mandatory Tender" means a tender of Bonds required by Section
302
hereof.
"Mandatory Tender Date" means a date on which any Mandatory Tender
is
required, more particularly described in
Section 302 hereof.
"Miscellaneous Account" means the account so named in the Bond
Purchase
Fund.
"Moody's" means Moody's Investors Service, Inc., New York, New
York.
"Necessary Authorizations" means, with respect to any given action
or
effect, all authorizations, consents,
approvals, permits, licenses and
exemptions of, filings and registrations
with, and reports to, all Governmental
Authorities which are necessary or required
to accomplish such action or achieve
such effect.
"New Facilities" means an expansion to the Existing Facilities,
consisting of an approximately 60,000
square-foot new building and new machinery
and equipment therefor.
"Non-Taxability Opinion" means, with respect to one or more
given
events or prospective events, an opinion of
Bond Counsel to the effect that the
occurrence of such event or events will not
adversely affect the non-Taxable
status of the interest on the obligations
in question.
"Non-Tender Notice" shall have the meaning assigned in Section
302(c)
hereof.
"Notice of Tender" shall mean written, formal notice of tender in
the
form provided in the Bonds or in such other
form as shall be acceptable to the
Trustee.
"Optional Tender" means a tender of Bonds at the option of the
Holder
thereof pursuant to Section 301 hereof.
"Optional Tender Date" means any date on which Bonds are to be
purchased pursuant to the Optional Tender
provisions of Section 301 hereof.
10
<PAGE>
"Ordinary Services" and "Ordinary Expenses" mean those services
normally rendered and those expenses
normally incurred by a trustee under
instruments similar to this Indenture.
"Original Lease" means the Lease Agreement dated as of September
1,
1979 between the Issuer and Kinark.
"Outstanding", as applied to the Bonds, means all Bonds which have
been
authenticated and delivered under this
Indenture, except:
(a) Bonds cancelled upon surrender, exchange or transfer, or
because of payment or redemption prior to maturity;
(b) Bonds, or any portion thereof, for the payment, redemption
or
purchase for cancellation of which sufficient moneys have been
deposited and credited with the Trustee or any Paying Agents
(whether
upon or prior to the maturity, purchase or redemption date of
those
Bonds); provided, that if any of those Bonds are to be redeemed
prior
to their maturity, notice of that redemption shall have been given
or
arrangements satisfactory to the Trustee shall have been made
for
giving notice of that redemption, or waiver by the affected Holders
of
that notice satisfactory in form to the Trustee shall have been
filed
with the Trustee;
(c) Unsurrendered Bonds for the purchase of which money in the
necessary amount has been deposited in the Bond Purchase Fund and
is
held in trust for the Holders of such Unsurrendered Bonds; and
(d) Bonds in exchange for or in lieu of which others have been
authenticated and delivered under Section 211 hereof;
provided, however, that in determining
whether the Holders of the requisite
principal amount of Bonds Outstanding have
given any request, demand,
authorization, direction, notice, consent
or waiver hereunder, Bonds owned by
the Company, the Issuer, any other obligor
with respect to the Bonds or any
affiliate of any of the foregoing, shall be
disregarded and deemed not to be
Outstanding; except that, in determining
whether the Trustee shall be protected
in relying upon any such request, demand,
authorization, direction, notice,
consent or waiver, only Bonds which the
Trustee knows to be so owned shall be
disregarded. Notwithstanding the foregoing
proviso, Pledged Bonds shall be
deemed, at the election of the Bank, to be
Outstanding for all purposes, except
that the Bank may not vote such Bonds in
any manner that would lessen the
protection to the Holders of other
Outstanding Bonds provided by the Letter of
Credit. Bonds so owned which have been
pledged in good faith may be regarded as
Outstanding for such purposes if the
pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act
with respect to such Bonds and that
the pledgee is not the Company, the Issuer,
any other obligor with respect to
the Bonds or any affiliate of any of the
foregoing.
"Paying Agent" means the Trustee and any other bank or trust
company
designated as a Paying Agent by or in
accordance with Section 514 of this
Indenture.
11
<PAGE>
"Person" includes natural persons, firms, associations,
partnerships,
trusts, corporations, limited liability
companies and public bodies.
"Placement Agency Agreement" means that certain letter agreement
dated
the Issue Date among the Issuer, the
Company and the Placement Agent.
"Placement Agent" means First Union National Bank of North
Carolina, in
its capacity as Placement Agent.
"Pledge Agreement" means the Pledge Agreement of even date
herewith
from the Company to the Bank, as the same
may hereafter be amended or
supplemented.
"Pledged Bonds" means Bonds registered in the name of the
Company,
subject to the provisions of the Pledge
Agreement, pursuant to Section
303(e)(ii) hereof.
"Predecessor Bond" of any particular Bond means every previous
Bond
evidencing all or a portion of the same
debt as that evidenced by the particular
Bond. For the purposes of this definition,
any Bond authenticated and delivered
under Section 211 of this Indenture in lieu
of a lost, stolen or destroyed Bond
shall be deemed to evidence the same debt
as the lost, stolen or destroyed Bond.
"Preliminary Fixed Rate" means the interest rate determined by
the
Placement Agent prior to a Proposed
Conversion Date, in accordance with Section
2.2(g) hereof, to be that rate which,
taking into account prevailing market
conditions as of the date of such
determination and assuming such conditions
continue to prevail until and including
such Proposed Conversion Date, would
result in the market value of the Bonds on
such Proposed Conversion Date being
100% of the principal amount thereof;
provided such rate shall not exceed the
Cap Rate.
"Prime Rate" means (a) the interest rate publicly announced from
time
to time by the Bank to be its prime rate
for lending purposes, which may not
necessarily be its best lending rate; or
(b) in the event the Bank shall abolish
or abandon the practice of announcing its
prime rate or should the same be
unascertainable, a comparable reference
rate designated by the Bank.
"Prior Bonds" means the Issuer's First Mortgage Industrial
Revenue
Bonds (Kinark Corporation Project) Series
1979 heretofore issued on October 17,
1979 in the original principal amount of
$3,000,000 and now outstanding in the
principal amount of $770,000.
"Prior Indenture" means that Trust Indenture dated as of September
1,
1979 between the Issuer and the Prior
Trustee, pursuant to which the Prior Bonds
were issued.
"Prior Trustee" means Regions Bank (formerly known as First
Alabama
Bank), Montgomery, Alabama, successor by
merger to Union Bank & Trust Co., in
its capacity as trustee under the Prior
Indenture.
12
<PAGE>
"Project" means, collectively, the Existing Facilities and the
New
Facilities, consisting of the Leased
Realty, the Building and the Equipment (as
the same may at any time exist), leased to
the Company pursuant to the Lease
Agreement for the manufacture of
aftermarket products for consumer marine and
recreational vehicle markets or for such
other purposes as may be consistent
with the Act and the Code and permitted by
the Lease Agreement.
"Proposed Conversion Date" means that Interest Payment Date elected
by
the Company in accordance with Section
202(g) hereof as the date on which the
interest rate borne by the Bonds is
intended to convert from the Seven-Day Rate
to the Fixed Rate.
"Purchase Price" means, with respect to any Bond tendered for
purchase
by Optional Tender or Mandatory Tender,
100% of the principal amount thereof
plus accrued interest thereon to the Tender
Date.
"Rating Agency" means Moody's or S & P, their respective
successors and
assigns and any other nationally recognized
securities rating agency.
"Rebate Fund" means the fund created and described in Section
407
hereof.
"Record Date" means (a) with respect to any Interest Payment
Date
during the Seven-Day Rate Period, the
Business Day immediately prior to such
Interest Payment Date, and (b) with respect
to any Interest Payment Date during
the Fixed Rate Period, the 15th day
(whether or not a Business Day) next
preceding such Interest Payment Date.
"Refunding Fund" means the fund created and described in Section
408
hereof.
"Refunding Obligations" means the revenue bonds intended to be
hereafter issued by the Issuer on a
non-Taxable basis in order to refund the
Series 1996A Bonds.
"Register" means the books kept and maintained by the Registrar
for
registration and transfer of Bonds.
"Registrar" means the Trustee, until such time, if any, as a
successor
Registrar, which shall be a transfer agent
registered in accordance with Section
17(A)(c) of the Securities Exchange Act of
1934, shall have become such pursuant
to Section 513 of this Indenture.
"Reimbursement Agreement" means that certain Letter of Credit
and
Reimbursement Agreement of even date
herewith between the Bank, as issuer of the
Initial Letter of Credit, and the Company
and Bio-Chem, jointly and severally,
as account parties, as the same may
hereafter be amended or supplemented; or any
comparable agreement relating to a
Substitute Letter of Credit or Alternate
Credit Facility.
"Related Documentation" means the documentation required to
accompany a
Substitute Letter of Credit or Alternate
Credit Facility in accordance with the
provisions of Section 5.8 of the Lease
Agreement.
13
<PAGE>
"Remarketing Agent" means, initially, First Union National Bank
of
North Carolina or any successor thereto
appointed in accordance with this
Indenture.
"Remarketing Agreement" means the Remarketing Agreement of even
date
herewith between the Company and the
Remarketing Agent, as the same may
hereafter be amended or supplemented.
"Remarketing Proceeds Account" means the account so named in the
Bond
Purchase Fund.
"Revenues" means (a) the Basic Rent; (b) all other moneys received
or
to be received by the Issuer or the Trustee
in respect of payment of the Basic
Rent, including without limitation, moneys
and investments in the Bond Fund and
Bond Purchase Fund and received by the
Trustee from drawings made under the
Letter of Credit or an Alternate Credit
Facility or as a result of the
remarketing of any Bonds, but excluding any
moneys and investments in the Rebate
Fund; (c) any moneys and investments in the
Construction Fund; and (d) all
income and profit from the investment of
the foregoing moneys.
"S & P" means Standard & Poor's, New York, New York.
"Series 1996A Bonds" means the $4,000,000 Taxable Industrial
Development Revenue Bonds (KINPAK INC.
Project) Series 1996A of the Issuer to be
issued under the Indenture.
"Series 1996B Bonds" means the $990,000 Industrial Refunding
Revenue
Bonds (KINPAK INC. Project) Series 1996B of
the Issuer to be issued under the
Indenture.
"Seven-Day Rate" means, with respect to each Series of the Bonds,
the
interest rate on such Bonds from time to
time in effect during a Seven-Day Rate
Period, as established pursuant to Section
202(f) hereof.
"Seven-Day
Rate Determination Date" means a date on which the Seven-Day
Rate is determined, as provided in Section
202(f) hereof.
"Seven-Day Rate Period" means, with respect to each Series of
the
Bonds, the period beginning on the Issue
Date and ending on the day immediately
prior to the earlier of the Conversion Date
or the maturity date of that Series.
"Special Record Date" means, with respect to any Bond, the date
established by the Trustee in connection
with the payment of overdue interest on
that Bond pursuant to Section 604
hereof.
"State" means the State of Alabama.
"Stated Expiration Date" means the date on which the Letter of
Credit
is stated to expire, unless extended in
accordance with its terms.
14
<PAGE>
"Substitute Letter of Credit" means an irrevocable letter of
credit
delivered to the Trustee in substitution
for the Existing Letter of Credit, in
compliance with the requirements of Section
5.8 of the Lease Agreement and
accompanied by the Related
Documentation.
"Taxable" means that interest on the Bonds (including for this
purpose
the Refunding Obligations) is includable in
the gross income of any Holder
thereof for any reason other than the fact
that such Holder is a "substantial
user" of the Project or a "related person"
as those terms are used in Section
147(a) of the Code. Interest on the Bonds
shall not be deemed "Taxable" because
interest is includable in any calculation
of income for purposes of any
alternative minimum tax, any foreign branch
profits tax or any other type of
taxation other than the regular federal tax
imposed on gross income.
"Telefax" means telecopy, telefax or other instantaneous
transmission
device; and whenever in this Indenture
"confirmation by Telefax" is required,
such requirement shall, unless otherwise
herein provided, be deemed satisfied if
such confirmation is received by not later
than 11:00 a.m. on the Business Day
following the day on which the
communication to be confirmed was given.
"Tender Agent" means any Person appointed as such pursuant to
Section
517 hereof. Until such time, if any, as a
Tender Agent shall be appointed, the
Trustee shall perform all duties of the
Tender Agent; provided, that the Trustee
shall not be required to maintain an office
in New York, New York.
"Tender Date" means an Optional Tender Date or a Mandatory Tender
Date,
as the case may be.
"Tender Office" means the location of the office of the Tender
Agent
where Bonds may be exchanged and
transferred or tendered for purchase in
accordance with the provisions hereof.
"Trustee's Office" means the office from time to time designated by
the
Trustee, or its successor in trust, as its
principal corporate trust office for
purposes of discharging its trusts and
duties under this Indenture, which office
as of the Issue Date is located at 60
Commerce Street, 2nd Floor, Montgomery,
Alabama.
"Unsurrendered Bonds" means Bonds (or portions thereof in
Authorized
Denominations hereunder) which are deemed
purchased pursuant to Section 301 or
Section 302 hereof, but which have not been
presented to the Trustee or Tender
Agent by the Holders thereof.
Section 102. Interpretation. Unless the context indicates
otherwise,
words importing the singular number include
the plural number, and vice versa;
the terms "hereof", "hereby", "herein",
"hereto", "hereunder" and similar terms
refer to this Indenture; and the term
"hereafter" means after, and the term
"heretofore" means before, the effective
date of this Indenture. Words of any
gender include the correlative words of the
other genders, unless the sense
indicates otherwise.
All references herein to time shall be prevailing Eastern time.
15
<PAGE>
Section 103. Captions and Headings. The captions and headings in
this
Indenture are solely for convenience of
reference and in no way define, limit or
describe the scope or intent of any
Articles, Sections, subsections, paragraphs,
subparagraphs or clauses hereof.
[END OF ARTICLE I]
16
<PAGE>
ARTICLE II
THE
BONDS
---------
Section 201. Authorized Amounts of Bonds.
---------------------------
(a) No Bonds may be issued under the provisions of this
Indenture
except in accordance with this Article. The aggregate principal
amount
of Series 1996A Bonds authorized to be issued under this Indenture
is
$4,000,000, and the aggregate principal amount of Series 1996B
Bonds
authorized to be issued under this Indenture is $990,000. Other
than as
provided in subsection (b) of this Section 201, this Indenture does
not
authorize the issuance of additional bonds or other
indebtedness
secured by the lien and entitled to the benefits hereof.
(b) The Issuer has agreed and hereby reaffirms that it will
hereafter issue the Refunding Obligations in order to refund the
Series
1996A Bonds, such refunding to occur as soon as all of the
requirements
of the Code to assure the non-Taxable status of the Refunding
Obligations may be satisfied. Such issuance may be accomplished by
a
supplement to this Indenture entered into pursuant to the
provisions of
Section 701 hereof. Upon issuance, such Refunding Obligations will
have
many of the same terms and provisions as the Series 1996A Bonds
refunded thereby, all as shall be more fully set forth in such
supplemental indenture; provided, however, that, among other
things,
the Refunding Obligations shall be subject to two events of
mandatory
redemption in addition to that specified for the Series 1996A
Bonds,
namely, upon a Final Determination and from excess Construction
Fund
moneys. The Trustee shall, at the time of issuance of the
Refunding
Obligations, establish separate accounts within the Rebate Fund for
the
Series 1996B Bonds and for the Refunding Obligations.
Section 202. Issuance of the Bonds; Terms Thereof.
------------------------------------
(a) It is determined to be necessary to, and the Issuer shall,
issue, sell and deliver the Bonds for the purposes of refunding
the
Prior Bonds and retiring the Interim Indebtedness and assisting
in
financing the costs of the Project. The Series 1996A Bonds shall
be
designated "Taxable Industrial Development Revenue Bonds (KINPAK
INC.
Project) Series 1996A" and shall mature, unless earlier redeemed,
on
the first Business Day of March, 2012. The Series 1996B Bonds shall
be
designated "Industrial Refunding Revenue Bonds (KINPAK INC.
Project)
Series 1996B" and shall mature, unless earlier redeemed, on the
first
Business Day of March, 2000. The Bonds shall be issuable only in
fully
registered form, substantially in the forms attached as Exhibit A
to
this Indenture; shall be numbered consecutively upwards beginning
with
AR-1 and BR-1, respectively; shall be dated the Issue Date; shall
bear
interest from the most recent date to which interest shall have
been
paid or duly provided for or, if no interest shall have been paid
or
duly provided for, from the Issue Date; and shall be issuable
in
Authorized Denominations, except that the final maturity of
either
Series may be represented by an instrument of a denomination equal
to a
multiple of $5,000 that is less than $100,000. The Bonds may be
issued
in book-entry form in accordance with the requirements of
applicable
law. The Bonds shall be initially issued as DTC-Eligible
Obligations,
and therefore the requirements of Section 216 hereof shall be
applicable.
17
<PAGE>
(b) The Bonds shall bear interest at the Seven-Day Rate
throughout the Seven-Day Rate Period and, if the Conversion Date
shall
occur, at the Fixed Rate throughout the Fixed Rate Period. It
is
understood, however, that the Seven-Day Rate (and, if applicable,
the
Fixed Rate) borne by the two Series of the Bonds will not be the
same
at least until such time (if any) as the Refunding Obligations
shall
have been issued, and even thereafter need not be the same; and
therefore that the Remarketing Agent shall make separate rate
determinations for the two Series of the Bonds at least until such
time
(if any) as the Refunding Obligations shall have been issued.
(c) Interest at the Seven-Day Rate shall be computed on the
basis
of a 365- or 366-day year, as the case may be, for the number of
days
actually elapsed. Interest at the Fixed Rate shall be computed on
the
basis of a 360-day year for the number of days actually
elapsed.
(d) Interest shall be payable on overdue principal of the Bonds
and (to the extent legally enforceable) on any overdue installment
of
interest on the Bonds at the Interest Rate for Advances.
(e) Interest shall be payable in arrears on each Interest
Payment
Date.
(f) The Seven-Day Rate shall be determined on the Issue Date
and
on each Wednesday (or if Wednesday is not a Business Day, on the
next
succeeding Business Day) of each succeeding week during the
Seven-Day
Rate Period (each such date, a "Seven-Day Rate Determination
Date").
The Seven-Day Rate so determined on each Seven-Day Rate
Determination
Date shall be effective from the day of each week during any
Seven-Day
Rate Period following the Seven-Day Rate Determination Date for
such
week until and including the day immediately prior to the earlier
of
the Conversion Date or the following Thursday; provided, however,
that
if the Seven-Day Rate is not so determined on any Seven-Day
Rate
Determination Date, the Seven-Day Rate as determined on the
next
preceding Seven-Day Rate Determination Date shall remain in
effect
until and including the day immediately prior to the earlier of
the
Conversion Date or the following Thursday. The Seven-Day Rate shall
be
determined by the Remarketing Agent and shall equal the lesser of
(i)
the Cap Rate or (ii) the interest rate determined by the
Remarketing
Agent to be the interest rate that would result in the market value
of
the Bonds on such Seven-Day Rate Determination Date being 100% of
the
principal amount thereof, taking into account prevailing market
conditions. On each Seven-Day Rate Determination Date the
Remarketing
Agent shall give notice of the Seven-Day Rate so determined by
telephone, with confirmation by Telefax or other form of written
notice
selected by the Remarketing Agent, to the Trustee and the Company.
The
Trustee shall confirm the Seven-Day Rate on the Bonds from time to
time
in effect by telephone (confirmed in writing, if requested).
The
determination of the Seven-Day Rate by the Remarketing Agent (if
not
greater than the Cap Rate) shall be conclusive and binding on
the
Issuer, the Company,
the Trustee, the Bank and the Holders from time to
time of the Bonds.
(g) At any time that the Bonds bear interest at the Seven-Day
Rate, the Company may elect that the Bonds shall bear interest at
the
18
<PAGE>
Fixed Rate, which rate shall be equal to the lesser of (i) the Cap
Rate
or (ii) the interest rate established in the manner described in
this
subsection. The Company shall give the Trustee, the Placement Agent
and
the Bank written notice of the exercise of its option to convert
the
interest rate borne by the Bonds to the Fixed Rate, to be received
by
each of them not fewer than 30 nor more than 60 days prior to
the
Proposed Conversion Date. Such notice shall, if the Company
intends
that the Bonds be secured by a Letter of Credit following the
Proposed
Conversion Date, be accompanied by the documentation required
pursuant
to Section
5.8(b)(3) of the Lease Agreement. At least 25 days prior to
the Proposed Conversion Date, the Placement Agent shall determine
the
Preliminary Fixed Rate, and on such date shall give telephonic
notice
thereof, with confirmation by Telefax, to the Trustee, the Company
and
the Bank. From and after the Proposed Conversion Date, the Fixed
Rate
shall be (x) that rate, at least equal to the Preliminary Fixed
Rate,
at which some or all of the Bonds shall have been remarketed at
par, or
(y) if no Bonds shall have been so remarketed or all Holders shall
have
timely delivered a Non-Tender Notice, the Preliminary Fixed
Rate.
Notwithstanding the foregoing, such Fixed Rate shall not become
effective unless (i) there shall have been supplied to the Trustee,
the
Company and the Placement Agent at or prior to 10:00 a.m. on
the
Proposed Conversion Date a Non-Taxability Opinion further stating
that
such conversion
to the Fixed Rate is lawful under applicable law and
permitted by this Indenture, and (ii) if a Substitute Letter of
Credit
is required to be provided, there shall have been delivered to
the
Trustee such Substitute Letter of Credit and the Related
Documentation
at or prior to 10:00 a.m. on the Proposed Conversion Date. If
all
conditions to the effectiveness of the Fixed Rate shall not have
been
met, the Bonds of each Series shall continue to bear interest at
the
Seven-Day Rate from such Proposed Conversion Date until and
including
the earlier of the date immediately prior to the Conversion Date or
the
maturity date of such Series. The determination of the Fixed Rate
shall
be conclusive and binding on the Issuer, the Company, the Trustee,
the
Bank and the Holders from time to time of the Bonds. The Trustee
shall
stamp a legend on the face of each Bond authenticated on or after
the
Conversion Date
reading substantially as follows:
"This Bond bears interest at the Fixed Rate, as defined in
this Bond, which is _______% per annum, from and after
______________, ____."
and, if applicable,
"From and after such date, no Letter of Credit is in
effect."
(h) Upon the execution and delivery of this Indenture, and
satisfaction of the conditions established by the Issuer for
delivery
of the Bonds, including delivery to the Trustee of the Initial
Letter
of Credit pursuant to Section 5.8(a) of the Lease Agreement, the
Issuer
shall execute the Bonds and deliver them to the Trustee or
other
Authenticating Agent for authentication and delivery to, or on
the
order of, the Placement Agent. Prior to the delivery of the
Bonds,
there shall have been received by the Trustee a duly executed
request
and authorization to the Trustee from the Issuer to authenticate
and
deliver the Bonds to, or on the order of, the Placement Agent
upon
payment to the Trustee of the amount specified therein. That
portion of
19
<PAGE>
such amount allocable to the Series 1996A Bonds shall be deposited
in
the Construction Fund and the portion allocable to the Series
1996B
Bonds shall be deposited in the Refunding Fund, all as
hereinafter
described and as shall be more fully provided in said request
and
authorization of the Issuer.
(i) Pending preparation of definitive Bonds, the Issuer may
issue
and, upon its request, the Trustee or any Authenticating Agent
shall
authenticate, in lieu of definitive Bonds, one or more
temporary
printed or typewritten Bonds of each Series substantially in
the
respective forms set forth in Exhibit A hereto. Upon request of
the
Issuer, the Trustee or any Authenticating Agent shall
authenticate
definitive Bonds in exchange for and upon surrender of an equal
principal amount of such temporary Bonds without charge. Until
so
exchanged, temporary Bonds shall have the same rights, remedies
and
security hereunder as definitive Bonds.
Section 203. Execution of Bonds. The Bonds shall be executed on
behalf
of the Issuer by its Chairman or
Vice-Chairman under its corporate seal
impressed or otherwise reproduced thereon
and attested by its Secretary. The
signature of any of these officers of the
Issuer on the Bonds may be manual or,
to the extent permitted by law, facsimile.
In case any officer of the Issuer
whose signature shall appear on the Bonds
shall cease to be such officer before
the delivery of such Bonds, such signature
shall nevertheless be valid and
sufficient for all purposes, the same as if
he had remained in office until
delivery.
Section 204. Authentication of Bonds. Only such Bonds as shall
have
endorsed thereon a certificate of
authentication substantially in the form set
forth as part of Exhibit A hereto, duly
executed by the Trustee or by any
Authenticating Agent, shall be entitled to
any right or benefit under this
Indenture. No Bond shall be valid or
obligatory for any purpose unless and until
such certificate of authentication shall
have been duly executed by the Trustee
or by any Authenticating Agent, and such
executed certificate upon any such Bond
shall be conclusive evidence that such Bond
has been authenticated and delivered
under this Indenture. The certificate of
authentication on any Bond shall be
deemed to have been duly executed if signed
by an officer of the Trustee or any
Authenticating Agent, but it shall not be
necessary that the same officer sign
the certificate of authentication on all of
the Bonds issued under this
Indenture.
Section 205. Payment and Ownership of Bonds. Debt Service on the
Bonds
shall be payable in lawful money of the
United States of America without
deduction for the services of the Trustee
or any Paying Agent. Subject to the
provisions of Section 214 of this
Indenture, (a) the principal of and any
premium on any Bond shall be payable when
due to a Holder upon presentation and
surrender of such Bond at the Trustee's
Office or at the office, designated by
the Trustee, of any other Paying Agent, and
(b) interest on any Bond shall be
paid on each Interest Payment Date by check
or draft which the Trustee shall
cause to be sent on that date to the Person
in whose name the Bond (or one or
more Predecessor Bonds) is registered, at
the close of business on the Record
Date applicable to that Interest Payment
Date, on the Register at the address
appearing therein. If and to the extent,
however, that the Issuer shall fail to
make payment or provision for payment of
interest on any Bond on any Interest
Payment Date, whenever moneys become
available for payment of that overdue
interest and any subsequently accruing
interest, (i) the Trustee shall, pursuant
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to Section 604 hereof, establish a Special
Record Date for the payment of that
interest which shall be not more than 15
nor fewer than ten days prior to the
date of the proposed payment, and (ii) the
Trustee shall cause notice of the
proposed payment and of the Special Record
Date to be mailed by first class
mail, postage prepaid, to each Holder at
its address as it appears on the
Register not fewer than ten days prior to
the Special Record Date and,
thereafter, the interest shall be payable
to the Persons who are the Holders of
the Bonds (or their respective Predecessor
Bonds) at the close of business on
the Special Record Date.
The Holder of any Bond shall be deemed and regarded as the
absolute
owner thereof for all purposes of this
Indenture; payment of or on account of
the Debt Service on any Bond shall be made
only to or upon the order of that
Holder or its duly authorized attorney in
the manner permitted by this
Indenture; and neither the Issuer, the
Trustee, the Registrar nor any Paying
Agent or Authenticating Agent shall, to the
extent permitted by law, be affected
by notice to the contrary. All of those
payments shall be valid and effective to
satisfy and discharge the liability upon
that Bond, including without
limitation, the interest thereon, to the
extent of the amount or amounts so
paid.
Section 206. Redemption.
----------
(a) The Bonds of each Series shall be redeemable in accordance
with the respective redemption provisions contained in the Forms
of
Bond attached as Exhibit A hereto and incorporated by reference
herein.
(b) If Bonds are redeemed prior to maturity and a Letter of
Credit is then in effect, the Trustee shall take such action as may
be
necessary to reduce the coverage of the Letter of Credit to an
amount
equal to the sum of:
(1) the principal of all Bonds Outstanding following the
redemption; plus
(2) accrued interest thereon for a period of 120 days (A)
at the Cap Rate, if the Bonds then bear interest at the
Seven-Day
Rate, or (B) at the Fixed Rate, if the Bonds then bear interest
at the Fixed Rate.
(c) So long as a Letter of Credit is in effect, the Company
acknowledges that if any redemption of Bonds is to be effected (i)
from
its own funds (as would be the case whenever a redemption premium
is
payable), such funds must constitute Available Moneys; or (ii) from
a
draw under the Letter of Credit, the Company must procure and
furnish
to the Trustee, by not later than the time of the election pursuant
to
Section 210 hereof, the written consent of the Bank to such
redemption.
Section 207. Notice of Redemption. The notice of the call for
redemption of Bonds shall identify (a) by
Series, designation, letters, numbers
or other distinguishing marks, the Bonds or
portions thereof to be redeemed, (b)
the redemption price to be paid, (c) the
date fixed for redemption and (d) the
place or places where the amounts due upon
redemption are payable. The notice
shall be given or caused to be given by the
Trustee on behalf of the Issuer by
mailing a copy of the redemption notice by
first class mail, postage prepaid,
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not more than 60 nor fewer than 20 days
prior to the date fixed for redemption
to the Holder of each Bond subject to
redemption in whole or in part at the
Holder's address shown on the Register on
the 15th day preceding that mailing;
provided, that failure to receive notice by
mailing, or any defect in that
notice, as to any Bond shall not affect the
validity of the proceedings for the
redemption of any Bond for which notice is
properly given.
Section 208. Payment of Redeemed Bonds. Notice having been mailed
in
the manner provided in the preceding
Section, the Bonds and portions thereof
called for redemption shall become due and
payable on the redemption date, and
upon presentation and surrender thereof at
the place or places specified in that
notice, shall be paid at the redemption
price, plus interest accrued to the
redemption date; provided that, so long as
the Letter of Credit or an Alternate
Credit Facility is in effect, payment of
the Bonds upon optional redemption
thereof shall be made from moneys only to
the extent such moneys constitute
Available Moneys.
If moneys for the redemption of all of the Bonds and portions
thereof
to be redeemed, together with interest
accrued thereon to the redemption date,
are held by the Trustee or any Paying Agent
on the redemption date, so as to be
available therefor on that date, then from
and after the redemption date the
Bonds and portions thereof called for
redemption shall cease to bear interest
and no longer shall be considered to be
Outstanding hereunder. If those moneys
shall not be so available on the redemption
date, those Bonds and portions
thereof shall continue to bear interest,
until they are paid, at the same rate
as they would have borne had they not been
called for redemption.
All moneys deposited in the Bond Fund or held by the Trustee or
a
Paying Agent 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 those
Bonds.
Section 209. Partial Redemption. If fewer than all of the Bonds
of
either Series are to be redeemed, the
selection of Bonds to be redeemed, or
portions thereof in multiples of $100,000
and any integral multiple of $5,000 in
excess thereof, shall be made by lot by the
Trustee in any manner which the
Trustee may determine. In the case of a
partial redemption of Bonds of either
Series by lot when Bonds of that Series in
denominations greater than $100,000
are then Outstanding, the Trustee shall
treat any Bond of a denomination greater
than $100,000 as representing that number
of separate Bonds, each of the minimum
denomination of $100,000 or any integral
multiple of $5,000 in excess thereof,
as the Trustee may determine; and if less
than the full number of such separate
Bonds are to be called for redemption, then
upon surrender the Holder thereof
shall receive a new Bond or Bonds of any
Authorized Denomination in an aggregate
principal amount equal to the unmatured and
unredeemed portion of, and bearing
interest at the same rate as, the Bond
surrendered.
Notwithstanding anything to the contrary contained in this
Indenture,
whenever the Bonds are to be redeemed in
part, Bonds which are Pledged Bonds at
the time of selection of Bonds for
redemption shall be selected for redemption
prior to the selection of any other Bonds.
If the aggregate principal amount of
Bonds to be redeemed exceeds the aggregate
principal amount of Pledged Bonds at
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the time of selection, the Trustee may
select for redemption Bonds in an
aggregate principal amount equal to such
excess by lot in any manner which the
Trustee may determine.
Section 210. Election to Redeem. Except in the case of
redemption
pursuant to any mandatory redemption
provisions (in connection with which no
election need be made), Bonds shall be
redeemed only by written election
effected by notice from the Company (on
behalf of the Issuer) to the Trustee.
That notice shall specify the redemption
date and the principal amount of Bonds
to be redeemed, and shall be given at least
45 days prior to the redemption date
or such shorter period as shall be
acceptable to the Trustee. In the event that
notice of redemption shall have been given
by the Trustee to the Holders as
provided in Section 207 hereof, there shall
be deposited with the Trustee on or
prior to the redemption date, funds which,
in addition to any other moneys
available therefor and held by the Trustee,
will be sufficient to redeem at the
redemption price thereof, plus interest
accrued to the redemption date, all of
the redeemable Bonds for which notice of
redemption has been given.
Section 211. Mutilated, Lost, Stolen or Destroyed Bonds. In the
event
any Bond is mutilated, lost, stolen or
destroyed, the Issuer shall execute and
the Registrar shall authenticate a new Bond
of like Series, date, number and
denomination to that mutilated, lost,
stolen or destroyed; provided that, in the
case of any mutilated bond, such mutilated
Bond shall first be surrendered to
the Registrar and, in the case of any lost,
stolen or destroyed Bond, there
shall be first furnished to the Issuer, the
Company, the Registrar and the
Trustee evidence of such loss, theft or
destruction satisfactory to them
together with indemnity satisfactory to
them. In the event any such Bond shall
have matured, instead of issuing a new Bond
the Company may direct the Trustee
to pay the same without surrender. The
Issuer, the Registrar and the Trustee may
charge the Holder of a mutilated, lost,
wrongfully taken or destroyed Bond their
reasonable fees and expenses in connection
with their actions pursuant to this
Section.
Section 212. Transfer and Exchange of Bonds. So long as any of
the
Bonds remain outstanding, the Issuer will
cause books for the registration and
transfer of Bonds, as provided in this
Indenture, to be maintained and kept at
the designated office of the Registrar.
Any Bond shall be transferable, subject to any restrictions on
transferability therein contained, only
upon the books of the Registrar by the
Holder thereof in person or by his duly
authorized attorney, upon surrender
thereof to the Registrar with a written
instrument of transfer satisfactory to
the Registrar duly executed by the Holder
or his duly authorized attorney. Upon
the registration of transfer, the Issuer
shall issue in the name of the
transferee one or more new Bonds of the
same Series and aggregate principal
amount as the surrendered Bond.
Bonds may be exchanged, at the option of their Holder, for Bonds of
any
Authorized Denomination in an aggregate
principal amount equal to the unmatured
and unredeemed principal amount of, and
bearing interest at the same rate as,
the Bonds being exchanged. The exchange
shall be made upon presentation and
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<PAGE>
surrender of the Bonds being exchanged at
the designated office of the Registrar
or at the designated office of any
Authenticating Agent, together with an
assignment duly executed by the Holder or
its duly authorized attorney in any
form which shall be satisfactory to the
Registrar or the Authenticating Agent,
as the case may be.
In all cases in which the privilege of exchanging or transferring
Bonds
is exercised, the Issuer shall execute and
the Registrar or other Authenticating
Agent shall authenticate and deliver new
Bonds in accordance with the provisions
hereof. The new Bonds shall be issued upon
the surrender of the old Bonds, in
such manner that no gain or loss of
interest results from said transfer or
exchange.
No charge shall be made to any Holder for the privilege of transfer
or
exchange hereinabove granted, but any
Holder requesting any such transfer or
exchange shall pay any tax or other
governmental charge required to be paid with
respect thereto. Neither the Issuer, the
Registrar nor any Authenticating Agent,
as the case may be, shall be required to
make any exchange or transfer of a Bond
during a period beginning at the opening of
business 15 days before the day of
the mailing of a notice of redemption of
Bonds and ending at the close of
business on the day of such mailing or to
transfer or exchange any Bonds
selected for redemption, in whole or in
part.
Section 213. Safekeeping and Cancellation of Bonds. Any Bond
surrendered pursuant to this Article for
the purpose of payment or retirement,
or for exchange, replacement or transfer,
shall be cancelled upon presentation
and surrender thereof to the Registrar, the
Trustee or any Paying Agent or
Authenticating Agent. Any Bond cancelled by
the Trustee or any Paying Agent or
Authenticating Agent shall be transmitted
promptly to the Registrar by the
Trustee, Paying Agent or Authenticating
Agent.
The Issuer, or the Company on behalf of the Issuer, may deliver at
any
time to the Registrar for cancellation any
Bonds previously authenticated and
delivered hereunder, which the Issuer or
the Company may have acquired in any
manner whatsoever. All Bonds so delivered
shall be promptly cancelled and
destroyed by shredding or incineration by
the Registrar. Certification of such
surrender, cancellation and destruction
(describing the manner thereof) shall be
made to the Issuer, the Company and the
Trustee by the Registrar once each
calendar year.
Section 214. Special Agreement with Holders. Notwithstanding
any
provision of this Indenture or of any Bond
to the contrary, upon written request
of any Holder of at least $500,000 in
aggregate principal amount of the Bonds
given at least ten days prior to the first
applicable Record Date, the Trustee
(or other Paying Agent) shall enter into an
agreement with that Holder providing
for making all payments to that Holder of
Debt Service on that Bond or any part
thereof at a place and in a manner,
including without limitation by wire
transfer, other than as provided in this
Indenture and in the Bond, upon any
conditions which shall be satisfactory to
the Trustee (or other Paying Agent)
and the Company; provided, that payment in
any event shall be made to the Person
in whose name a Bond shall be registered on
the Register, with respect to
payment of principal and premium, on the
date such principal and premium is due,
and, with respect to the payment of
interest, as of the applicable Record Date
or Special Record Date, as the case may
be.
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The Trustee (or other Paying Agent) will upon request furnish a
copy of
each of those agreements, certified to be a
true copy by an officer of the
Trustee (or other Paying Agent), to the
Registrar, the Tender Agent and the
Company. Any payment of Debt Service
pursuant to such an agreement shall
constitute payment thereof pursuant to, and
for all purposes of, this Indenture.
Section 215. Actions Regarding Letter of Credit.
----------------------------------
(a) The Trustee is hereby authorized to accept the Initial
Letter
of Credit and any Substitute Letter of Credit delivered to it
pursuant
to Section 5.8 of the Lease Agreement.
(b) The Trustee shall, at least 30 days prior to any proposed
Letter of Credit Substitution Date, furnish to the Holders a copy
of
the Company's written notice, given pursuant to Section 5.8(b)(1)
of
the Lease Agreement, of its intention to furnish a Substitute
Letter of
Credit.
(b) If a Substitute Letter of Credit shall have been delivered
to
the Trustee pursuant to Section 5.8 of the Lease Agreement and
become
effective, the Existing Letter of Credit shall be returned to
the
issuer thereof as provided in said Section of the Lease
Agreement.
Section 216. DTC Eligibility Requirements. To induce DTC to accept
the
Bonds as eligible for deposit at DTC, and
to assure compliance with the rules of
DTC with respect to the Bonds, the Issuer
and the Trustee agree, with respect to
any Bonds that are to be deposited with
DTC, to comply with the terms of a
letter of representations heretofore
executed by the Issuer in connection with
DTC-eligible debt offerings generally, the
terms and provisions of which are
incorporated herein by this reference. In
the event of any conflict between any
term or provision of said letter of
representations and any other term or
provision of this Indenture, the terms and
provisions of said letter of
representations shall be controlling during
any period that the Bonds are
deposited with DTC.
[END OF ARTICLE II]
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ARTICLE III
TENDER PROVISIONS
-----------------
Section 301. Optional Tenders.
----------------
(a) The Holder of any Bond (other than a Pledged Bond or
Company
Bond) shall have the right to tender such Bond to the Tender Agent,
for
purchase at the Purchase Price, in whole or in part (and if in
part, in
any Authorized Denomination) on any Business Day (the "Optional
Tender
Date") during the Seven-Day Rate Period, but not during the Fixed
Rate
Period. In order to exercise such option with respect to any Bond,
the
Holder thereof must give to the Trustee at the Trustee's Office,
with a
copy to the Tender Agent at the Tender Office, at least seven
days
prior to the proposed Optional Tender Date, notice (i) by
telephone,
confirmed by Notice of Tender not more than two Business Days
after
such telephonic notice, or (ii) by Notice of Tender. If the
telephonic
notice or the Notice of Tender specifies an Optional Tender Date
that
is not a Business Day, then such notice shall be deemed to specify
the
Business Day following the designated Optional Tender Date. Upon
the
delivery of Notice of Tender, such election to tender shall be
irrevocable and binding upon such Holder. If a Notice of Tender
shall
have been duly given with respect to any Bond, the Holder of such
Bond
shall deliver such Bond to the Tender Agent at the Tender Office
not
fewer than five days prior to the Optional Tender Date, together
with
an instrument of assignment or transfer duly executed in blank
(which
instrument of assignment or transfer shall be in the form provided
on
such Bond or in such other form as shall be acceptable to the
Tender
Agent); provided, however, that any such Holder which is an
investment
company registered under the Investment Company Act of 1940 may
deliver
its Bonds to the Tender Agent at the Tender Office at or before
10:00
a.m. on the Optional Tender Date. The Trustee shall, in its
sole
discretion, determine whether, with respect to any Bond, the
Holder
thereof shall have properly exercised the option to have its
Bond
purchased.
(b) As to any such notice of tender for purchase which the
Trustee deems duly given pursuant to this Section, the Trustee
shall
immediately give telegraphic or telephonic notice, with prompt
confirmation by Telefax, to the Tender Agent, the Remarketing
Agent,
the Bank and the Company of the principal amount of affected Bonds
and
the proposed Optional Tender Date therefor. On each Optional
Tender
Date the Trustee shall cause the Tender Agent to purchase, at
the
Purchase Price, all Bonds as to which Notices of Tender for
purchase
shall have been received. Funds for payment of the Purchase Price
of
such Bonds shall be drawn by the Trustee from the Bond Purchase
Fund as
provided in Section 406 of this Indenture.
(c) Any Bond for which a Notice of Tender shall have been given
but which shall not be so delivered to the Tender Agent (an
"Unsurrendered Bond"), shall nevertheless be deemed to have
been
tendered by the Holder thereof on the Optional Tender Date. If
there
shall have been irrevocably deposited in the Bond Purchase Fund
an
amount sufficient to pay the Purchase Price of all Bonds tendered
or
deemed tendered for purchase on an Optional Tender Date, any
26
<PAGE>
Unsurrendered Bonds shall cease to accrue interest on such
Optional
Tender Date and the Holders thereof shall thereafter be entitled
only
to payment of the Purchase Price therefor and not to the benefits
of
this Indenture. The Tender Agent shall notify the Trustee and
Registrar
of any Unsurrendered Bonds, shall authenticate a new Bond or Bonds
in
the same aggregate principal amount as the Unsurrendered Bonds,
and
shall hold or dispose of such new Bond or Bonds in accordance with
the
provisions of subsections (e) and (f) of Section 303 hereof.
The
Trustee shall notify the Remarketing Agent of such Unsurrendered
Bonds
and shall place a stop transfer against such Unsurrendered Bonds
until
they are properly delivered to the Tender Agent. Payment of the
Purchase Price of any such Unsurrendered Bonds shall be made only
upon
the presentment and surrender of such Bonds to the Tender
Agent,
whereupon the Registrar shall make any necessary adjustment to
the
Register.
(d) Notwithstanding anything to the contrary contained herein,
no
tender hereunder shall be deemed a redemption of the affected
Bonds;
and the right of Holders to
