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TRUST INDENTURE
DATED AS OF DECEMBER 1, 2002
BETWEEN
UTAH TECH CENTER, LLC,
AS THE ISSUER
AND
SECURITY BANK OF KANSAS CITY,
AS THE TRUSTEE
$14,870,000
TAXABLE REVENUE BONDS
(OSHA TECHNICAL CENTER PROJECT)
SERIES 2002
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<PAGE>
TRUST INDENTURE
TABLE OF CONTENTS
PAGE
----
Parties......................................................1
Recitals.....................................................1
Granting Clauses.............................................1
ARTICLE I
DEFINITIONS
Section 101.
Definitions of Words and Terms...............................2
Section 102. Rules of
Interpretation......................................9
ARTICLE II
THE BONDS
Section 201. Title and
Amount of Bonds....................................9
Section 202. Denomination,
Numbering and Dating of Bonds..................9
Section 203. Method and
Place of Payment of Bonds.........................9
Section 204. Execution
and Authentication of Bonds.......................10
Section 205.
Registration, Transfer and Exchange of Bonds................10
Section 206. Persons
Deemed Owners of Bonds..............................10
Section 207.
Authorization of Series 2002 Bonds..........................10
Section 208.
Authorization of Additional Bonds...........................11
Section 209. Temporary
Bonds.............................................12
Section 210. Mutilated,
Lost, Stolen or Destroyed Bonds..................13
Section 211.
Cancellation and Destruction of Bonds Upon Payment..........13
Section 212.
Book-Entry; Securities Depository...........................13
ARTICLE III
REDEMPTION OF BONDS
Section 301. Redemption
of Bonds Generally...............................14
Section 302. Redemption
of Series 2002 Bonds.............................14
Section 303. Selection
of Bonds to be Redeemed...........................15
Section 304. Trustee's
Duty to Redeem Bonds..............................15
Section 305. Notice and
Effect of Call for Redemption....................15
Section 306. Effect of
Call for Redemption...............................16
ARTICLE IV
FORM OF BONDS
Section 401. Form of
Bonds Generally.....................................16
Section 402. Form of
Series 2002 Bonds...................................16
ARTICLE V
CREATION OF
PROJECT FUND; CUSTODY
AND APPLICATION OF BOND PROCEEDS
Section 501. Creation
of Project Fund....................................16
(i)
<PAGE>
Section 502. Deposits
into the Project Fund..............................17
Section 503.
Disbursements from the Project Fund.........................17
Section 504.
Disposition Upon Completion of the Project..................17
Section 505. Deposits
and Disbursements from the Series
2002 Liquidated Damages Reserve Account.....................29
Section 506.
Disposition of the Series 2002 Liquidated
Damages Reserve Account Upon Completion
of the Project..............................................29
Section 507.
Disposition Upon Acceleration...............................18
ARTICLE VI
REVENUES AND FUNDS
Section 601. Creation
of Funds and Accounts..............................18
Section 602. Deposits
Into and Application of Moneys
in the Revenue Fund.........................................18
Section 603. Deposits
into the Debt Service Fund.........................19
Section 604.
Application of Moneys in the Debt Service Fund..............19
Section 605. Deposits
into and Application of Moneys
in the Project Replacement Fund.............................19
Section 606. Deposits
into and Application of Moneys
in the Capitalized Interest Fund............................19
Section 607. Deposits
Into and Application of Moneys
in the Tax and Insurance Fund...............................20
Section 608. Deposits
Into and Application of Moneys in the
Project Operation and Maintenance Fund......................20
Section 609. Payments
Due on Saturdays, Sundays and Holidays.............20
Section 610.
Nonpresentment of Bonds.....................................20
Section 611. Additional
Payments.........................................20
ARTICLE VII
SECURITY FOR DEPOSITS AND INVESTMENT OF FUNDS
Section 701. Moneys to
be Held in Trust..................................21
Section 702. Investment
of Moneys in Funds...............................21
Section 703. Record
Keeping..............................................21
ARTICLE VIII
GENERAL COVENANTS AND PROVISIONS
Section 801. Payment of
Principal of, Premium, if Any,
and Interest on the Bonds...................................21
Section 802. Authority
to Execute Indenture and Issue Bonds..............21
Section 803.
Performance of Covenants....................................21
Section 804.
Instruments of Further Assurance............................21
Section 805. Insurance
Provisions........................................21
Section 806.
Impositions.................................................22
Section 807. Use of
Project..............................................23
Section 808. Repairs
and Maintenance.....................................23
Section 809.
Environmental Matters.......................................23
Section 810.
Utilities...................................................23
Section 811. Inspection
of Project Books.................................23
Section 812.
Enforcement of Rights Under the Lease.......................23
Section 813. Possession
and Use of Project...............................23
Section 814. Financial
Statements and Annual Budget......................24
Section 815. Project
Covenants...........................................24
(ii)
<PAGE>
Section 816. Removal of
Machinery and Equipment;
Improvements to the Project.................................25
Section 817. Damage,
Destruction and Condemnation........................27
Section 818.
Assignment..................................................28
Section 819.
Indemnification by the Issuer...............................28
Section 820. Additional
Covenants of the Issuer..........................28
Section 821. Title
Insurance.............................................45
ARTICLE IX
REMEDIES ON DEFAULT
Section 901.
Acceleration of Maturity in Event of Default................29
Section 902. Exercise
of Remedies by the Trustee.........................29
Section 903. Limitation
on Exercise of Remedies by Owners................29
Section 904. Right of
Owners to Direct Proceedings.......................29
Section 905. Remedies
Cumulative.........................................29
Section 906. Waivers of
Events of Default................................30
ARTICLE X
THE TRUSTEE
Section 1001. Acceptance of
the Trusts....................................30
Section 1002. Fees, Charges
and Expenses of the Trustee...................31
Section 1003. Notice to Owners
if Default Occurs..........................31
Section 1004. Intervention by
the Trustee.................................31
Section 1005. Successor
Trustee Upon Merger, Consolidation or Sale........31
Section 1006. Resignation of
Trustee......................................31
Section 1007. Removal of
Trustee..........................................31
Section 1008. Appointment of
Successor Trustee............................31
Section 1009. Vesting of
Trusts in Successor Trustee......................31
Section 1010. Right of Trustee
to Pay Taxes and Other Charges.............31
Section 1011. Trust Estate May
Be Vested in Co-trustee....................32
Section 1012. Annual
Accounting...........................................32
Section 1013. Recordings and
Filings......................................32
Section 1014. Performance of
Duties under the Lease.......................32
Section 1015. Designation of
Paying Agents................................32
Section 1016. Fees, Charges
and Expenses of Paying Agents.................32
ARTICLE XI
SUPPLEMENTAL INDENTURES AND SUPPLEMENTAL MORTGAGES
Section 1101. Supplemental
Indentures and Supplemental
Mortgages Not Requiring Consent of Owners...................32
Section 1102. Supplemental
Indentures and Supplemental
Mortgages Requiring Consent of Owners.......................53
ARTICLE XII
LEASE AMENDMENTS
Section 1201. Lease
Amendments............................................33
(iii)
<PAGE>
ARTICLE XIII
SATISFACTION AND DISCHARGE
Section 1301. Satisfaction and
Discharge of Indenture.....................33
Section 1302. Bonds Deemed to
be Paid.....................................33
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 1401. Consents and
Other Instruments by Owners....................34
Section 1402. Interested
Parties..........................................34
Section 1403.
Notices.....................................................34
Section 1404. Suspension of
Mail Service..................................35
Section 1405.
Amendment...................................................35
Section 1406.
Severability................................................35
Section 1407.
Counterparts................................................35
Section 1408. Governing
Law...............................................35
Signatures and Seals.......................................S-1
Schedule I - Property Subject to Lease
Appendix A-Form of Series 2002 Bonds
Appendix B-Form of Certificate for Payment of Project Costs
(iv)
<PAGE>
TRUST INDENTURE
THIS TRUST
INDENTURE,
dated as of
December 1, 2002,
between UTAH TECH
CENTER, LLC, a limited liability company duly organized
and existing under the
laws of the State of Missouri and qualified
to do business in the State of Utah,
as Issuer, and SECURITY BANK OF KANSAS CITY, a banking corporation duly
organized and existing and authorized to accept and execute trusts of the
character herein set forth under the laws of the State of Kansas, with its
principal office located in the City of
Kansas City, Kansas, as Trustee;
WITNESSETH:
WHEREAS,
the Issuer is
authorized by law and a resolution duly adopted by
its members (the "Resolution"),
to issue under this
Indenture a series of bonds
(described herein) in an aggregate
principal amount of
$14,870,000 (the "Series
2002 Bonds"), for the purpose of providing
funds to (a) finance the acquisition,
construction, furnishing and equipping of an
approximately
75,000 square foot
office building located at 8540 Sandy Parkway in
Sandy, Utah (the
"Project"),
(b) fund capitalized interest on the Series 2002 Bonds and (c) pay costs
of
issuance of the Series 2002 Bonds; and
WHEREAS,
concurrently
with the issuance of the Series
2002 Bonds,
the
Issuer will enter into a Deed of Trust,
Mortgage and Security
Agreement of even
date herewith (the "MORTGAGE") to the mortgage trustee for the benefit of the
Trustee to secure its obligations under
this Indenture; and
WHEREAS,
all things necessary to make the Bonds, when authenticated by
the
Trustee and issued as provided in this
Indenture, the valid
and legally binding
obligations of the Issuer, and to constitute this Indenture a
valid and legally
binding pledge and assignment of the Trust Estate
herein made for the security
of the payment of the principal of,
premium, if any, and interest on the
Bonds
issued hereunder, have been done and performed,
and the 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, the acceptance by the
Trustee of the trusts hereby created, the purchase and acceptance of the
Bonds
by the Owners thereof, and of other good
and valuable consideration, the receipt
of which is hereby acknowledged, and in order to secure the payment of the
principal of, premium, if any, and interest on all of the Bonds
issued and
Outstanding under this Indenture from time to
time according to their tenor and
effect, and to secure the performance and observance by the Issuer of
all the
covenants, agreements and conditions
herein and in the
Bonds contained,
does
hereby pledge and assign unto the Trustee
and its successors
and assigns,
the
following property (said property being herein referred to as the "Trust
Estate"):
(a) all
right, title and interest of the Issuer in, to and under the
Lease, and all rents, revenues and receipts derived by the Issuer from the
Project including, without limitation, all payments
derived by the Issuer under
and pursuant to and subject to the
provisions
of the Lease;
provided that the
pledge and assignment hereby made shall not impair or
diminish the
obligations
of the Issuer under the provisions of the
Lease; and
(b) all
right, title and interest of the Issuer in, to and under the
Mortgaged Property mortgaged and pledged under the Mortgage and
all financing
statements or other instruments or
documents relating thereto; and
(c) all
moneys and securities
from time to time held by the Trustee under
the terms of this Indenture, and any and all other property of every kind and
nature from time to time hereafter, by delivery or by writing of any kind,
pledged, assigned or transferred as and for
additional security hereunder by the
Issuer or by anyone in its behalf, or with
its written consent,
to the Trustee,
which is hereby authorized to receive any and all such
property at any and all
times and to hold and apply the same
subject to the terms hereof.
TO HAVE
AND TO HOLD, all and
singular, the Trust Estate with all
rights
and privileges hereby pledged and assigned,
or agreed or intended
so to be, to
the Trustee and its successors in trust and
assigns;
IN TRUST
NEVERTHELESS, upon the terms and subject to the conditions
herein
set forth, for the equal and proportionate
benefit, protection and security of
all Owners from time to time of the Bonds
issued and
Outstanding
under this
Indenture, without preference, priority or distinction as to lien
or otherwise
of any of the Bonds over any other of the
Bonds except as expressly provided by
this Indenture;
PROVIDED,
HOWEVER, that if the Issuer shall well and
truly pay, or cause
to be paid, the principal of, premium, if
any, and interest on all the Bonds, at
the times and in the manner mentioned in the Bonds according
to the true intent
and meaning thereof, or shall provide for the payment
thereof (as provided
in
ARTICLE XIII hereof), and shall pay or
cause to be paid to the Trustee all other
sums of money due or to become due to it in accordance with the terms and
provisions hereof, then upon such final payments this
Indenture and the rights
hereby granted shall cease, determine and be void;
otherwise,
this Indenture
shall be and remain in full force and
effect.
THIS
INDENTURE FURTHER
WITNESSETH, and it is
hereby expressly
declared,
covenanted and agreed by and between the
parties hereto,
that all Bonds
issued
and secured hereunder are to be issued,
authenticated and delivered and that all
the Trust Estate is to be held and applied
under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and
purposes as
hereinafter expressed, and the Issuer does hereby agree
and covenant with
the
Trustee and with the respective Owners from time to time of the Bonds, as
follows:
<PAGE>
ARTICLE I
DEFINITIONS
SECTION
101. DEFINITIONS OF
WORDS AND TERMS. In addition to the words and
terms defined elsewhere in this Indenture,
the following words and terms as used
in this Indenture shall have the following
meanings, unless some other meaning
is plainly intended:
"ADDITIONAL BONDS"
means any Bonds issued
in addition to and on a parity
with the Series 2002 Bonds and issued
pursuant to SECTION 208 of this Indenture.
"ADDITIONAL PAYMENTS"
means all fees,
charges and expenses
described in
SECTION 611 hereof.
"ANNUAL
BUDGET" means the Annual Budget of the Project required by
SECTION
814 hereof.
"AFFILIATE" means any
person (including
any corporation, partnership,
limited liability company or other entity
(including without
limitation,
any
trust or estate or natural person) which, directly or through one or more
intermediaries, owns or controls, or is controlled by or which is
under common
control with, the Issuer.
"AUTHORIZED ISSUER REPRESENTATIVE" means any member of the Issuer
as is at
the time designated to act on behalf of the
Issuer as evidenced by written
certificate furnished to the Trustee
containing the
specimen signature of such
person and signed on behalf of the Issuer
by all its members.
Such certificate
may designate an alternate or alternates, each of whom shall be entitled
to
perform all duties of the Authorized Issuer
Representative.
"BANKRUPTCY CODE" means Title 11 of the United States Code, as
amended.
"BOND" or
"BONDS" means the
fully registered
Series 2002 Bonds and any
Additional Bonds.
"BOND
REGISTER" means the books maintained by the Trustee for the
registration and transfer of the Bonds.
"BUSINESS
DAY" means a day which
is not (a) a Saturday
or Sunday or (b)
any day on which banks in the State of
Missouri are authorized or required to be
closed.
"CAPITALIZED INTEREST
FUND" has the
meaning set forth in
SECTION 601 of
this Indenture.
"CEDE
& CO." means Cede & Co., as nominee of The Depository Trust
Company,
New York, New York.
"CERCLA"
means the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. ss.9601, et
seq.
"CERTIFICATE OF
COMPLETION"
means a written
certificate
signed by the
Authorized Issuer Representative and the
Project Consultant stating that (a) the
Project has been completed in accordance
with the Plans and Specifications, (b)
the Project has been completed in a good and workmanlike manner, (c) no
mechanic's or other similar liens have been filed,
nor is there any basis
for
the filing of such liens, with respect to the Project, (d) all Improvements
constituting a part of the Project are located
or installed upon the
Land, (e)
if required by ordinances duly adopted by the City of Sandy, Utah or by
applicable building codes, that an
appropriate certificate of occupancy has been
issued with respect to the Project and (1)
the Project has been
accepted by the
Tenant pursuant to the terms of the
Lease.
"CHANGE OF
CIRCUMSTANCES"
means the occurrence of any of the following
events:
(a) title to, or the
temporary use of, all
or any material part of
the
Project shall be
condemned by any authority exercising the power of
eminent
domain;
(b)
title to substantially all of the Project is found to be
deficient
or nonexistent to the extent that the Project is untenantable
or
the
efficient utilization
of the Project by the
Issuer is
substantially
impaired;
(c) substantially all of the Project is damaged or destroyed by
fire
or other
casualty; or
(d) as a result of (i)
changes in the
Constitution
of the State,
(ii)
any legislative or administrative action by the State or any
political
subdivision thereof, or by the United States or (iii) any
action
instituted
in any court, the Lease shall become void or unenforceable,
or
impossible
to perform without
unreasonable delay, or unreasonable burdens
or
excessive liabilities are imposed upon the Issuer by reason of
such
changes of
circumstances.
-2-
<PAGE>
"COMPLETION DATE"
means the date of completion of the acquisition,
purchase, construction and installation of the Project pursuant to this
Indenture.
"CONSTRUCTION PERIOD"
means the period from the beginning of construction
of the Project to the Completion Date.
"COSTS OF
ISSUANCE" means any and all expenses of whatever nature
incurred
in connection with the issuance and sale of
the Bonds, including but not limited
to underwriting fees and expenses, underwriting discount, bond and other
printing expenses, and legal fees and
expenses of counsel.
"DEBT SERVICE FUND" has the meaning set forth in SECTION 601 of this
Indenture.
"DEBT
SERVICE REQUIREMENTS" means, for any period of time for which
calculated, the aggregate of the payments to be made during such period in
respect of principal (whether at maturity or
otherwise)
and interest on the
Outstanding Bonds; provided that such payments are excluded
from Debt Service
Requirements to the extent that cash or
Defeasance Obligations are on deposit in
an irrevocable escrow or trust account in
accordance with
SECTION 1302 hereof
and such amounts (including, where appropriate, the earnings or
other increment
to accrue thereon) are required to be
applied to pay
principal or interest and
are sufficient to pay such principal or
interest.
"DEFAULT
ADMINISTRATION
COSTS" means the
reasonable
fees, charges and
expenses of the Trustee incurred in anticipation of an Event of Default,
or
after the occurrence of an Event of Default, including, but not limited to,
counsel fees, litigation costs and
expenses.
"DEFAULT
RATE" means the highest rate on any Bonds plus 5% per annum.
"DEFEASANCE
OBLIGATIONS" means
Government
Obligations
which are not
subject to redemption prior to
maturity.
"ENVIRONMENTAL
ASSESSMENT" means an
environmental assessment with respect
to the Project conducted by an independent consultant satisfactory to the
Trustee which reflects the results of such
inspections,
records reviews,
soil
tests, groundwater tests and other tests
requested, which assessment and results
shall be satisfactory in scope, form and
substance to the Trustee.
"ENVIRONMENTAL
LAW" means
CERCLA,
the Superfund Amendments and
Reauthorization Act of 1986, and any other
federal, state or local environmental
statute, regulation or ordinance presently in effect or coming into effect
during the term of the Lease.
"EVENT OF
BANKRUPTCY" means an
event whereby the Issuer shall: (a) admit
in writing its inability to pay its debts as they become due; (b) file a
petition in bankruptcy or for reorganization or for the adoption of an
arrangement under the Bankruptcy Code as
now or in the future amended, or file a
pleading asking for such relief, (c) make an assignment for the benefit of
creditors; (d) consent to the appointment of
a trustee or receiver for all or a
major portion of its property; (e) be finally adjudicated as bankrupt or
insolvent under any federal or state law; (f) suffer the entry of a final
and
nonappealable court order under any federal or
state law appointing a
receiver
or trustee for all or a major part of its
property or ordering the winding-up or
liquidation of its affairs, or approving a petition filed
against it under the
Bankruptcy Code, which order, if the Issuer
has not consented thereto, shall not
be vacated, denied, set aside or stayed within 60 days
after the day of entry;
or (g) suffer a writ or warrant of attachment or any similar process to be
issued by any court against all or any
substantial portion of its property, and
such writ or warrant of attachment or any similar process is not contested,
stayed, or is not released within 60 days after the final
entry, or levy or
after any contest is finally adjudicated or
any stay is vacated or set aside.
"EVENT OF
DEFAULT" under this Indenture means any of the following
events:
(a)
default in the due and punctual payment of any interest on any
Bond;
(b)
default in the due and punctual payment of the principal of or
premium, if any, on any Bond on the stated
maturity or accelerated maturity date
thereof, or at the redemption date
thereof,
(c)
default under the Mortgage; or
(d)
default in the performance or observance of any other of the
covenants, agreements or conditions on the
part of the Issuer contained in this
Indenture or in the Bonds, and the continuance thereof for a period of 30
days
after written notice thereof shall have been
given to the Issuer and the Tenant
by the Trustee or the Issuer and the Tenant by
the Owners of not less than 25%
in aggregate principal amount of Bonds then
Outstanding; provided, however, that
if any default shall be such that it cannot be
corrected within such 30-day
period, it shall not constitute an Event of Default if
corrective
action is
instituted by the Issuer or the Tenant
within such period and diligently pursued
until such default is corrected.
"FULL
INSURABLE VALUE" means the full actual replacement cost of the
Project less physical depreciation as determined from time to time upon the
request of the Issuer or the Trustee (but
not more frequently than once in every
24 months) by an architect, appraiser,
appraisal company or one of the insurers,
selected and paid by the Issuer.
"GOVERNMENT
OBLIGATIONS" means
direct obligations of, or obligations the
payment of the principal of and interest on
which are unconditionally guaranteed
by, the United States of America.
-3-
<PAGE>
"HAZARDOUS
SUBSTANCES"
shall mean
"hazardous
substances" as defined
in
CERCLA.
"IMPOSITIONS" means all taxes and assessments, general and special, which
may be lawfully taxed, charged,
levied, assessed or imposed upon or
against or
payable for or in respect of the
Project or any part
thereof or the
Issuer's
interest therein, including any new lawful
taxes and assessments not of the kind
enumerated above to the extent that the same are lawfully made, levied or
assessed in lieu of or in addition to taxes or assessments now customarily
levied against real or personal
property, and further including all water and
sewer charges, assessments and other governmental charges and impositions
whatsoever, foreseen or unforeseen.
"IMPROVEMENTS" means
the buildings,
structures,
facilities,
additions,
improvements, machinery, equipment and
other property described in paragraph (b)
of SCHEDULE I attached hereto and made a
part hereof.
"INDENTURE" means this
Trust Indenture by and
between the Issuer and the
Trustee, as from time to time amended and supplemented by Supplemental
Indentures in accordance with the
provisions of ARTICLE XI of this Indenture.
"INTEREST
PAYMENT DATE" means (a) with respect to
the Series 2002 Bonds,
January 1 and July 1 of each year,
commencing July 1, 2003, and terminating when
the principal of, premium if any, and interest on the Series 2002
Bonds have
been fully paid, and (b) with respect to any Additional Bonds, the dates
specified as interest payments dates in the Supplemental Indenture relating
thereto.
"INVESTMENT
SECURITIES" means any
of the following
securities,
to the
extent the same are at the time
permitted for investment of funds held by
the
Trustee pursuant to this Indenture:
(a) cash (insured
at all times by the
Federal Deposit Insurance
Corporation or
otherwise
collateralized with
obligations
described in
paragraph
(b) below);
(b) direct obligations
of (including
obligations issued or held in
book entry
form on the books of) the Department of the Treasury of the
United
States of America;
(c) obligations
of any of the
following federal
agencies, which
obligations represent
the full faith and
credit of the United
States of
America:
-
Export-Import Bank
-
Farm Credit System Financial Assistance Corporation
-
Rural Economic Community Development Administration (formerly
the Farmers Home Administration)
-
General Services Administration
-
U.S. Maritime Administration
-
Small Business Administration
-
Government National Mortgage Association (GNMA)
-
U.S. Department of Housing & Urban Development (PHA's)
-
Federal Housing Administration
-
Federal Financing Bank;
(d) direct obligations
of any of the
following federal
agencies,
which
obligations are not fully guaranteed by the full faith and credit
of
the United
States of America:
-
Senior debt
obligations
rated "Aaa" by Moody's
and "AAA" by
S&P issued by the Federal National Mortgage Association
(FNMA)
or Federal Home Loan Mortgage Corporation (FHLMC)
-
Obligations of the Resolution Funding Corporation (REFCORP)
-
Senior debt obligations of the Federal Home Loan Bank System
(e) U.S. dollar
denominated
deposit accounts, federal funds and
bankers'
acceptances with domestic commercial banks (including the
Trustee
and its
affiliates) which have
a rating on their short term certificates
of deposit
on the date of
purchase of "A-1" or "A-1+" by S&P and "P-l" by
Moody's
and maturing no more than 360 days after the date of purchase
(provided
that ratings on holding companies are not considered to be
ratings on
the subsidiary banks);
(f) commercial
paper which is rated
at the time of purchase in the
single
highest classification
by S&P
(presently
"A-1+") and by
Moody's
(presently
"P-l") and which
matures not more than 270 days after the date
of
purchase;
(g) investments
in a money market fund
rated "AAAm" or "AAAm-G" or
better by
S&P;
(h) "pre-refunded
municipal
obligations," which is
defined as any
bonds or
other obligations of any state of the United States of America
or
of any
agency, instrumentality or local governmental unit of any such
state
which are not callable at the option of the obligor prior to
maturity
or as to which
irrevocable
instructions have been
given by the
obligor to
call on the date specified in the notice; and
(i) which are rated based on an irrevocable escrow account or
fund (the "escrow"),
in the highest rating category of S&P and
Moody's or any successors thereto; or
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(ii) (A) which are fully secured as to principal, premium, if
any, and interest by an escrow consisting only of cash or
obligations described
in paragraphs (a) and (b) above, which escrow
may be applied only to the payment of such principal of and
interest
and redemption
premium, if any, on
such bonds or other obligations
on the maturity date or dates thereof or the specified redemption
date or dates pursuant to such irrevocable instructions, as
appropriate, and (B)
which escrow is
sufficient, as
verified by a
nationally recognized
independent certified
public accountant,
to
pay principal of and
interest and premium,
if any, on the bonds or
other obligations
described in this
paragraph on the maturity date
or dates specified
in the irrevocable instructions referred to
above, as appropriate;
(i) general
obligations
of any state with a rating of at least
"A2/A" or higher
by both Moody's and S&P; or
(j) investment agreements constituting an obligation of a bank,
bank
holding
company, savings and
loan association,
trust company,
insurance
company
or other financial institution whose outstanding unsecured
short-term
debt is rated at the time of such
agreement in the highest
rating
category by a nationally recognized rating agency or whose
outstanding unsecured
long-term debt is rated at the time of such
agreement
in either of the two highest rating categories by a nationally
recognized
rating agency.
"ISSUER"
means Utah Tech
Center, LLC, a limited
liability company duly
organized and existing under the laws of the State of Missouri, and its
successors and assigns.
"LAND"
means the real
property on which the
Project is located, as
more
specifically described in paragraph (a) of
SCHEDULE I attached hereto and made a
part hereof.
"LEASE"
means the US Government Lease for Real Property, Lease No.
GS-08P-13736, executed on July 22, 2002, as supplemented, and any further
supplements and amendments thereto, whereby
the Issuer leases the Project to the
Tenant.
"MAXIMUM
ANNUAL DEBT
SERVICE" means the maximum amount of Debt Service
Requirements for all series of the Bonds in
any calendar year.
"MOODY'S"
means Moody's
Investors Service,
a corporation
organized and
existing under the laws of the State of Delaware, and its successors and
assigns, and, if such corporation
shall be dissolved or
liquidated or shall no
longer perform the functions of a
securities rating
agency, "Moody's"
shall be
deemed to refer to any other nationally recognized securities rating agency
designated by the Issuer by notice to the
Trustee.
"MORTGAGE"
means the Deed of Trust (With Assignment of Rents) and Security
Agreement of even date herewith,
from the Issuer to the
mortgage trustee
named
therein for the benefit of the Trustee as from time to time amended by
Supplemental Mortgages in accordance
with the provisions of
ARTICLE XI of this
Indenture.
"MORTGAGED
PROPERTY" means the
Land and Improvements and which is subject
to the lien and security interest of the
Mortgage, but
excluding therefrom
any
Land or Improvements released from the lien of the Mortgage pursuant to the
provisions thereof.
"NET
PROCEEDS" means, when used with respect to any insurance or
condemnation award with respect to the
Project, the proceeds
from the insurance
or condemnation award remaining after the payment of all expenses
(including
attorneys' fees and any extraordinary expenses of the Trustee) incurred
in the
collection of such proceeds.
"NOTICE
ADDRESS" means:
(a) with respect
to the Issuer:
Utah Tech Center, LLC
3100 Broadway, Suite 1102
Kansas City, Missouri 63111
Attention: Member
With a copy to: Shughart, Thompson &
Kilroy
120 West 12th Street, Suite 1800
Kansas City, Missouri 64105
Attention: Daniel T. Murphy
(b) with respect
to the Trustee:
Security Bank of Kansas City
P.O. Box 171297
Kansas City, Kansas 66117
Attention: Corporate Trust Department
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(c) with respect
to the Tenant:
General Services Administration
P.O. Box 17181
Ft. Worth, Texas 76102-0181
Attention: Finance Division (7BCPL)
(e) with respect
to the Securities Depository at:
The Depository Trust Company
55 Water Street
50th Floor
New York, New York 10041-0099
"OUTSTANDING"
means, as of a particular date, all Bonds issued,
authenticated and delivered under this
Indenture, except:
(a) Bonds cancelled
by the Trustee or
delivered to the Trustee for
cancellation pursuant to this Indenture;
(b) Bonds for which
moneys or investments
have been deposited in
trust with
the Trustee for payment or redemption in accordance with the
provisions
of the Indenture; and
(c) Bonds in exchange
for or in lieu of which other Bonds have been
authenticated and delivered pursuant to this Indenture.
"OWNER" means
the registered owner of any fully registered Bond.
"PARTICIPANTS" means those financial institutions from whom the
Securities
Depository effects book-entry transfers and pledges of Bonds
deposited with the
Securities Depository, as such listing
exists at the time of such reference.
"PAYING
AGENT" means the
Trustee and any other
commercial bank or
trust
institution organized under the laws of any state of the United States of
America or any national banking association designated pursuant to this
Indenture or any Supplemental Indenture as paying agent for any
series of Bonds
for the principal of, premium, if any, and
interest on such Bonds.
"PAYMENT
DATE" means any date on which the principal of or interest on
any
Bonds is payable.
"PERMITTED
ENCUMBRANCES"
means, with respect to Project as of any
particular time, the following
encumbrances:
(a) this Indenture,
the Mortgage and any other encumbrance in favor
of the
Trustee equally and ratably securing all Bonds and only Bonds
on a
parity
basis;
(b) liens for taxes, assessments, levies, fees, utility charges,
and
other
governmental
and similar charges,
and any construction liens or
vendors liens for work or services
performed or
materials furnished in
connection
with the Project,
that are not
delinquent,
or the amount or
validity
of which are being contested in good faith by appropriate
proceedings, provided
the Issuer shall have set aside on its books
adequate
reserves therefor, and execution thereon is stayed or, with
respect to
construction liens, have been due for less than 60 days;
(c) all right, title
and interest of the State, municipalities and
the public
in and to tunnels,
bridges and passageways over, under or upon
a public
way;
(d) zoning laws,
ordinances or regulations and similar restrictions
which are
not violated by the Issuer or the Project;
(e) rights reserved to or vested in any municipality or
governmental
or other
public authority
by virtue of any
franchise,
grant, license,
permit or
provision of law, affecting the Project, to (1) control or
regulate
the Project or the
Issuer's use of such Project in any
manner,
(2) to
purchase, or designate a purchaser of or order the sale of the
Project,
(3) terminate such
franchise, grant,
license or permit, or
(4)
purchase,
condemn, appropriate
or recapture, or designate a purchaser of,
the
Project, which rights
do not materially impair the use of the Project
for the
purposes for which it is held by the Issuer;
(f) liens of or resulting from any judgment or award,
the time for
the appeal
or petition for rehearing of which shall not have expired, or
in
respect of which the Issuer shall at any time in good faith be
prosecuting an appeal or proceeding for a review and in respect of
which a
stay of
execution pending such appeal or proceeding for review shall be
in
existence;
(g) any lien resulting
from any judgment or notice of pending
action,
so long as such
judgment or pending action is being contested and
execution
thereon is stayed or
while the period for responsive pleadings
has not
lapsed;
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<PAGE>
(h) utility, access and other easements, rights-of-ways,
servitudes,
restrictions,
encumbrances and minor
defects and
irregularities in
the
title to
the Project as normally exist with respect to properties
similar
in
character to the Project that do not materially interfere with or
impair the
use of the Project or materially and adversely affect the value
thereof,
(i) any liens arising
by reason of deposits
with, or the giving of
any form
of security to, any
governmental
agency or any body
created or
approved
by law or governmental
regulation for any purpose at any time as
required
by law or governmental regulation as a condition to the
transaction of any
business or the exercise of any privilege or license,
or to
enable the Issuer to maintain self-insurance or to participate in
any funds
established to cover
any insurance risks or
in connection with
worker's
compensation,
unemployment insurance, pension or profit sharing
plans or
other similar
arrangements,
or to share in the
privileges
or
benefits
required for entities participating in such arrangements;
(j) liens arising by
reason of good faith
deposits with or by
the
Issuer in
connection with leases of real estate, bids or contracts (other
than
contracts for the payment of money), deposits by the Issuer to
secure
public or
statutory obligations, or to secure, or in lieu of, surety,
stay
or appeal
bonds, and deposits as security for the payment of taxes or
assessments or other similar charges;
(k) rights of set-off and banker's liens with respect to funds on
deposit in
a financial institution in the ordinary course of business;
(l) any encumbrance existing on the Project prior to the time of
its
acquisition through purchase, lease, merger, consolidation or otherwise;
provided,
however, that no such encumbrance may be
increased,
extended,
renewed or
modified unless such
encumbrance
as so increased,
extended,
renewed or
modified otherwise qualifies as a Permitted Encumbrance; and
(m) leases
of and purchase money security interests in or
installment purchase
interests placed upon the Project in order to obtain
the use of
the Project
or to secure a portion of the purchase price
thereof,
or lessee's
interest in leases
required to be
capitalized
in
accordance
with generally accepted accounting principles.
"PLANS AND
SPECIFICATIONS"
means the plans and
specifications
prepared
with respect to the Project, as amended by the Issuer with the
consent of the
Tenant from time to time prior to the Completion Date, the same being duly
certified by the Authorized Issuer Representative, which plans and
specifications have been approved by the Project
Consultant and are on
file at
the principal office of the Issuer in Kansas City, Missouri, and shall be
available for reasonable inspection by the Trustee and its duly appointed
representatives.
"PRINCIPAL
PAYMENT DATE" means
(a) with respect to the Series 2002 Bonds,
January 1, 2024, and (b) with respect to any Additional Bonds, the dates
specified as the principal payment dates in
the Supplemental
Indenture relating
thereto.
"PROJECT"
means the Land and the Improvements, including an approximately
75,000 square foot office building located
at 8540 Sandy Parkway in Sandy, Utah.
"PROJECT
ADDITIONS"
means any Improvements acquired, constructed or
installed from proceeds of any series of
Additional Bonds
authorized and issued
pursuant to this Indenture, and any
alterations or additions made to the Project
to the extent provided in SECTION 817.
"PROJECT
CONSULTANT" means the consultant appointed for the Project by
the
Issuer and approved by the Trustee, which shall be an architect, engineer or
firm of architects or engineers who is not
a full-time employee of the Tenant or
the Issuer.
"PROJECT
CONTRACTS" has the meaning set forth in SECTION 816.
"PROJECT
COSTS" means those costs incurred in connection with the
Project,
including:
(a) all costs and expenses necessary or incident to the
acquisition
of any
Improvements that are
acquired, constructed
or in progress at the
date of
the original issuance and delivery of the Series 2002 Bonds;
(b) fees and expenses
of architects, appraisers, surveyors and
engineers
for estimates,
surveys, soil borings and soil tests and
other
preliminary
investigations and
items necessary to the
commencement
of
construction,
preparation of
plans, drawings and specifications and
supervision of
construction, as well
as for the performance of all other
duties of
architects,
appraisers, surveyors
and engineers in relation to
the
construction,
furnishing and equipping of the Project or the issuance
of the
Bonds;
(c) all costs and expenses of acquiring, constructing or installing
any
Improvements
that are acquired,
constructed or
installed after
the
date of
the original issuance and delivery of the Series 2002 Bonds;
(d) the cost of the
title insurance
policies and the cost of any
insurance
and performance and payment bonds maintained during the
Construction Period with respect to the Project in accordance with
SECTION
805;
(e) interest accruing
on the Bonds prior to the Completion Date, if
and to the
extent proceeds
of the Bonds set aside
and deposited
to the
credit of
the Capitalized
Interest Fund or any accounts contained therein
pursuant
to SECTION 603 are insufficient for payment of such interest;
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(f) Costs of Issuance; and
(g) all other items of expense as may be necessary or incident to:
(i)
the authorization, issuance and sale of the Bonds; (ii) the
acquisition,
construction,
equipping and furnishing of the Project; and
(iii) the
financing thereof.
"PROJECT
FUND" has the meaning set forth in SECTION 501 of this
Indenture.
"PROJECT
OPERATION AND MAINTENANCE FUND" has the meaning set forth in
SECTION 601 of this Indenture.
"PROJECT
OPERATION AND MAINTENANCE FUND REQUIREMENT" means $100,000.
"PROJECT
REPLACEMENT
FUND" has the
meaning set forth in SECTION 601 of
this Indenture.
"RECORD
DATE" means the 15th day of the month immediately preceding each
Payment Date, or if such date is not a Business Day, the Business Day
immediately preceding such Payment
Date.
"REPLACEMENT BONDS"
means Bonds issued to
the beneficial
owners of the
Bonds in accordance with SECTION 212(B) of
this Indenture.
"REVENUE
FUND" has the meaning set forth in SECTION 601 of this
Indenture.
"S&P"
means Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies, a corporation organized and existing under the
laws of
the State of New York, and its successors
and assigns, and, if
such corporation
shall be dissolved or liquidated
or shall no longer
perform the functions
of a
securities rating agency, S&P shall be deemed to refer
to any other nationally
recognized securities rating agency designated by the Issuer by notice
to the
Trustee.
"SECURITIES
DEPOSITORY" means The Depository Trust Company, New York, New
York, and its successors and assigns.
"SERIES
2002 BONDS" means the Utah Tech Center, LLC Taxable Revenue Bonds
(OSHA Technical Center Project), Series 2002, dated the date of original
issuance and delivery thereof, in the
aggregate principal amount of $14,870,000.
"SERIES
2002 CAPITALIZED INTEREST ACCOUNT" means the Series 2002
Capitalized Interest Account created within the Capitalized Interest Fund
pursuant to SECTION 601 of this
Indenture.
"SERIES
2002 DEBT SERVICE ACCOUNT" means the Series 2002 Debt
Service
Account created within the Debt Service
Fund pursuant to SECTION 601 of
this
Indenture.
"SERIES
2002 PROJECT ACCOUNT" means the Series 2002 Project Account
created within the Project Fund pursuant to
SECTION 501 of this Indenture.
"SERIES
2002 PLACEMENT AGENT" means U.S. Bancorp Piper Jaffray, Inc.
"STATE"
means the State of Utah.
"SUPPLEMENTAL INDENTURE" means any indenture supplemental or
amendatory to
this Indenture entered into by the Issuer
and the Trustee pursuant to ARTICLE XI
of this Indenture.
"SUPPLEMENTAL
MORTGAGE" means any mortgage supplemental or amendatory to
the Mortgage entered into by the Issuer for
the benefit of the Trustee.
"TAX AND
INSURANCE FUND" has
the meaning set forth in SECTION 601 of this
Indenture.
"TENANT"
means the United
States of America
acting by and
through the
General Services Administration for the benefit of the
Department
of Labor,
Occupational Safety and Health
Administration, and its successors and assigns.
"TRUST
ESTATE" has the
meaning set forth in the Granting Clauses of this
Indenture.
"TRUSTEE"
means Security Bank of
Kansas City, in the City of Kansas City,
Kansas, in its capacity as bond registrar and trustee and its successor or
successors and any other corporation or association which at the time may be
substituted in its place pursuant to and at the time
serving as Trustee
under
this Indenture.
"VALUE"
means:
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(a) as to investments
for which the bid and asked prices are
published
on a regular basis in The Wall Street Journal (or, if not in
The
Wall
Street Journal, then
in The New York Times), the average of the most
recently
published bid and
asked prices for such
investments at the time
of
determination;
(b) as to investments
the bid and
asked prices of which are not
published
on a regular
basis in The Wall
Street Journal or The
New York
Times,
the average bid price at the time of determination for such
investments by any two nationally recognized government securities
dealers
(selected
by the Trustee in its
absolute discretion)
making a market in
such
investments
at the time or the bid
price published by a
nationally
recognized
pricing service;
(c) as to certificates of deposit and bankers acceptances,
the face
amount
thereof, plus accrued interest; and
(d) as to any
investment not
specified above, the value thereof
established by prior agreement between the Issuer and the
Trustee.
SECTION
102. RULES OF INTERPRETATION.
(a) Words
of the masculine gender shall be deemed and construed to
include
correlative words of the feminine and neuter
genders. Unless the
context shall
indicate otherwise, the words importing the singular number
shall include the
plural and vice versa, and words importing persons shall include firms,
associations and corporations, including public bodies, as well as natural
persons.
(b)
Wherever in this
Indenture it is provided that either party shall or
will make any payment or perform or refrain from performing any act or
obligation, each such provision shall, even though not so expressed, be
construed as an express covenant to make such payment or
to perform, or not
to
perform, as the case may be, such act or
obligation.
(c) All
references in this instrument to designated "Articles,"
"Sections"
and other subdivisions are, unless otherwise specified, to the designated
Articles, Sections and subdivisions of this
instrument as originally executed.
The words "herein," "hereof," "hereunder" and other words of similar
import
refer to this Indenture as a whole and not
to any particular Article, Section or
subdivision.
(d) The
Table of Contents and
the Article
and Section
headings of this
Indenture shall not be treated as a part of
this Indenture or as
affecting the
true meaning of the provisions hereof.
ARTICLE II
THE BONDS
SECTION
201. TITLE AND AMOUNT OF BONDS. No Bonds may be issued under
this
Indenture except in accordance with the provisions of this
Article. The Bonds
authorized to be issued under this Indenture shall be issued in one or more
separate series, the first series of which shall be
designated
as "Utah Tech
Center, LLC Taxable Revenue Bonds (OSHA
Technical Center Project), Series 2002,"
and any subsequent series of which may
contain such other appropriate particular
designation added to or incorporated in such
title as the Issuer may determine.
The total principal amount of Bonds that may be issued hereunder is hereby
expressly limited to the $14,870,000
principal amount of
Series 2002 Bonds and
the permitted principal amount of any Additional Bonds
issued hereunder as set
forth in the Supplemental Indenture related
thereto.
SECTION
202. DENOMINATION, NUMBERING AND DATING OF BONDS.
(a) The
Bonds shall be issuable in the form of fully registered Bonds in
the minimum denomination of $100,000 or any integral multiple of $5,000 in
excess thereof not exceeding the
principal amount of
the Bonds maturing on any
Principal Payment Date. The Bonds shall be
substantially in the
form set forth
in APPENDIX A to this Indenture. The Bonds of each series of Bonds shall be
numbered in such manner as the Trustee
shall determine.
(b) The
Bonds of each series
of Bonds shall be
dated as provided in this
Indenture or the Supplemental Indenture authorizing the issuance
of such series
of Bonds. The Bonds shall bear interest from their effective date of
registration. The effective date of
registration shall be set forth on each such
Bond, such effective date of registration
to be as of the Interest Payment Date
next preceding the date of authentication thereof by the Trustee,
unless such
date of authentication shall be an Interest Payment Date, in which case the
effective date of registration shall be as of such date of
authentication,
or
unless the date of authentication shall be prior to the first
Interest Payment
Date for such series of Bonds, in which case the effective date
of registration
shall be either the dated date of such
series of Bonds or the
date such series
of Bonds is issued and delivered, as provided in SECTION 207(D) of this
Indenture or the Supplemental Indenture authorizing such series of Bonds;
provided, however, that if payment of the
interest on any Bonds
of any series
shall be in default at the time of
authentication of any
fully registered Bonds
issued in lieu of Bonds surrendered for
transfer or exchange, the effective date
of registration shall be as of the date to which
interest has been paid in full
on the Bonds surrendered.
SECTION
203. METHOD AND PLACE OF PAYMENT OF BONDS. Payment of the
principal and premium, if any, on the Bonds shall be made
(a) by check or draft
upon the presentation and surrender of such Bonds as the same respectively
become due and payable at the principal
office of any Paying
Agent named in the
Bonds or (b) upon written request to the
Trustee of any Owner owning Bonds in an
aggregate principal amount of at least $500,000,
by electronic
transfer to a
bank for credit to the account number filed with the Trustee no later
than the
Business Day immediately preceding the applicable Record Date (which request
shall be signed by the Owner and shall include the name of the bank, its
address, its ABA routing number and the name, phone number and contact name
related to the Owner's account at such bank to which the payment is to be
credited). Payment of the interest on each
Bond shall be made by the Trustee on
each Interest Payment Date to the person
appearing as the Owner
thereof on the
Bond Register by check or draft mailed to such Owner at his address as it
appears on such Bond Register as of the
applicable Record Date.
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SECTION
204. EXECUTION AND AUTHENTICATION OF BONDS.
(a) The
Bonds shall be
executed on behalf of
the Issuer by the manual or
facsimile signature of all of its members.
In case any member whose signature or
facsimile thereof appears on any Bonds shall
cease to be a member
before the
delivery of such Bonds, such signature or
facsimile thereof
shall nevertheless
be valid and sufficient for all purposes, the same as if such person had
remained as a member until delivery. Any Bond may be signed by such
persons as
shall be the members to sign such Bond at the
actual time of the
execution of
such Bond although on the date of such Bond such
persons may not have been a
member.
(b) The
Bonds shall have endorsed thereon a Certificate of Authentication
substantially in the form set forth in ARTICLE IV hereof, which shall be
manually executed by the Trustee.
No Bond shall be
entitled to any security or
benefit under this Indenture or shall be valid or
obligatory
for any purpose
unless and until such Certificate of Authentication shall have been duly
executed by the Trustee. Such executed Certificate of Authentication
upon any
Bond shall be conclusive evidence that such
Bond has been duly authenticated and
delivered under this Indenture.
The Certificate of
Authentication
on any Bond
shall be deemed to have been duly executed
if signed by any authorized signatory
of the Trustee, but it shall not be necessary
that the same
signatory sign the
Certificate of Authentication on all of the Bonds that may be
issued hereunder
at any one time.
SECTION
205. REGISTRATION, TRANSFER AND EXCHANGE OF BONDS.
(a) The
Trustee shall keep books for the
registration
and transfer of
Bonds as provided in this Indenture.
(b)
Any Bond may be transferred or exchanged only upon the books
maintained by Trustee for the registration and transfer of Bonds
upon surrender
thereof to the Trustee duly endorsed for transfer or accompanied by an
assignment duly executed by the Owner or
his attorney or legal representative in
such form as shall be satisfactory to the Trustee. Upon any such transfer or
exchange, the Issuer shall execute and the Trustee shall authenticate and
deliver in exchange for such Bond a new fully registered Bond or Bonds,
registered in the name of the transferee,
of any denomination or denominations
authorized by this Indenture in an aggregate principal amount equal to the
principal amount of such Bond, of the same series and maturity and bearing
interest at the same rate.
(c) The
Bonds and any interest in the Bonds shall be transferable
only to
a "qualified institutional buyer" as defined in Rule 144A
promulgated
by the
SEC.
(d) In all
cases in which Bonds shall be exchanged or transferred
hereunder, the Issuer shall execute and the Trustee
shall authenticate and
deliver at the earliest practicable time new Bonds in accordance with the
provisions of this Indenture. All Bonds surrendered in any such exchange or
transfer shall forthwith be cancelled by the Trustee.
The Trustee may make
a
charge for every such exchange or transfer of Bonds
sufficient to
reimburse it
for any tax, fee or other governmental charge required to be paid with
respect
to such exchange or transfer, and such charge shall be paid by
the Owner before
a new Bond shall be delivered. The fees and charges of the Trustee for
making
any transfer or exchange hereunder and the expense of any bond printing
necessary to effect such transfer or exchange shall be paid by the Issuer.
In
the event any Owner fails to provide a
correct taxpayer identification number to
the Trustee, the Trustee may make a charge
against such Owner sufficient to pay
any governmental charge required to paid as a result of such failure. In
compliance with Section 3406 of the Code, such amount may be deducted by
the
Trustee from amounts otherwise payable to such Owner hereunder or under the
Bonds. Neither the Issuer nor the Trustee
shall be required to make any exchange
or transfer of Bonds (i) on or after
a Record Date and
preceding the Payment
Date immediately subsequent to such Record Date or (ii) in the case of any
proposed redemption of Bonds, during the 15 days immediately preceding the
selection of Bonds for such redemption or after such Bonds or any portion
thereof has been selected for
redemption.
SECTION
206. PERSONS DEEMED
OWNERS OF BONDS. The person in whose name any
Bond shall be registered as shown on the registration books required to be
maintained by the Trustee by this
Section shall be deemed and regarded as
the
absolute owner thereof for all purposes. Payment of, or on account of the
principal of and premium, if any, and, interest on any such Bond shall be
made
only to or upon the order of the Owner
thereof or his legal representative. All
such payments shall be valid and effectual to satisfy and discharge the
liability upon such Bond, including the interest thereon,
to the extent of
the
sum or sums so paid.
SECTION
207. AUTHORIZATION OF SERIES 2002 BONDS.
(a) There
shall be initially issued and secured pursuant to this
Indenture
a series of Bonds in the aggregate principal amount of $14,870,000 for the
purpose of providing funds to pay Costs of Issuance and
Project Costs,
which
Bonds shall be designated as provided in
SECTION 201 hereof.
The Series
2002 Bonds shall be dated December 15, 2002, shall become due
(subject to prior redemption as hereinafter
provided in ARTICLE
III) and shall
bear interest from the dated date or the
Interest Payment Date to which interest
has been paid at the rates as follows:
TERM BONDS
$14,870,000 6.280% TERM BONDS MATURING JANUARY 1, 2024
-10-
<PAGE>
(b)
Interest on the Series 2002 Bonds shall be payable to the Owners
thereof in accordance with the provisions
of SECTION 203 hereof.
(c) The
Trustee is hereby
designated as the Issuer's Paying Agent for the
payment of the principal of, premium, if any, and interest on the Series
2002
Bonds.
(d) Upon
the original issuance
and delivery of the Series 2002 Bonds, the
effective date of registration of the Series 2002 Bonds shall be
December 15,
2002.
(e) The
Series 2002 Bonds shall be substantially in the form set
forth in
APPENDIX A hereto and delivered to the
Trustee for authentication, but prior to
or simultaneously with the authentication and
delivery of the Series 2002 Bonds
by the Trustee, there shall be filed with
the Trustee the following:
(i) an original or
certified copy of the resolutions adopted by
Issuer's
members authorizing the issuance of the
Bonds and the execution
of this
Indenture and the Lease;
(ii) an original executed counterpart of this Indenture;
(iii) an original executed counterpart of the Lease;
(iv) an original executed counterpart of the Mortgage;
(v) an opinion or
opinions of Bond
Counsel to the effect
that the
Series
2002 Bonds constitute valid and legally binding obligations of the
Issuer;
(vi) a request and
authorization
to the Trustee on behalf of the
Issuer to
authenticate
the Bonds and to
deliver the Bonds to
the Series
2002
Placement Agent upon
payment to the Trustee, for the account of the
Issuer,
of the purchase
price thereof (and the
Trustee shall be entitled
to
conclusively rely upon
such request and authorization as to the amount
of such
purchase price); and
(vii) such other certificates, statements, receipts and documents
as
the
Trustee or Bond Counsel shall reasonably require for the delivery of
the Series
2002 Bonds.
(f) When
the documents
specified in subsection (e) of this Section shall
have been filed with the Trustee, and when
the Series 2002 Bonds shall have been
executed and authenticated as required by this Indenture, the Trustee shall
deliver the Series 2002 Bonds to or upon
the order of the Series 2002 Placement
Agent, but only upon payment to the
Trustee of the purchase price of the Series
2002 Bonds. The proceeds of the sale of the
Series 2002 Bonds, including accrued
interest and premium thereon, if any, shall be immediately paid over to the
Trustee, and the Trustee shall deposit and apply such proceeds as
provided in
ARTICLE V hereof.
SECTION
208. AUTHORIZATION OF ADDITIONAL BONDS.
(a)
Additional Bonds may
be issued under and equally and ratably secured
by this Indenture on a parity with the Series 2002 Bonds and any other
Additional Bonds Outstanding at any time and from
time to time, upon compliance
with the conditions hereinafter provided in this Section, for any of the
following purposes:
(i) to provide funds to pay the costs of completing the
construction
of the
Project, the total of
such costs to be evidenced by a certificate
signed by
the Authorized Issuer Representative and the Project
Consultant;
(ii) to provide
funds to pay all or any part of the costs of
purchase,
construction or
installation of Project Additions as the Issuer
may deem
necessary or desirable; or
(iii) to provide funds for refunding all or any part of the Bonds
of
any series
then Outstanding,
including the payment of any premium thereon
and
interest to accrue to the designated redemption date and any
expenses
in
connection with such refunding.
(b) Before
any Additional
Bonds shall be issued
under the provisions
of
this Section, (i) Moody's shall reaffirm the then current rating
of the Series
2002 Bonds and shall issue an equivalent rating for the Additional Bonds;
provided, however, such rating shall not be required if the purpose of the
issuance of the Additional Bonds is to provide funds for refunding all of the
Bonds of any series then Outstanding, and (ii) the members of the Issuer
shall
adopt a resolution (A) authorizing the
issuance of such Additional Bonds, fixing
the amount and terms thereof and describing the purpose or purposes for
which
such Additional Bonds are being issued or
describing the Bonds to be refunded,
(B) authorizing the Issuer to enter into a Supplemental Indenture for the
purpose of providing for the issuance of
and securing such Additional Bonds and,
(C) if required, authorizing the Issuer to enter
into a supplemental lease with
the Tenant to provide for additional rental
payments for completing the Project,
for the purchase, construction and installation of
the Project Additions,
and
for such other matters as are appropriate because of the issuance of the
Additional Bonds proposed to be issued so
long as such matters,
in the judgment
of the Issuer, are not to the prejudice of
the Issuer or the Owners. If required
by the Series 2002 Placement Agent and the
Owners of not less than a majority in
aggregate principal amount of Bonds then
Outstanding, the Supplemental Indenture
providing for the issuance of and securing
such Additional
Bonds shall
require
the establishment of a reserve fund to be fully
funded at the time of issuance
of the Additional Bonds in an amount
required by the Series 2002 Placement Agent
and the Owners of not less than a majority
in aggregate principal amount of
Bonds then Outstanding.
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<PAGE>
(c) Such
Additional
Bonds shall have the
same designation as
the Series
2002 Bonds, except for an identifying series
letter or date and the addition of
the word "Refunding" when applicable,
shall be dated, shall
be stated to mature
on Payment Dates in a specified year or years, shall bear interest at a
specified rate or rates not exceeding
the maximum rate then
permitted by law,
and shall be redeemable at specified times
and prices (subject to the provisions
of ARTICLE III of this Indenture), all as may be provided by the
Supplemental
Indenture authorizing the issuance of such
Additional Bonds.
Except as to any
difference in the date, the maturity or maturities, the rate or rates of
interest or the provisions for redemption,
such Additional
Bonds shall be on
a
parity with and shall be entitled to the same benefit and security of this
Indenture as the Series 2002 Bonds and any
other Additional Bonds Outstanding at
the time of the issuance of such Additional
Bonds.
(d) Such
Additional Bonds shall
be substantially in the form and executed
in the manner set forth in this Article and ARTICLE IV hereof and shall be
deposited with the Trustee for authentication, but prior to or simultaneously
with the authentication and delivery of such Additional
Bonds by the
Trustee,
there shall be filed with the Trustee the
following:
(i) an original or certified copy of the resolutions adopted by the
members of
the Issuer authorizing
the issuance of such
Additional Bonds
and the
execution of such Supplemental Indenture and the appropriate
amendments
or supplements to the Lease;
(ii) an original executed counterpart of the Supplemental
Indenture
providing
for the issuance of the Additional Bonds;
(iii) an original executed counterpart of the amendment or
supplement
to the Lease, if required;
(iv) an original executed counterpart of the Supplemental
Mortgage
accompanied by a title
insurance endorsement confirming the first lien
priority
of the Mortgage as supplemented by the Supplemental Mortgage;
(v) an opinion of Bond
Counsel to the effect
that the issuance
of
such
Additional
Bonds are permitted under the Indenture and that the
Additional
Bonds constitute valid
and legally binding
obligations of the
Issuer;
(vi) a request and
authorization
to the Trustee on behalf of the
Issuer to
authenticate the Additional Bonds and to deliver such
Additional
Bonds to
the purchasers therein
identified
upon payment to the
Trustee,
for
account of the Issuer,
of the purchase price thereof (and the Trustee
shall be
entitled to conclusively rely upon such request and
authorization
as to the
names of the purchasers and the amount of such purchase price);
(vii) in the
case of Additional Bonds being issued to refund
Outstanding Bonds,
such additional documents as shall be reasonably
required
by the Trustee to establish that provision has been duly made
for
the
payment of all of the
Bonds to be refunded
in accordance with the
provisions
of ARTICLE XIII of this Indenture;
(viii) deposit
of the amount of funds, if any, required by
subsection
(b) of this
Section in a reserve fund for such Additional
Bonds;
(ix) such other certificates, statements, receipts and documents
as
the
Trustee or Bond Counsel shall reasonably require for the delivery of
such
Additional Bonds; and
(x) delivery of a rating letter from Moody's confirming the rating
on the
Series 2002 Bonds.
(e) When
the documents listed in subsection (d) of this Section shall
have
been filed with the Trustee with respect to
an issuance of Additional Bonds, and
when such Additional Bonds shall have been executed and authenticated as
required by this Indenture, the Trustee shall deliver such
Additional Bonds
to
or upon the order of the original
purchasers thereof,
but only upon payment
to
the Trustee of the purchase price of such
Additional Bonds. The
proceeds of the
sale of such Additional Bonds (except Additional Bonds issued to refund
Outstanding Bonds), including accrued interest and premium
thereon, if any,
shall be immediately paid over to the
Trustee and shall be deposited and applied
by the Trustee as provided in ARTICLE V
hereof and in the Supplemental Indenture
authorizing the issuance of such Additional Bonds. The proceeds (excluding
accrued interest and premium, if any, which
shall be deposited in the applicable
account within the Debt Service Fund) of
all Additional
Bonds issued to
refund
Outstanding Bonds shall be deposited by the
Trustee, after payment or making
provision for payment of all expenses
incident to such financing, to the credit
of a special trust fund, appropriately
designated,
to be held in trust
for the
sole and exclusive purpose of paying the principal
of, premium, if any, and
interest on the Bonds to be refunded,
as provided in SECTION
1302 hereof and in
the Supplemental Indenture authorizing the
issuance of such refunding Bonds.
(f) Except
as provided in this
Section, the Issuer will not otherwise
issue any obligations ratably secured and on a parity with the Series 2002
Bonds, but the Issuer may issue other
obligations
specifically
subordinate and
junior to the Series 2002 Bonds with the
express written
consent of the
Owners
of not less than a majority in aggregate principal amount of Bonds then
Outstanding.
SECTION
209. TEMPORARY BONDS.
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<PAGE>
(a) Until
definitive Bonds of
any series are available for delivery, the
Issuer may execute, and upon request of the Issuer the Trustee shall
authenticate and deliver, in lieu of definitive Bonds, but subject to the same
limitations and conditions as definitive
Bonds, temporary printed, engraved,
lithographed or typewritten Bonds, in the form of fully registered Bonds in
denominations of $100,000 or any integral
multiple of $5,000 in
excess thereof,
substantially of the tenor hereinabove set forth and with such appropriate
omissions, insertions and variations as may be required with respect to
such
temporary Bonds.
(b) If
temporary Bonds shall be issued, the Issuer shall cause the
definitive Bonds to be prepared and to be
executed and delivered to the Trustee,
and the Trustee, upon presentation to it at its principal office of any
temporary Bond shall cancel the same and
authenticate
and deliver in
exchange
therefor, without charge to the Owner
thereof, a definitive Bond or Bonds of an
equal aggregate principal amount, of the same series and maturity
and bearing
interest at the same rate as the temporary
Bond surrendered.
Until so exchanged
the temporary Bonds shall in all respects be entitled to the same
benefit and
security of this Indenture as the definitive Bonds to be issued and
authenticated hereunder.
SECTION
210. MUTILATED, LOST,
STOLEN OR DESTROYED BONDS. In the event any
Bond shall become mutilated, or be lost, stolen or destroyed,
the Issuer shall
execute and the Trustee shall authenticate and deliver a new Bond of like
series, date and tenor as the Bond mutilated, lost, stolen or destroyed;
provided, however, that in the case of any mutilated
Bond, such mutilated Bond
shall first be surrendered to the Trustee,
and in the case of any
lost, stolen
or destroyed Bond, there shall be first furnished to
the Issuer and the Trustee
evidence of such loss, theft or destruction satisfactory to the Issuer and
the
Trustee, together with indemnity satisfactory to them. In the event any such
Bond shall have matured, instead of issuing
a substitute Bond the Issuer may pay
or authorize the payment of the same without surrender thereof. Upon the
issuance of any substitute Bond, the Issuer and the Trustee may require the
payment of an amount sufficient to reimburse the Issuer
and the Trustee for any
tax or other governmental charge that may
be imposed in relation thereto and any
other reasonable fees and expenses incurred
in connection therewith.
SECTION
211. CANCELLATION AND DESTRUCTION OF BONDS UPON PAYMENT.
(a) All
Bonds which have been
paid or redeemed
or which the Trustee
has
purchased or which have otherwise been surrendered to the Trustee under this
Indenture, either at or before maturity, shall be cancelled by the Trustee
immediately upon the payment, redemption or purchase of such Bonds and the
surrender thereof to the Trustee.
(b) All
cancelled Bonds held by the Trustee shall be destroyed and
disposed of by the Trustee in accordance with applicable record retention
requirements. The Trustee shall execute and
deliver to the Issuer a certificate
describing the Bonds so cancelled.
SECTION
212. BOOK-ENTRY; SECURITIES DEPOSITORY.
(a) The
Bonds shall initially be registered to Cede & Co., the nominee
for
the Securities Depository, and no beneficial owner will receive certificates
representing their respective interests in the Bonds,
except in the event
the
Trustee issues Replacement Bonds as provided in subsection (b). It is
anticipated that during the term of the Bonds,
the Securities
Depository will
make book-entry transfers among its Participants and receive and transmit
payment of principal of, premium, if any, and interest on, the Bonds to
the
Participants until and unless the Trustee
authenticates and delivers Replacement
Bonds to the beneficial owners as described
in subsection (b).
(b) (i) If
the Issuer determines
that (A) the
Securities
Depository is
unable to properly discharge its
responsibilities, (B) the Securities Depository
is no longer qualified to act as a
securities depository and registered clearing
agency under the Securities Exchange Act of 1934, as amended, or (C) the
continuation of a book-entry system to the exclusion of any
Bonds being issued
to any Owner other than Cede & Co. is no longer
in the best interests
of the
beneficial owners of the Bonds, or (ii) if
the Trustee receives
written notice
from Participants having interests in not less than 50% of the Bonds
Outstanding, as shown on the records of the
Securities Depository (and certified
to such effect by the Securities Depository), that the continuation of a
book-entry system to the exclusion of any
Bonds being issued to any Owner other
than Cede & Co. is no longer in the
best interests of the
beneficial owners
of
the Bonds, then the Trustee shall notify
the Owner of such determination or such
notice and of the availability of
certificates to beneficial owners requesting
the same, and the Trustee shall register in the name of and
authenticate
and
deliver Replacement Bonds to the beneficial owners or their nominees in
principal amounts representing the interest of each,
making such adjustments as
it may find necessary or appropriate as to accrued
interest and previous
calls
for redemption; provided, however, that in the case of a
determination
under
(i)(A) or (i)(B) of this subsection, the Issuer, with the consent of the
Trustee, may select a successor securities depository in accordance with
subsection (c) to effect book-entry transfers. In the event Replacement Bonds
are issued, all references to the Securities
Depository herein
shall relate to
the period of time when the Securities Depository is the Owner of at
least one
Bond. Upon the issuance of Replacement Bonds, all references herein to
obligations imposed upon or to be performed by
the Securities
Depository shall
be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Replacement
Bonds. If the Securities Depository
resigns and the Issuer is unable to locate a qualified successor of the
Securities Depository in accordance with
subsection (c), then the Trustee shall
authenticate and cause delivery of
Replacement Bonds to
the beneficial
owners,
as provided in this Indenture. The Trustee may rely on information from the
Securities Depository and its Participants
as to the names and addresses of, and
the principal amounts held by, the beneficial
owners of the Bonds.
The cost of
printing Replacement Bonds shall be paid
for by the Issuer.
(c) In
the event the Securities Depository resigns, or the Issuer
determines that the Securities Depository is unable to properly
discharge its
responsibilities or is no longer qualified
to act as a securities depository and
registered clearing agency under the Securities Exchange Act of 1934, as
amended, the Issuer may appoint a successor
Securities
Depository provided
the
Trustee receives written evidence satisfactory to the Trustee with
respect to
the ability of the successor Securities Depository to discharge its
responsibilities. Any such successor
Securities Depository shall be a securities
depository which is a registered
clearing agency under
the Securities
Exchange
Act of 1934, as amended, or other
applicable statute or regulation that operates
a securities depository upon reasonable and
customary terms.
The Trustee upon
its receipt of a Bond or Bonds for
cancellation
shall cause the delivery of
Bonds to the successor Securities Depository in appropriate
denominations and
form as provided herein.
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<PAGE>
ARTICLE III
REDEMPTION OF BONDS
SECTION
301. REDEMPTION OF BONDS GENERALLY. The Bonds shall be subject to
redemption prior to maturity in accordance
with the terms and provisions of this
Article. Additional Bonds shall be subject to
redemption prior to
maturity in
accordance with the terms and provisions
contained in this Article and as may be
specified in the Supplemental Indenture authorizing such Additional Bonds;
provided, however, that no provision shall be made with respect to the
redemption of any Additional Bonds which would result in, or
constitute
the
creation of, a preference or priority of
such Additional
Bonds over the
Series
2002 Bonds.
SECTION
302. REDEMPTION OF
SERIES 2002 BONDS. The Series 2002 Bonds shall
be subject to redemption as follows:
(a)
Mandatory Redemption from Moneys Remaining in Project Fund. The
Series
2002 Bonds are subject to mandatory redemption prior to the stated maturity
thereof, on any date, using any balance
remaining in the Project Fund, including
any amounts transferred to the Project Fund
from the Capitalized
Interest Fund
pursuant to SECTION 606(C) hereof, which is
transferred to the Debt Service Fund
upon completion of the Project and payment of all
Project Costs as provided in
SECTION 504 of this Indenture. The Series 2002 Bonds redeemed
using such funds
will be redeemed in inverse order of maturity, or in such other order of
maturity as selected by the Issuer,
at a redemption
price equal to 100% of
the
principal amount thereof, plus accrued interest thereon to
the redemption date,
without premium.
(b)
Extraordinary
Optional Redemption. In the event of a Change of
Circumstances, the Series 2002 Bonds shall be
subject to redemption and payment
prior to the stated maturity thereof, at the option of the Issuer, at
any time
at a redemption price equal to the principal amount thereof, plus accrued
interest thereon to the redemption date,
without premium,
provided all of
the
Bonds are so redeemed and paid according to
their terms.
(c)
Mandatory Sinking Fund
Redemption. The Series
2002 Bonds are subject
to mandatory redemption and payment prior to
maturity pursuant to the mandatory
redemption requirements of this Section on January 1 in each of
the years set
forth below, at a redemption price equal to the principal
amount thereof
plus
accrued interest thereon to the redemption
date, without premium.
July 1, 2007
$65,000
January 1, 2008
65,000
July 1, 2008
70,000
January 1, 2009
70,000
July 1, 2009
90,000
January 1, 2010
95,000
July 1, 2010
205,000
January 1, 2011
210,000
July 1, 2011
235,000
January 1, 2012
245,000
July 1, 2012
290,000
January 1, 2013
295,000
July 1, 2013
340,000
January 1, 2014
355,000
July 1, 2014
365,000
January 1, 2015
375,000
July 1, 2015
385,000
January 1, 2016
400,000
July 1, 2016
485,000
January 1, 2017
500,000
July 1, 2017
515,000
January 1, 2018
530,000
July 1, 2018
550,000
January 1, 2019
565,000
July 1, 2019
655,000
January 1, 2020
675,000
July 1, 2020
700,000
January 1, 2021
720,000
July 1, 2021
745,000
January 1, 2022
765,000
July 1, 2022
790,000
January 1, 2023
815,000
July 1, 2023
840,000
January 1, 2024+
865,000
--------------------------
+Maturity Date
-14-
<PAGE>
(d)
Optional Redemption. The Series 2002 Bonds shall be subject to
redemption and payment prior to maturity on or after
January 1, 2011,
at the
option of the Issuer, as a whole or in part at any time, at the following
redemption prices (expressed as percentages of the
principal amount
thereof),
plus accrued interest to the redemption
date:
Redemption Period
Price
-----------------
-----
January 1, 2011 through December 31, 2011
102%
January 1, 20l2 through December 3l, 2012
101%
January 1, 2013 and thereafter
100%
SECTION
303. SELECTION OF BONDS TO BE REDEEMED.
(a) Bonds
shall be redeemed only in the principal amount of $5,000 or
integral multiples thereof. If less than all of the
Outstanding Bonds of
any
series are to be redeemed and paid prior to maturity, such Bonds shall be
redeemed from maturities selected by the Issuer,
and by lot within
maturities,
with Bonds of less than a full maturity to be selected by the Trustee in
such
equitable manner as it may determine.
(b) In the
case of a partial
redemption
of Bonds by lot when Bonds of
denominations greater than $5,000 are then
Outstanding, then for all purposes in
connection with such redemption each $5,000 of face value shall be
treated as
though it was a separate Bond of the
denomination of $5,000. If it is determined
that one or more, but not all, of the
$5,000 units of face value represented by
any fully registered Bond is selected for redemption, then the Owner of such
Bond or his attorney or legal representative shall forthwith present and
surrender such Bond to the Trustee (i) for payment of the redemption price
(including the premium, if any, and interest to the redemption date) of the
$5,000 unit or units of face value called
for redemption, and (ii) for exchange,
without charge to the Owner thereof, for a new Bond or Bonds of the
aggregate
principal amount of the unredeemed portion
of the principal amount of such Bond.
If the Owner of any such Bond of a
denomination
greater than $5,000
shall fail
to present such Bond to the Truste
