HomeMy WebLinkAboutResolution - 1195 - Approve Issuance Of Bonds - LIDC Ryingersoll -Rand Project - 09/09/1982f
RESOLUTION 1195 - 9/9/82
CITY SECRETARY -TREASURER
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A -RESOLUTION by the City Council of the City of
Lubbock, Texas, approving agreements and a
resolution authorizing the issuance of
revenue bonds of the Lubbock Industrial
Development Corporation relating to the
financing of industrial or manufacturing
facilities for Ingersoll-Rand Company.
WHEREAS, the Lubbock Industrial Development Cor-
poration (the "Issuer") has heretofore agreed to finance, in
whole or in part, the costs of acquiring and constructing
certain manufacturing or industrial facilities (the "Project")
to be located in the City of Lubbock, Texas (the "City"),
which are to be used in the trade or business of Ingersoll-Rand
Company (the "Company"); and
WHEREAS, final agreements in relation to financing
the Project and a resolution adopted by the Board of Directors
of the Issuer authorizing the issuance of its revenue bonds
in the aggregate principal amount of $8,200,000, have been
submitted to this Council for approval as required by Sec-
tion 25(f) of the Development Corporation Act of 1979
(Article 5190.6, V.A.T.C.S.), as amended; and
WHEREAS, this Council hereby finds and determines
that the resolution of the Issuer authorizing the issuance
of the Lubbock Industrial Development Corporation Adjustable -Rate
Industrial Development Revenue Bonds (Ingersoll-Rand Company
Project) Series 1982 in the aggregate principal amount of
$8,200,000, and the agreements executed in connection therewith,
should be approved; now, therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
LUBBOCK, TEXAS:
SECTION 1: That the resolution of the Board of
Directors of the Issuer entitled as follows:
"A RESOLUTION by the Board of Directors of the
Lubbock Industrial Development Corporation
authorizing the issuance of revenue bonds
to be known as "Lubbock Industrial Development
Corporation Adjustable -Rate Industrial
Development Revenue Bonds (Ingersoll-Rand
Company Project) Series 1982" dated September 1,
1982; fixing the details and providing for
the payment and security of such bonds;
approving and authorizing the execution of
e
a Bond Purchase Agreement, a Loan Agreement,
and an Indenture of Trust in relation
thereto; authorizing the use, execution,
and distribution of an Official Statement;
making certain findings, covenants, and
declarations relating to such bonds and the
issuance thereof; and resolving other
matters incident and related to the subject
and purpose of this Resolution."
together with (i) the Indenture of Trust from the Issuer to
Mellon Bank, N. A., Pittsburgh, Pennsylvania, as trustee,
dated as of September 1, 1982, (ii) the Loan Agreement by
and between the Issuer and the Company, dated as of September 1,
1982, and, (iii) the Bond Purchase Agreement by and among
.the Issuer, the Company, and Morgan Stanley & Co. Incorporated
are hereby in all respects approved and the use, execution,
and distribution of the Official Statement is hereby approved.
SECTION 2: The approval herein given is in accor-
dance with the provisions of Section 25(f) of the Development
Corporation Act of 1979, as amended, and is not to be construed
as any undertaking by the City, and such bonds shall never
constitute an indebtedness or pledge of the Issuer, the
City, or the State of Texas within the meaning of any
constitutional or statutory provision, and.the holder of
such bonds shall never be paid in whole or in part out of
any funds raised or to be raised by taxation or any other
revenues of the Issuer, the City, or the State of Texas,
except those revenues assigned and pledged by the resolution
authorizing the issuance of such bonds.
SECTION 3: The programs and expenditures authorized
and contemplated by the aforesaid documents are hereby in
all respects approved.
PASSED AND APPROVED, this S mbe 9 1982.
r
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Mayor, City7of Lubbock, Texas
ATTEST:
City Secr to y y, Ci
Lubbock, Texas
(City Seal)
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CITY SECRETARY-TRE4Sl-IREke-1
CERTIFICATE OF CITY SECRETARY
THE STATE OF TEXAS
COUNTY OF LUBBOCK
CITY OF LUBBOCK
I, the undersigned, City Secretary of the City of
Lubbock, Texas, DO HEREBY CERTIFY as follows:
1. That on September 9, 1982, the City Council of
the City of Lubbock, Texas, convened in regular session at
its regular meeting place in the City Hall of said City; the
duly constituted members of the Council being as follows:
BILL McALISTER MAYOR
ALAN HENRY
M. J. ADERTON j COUNCILMEMBERS
E JACK BROWN
JOAN BAKER
and all of said persons were present at said meeting, except
the following: All present
Among other business considered at said meeting, the attached
resolution entitled:
"A RESOLUTION by the City Council of the City of No. 1195
Lubbock, Texas, approving agreements and a
resolution authorizing the issuance of
revenue bonds of the Lubbock Industrial
Development Corporation relating to the
financing of industrial or manufacturing
facilities for Ingersoll-Rand Company."
was introduced and submitted to the Council for passage and
adoption. After presentation and dueonsideration of the
resolution, a motion was made by Councilwoman Joan Baker that
the resolution be finally passed and adopted. The motion
was seconded by Councilman E. Jack Brown and carried by
the following vote:
5 voted "For" -� voted "Against" -0 abstained
all as shown in the official Minutes of the Council for the
meeting held on the aforesaid date.
2. That the attached resolution is a true and
correct copy of the original on file in the official records
of the City; the duly qualified and acting members of the
City Council on the date of the aforesaid meeting are those
persons shown above and, according to the records of my
office, each member of the Council was given actual notice
of the time, place, and purpose of the meeting and had
actual notice that the matter would be considered; and that
said meeting, and deliberation of the aforesaid public
business, was open to the public and written notice of said
meeting, including the subject of the entitled resolution,
was posted and given in advance thereof in compliance with
the provisions of Article 6252-17, Section 3A, V.A.T.C.S.
IN WITNESS WHEREOF, I have hereunto signed my name
officially and affixed the seal of said City, this September 9,
1982.
(City Seal)"
-2-
City Sec etary, City
Lubbock, Texas
i
T.
C►TY SECRETARY -TREASURER
GENERAL CERTIFICATE OF CITY
THE STATE OF TEXAS
COUNTY OF LUBBOCK
CITY OF LUBBOCK
I, the undersigned, City Secretary of the City of
Lubbock, Texas (the "City"), do hereby make this certification
for the benefit of all persons interested in the issuance by
the Lubbock Industrial Development Corporation (the "Issuer")
of its $8,200,000 Adjustable -Rate Industrial Development
Revenue Bonds (Ingersoll-Rand Company Project) Series 1982,
dated September 1, 1982 (the "Bonds"). On behalf of the City,
I hereby certify that:
1. The Issuer was approved and authorized to be
created to act on behalf of the City pursuant to a -resolution
duly adopted by the City Council of the City of Lubbock, on
March 13, 1980, which resolution also.approved the Articles
of Incorporation and Bylaws of the Issuer, and the Certificate
of Incorporation for the Issuer issued by the Secretary of
State of the State of Texas, and said resolution is on file
and of record in the official records of the City.
2. The duly qualified and acting members of the
Board of Directors of the Issuer, appointed by the City
Council of the City, are as follows:
B. C. McMinn President
George Miller Vice President
Marion Sanford Secretary/Treasurer
Bob Suter Directors
George Scott, Jr.
Moises Perez
Alan Henry
3. The City Council has, by written resolution,
dated September 9, 1982, specifically approved the issuance of
the Bonds and the documents relating thereto in the amount
and for the purpose set forth therein.
4. The City has approved all programs and expendi-
tures of the Issuer in connection with the issuance of the
Bonds and the transactions contemplated thereby.
WITNESS MY HAND AND THE OFFICIAL SEAL OF THE CITY,
this September 9, 1982.
(City Seal)
4City �eret ry, �fLu�bboc�k,
Texas
2
CITY
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F. 0. O LUBBOCK• AS 9457
Box 2000 S E X
September 9+ 1982
u
Mr. David C. Petret a1, Attorney Street
Dumas, Huguenin _ 1509 Main
Dumas
Kirby Bui1d1!�9 Revenue Bonds,
Dallas, Teras 752p1 industrial
1195 - Lubbock i 982 Project
Resolution Series Rand Company
RE: i�gersoll_
documents, Pursuant
Dear Mr• Petruska:
oU are the.following
d herewith to this date* the Is
Enclose action on �DDj authorizing
to Council copies) bonds duly executed
ution #1195 revenue
b copies).
Re o Of
the above referenced e C i tY
(11 copies), properly
.
General Certificate °
by the undersigned'
f
City Secretary
Certificate o
completed.
ping more Please let me know•
if we need to do comet
EWELYN GAfi:GA
City Secretary
Enclosures
Mr. Grey Lewis Commerce
cc: Lubbock Chamber of
DUMAS, HUGUENIN, BOOTHMAN & MORROW
1212 KIRBY BUILDING 1509 MAIN STREET
DALLAS, TEXAS 75201
TELEPHONE (214) 741-3458
•6C
Evelyn Gaffga
City Secretary,
916 Texas Avenue
P. 0. Box 2000
Lubbock, Texas
Dear Ms. Gaffga:
City of Lubbock
79457
FULBRIGHT 6 JAWORSKI OFFICES
BANK OF THE SOUTHWEST BUILDING AMERICAN BANK TOWER, SUITE 1740
HOUSTON, TEXAS 77002 221 WEST SIXTH STREET
TELEPHONE 17131651-5151 AUSTIN, TEXAS 76701
TELEX 76-2629 TELEPHONE (512) 474-5201
1150 CONNECTICUT AVE„N.W LANDMARK BUILDING, SUITE 200
WASHINGTON, D.C. 20036 705 EAST HOUSTON AVENUE
TELEPHONE(202) 452-6600 SAN ANTONIO, TEXAS 76205
TELEX 69.2602 TELEPHONE 15121 2 24-5 5 75
2 ST. JAMES'S PLACE
LONDON, SWIA INP
TELEPHONE (OI) 629-1207
TELEX 26310
September 1, 1982
Re: $8,200,000 Lubbock Industrial
Development Corporation Adjustable -
Rate Industrial Development Revenue
Bonds (Ingersoll-Rand Company; Project;
Series 1982
Enclosed hereith are the following items relating to the
captioned issue:
1.- Resolution approving the resolution of the
Lubbock Industrial Development Corporation authorizing
the issuance of the captioned bonds.
• 2. Certificate of City Secretary.
3. General Certificate of City.
4. Copies of the forms of Loan Agreement and
Trust Indenture.
I understand that the City Council will act on this reso-
lution on Thursday, September 9, 1982. We are anticipating
closing the issue in New `York on September 13 and. 14, 1982.
Please send the executed and sealed copies of the above City
items to me utilizing the enclosed Federal Express envelope so
that they will arrive in our office on Friday, September 10.
Please keep the Loan Agreement and Trust Indenture, along
with one executed copy of the aforementioned items, for your
records. If you have any questions, please call me.
Very truly yours,
David C. Petruska/smh
Enclosures
A RESOLUTION by the Board of Directors of the
Lubbock Industrial Development Corporation
authorizing the issuance of revenue bonds
to be known as "LUBBOCK INDUSTRIAL DEVELOPMENT
CORPORATION ADJUSTABLE-RATE INDUSTRIAL
DEVELOPMENT REVENUE BONDS (INGERSOLL-RAND
COMPANY PROJECT) SERIES 1982," dated September 1,
1982; fixing the details and providing for
the payment and security of such bonds -
approving and authorizing the execution of
a Bond Purchase Agreement, a Loan Agreement,
and.an Indenture of Trust in relation
thereto; authorizing the use, execution,
and distribution of an Official Statement;
making certain findings, covenants, and
declarations relating to such bonds and the
issuance thereof; and resolving other
matters incident and related to the subject
and purpose of this Resolution.
WHEREAS, pursuant to a resolution adopted by this
Board of Directors on the 28th day of August, 1981, the
.Lubbock Industrial Development Corporation (the "Issuer")
agreed to participate in financing the costs of acquiring,
constructing, and equipping a manufacturing or industrial
facility (the "Project") to be located in the City of Lubbock,
Texas (the "Unit") and to be used in the trade or business
of Ingersoll-Rand Company (the "Company"); and
WHEREAS, the total amount of financing to be
provided by the Issuer in relation to the Project is $8,200,000
and such financing is to be accomplished by the sale of the
Issuer's revenue bonds and a loan of the proceeds thereof to
the Company; and
WHEREAS, the financing documents relating to the
issuance of the bonds and the loan of the bond proceeds have
been presented and filed with the Issuer, such documents
being identified as follows:
1. The Loan Agreement (the "Agreement")
dated as of September 1, 1982, between the
Issuer and the Company;
2. The Indenture of Trust (the "Indenture")
dated as of September 1, 1982, from the Issuer
to Mellon Bank, N. A., Pittsburgh, Pennsylvania,
as trustee (the "Trustee");
3. The Bond Purchase Agreement (the "Bond
Purchase Agreement"), by and among the Issuer,
the Company, and Morgan Stanley & Co. Incorporated
(the "Underwriter"); and
4. The Preliminary Official Statement
(the "Official Statement") distributed and
issued by the Underwriter and relating to the
Bonds;
AND WHEREAS, the Board of Directors of the Issuer
hereby finds that the arrangements for financing the costs
of the Project are satisfactory and revenue bonds in the
aggregate principal amount hereinafter shown should be
issued; now, therefore,
BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE
LUBBOCK INDUSTRIAL DEVELOPMENT CORPORATION:
SECTION 1: That, for purposes of financing the
costs of acquiring, constructing, and equipping a manu-
facturing or industrial project (described in the Agreement
and such description being incorporated herein by reference
as a part hereof) for the Company, there shall be and there
is hereby ordered to be issued revenue bonds of the Issuer
in the aggregate principal amount of $8,200,000, to be known
-and designated as. the "LUBBOCK INDUSTRIAL DEVELOPMENT CORPORATION
ADJUSTABLE-RATE INDUSTRIAL DEVELOPMENT REVENUE BONDS
(INGERSOLL-RAND COMPANY PROJECT.) SERIES 198211, hereinafter
referred to as the "Bonds", under and pursuant to authority
conferred by and in accordance with the provisions of the
Development Corporation Act of 1979, as amended (Article 5190.6,
V.A.T.C.S., - the "Act").
SECTION 2: That, based solely upon representations
of the Company, it is hereby found and determined that:
(a) the Project is required or suitable for
the securing and promotion of industrial and
manufacturing development and expansion and the
retention and promotion of employment,
(b) the Company has the business experience,
financial resources, and responsibility to
provide reasonable assurance that the Bonds and
the interest thereon to be paid from or by
reason of payments made by the Company under the
Agreement will be paid as the same become due,
2
(c) the Project to be financed will enhance
and contribute to the Unit and its environs by
increasing and stabilizing employment opportunities,
increasing and stabilizing the property tax
base, and promoting commerce, and
(d) the Project is in the furtherance of
the public purpose of the retention.of existing
industrial and manufacturing facilities and the
promotion and development of new and expanded
industrial and manufacturing enterprises to
provide and encourage employment and the public
welfare.
SECTION 3: That the Bonds herein authorized to be
issued sha be dated, bear interest, mature, be.subject to
prepayment or redemption, be issued in such form and manner,
be payable at such time and places, and be executed as set
forth and prescribed in Article *.II of the Indenture, which
provisions and terms are incorporated herein by reference
and made a part hereof as though the same were rewritten in
full detail and stated herein.
SECTION 4: That the Indenture prepared in con-
nection with the issuance of the Bonds and all the terms,
conditions, and provisions contained therein, including the
pledge and assignment of the Issuer's rights, title; and
interest in and to the Agreement (with certain exceptions
noted therein), be and the same are hereby approved and
authorized, and all of said terms, conditions, and provisions
of said Indenture are incorporated herein by reference and
made a part hereof as though the same were rewritten in full
detail and stated herein. The President or Vice President
of the Issuer is hereby authorized and directed to execute,
and the.Secretary of the Issuer is hereby authorized and
directed to attest and affix the seal of the Issuer to, the
Indenture, including necessary counterparts, in substan-
tially the form and substance hereby approved and authorized.
A copy of the Indenture as presented and approved hereby
shall be filed with this Resolution in the official records
of -the Issuer.
SECTION 5: That the Agreement prepared for the
loan of the proceeds of the sale of the Bonds to the Company
and all the terms,.conditions, and provisions contained
therein be and the same are hereby approved and authorized;
and a copy of the Agreement as presented and approved hereby
shall be filed with this Resolution in the official records
of the Issuer. The President or Vice President is hereby
authorized and directed to execute, and the Secretary is
hereby authorized and directed to attest and affix the seal
3
of the Issuer to, the Agreement, including necessary counterparts,
in substantially the form and substance hereby approved and
authorized. Furthermore, the President or Vice President is
hereby authorized and directed to endorse to the Trustee .the
Note to be issued and delivered by the Company in evidence
of the loan being made pursuant to the Agreement.
SECTION 6: That the Bond Purchase Agreement
prepared in connection with the sale of the Bonds to the
Underwriter and all the terms, conditions, and provisions
contained therein be and the same are hereby approved and
authorized, and a copy of the Bond Purchase Agreement as
presented and approved hereby shall be filed with this
Resolution in the official records of the Issuer. The
President or Vice.President is hereby authorized and directed
to.execute the Bond Purchase Agreement, including necessary
counterparts, in substantially the form and substance hereby
approved and authorized.
SECTION 7: That the use, execution, and distribution
of the Official Statement prepared by the Underwriter in
connection with the offer and sale of the Bonds is'hereby
approved. The Issuer has not confirmed, and assumes no
responsibility for, the accuracy, completeness, or fairness
of any of the information in the Official Statement, any
amendments or supplements thereto or any reports, financial
information, offering or disclosure documents, or other
information in any way relating to the Project, the Company
or the Underwriter, other than the information contained in
the Official Statement under the heading "THE ISSUER". The
President or Vice President is hereby authorized and directed
to execute the Official Statement in its final form,.including
necessary counterparts, in substantially the form'and substance
hereby approved and authorized.
to pay ad
respect to
proceeds o
exemption
SECTION 8:
valorem taxe
the Project
f the Bonds
from the pa
That (i)
s as well
acquire
and (ii)
yment of s
with respect to construction
purchased for the Project or
the Company will be obligated
as sales and use taxes with
d and cons
the Issuer
ales and u
materials su
that the Pro
the payment of ad valorem taxes.
tructed with the
will not claim any
se taxes incurred
pplied and equipment
ject is exempt from
SECTION 9: That upon the Bonds being printed or
typewritten and executed, the same shall be delivered to the
Trustee for safekeeping pending i7ritten authorization from
the President or Vice President and Secretary of the Issuer
to the Trustee for the Bonds to be authenticated and delivered
4
to the purchaser. Procedural details for the issuance and
delivery of the Bonds, to the extent the same may be necessary,
shall be prescribed in writing by the President or Vice
President of the Issuer, which directions shall not be
inconsistent with the provisions hereof or the Indenture.
SECTION 10: That the President or Vice President
of the Issuer is hereby authorized and empowered to approve
such changes, modifications, deletions, and additions to the
Bond Purchase Agreement, the Official Statement, the Indenture,
and the Agreement hereby approved as shall be deemed necessary,
desirable, or appropriate and not contrary to the general
tenor and substance thereof, and the execution of such
documents and the delivery thereof shall constitute conclusive
evidence of their approval of any and all such changes,
modifications, additions, or deletions and the approval
thereof by this Board of Directors.
SECTION 11: The President, Vice -President, or
Secretary of the Issuer be and the same hereby are authorized,
empowered, and directed, jointly or severally, to execute
and deliver for and on behalf of the Issuer any and all
additional certificates, documents, opinions, or other
papers and perform all other acts (including, without limitation,
the filing of any financing statements or any other documents
to create and maintain the security interests pledged and
assigned under the Indenture, the execution of all closing
documents as may be required by Bond Counsel, and the acceptance
of any other documentation required by,the Company or the.
Underwriter in connection with the transactions contemplated
hereby) as deemed necessary, desirable, or appropriate to
implement and carry out the intent and purposes of this
Resolution, and all of the acts and deeds of said officers
of the Issuer which are consistent with the purposes and
intent of this Resolution be and the same hereby are, in all
respects, approved, confirmed, and adopted as the acts and
deeds of the Issuer.
SECTION 12:. The Bonds are limited obligations of
the Issuer, payable solely by the Issuer from the amounts
required to be paid by the Company pursuant to and in accor-
dance with the provisions of the Agreement; and the Bonds
and interest thereon shall never constitute an indebtedness
of the Unit, the State of Texas, or any political subdivision
thereof, within the meaning of any state constitutional
provisions or statutory limitation, and shall not give rise
to a pecuniary liability of the Unit, the.State of Texas, or
any political subdivision thereof or a charge against their
respective general credit or taxing powers.
SECTIO
ance
made solelyyby the Company, the Bondsdshall be andWithranareements
hereby sold to:
Morgan Stanley & Co. Incorporated, New York, New York,
at the price of 98.125%, -plus accrued interest from the
date thereof to the date of payment; and delivery of the
Bonds to said purchaser shall occur as soon as possible -
after the adoption of this Resolution, approval of the same
by the governing body of the Unit, the approval of the Texas
Industrial Commission as required by the Act, and upon
payment being made for the Bonds in conformity with the
terms of sale.
SECTION 14: If any section, paragraph, clause, or
provision Of this Resolution shall be held to be invalid or
unenforceable, the invalidity or unenforceability of such
section, paragraph, clause, or provision shall not affect
any of the remaining provisions of this Resolution. In case
any obligation of the Issuer authorized or established by
this Resolution or the Bonds is held to be in violation of
law as applied to any person or in any circumstance, such
obligation shall be deemed to be the obligation of the
Issuer to the fullest extent permitted by law.
SECTION 15: All resolutions and orders or parts
thereof in conflict with this Resolution are, to the.extent
of such conflict, hereby repealed, and this Resolution shall
be in full force and effect immediately upon its adoption.
1982. PASSED AND APPROVED, this the 2nd day of. September,
resident, Board of Directors,
Lubbock .Industrial
Development Corporation
AT EST:
5 - z -YL
ecr tary, Board of Directors,
Lubbock Industrial
Development Corporation
(Seal)
6
No Text
TABLE OF CONTENTS
PREAMBLE
ARTICLE I DEFINITIONS
Section 1.1. Definitions
Section 1.2. Construction W Terms* ,
ARTICLE II REPRESENTATIONS AND WARRANTIES
Section 2.1. Issuer's Representations,
Warranties, and Findings,
Section 2.2. Company's Representations and
Warranties. . . . . . . , , . . ,
ARTICLE III - THE PROJECT
Section 3.1. Approvals and Permits,
Section 3.2. Agreement to Acquire, Construct,
Reconstruct, Improve, and Expand .
Section 3.3. Changes in Plans and Specifi-
cations . . .
Section 3.4. Disbursements from Project Fund . . .
Section 3.5. Inspection of the Project . . . . .
Section 3.6. Establishment of Completion Date .
Section 3.7. Maintenance and Operation . .
Section 3.8. Insurance . . . .
Section 3.9. Company Required to Pay in Event
Project Fund Insufficient . . . . . . .
ARTICLE IV THE BONDS
Section 4..1. Consideration for the Bonds
Section 4.2. Issuance of Bonds .. . . . . .
Section 4.3. Company's Approval of Indenture . . .
Section 4.4. Redemption of Bonds . . . . . . . .
ARTICLE V - LOAN AND PROVISIONS FOR PAYMENT
Section 5.1. Loan by Issuer; Delivery of Note . .
Section 5.2. Loan Payments . . . . . . . . . . . . .
i
Page No.
3
7
8
9
11
11
11
12
12
13
13
13
13
15
15
15
16
17
17
Section 5.3.
Prepayments of Loan Payments . . . . . .
18
Section
5.4.
Payment of Trustee and Paying
Agents. . . . . . . .
18
Section
5.5.
Payment of LiquidatedDamages. . . .
18
Section
5.6
Loan Payments, Liquidated Damages
Payments, and Note Assigned . . . . . .
19
Section
5.7.
Obligations of Company Unconditional .
19
Section
5.8
Release, Extinguishment, or Satisfaction
19
Section
5.9
Form of Payment . . . . . . . . . . .
20
ARTICLE
VI -
SPECIAL COVENANTS
Section
6.1.
No Liability of Issuer
21
Section
6.2.
Financial Reports . . . . .
22
Section
6.3.
Existence of the Company
22
Section
6.4.
Assignment . . . . . . . .
22
Section
6.5.
Further Assurances and Corrective
Instruments. . . .
23
Section
6.6.
Tax -Exempt Status of the Bonds . .
23
Section
6.7.
Issuer Representative .. . . . . . . .
25
Section
6.8.
Company Representative . . . . . . . . .
25
Section
6.9.
No -Arbitrage Covenant . . . . . . . .
25
Section
6.10.
Payment of Taxes . . . .
26
Section
6.11.
Release and Indemnification . . . . . .
26
ARTICLE
VII -
EVENTS OF DEFAULT AND REMEDIES
Section
7.1.
Events of Default Defined. .
28
Section
7.2.
Remedies Upon Events of Default .
29
Section
7.3.
No Remedy Exclusive . . . .
30
Section
7.4.
No Additional Waiver Implied by
One Waiver . . . . . . . . . . . .
30
Section
7.5.
Remedial Rights Assigned to
Trustee. . . . . . . . . . . . . . . .
30
ARTICLE
VIII -
MISCELLANEOUS
Section
8.1.
Term of Agreement . . . . . . . . . . .
31
Section
8.2.
Notices . . . . . . . . . . . . .
31
Section
8.3.
Binding Effect . . . . . . . . . . . ..
31
Section
8.4.
Severability . . . . .
32
Section
8.5.
i
Amounts Remaining in Bond Fund or
Project Fund . . . . . . . . .
32
Section
8.6.
Amendments, Changes, and
Modifications . . . . . . . . . . . . .
32
ii
Section
8.7.
Execution in Counterparts . . . . . .
. 32
Section
8.8.
Captions . . . .. .
32
Section
8.9.
No pecuniary Liability of Issuer . .
. 33
Section
8.10.
Payments Due on Holidays . . . . .
33
Section
8.11.
Payment of Issuer's Expenses . . . . .
.
. 33
Section
8.12.
Status of Parties' Relationship . . .
. 34
Section
8.13.
Governing Law . . . . . . . . .
34
Section
8.14.
Certain Remedies . . . . . . . . . . .
. 34
SIGNATURES AND
ACKNOWLEDGMENTS . . . . . . I. . . . .
. 34
EXHIBIT
A
Description of Project Facilities
EXHIBIT
B
Legal Description of Project Site
EXHIBIT
C
Form of Note
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LOAN AGREEMENT
This Loan Agreement, dated as of September 1, 1982
(the "Agreement"), by and between LUBBOCK INDUSTRIAL DEVE-
LOPMENT CORPORATION, together with any successor to its
duties and functions (the "Issuer"), and INGERSOLL-RAND
COMPANY (the "Company"), a corporation organized and exist-
ing under the laws of the State of New Jersey and authorized
to transact business in the State of Texas (the "State"),
W I T N E S S E T H T H A T:
WHEREAS, the City of Lubbock (the "Unit"), a
Political subdivision of the State, has, pursuant to the
Development Corporation Act of 1979, Article 5190.6, Ver -
non's Texas Civil Statutes, as amended (the "Act"), approved
and created the Issuer as a nonstock, nonprofit industrial
development corporation;
WHEREAS, the Issuer is a constituted authority and
instrumentality (within the meaning of those terms in the
Regulations of the treasury and the rulings of the Internal
Revenue Service prescribed and promulgated pursuant to
Section 103 of the Internal Revenue Code of 1954, as
amended);
WHEREAS, the Issuer, on behalf of the Unit, is
empowered to finance the cost of projects to promote and
develop commercial, industrial, and manufacturing enter-
prises to promote and encourage employment, the public
health, and the public welfare by the issuance of obliga-
tions. of the Issuer, which projects will be within or par-
tially Within the boundaries of the Unit;
WHEREAS, the Company has requested the Issuer to
finance the cost of a project (the "Project") as further
described herein within the boundaries of the Unit;
WHEREAS, in furtherance of the purposes of the
Act, and as a part of the Issuer's plan of financing for the
Project, the Issuer proposes to issue bonds in the aggregate
principal amount of $8,200,000 which will be designated
"Lubbock Industrial Development Corporation Adjustable -Rate
Industrial Development Revenue Bonds (Ingersoll-Rand Company
Project) Series 1982" (the "Series -1982 Bonds"), the pro-
ceeds of which will be used to finance the cost of the
Project, including the acquisition, construction, recon-
struction, improvement, or expansion, as the case may be, of
the Project, together with costs incident to the issuance of
the Series 1982 Bonds;
WHEREAS, the Series 1982 Bonds are to be issued
under and pursuant to and are secured by an Indenture of
Trust, of even date herewith (the "Indenture") by and be-
tween the Issuer and Mellon Bank,'N.A., Pittsburgh, Pennsyl-
vania, as trustee thereunder;
WHEREAS, the Issuer and the Company are entering
into this Agreement in order to provide for (i) a loan from
the Issuer to the Company of the proceeds of the Series 1982
Bonds to finance the acquisition, construction, reconstruc-
tion, improvement, and expansion, as the case may be, of the
Project and certain incidental costs, (ii) the revision from
time to time of the Project, and (iii) the repayment of such
loan by the Company;
WHEREAS, pursuant to the provisions of this Agree-
ment, the Company is executing and delivering to the Issuer
its Note (as hereinafter defined) to evidence the loan of
the proceeds of the Series 1982 Bonds by the Issuer to the
Company and the obligation of the Company under this Agree-
ment to repay the same;
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE
PREMISES AND THE MUTUAL COVENANTS AND AGREEMENTS HEREINAFTER
CONTAINED, THE PARTIES HERETO AGREE EACH WITH THE OTHER, AS
FOLLOWS:
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ARTICLE I. DEFINITIONS.
Section 1..1. Definitions. In addition to other
terms defined herein, tEie —fo owing terms shall have the
meanings assigned to them in this Article I whenever they
are used in this Agreement.
"Act" - The Development Corporation Act of 1979,
Article 5190.6, Vernon's Texas Civil Statutes, as amended.
"Additional Bonds" - One or more series of addi-
tional bonds of the Issuer, other than the Series 1982
Bonds, which may be issued pursuant to the Indenture, in-
cluding refunding bonds.
"Agreement" This Loan Agreement and any amend-
ments and supplements hereto.
"Bond Counsel" - Any nationally recognized attor-
ney or firm of -attorneys experienced in matters concerning
the tax-exempt status of interest payable on obligations
described in Section 103 of the Code and acceptable to the
Issuer, the Company, and the Trustee.
"Bond Fund" - The fund created by Section 4.02 of
the Indenture.
"Bondholder" or "holder" or "owner of the Bonds"
-The bearer of any Bond not registered as to principal or
registered to bearer and the registered owner of any fully
registered Bond or of any Bond registered as to principal
(except to bearer).
"Bonds" - The Series 1982 Bonds of the Issuer and
any Additional Bonds issued pursuant to the Indenture.
"Code" The Internal Revenue Code of 1954, as
amended.
"Commission" - The Texas Industrial Commission,
together with any successor to its duties and functions.
"Company" - Ingersoll-Rand Company, a New Jersey
corporation authorized to transact business in the State,
and its successors and assigns, including any surviving,
resulting, or transferee corporation as permitted in this
Agreement.
"Company Representative" - The person or persons
designated from time to time to act on behalf of the Company
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by written certificate furnished to the Issuer and the
Trustee containing the specimen signature or signatures of
such person or persons and signed on behalf of the Company
by any Officer of the Company. Any Company. Representative
may be an employee of the Company.
"Completion Date" - The date of completion of the
acquisition, construction,, reconstruction, improvement, or
expansion, as the case may be, of the Project, as that date
shall be certified as provided in Section 3.6 of this Agree-
ment.
"Determination of Taxability" - A final decree or
judgment of any federal court or a final action of the
Internal Revenue Service determines that interest paid or
payable on any Bond to other than a "substantial user" of
the Project or a "related person," as such terms are used in
Section 103(b)(10) of the Code, is or was includable in the
gross income of a holder thereof for federal income tax
purposes under the Code as the result of a failure by the
Company to observe or perform any covenant, agreement, or
representation in this Agreement or the inaccuracy of any
representation by the Company under this Agreement; pro-
vided, however, that no Determination of Taxability shall be
considered final unless: (a) the Bondholder involved in
such proceeding or action (i) gives the Company prompt
written notice of the commencement thereof and (ii) if the
Company agrees to pay all expenses in connection therewith
and to indemnify such Bondholder against all liabilities in
connection therewith, permits the Company to control the
defense thereof and (b) the Company contests such Deter-
mination of Taxability to the extent it deems sufficient or
until no further right of appeal exists, it being agreed
that the Company may at any time in writing declare that
such Determination of Taxability is final. Notwithstanding
the foregoing provisions, if a Determination of Taxability
is still the subject of contest or a right of appeal still
exists with respect thereof, it shall nonetheless be deemed
to be final on that date which is forty-five days prior to
the third anniversary date (the "Anniversary Date") of the
date the Company first received written notice of the pro-
ceeding or action as described above, and the Bonds shall be
redeemed no later than the Anniversary Date. In any event,
no redemption shall be made more than 180 days after the
date of the final Determination of Taxability requiring such
redemption, or later than the Anniversary Date.
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"Force Majeure" - Any cause or event not reason-
ably within the control of the Company, including without
limitation the following: acts of God; strikes, lockouts,
or other industrial disturbances; acts of public enemies;
orders of any kind of the government of the United States or
of the State or of any of their departments, agencies, or
officials, or civil or military authorities; insurrections;
civil disturbances; epidemics; plagues; famines; landslides;
lightning; earthquakes; fires; hurricanes; tornadoes;
storms; typhoons; cyclones; waterspouts; volcanic eruptions;
floods; washouts; droughts; arrests; restraints of govern-
ment and people; explosions; breakage or accident to machi-
nery and transmission lines or pipes; or partial or entire
failure of utility services; but not including any event,
situation, or occurrence constituting frustration of
commercial purpose.
"Indenture" - The Indenture of Trust dated as of
even date herewith, between the Issuer and the Trustee,
pursuant to which the Bonds are authorized to be issued,
including any indenture supplemental thereto.
"Issuer" - Lubbock Industrial Development Corpora-
tion, a nonstock, nonprofit industrial development corpora-
tion and a constituted corporation and an instrumentality
(within the meaning of those terms in the regulations of the
treasury and the rulings of the Internal Revenue Service
prescribed and promulgated pursuant to Section 103 of the
Code) created pursuant to the Act.
"Issuer Representative" - The person or persons
designated from time to time to act on behalf of the Issuer
by written certificate furnished to the Company and the
Trustee containing the specimen signature or signatures of
such person or persons and signed on behalf of the Issuer by
the President or the Vice President of the Issuer. The
Issuer Representative may be an employee of the Issuer.
"Liquidated Damages Payments" - Those ,payments
required to be paid by the Company pursuant to Section 5.5
hereof.
"Loan Payments" - Those payments required to be
paid by the Company pursuant to Section 5.2 hereof.
"Note" - The note executed and delivered by the
Company to the Issuer evidencing the loan of the proceeds of
the Series 1982 Bonds by the Issuer to the Company and the
obligation of the Company to repay the same, all pursuant to
this Agreement, substantially in the form of the note
attached hereto as Exhibit C.
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"Paying Agent" - Any bank or trust company desig-
nated pursuant to the Indenture to serve in addition to the
Trustee as paying agent or place of payment for the Bonds;
and any successors designated pursuant to the Indenture.
"Plans and Specifications" - The plans and speci-
fications for the Project, as the same may be amended from
time to time as provided in Section 3.3 hereof, on file at
the office of the Company and available at all times for
inspection by the Issuer.
"Premium" or "premium" - Any amounts in addition
to principal of and, interest and liquidated damages on any
Bond required to be paid in the event of the exercise of an
option to pay the principal of any Bond prior to maturity as
permitted thereby.
"Project" - The Project Facilities and the Project.
Site.
"Project Costs" - To the extent authorized by
Section 103 of the Code, the Regulations under Section 103,
and the Act, all costs incurred by the Issuer or the Company
with respect to the acquisition, construction, reconstruc-
tion, improvement, and expansion, as the case may be, of the
Project, whether paid or incurred prior to or after the date
of this Agreement, including the cost of the acquisition of
all land, rights-of-way, property rights, easements, and
interests; the cost of all machinery and equipment; financ-
ing charges;interest prior to and during construction,
whether or not capitalized; necessary reserve funds; the
cost of engineering and legal services; plans, specifica-
tions, surveys, and estimates of cost and of revenue; other
expenses necessary or incident to determining the feasibi-
lity and practicability of acquiring, constructing, recon-
structing, improving, and expanding the Project; admini-
strative expenses including, but not limited to, Trustee's
fees prior to the Completion Date; the Issuer's charges and
expenses in connection with issuance of the Bonds; and such
other expenses as may be necessary or incident to the
acquisition, construction, reconstruction, improvement, and
expansion thereof, the placing of the same in operation, and
the financing or refinancing of the Project, including the
refunding of any outstanding obligations, mortgages, or
advances issued, made or given by any person for any of the
aforementioned costs; provided, however, that the Project
Costs shall include only costs directly attributable to, and
specifically identified as being with respect to, the acqui-
sition, construction, reconstruction, improvement, and
expansion of the Project.
"Project Facilities" - The building, equipment,
facilities, and improvements listed in Exhibit A hereto
which is incorporated by reference herein.
"Project Fund" - The fund created by Section 4.06
of the Indenture.
"Project Site" — Those certain parcels of land as
described in Exhibit B hereto which is incorporated by
reference herein.
"Regulations" - The Income Tax Regulations promul-
gated and proposed pursuant to the Code.
"Series 1982 Bonds" or "Series 1982 Bond" - That
issue of "Lubbock Industrial Development Corporation
Adjustable -Rate Industrial Development Revenue Bonds (Inger-
soll-Rand Company Project) Series 1982" in the aggregate
principal amount of $8,200,000 issued pursuant to Sec-
tion 2.02 of the Indenture.
"State" - The State of Texas.
"Trustee" - The Trustee at the time serving as
such under the Indenture.
"Unit" - City of Lubbock, Texas.
Section 1.2. Construction of Terms. If appro-
priate, in this Agreement words of the singular number shall
be considered to include the plural, words -of the plural
shall be considered to include the singular, and words of
the masculine, feminine, or neuter gender shall be con-
sidered to include the other genders.
(End of Article I)
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ARTICLE II. REPRESENTATIONS AND WARRANTIES.
Section 2.1. Issuer's Re resentations, Warran-
ties, and Findings. The Issuer represents, warrants, and
finds that:
(a) The Issuer is a constituted corporation
andaninstrumentality (within the meaning of
those terms. in the Regulations and the rulings
of the Internal Revenue Service prescribed and
promulgated pursuant to Section 103 of the Code)
and, pursuant to the Act, the Issuer has the
power to issue the Bonds, to enter into this
Agreement and the transactions contemplated
hereby, and to carry out its obligations here-
under.
(b) The Issuer is not in default under or
in violation of the Constitution or any of the
laws of the State relevant to the
issuance of the Bonds or the consummation of the
transactions contemplated hereby or in connec-
tion with such issuance, and has duly authorized
the issuance of the Series 1982 Bonds and the
execution and delivery of this Agreement. The
Issuer agrees that it will do or cause to be
done in timely manner all things necessary to
preserve and keep in full force and effect its
existence, and to carry out the terms of this
Agreement and the terms of the Indenture.
(c) The Issuer recognizes that the draw-
ings, designs, specifications, materials, lists,
and other engineering documents and information
contained in the Plans and Specifications are
proprietary to, and are the sole and exclusive
property of, the Company. The Issuer agrees to
the extent permitted by law to retain in
confidence and not to disclose to others or to
use for the benefit of others, without the prior
written consent of the Company in each such
instance, any such drawings, designs, specifica-
tions, materials, lists, and other engineering
documents and information contained in the Plans
and Specifications or otherwise furnished to the
Issuer.
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Section 2.2. Company's Representations and War-
ranties. The Company hereby makes the following representa-
tions and warranties, as the basis for the undertakings on
the part of the Company herein contained:
(a) The Company is a corporation duly
incorporated, validly existing,_ and in good
standing under the laws of the State of New
Jersey, is duly qualified as a foreign corpora-
tion in good standing under the laws of the
State, and is not in violation of.any provisions
Of its Articles of Incorporation or By -Laws, all
as amended or any laws of the State relevant to
the transactions contemplated hereby or in
connection with the issuance of the Series 1982
Bonds.
(b) The Company has full corporate power
and authority to -execute and deliver this
Agreement, and has, by proper corporate action,
duly authorized the execution and delivery, of
this Agreement.
(c) Neither the execution and delivery of
this Agreement, the consummation of the transac-
tions contemplated hereby, nor the fulfillment
of or compliance with the terms and conditions
of this Agreement conflicts with or results in a
breach of the terms, conditions, or provisions
of any corporate restriction or any agreement or
instrument to which the Company is now a party
or by which it is bound, or constitutes a
default under any of the foregoing, or results
in the creation or imposition of any prohibited
lien, charge, or encumbrance whatsoever upon any
of the property or assets of the Company under
the terms of any instrument or agreement by
which the Company or any of its property may be
bound.
(d) The Company intends to cause the
Project to be operated as a "project" as defined
in Section 2(10) of the Act.
(e) The Project is required or suitable
for securing the existence of manufacturing and
industrial facilities and the promotion of
manufacturing development and expansion and for
the industrial development and expansion of
industrial facilities.
MOM
(f) The impact of the Project on employ-
ment in the area within the boundaries of the
Unit will be to retain an estimated 10 jobs and
to create an estimated 210 new jobs.
(g) The Project is in furtherance of the
public purposes of the Act, to wit: the reten-
tion, promotion, and development of industrial
and manufacturing enterprises to promote and
encourage employment` and the public welfare.
(h) The Company has obtained or will
obtain all necessary licenses and permits to
acquire, construct, and operate the Project, and
the Project has been approved by all necessary
governmental bodies or agencies having juris-
diction;
(i) Substantially all of the Project
consists, and will at all times consist, of
(i) land or (ii) property of a character subject
to the allowance for depreciation within the
meaning of Section 103(b)(6) of the Code and the
Regulations thereunder;
(j) Substantially all (within the meaning
of Section 103(b)(6) of the Code and the Regula-
tions thereunder) of the proceeds of the Series
1982 Bonds will be used to defray costs of
acquiring, constructing, equipping, or instal-
ling the Project incurred after August 28, 1981,
and all of the.proceeds of the Series 1982 Bonds
will be used for purposes permitted by the Act;
(k) Substantially all expenditures which
are paid or reimbursed out of the proceeds of
the Series 1982 Bonds, including expenditures
for interest payable on the Series 1982 Bonds,
are chargeable to capital or similar accounts of
the Company for federal income tax purposes, or
would be so chargeable either with a proper
election by the Company or but for a proper
election by the Company to deduct such amounts;
(1) The proceeds of the Bonds will not be
used to provide working capital for the Company
except in an insubstantial amount within the
meaning of Section 103.(b) of the Code and the
Regulations thereunder; and
(m) The Project is located within the
boundaries of the Unit.
(End of Article II)
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ARTICLE III. THE PROJECT.
Section 3.1. Approvals and Permits. The Company
agrees to obtain all licenses and permits necessary with
respect to any reconstruction, improvement, or expansion, as
the case may be, of the Project and all other necessary
approvals from any governmental bodies or agencies having
jurisdiction in connection therewith.
Section 3.2. Agreement to Acquire, Construct,
Reconstruct, Improve, and Expand. The Company agrees that
it will cause the acquisition, construction, reconstruction,
improvement, and expansion, as the case may be, of the
Project to be completed with due diligence substantially in
accordance with the Plans and Specifications and in general
do all things which may be requisite or proper therefor. It
is agreed and understood that the Company has entered into
and executed or will enter into and execute all agreements
and contracts necessary to assure and accomplish the actual
providing of the Project and that the Issuer. shall not
execute any such agreements or contracts; the Company will
carry out, pay, supervise, and enforce all such agreements
and contracts; and the Company will provide for such in-
surance on and in connection with the providing of the
Project as it deems necessary or advisable or as is required
by law. The Company and the Issuer agree that the Issuer
shall have no interest in the legal title to the Project.
The Company agrees to use its best efforts to
cause acquisition, construction, reconstruction, improve-
ment, and expansion, as the case may be, of the Project to
be completed as soon as practicable; but, if for any reason
such acquisition, construction, reconstruction, improvement,
and expansion, as the case may be, is delayed or not com-
pleted, there shall be no diminution in or postponement of
Loan Payments. or any other payments to be made by the Com-
pany pursuant to this Agreement.
Section 3.3. Changes in Plans and Specifications.
The Company may make insubstantial changes in, additions to,
or deletions from the Plans and Specifications without prior
consultation with the Issuer. The Company may make sub-
stantial changes in, additions to, or deletions from the
Plans and Specifications without prior consultation with the
Issuer, only if (a) after such changes, additions, or dele-
tions the Project shall continue to be land or property of a
character subject to the allowance for depreciation within
the meaning of Section 103(b)(6) of the Code; (b) the Project
shall continue to constitute facilities of the type which
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may be financed by the Issuer under the Act; (c) any re-
quired approvals of such changes, additions, or deletions
have been obtained from any governmental bodies or agencies
having jurisdiction; and (d) there shall be filed with the
Issuer and the Trustee a written opinion of Bond Counsel
selected by the Company that such changes, additions, or
deletions will not (i) result in the inclusion of interest
on any Bond in the gross income (as defined in Section 61 of
the Code) of the holder thereof (other than a holder who is
a "substantial user" of the Project or a "related person" as
described in Section 103(b)(10) of the Code) or (ii) adver-
sely affect the qualification of the Project under the Act.
Section 3.4. Disbursements from Project Fund.
Pursuant to the provisions of the Indenture, the Trustee is
authorized and directed to make payments from the Project
Fund to the Company to reimburse the Company for any Project
Costs paid by the Company. Such payments shall be made to
the. Company by the Trustee upon receipt of a requisition,
signed by the Company Representative stating: (a) the
requisition number; (b) the amount to be paid; (c) that each
obligation mentioned therein has been properly incurred, is
a proper charge against the Project Fund, is unpaid or not
reimbursed to the Company, and has not been the basis of any
previous withdrawal or payment; and (d) that the payment of
the amount requested will not result in a breach of any of
the covenants of the Company contained in this Agreement,
including particularly the covenants contained in Sec-
tions 6.6, 6.9, and 6.10 hereof. The Issuer and the Trustee
may rely fully on any requisition delivered pursuant to this
Section and shall not be required to make any investigation
in connection therewith; provided, however, that duly autho-
rized representatives of the Issuer may inspect the in-
voices, statements, and related materials which are the
basis for the Company's requisition for payment at reason-
able times and reasonable places. All records of Project
Costs paid or incurred by the Company shall, upon the re-
quest of the Issuer, be subject to audit by the Issuer's
auditors. If amounts paid by the Trustee with respect to
the Project exceed the Project Costs paid or incurred by the
Company, the Company shall promptly pay such overpayment to
the Trustee for deposit into the Project Fund.
Section 3.5. Inspection of the Project. The
Company agrees that the Issuer and its duly authorized
agents may, at their own risk, at reasonable times as deter-
mined by the Company enter upon the Project Site and examine
and inspect the Project and, upon the occurrence of an Event
of Default,. the books and records of the Company with res-
pect to the Project.
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Section 3.6. Establishment of Completion Date.
The Completion Date shall be evi ed to the Trustee by a
certificate signed. by the Company Representative stating
that, except for amounts specified therein by the Company to
be retained by the Trustee for any amount of any Project
Costs not then due and payable or the liability for payment
of which is being contested or disputed by the Company, the
acguisition, construction, reconstruction, improvement, or
expansion, as the case may be, of the Project has been
completed substantially in accordance with the Plans and
Specifications and all labor, services, materials, and
supplies used in such construction have been fully paid and
all costs and expenses incurred in connection therewith have
been paid. Notwithstanding the foregoing, such certificate
shall state that it is given without prejudice to any rights
against third parties which exist at the date of such
certificate or which may subsequently come into being.
Section 3.7. Maintenance and Operation. The
Company undertakes to cauie—each cause—eachitem of the Project Faci-
lities to be maintained and operated so long as the opera-
tion of each such item in the sole judgment of the Company
is economical, lawful, and feasible and in accordance with
good operating practice. The Company agrees that during the
term of this Agreement it will pay any costs of operating,
maintaining, and repairing the Project and that the Issuer
shall have no responsibility or liability whatsoever for
operating, maintaining, or repairing the Project.
Section 3.8. Insurance. The Company shall
insure, including at the Company's option by means of self-
insurance, the Project against such losses and in such
amounts as is customary for persons engaged in the same
business as the Company and operating facilities similar to
the Project.
Section 3.9. Company Required to Pay in Event
Pro]ect Fund Insufficient. In the event that the moneys in
the —Project Fund (including any proceeds of Additional
Bonds) available for payment of the Project Costs are not
sufficient to pay the Project Costs in full, the Company
agrees to complete the Project and to pay all Project Costs
in excess of the moneys available therefor in the Project
Fund. The Issuer does not make any warranty, either express
or implied, that the moneys paid into the Project Fund and
available for payment of the Project Costs will be suffi-
cient to reimburse the Company for all Project Costs. The
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Company agrees that if, after exhaustion of the moneys in
the Project Fund, the Company should directly pay all
Project Costs pursuant to the provisions of this section, it
shall not be entitled to any diminution or abatement of the
payment of Loan Payments or any other amounts payable under
this Agreement.
(End of Article III)
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ARTICLE IV. THE BONDS.
Section 4.1. Consideration for the Bonds. In
consideration of the covenants and agreements set forth
herein and the mutual benefits to the parties hereto, and to
enable the Issuer to issue the Bonds to carry out the
intents and purposes hereof, this Agreement is being exe-
cuted by the Company, and the Note is being executed and
delivered by the Company, to assure the issuance of the
Bonds, and to provide for the due and punctual payment by
the Company of Loan Payments to the Trustee as assignee of
the Issuer and for the benefit of the Issuer and the holder
of any Bond.
Section 4.2. Issuance of Bonds. In order to
provide funds to finance Project Costs -of the Project, the
Issuer agrees that it will issue under the Indenture, sell,
and cause to be delivered to the purchasers thereof, the
Series 1982 Bonds, bearing interest and maturing as set
forth in the Indenture. The Issuer will thereupon deposit
the proceeds received from the sale of the Series 1982 Bonds
in the Project Fund. So long as the Company shall not be in
default hereunder and whenever the Company .requests, the
Issuer will authorize and use its best efforts to issue
Additional Bonds in aggregate principal amounts specified
from time to time by the Company in order to loan the pro-
ceeds therefrom to the Company for the purpose of (1)
financing the cost of completing the Project, (2) financing
the cost of such additions, improvements, extensions,
alterations, relocations, enlargements, expansions, modifi-
cations or changes in, on or to the Project as the Company
may deem necessary or desirable, or (3) refunding any Bonds;
provided, that prior to issuing Additional Bonds for such
purposes, the Issuer shall comply with Section 3.15 of the
Indenture .
In addition, the Issuer and the Company reserve
the right upon mutually agreeable terms to issue other bonds
which will not constitute Additional Bonds and which may,
therefore, differ in any and all respects from the Bonds,
including the security therefor, for any purpose for which
Additional Bonds may be issued; provided, that there is
first procured an opinion of Bond Counsel to the effect that
the issuance of such bonds will not adversely affect the
exemption from federal income taxes of the interest on any
of the Bonds.
Section 4.3. Company's Approval of Indenture.
The Company agrees that the execution of this Agreement
shall constitute the approval by the Company of the Inden-
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ture and all the terms and provisions thereof and all cove-
nants and provisions in the Indenture affecting the Company
shall, upon the delivery of the Bonds authorized by the
Indenture, become unconditional, valid, and binding cove-
nants and obligations of the Company so long as such Bonds
and interest coupons appertaining thereto, if any, are
outstanding. Particularly the obligations of the Company to
pay promptly when due all Loan Payments may be enforced as
provided in the Indenture regardless of any other provisions
of this Agreement, the Note or any other agreement.
Without the prior written approval of the Company,
the Issuer agrees and covenants not to refund, redeem, or
prepay prior to their scheduled maturities, change or modify
the Bonds issued under the Indenture, or change or modify
the Indenture, except as provided therein.
Section 4.4. Redemption of Bonds. The Issuer,
upon the written request o the Company, shall forthwith
take all steps that may be necessary under the applicable
redemption provisions specified in the Indenture to effect
redemption, using funds then on deposit in the Bond Fund, or
other funds made available by the Company, of all or any
part of the then outstanding Bonds, as may be specified by
the Company, on the earliest date on which such redemption
may be made under such applicable provisions; provided that
the partial redemption of any outstanding Bonds prior to
maturity at any time shall not relieve the Company of its
unconditional obligations to pay each remaining Loan Payment
and Liquidated Damages Payment, if any. Upon the occurrence
of any event specifically listed in the Indenture requiring
redemption of the Bonds, the Issuer, upon payment by the
Company of all Loan Payments and Liquidated Damages Payments
necessary therefor, shall forthwith take all steps necessary
to effect such redemption.
(End of Article IV)
-16-
ARTICLE V. LOAN AND PROVISIONS FOR PAYMENTS.
Section 5.1. Loan by Issuer; Delivery of Note.
In order to finance the Project, the Issuer shall oan to
the Company, upon the initial issuance of the Bonds, the
proceeds from the sale of the Bonds. Such proceeds shall be
disbursed and applied in accordance with Article III hereof.
The proceeds of the sale of the Series 1982 Bonds,
which will be deposited into the Project Fund pursuant to
the Indenture, are hereby lent by the Issuer to the Company.
The Company's obligation to make Loan Payments in connection
with the Series 1982 Bonds shall be evidenced by the Com-
pany's creation and issuance of the Note, to be delivered
simultaneously with the delivery of the Series 1982 Bonds
and payable to the order of the Issuer. As security for
repayment of the Note and performance of the Company's
obligations under this Agreement, the Company hereby
pledges, sets over, assigns, and grants a security interest
to the Issuer in all of the Company's right, title, and
interest in all funds at any time deposited in the Project
Fund. The Company hereby authorizes and directs the Trustee
to hold such funds as bailee and custodian, as well as
trustee, for the Project in accordance with the provisions
of Section 9.305 of the Texas Business & Commerce Code, as
amended, and to invest and disburse such funds in accordance
with the Indenture and this Agreement.
Section 5.2. Loan Payments. In consideration of
the loan to it of the procee s of the sale of the Bonds and
of the covenants and agreements set forth herein, the Com-
pany hereby covenants and agrees to repay the loan, together
with interest, premium, if any, and liquidated damages, if
any, by Loan Payments which in the aggregate shall be in an
amount sufficient to pay, when due (whether at stated
maturity, upon redemption prior to maturity, upon accelera-
tion of stated maturity, or otherwise), the principal of,
premium, if any, and interest on the Bonds, and, if per-
mitted by law, interest on any overdue payments. All such
Loan Payments shall be made by the Company directly to the
Trustee at the principal corporate trust office of the
Trustee for deposit in the Bond Fund. Such Loan Payments
shall be due and payable on or before each date a payment of
principal of and/or interest on the Bonds (whether at
maturity or upon redemption or acceleration) becomes due and
payable, and each such payment pursuant to this Section
shall at all times be in an amount sufficient to pay the
total amount of interest, principal (whether at maturity or
upon redemption or acceleration) and premium, if any, pay-
able on the Bonds on the payment, redemption or acceleration
-17-
date for which such payment is due; provided, however, that
if, at the date any payment on the Bonds is due, there is
any moneys in the Bond Fund available for such payment, such
moneys shall be credited against the Loan Payment then due.
The Company shall not be obligated to make any further Loan
Payments under this Section at such time as the entire
principal of, premium, if any, and interest on the Bonds
shall have been fully paid in accordance with their terms,
or provision therefor made in accordance with the Indenture.
In the event the Company shall fail to make any of the
payments required in this Section with respect to any series
of Bonds, the payment so in default shall continue as an
obligation of the Company until the amount of default shall
have been fully paid and the Company will pay interest on
any overdue principal and on any overdue interest, if per
mitted by law, at the rate per annum specified in the Inden-
ture for such overdue payments. Anything herein contained,
or in the Note, or in the Bonds or any interest coupons
appertaining thereto, to the contrary notwithstanding, any
provision for interest, premium, or payments in the nature
of interest shall not exceed, and shall be subject to
reduction to the amount allowed under the usury laws of the
State as now or hereafter construed by courts having juris-
diction, and it is agreed that in no event shall usury be
paid, contracted for, or collected.
Section 5.3. Prepayments of Loan Payments. The
Company shall have the right to make prepayments of Loan
Payments at any time and the Trustee shall be authorized to
receive the same for deposit into the Bond Fund. Any pre-
payment by the Company shall not relieve it of liability for
each remaining Loan Payment as provided in this Agreement
and the Indenture. If all or any part. of the Bonds are
called for redemption in accordance with the Indenture or
become subject to mandatory redemption, the Company shall
prepay Loan Payments sufficient to pay and redeem such Bonds
on the date fixed for redemption.
Section 5.4. Payment of Trustee and Paying Agents.
The Company will promptly pay the reasonable and necessary
fees, expenses (including fees of Trustee's legal counsel),
and charges of the Trustee and any Paying Agents under the
Indenture, such fees and charges to be paid directly to the
Trustee or any Paying Agents for its or their own account as
and when such fees and charges become due and payable, and
any expenses in connection with any redemption of the Bonds.
Section 5.5. Pa ent of Li idated Damages. In
the event of a Determination of Taxability (which, -it is
-Is-
hereby agreed, will constitute a breach of one or more of
the covenants set forth in Section 6.6 herein) the Company
will promptly pay liquidated damages (for loss of a bargain
and not as a penalty -the "Liquidated Damages Payments") in
an amount calculated and determined pursuant to the terms
and provisions of Section 2.04(c) of the Indenture.
Section 5.6. Loan Payments, Liquidated Damages
Payments, and Note Assigned It is understood and agreed
that the Loan Payments and Liquidated Damages Payments to be
made by the Company pursuant to this Agreement, the Note
delivered by the Company to the Issuer, and certain rights
of the Issuer hereunder are pledged and assigned by the
Issuer to the Trustee pursuant to the Indenture. The Issuer
hereby directs the Company and the Company hereby agrees to
pay to the Trustee the Loan Payments and Liquidated Damages
Payments so assigned.
Section 5.7. Obligations of Company Unconditional.
The obligations of the Company to pay Loan Payments, to make
the other payments pursuant to this Agreement, and to per-
form and observe the other agreements and covenants on its
part contained herein shall be absolute and unconditional
and shall not be subject to any diminution, abatement,
set-off, or counterclaim. Until such time as the principal
of, premium, if any, agreed liquidated damages, if any, and
interest on the Bonds shall have been fully paid or pro-
vision for the payment thereof shall have been made in
accordance with the Indenture, the Company (a) shall not
suspend or discontinue payment of Loan Payments, Liquidated
Damages Payments or any other payments pursuant to this
Agreement, (b) shall perform and observe all its covenants,
conditions and agreements contained in this Agreement, and
(c) except as provided in Section 6.3 hereof, shall not
terminate this Agreement for any cause. The Company hereby
waives, to the extent permitted by applicable law, any and
all rights which it may now have or which at any time here-
after may be conferred upon it, by statute or otherwise, to
terminate, cancel, or limit its liability under this Agree-
ment, except in accordance with the express terms hereof.
The holders of the Bonds shall be entitled to rely upon the
agreements, covenants, and representations in this Section,
notwithstanding any other agreement to the contrary and
regardless of the validity of.the remainder of the Agreement
or any other agreement.
Section 5.8. Release, Extinguishment, or Sat-
isfaction. The amounts pable by the Company pursuant to
this Agreement shall remain due and payable by the Company,
-19-
notwithstanding any release, extinguishment, or satisfaction
(pursuant to Subchapter E of Article 9 of the Texas Business
and Commerce Code, or pursuant to any other statute, regula-
tion, document, or agreement) of the Issuer's obligations to
make payments of principal of and interest and premium, if
any, and liquidated damages, if any, on the Bonds until
there shall have been paid to the holders of all outstanding
Bonds or the Trustee in lawful currency of the United States
an amount sufficient to pay all principal and interest
(including interest on overdue amounts of principal and [to
the extent permitted by applicable law] interest) and pre-
mium, if any, and liquidated damages, if any, that would
have been due and owing to the holders of the Bonds had the
Issuer's obligations not been so released, extinguished, or
satisfied.
Section 5.9. Form of Payment. All moneys to be
paid by the Company pursuant to - is Ar icle V shall be paid
in such form and at such times as to provide the Trustee and
any Paying Agents with funds immediately available for use
whenever the Trustee and any Paying Agents are required to
use such moneys for making disbursements.
(End of Article V)
WTO
ARTICLE VI. SPECIAL COVENANTS.
Section 6.1. No Liability of Issuer. Any.obliga-
tion of the Issuer,'createdey or arising out of this Agree-
ment, including the Bonds, shall not impose a debt or
pecuniary liability upon the State, the Unit, or
any other political corporation, subdivision, or agency
thereof, or constitute a pledge of the faith and credit of
any of the foregoing, but shall be payable solely out of
revenues and receipts derived hereunder except (as provided
in the Indenture and in this Agreement) to the extent paid
out of moneys attributable to the proceeds of the sale of
the Bonds or the income from the investment thereof.
Neither the issuance of the Bonds nor the delivery
of this Agreement shall, directly or indirectly or contin-
gently, obligate the State, the Unit, or any
political subdivision thereof to levy any form of taxation
therefor or to make any appropriation,for their payment.
Nothing in the Bonds or the coupons ppertaining to any
coupon Bonds or in the Indenture, the Note, or this Agree-
ment or the proceedings of the Issuer authorizing.the Bonds
or in the Act shall be construed to authorize the issuer to
create a debt of the State, the Unit, or any
political subdivision thereof within the meaning of .any
constitutional or statutory provision of the State.
The principal, premium, if any, liquidated damages, if any,
and interest on the Bonds shall be payable solely from the
funds pledged for their payment in accordance with the
Indenture. Neither the State, the Unit, nor any
political subdivision, or agency of the State shall
be obligated to pay the principal of, or premium, if any, or
liquidated damages, if any, or interest on the Bonds or be
liable for the performance of any pledge, obligation, or
agreement of any kind whatsoever which may be undertaken by
the Issuer. Neither the faith and credit nor the taxing
power of the State, the Unit, or any other politi-
cal corporation, subdivision, or agency thereof is pledged
to the payment of the principal of, premium, if any, liqui-
dated damages, if -any, or interest on the Bonds. No breach
of any such pledge, obligation, or agreement which may be
withdrawn by the Issuer may impose any pecuniary liability
upon the State, the Unit, or any political
corporation, subdivision, or agency thereof, or any charge
upon the faith and credit or against the taxing power of the
State, the Unit, or any political corporation,
subdivision, or agency thereof.
-21-
Section 6.2. Financial Reports. The Company
shall cause an annual report of its books and accounts to be
made and shall furnish the Issuer and the Trustee a copy of
such report. Upon written request, the Company shall fur-
nish to the Issuer and the Trustee copies of its quarterly
financial statements. Upon request, the Company shall
furnish to any Bondholder, at no cost to the Bondholder,
copies of any materials filed with the Securities and Ex-
change Commission and generally available to public
inspection.
Section 6.3. Existence of the Company. While any
of the Bonds remain outstanding., the Company shall maintain
its corporate existence and qualification to do business in
the State and shall not merge or consolidate with any other
corporation, permit any other corporation to consolidate
with or merge into it, or sell or dispose of all or sub-
stantially all of its assets, provided, however, that the
Company may consolidate with or merge into another domestic
corporation or permit one or more other domestic corpora-
tions to consolidate with or merge into it, or sell or
otherwise transfer to another domestic corporation all or
substantially all of its assets as an entirety and
thereafter dissolve, provided that the resulting, surviving,
or transferee corporation, as the case may be, has a net
worth. after giving effect to such consolidation, merger,
sale, or transfer, equal to or greater than the net worth of
the Company immediately preceding such consolidation,
merger, sale or transfer; and irrevocably and uncondition-
ally assumes in writing.to the Issuer and the Trustee, and
agrees to perform, all. of the obligations of the Company
contained in this Loan Agreement; and further provided that
no Event of Taxability has theretofore occurred, or will
occur or result from such consolidation, merger, sale, or
transfer; and further provided that no Event of Default has
occurred and is occurring under this Loan Agreement.
Section 6.4. Assignment. Subject to Section 6.3
hereof, this Agreement may be assigned as a whole or in
part, by the Company without the necessity of obtaining the
consent of either the Issuer or the Trustee, subject, how-
ever, to each of the following conditions:
(a) No assignment shall relieve the Com-
pany from primary liability for any of its
obligations hereunder, and, in the event of any
such assignment, the Company shall remain pri-
marily liable for payment of the Loan Payments,
Liquidated Damages Payments, and other payments
provided for herein and for performance and
observance of the other agreements on its part
-22-
herein provided to be performed and observed to
the same extent as though no assignment had been
made;
(b) The assignee shall assume the obliga-
tions of the Company hereunder to the extent of
the interest assigned; and
(c) The Company shall promptly upon the
making of any assignment furnish or cause to be
furnished to the Issuer and to the Trustee a
true and complete copy of each such assignment
and assumption of obligation.
Section 6.5. Further Assurances and Corrective
Instruments. The Issuer and the Company agree that they
will, from time to time, execute, acknowledge, and deliver,
or cause to be executed, acknowledged, and delivered, such
supplements hereto and such further instruments as may rea-
sonably be required for carrying out the intention of or
facilitating the performance of this Agreement and the
Indenture.
Section 6.6. Tax -Exempt Status of the Bonds. The
Company hereby covenants that substantially all of the
proceeds of the Bonds will be used to pay Project Costs
which constitute proper costs of land or property of a
character subject to the allowance for depreciation as
contemplated by Section 103(b)(6) of the Code and that it
has not taken, permitted to be taken, or omitted to take,
and will not take, permit to be taken, or omit to take any
action which would cause the interest on the Bonds to become
includable in the gross income (as defined in Section 61 of
the Code) of the holders of the Bonds (other than a holder
who is a "substantial user" of the Project or "related
person" as described in Section 103(b)(10) of the Code).
The Company represents that it has not permitted
and covenants that it will not permit the issuance of any
Company Bonds sold by the issuer thereof that would cause
the Series 1982 Bonds and the Company Bonds to be treated as
a single large issue pursuant to Proposed Regulation Sec-
tion 1.103-7(b)(6) (published in the Federal Register of
October 8, 1981), which repeats the requirements set forth
in Revenue Ruling 81-216 (published in the Internal Revenue
Bulletin No. 1981-36, September 8, 1981). For the purpose
of the preceding sentence, the term "Company Bonds" shall
mean any industrial revenue bond within the meaning of
Section 103(b)(2) of the Code, the debt service on which the
Company (or any related person within the meaning of Section
103(b)(6)(C) of the Code) has agreed to pay, or to guarantee
or to otherwise secure.
-23-
The Company covenants that the proceeds of the
Bonds are to be used primarily with respect to the Project
located in the Unit; that the Company will be the only
principal user of the Project to be acquired and constructed
with the proceeds of the Bonds within the meaning of Sec-
tion 103(b)(6) of the Code; and that there are no outstand-
ing obligations issued subsequent to April 30, 1968, of any
state, territory, or possession of the United States, or any
Political subdivision of the foregoing or of the District of
Columbia the proceeds of which have been or are to be used
primarily with respect to facilities located in the Unit,
and which are to be used primarily by the Company or any
person related to the Company within the meaning of Sec-
tion 103(b)(6)(C) of the Code.
The Issuer covenants that it shall, prior to the
issuance of the Bonds, duly elect to have the provisions of
Section 103(b)(6)(D) of the Code apply to such issue and
such election shall be made in accordance with the appli-
cable Regulations or procedures of the Internal Revenue
Service. The Company covenants that it shall furnish to the
Issuer whatever. information is necessary for the -Issuer to
make such election and shall file such supplemental state-
ments and other information as required by the applicable
Regulations or procedures of the Internal Revenue Service.
The Company further covenants that it will not make any
capital expenditures which would cause the interest on the
Bonds to become subject to federal income taxation pursuant
to the provisions of Section 103(b) of the Code so long as
the Bonds are outstanding.
The Company shall also file a supplemental state-
ment, attached to its federal income tax return (or any con-
solidated return on which the Company is included) for each
applicable taxable year, which lists by date and amount any
subsequent Section 103(b)(6)(D) capital expenditures, with
the district director or director of the regional service
center with whom the Company's federal income tax return is
required to be filed on the due date prescribed for filing
such return (without regard to any extension of time) and
shall file a copy of such supplemental statement with the
Issuer and the Trustee.
The Company shall have no right to require any
holder or former holder of any Bond to contest or pursue any
appeal of, or have any communication with the Internal
Revenue Service concerning a Determination of Taxability, or
any notice from the Internal Revenue Service or an agent
thereof proposing that interest on the Bonds be taxable, and
no holder or former holder of any Bond shall have a duty to
make any such contest or pursue any such appeal or have any
such communication. In the event that a holder or former
holder of any Bond,. in the exercise of his, her, or its sole
-24-
discretion, does contest or appeal or have any communication
with the Internal Revenue Service concerning a Determination
of Taxability, or any notice from the Internal Revenue
Service or an agent thereof proposing that interest on the
Bonds be taxable, the holder or former holder of the Bond
shall retain full control over the settlement or other
disposition of any and all issues before the Internal Reve-
nue Service with respect to the Bonds; provided, however,
that no Determination of Taxability will be considered final
unless the holder or former holder of the Bond gives the
required notice to the Company and fulfills the other re-
quirements set forth under the defined term "Determination
of Taxability" contained in this Agreement.
Section 6.7. Issuer Representative. Whenever
under the provisions of this Agreement the approval of the
Issuer is required or the Issuer is required to take some
action at the request of the Company, any such approval or
action shall be evidenced by an instrument signed by the
Issuer Representative, and the Company or the Trustee shall
be authorized to act on any such approval or action, and the
Issuer shall have no redress against the Company or the
Trustee as a result of any such action taken.
Section -6.8. Company Representative. Whenever
under the provisions of this Agreement the approval of the
Company is required or the Company is required to take some
action at the request of the Issuer, such approval or such
action shall be evidenced by an instrument signed by the
Company Representative and the Issuer or the Trustee shall
be authorized to act on any such approval or action and the
Company shall have no redress against the Issuer or the
Trustee as a result of any such action taken.
Section 6.9. No -Arbitrage Covenant. The Company
certifies and covenants that:
(a) The proceeds of the sale of the Series
1982 Bonds shall be devoted to and expended with
due diligence :for the Project, and
(b) Payments of principal of, premium, if
any, and interest on the Note for deposit in the
Bond Fund will be made in such manner and at
such times to provide a proper matching of
payments of principal of, premium, if any, and
interest on the Series 1982 Bonds as the same
become due and payable and to insure that moneys
deposited in the Bond Fund will be spent within
a thirteen (13) month period beginning on the
date of the deposit, and any amount received
-25-
from the investment of money in said Bond Fund
will be spent within a one year period beginning
on the date of receipt.
The Issuer and the Company jointly and severally
covenant with all purchasers and owners of the Series 1982
Bonds from time to time outstanding that so long as the
Series 1982 Bonds remain outstanding, moneys on deposit in
any fund or account in connection with the Series 1982
Bonds, whether or not such moneys were derived from other
sources, will not be used in a manner which will cause the
Series 1982 Bonds to be "arbitrage bonds" within the meaning
of Section 103(c) of the Code and the Regulations, as the
same exist on this date, or may from time to time hereafter
be amended, supplemented or revised, if such amendment,
supplement, or revision is by its terms and its stated
effective date applicable to the Bonds. The Company and the
Issuer also specifically agree that the investment of money
in the Project Fund and the Bond Fund shall be restricted as
may be necessary to prevent the Series 1982 Bonds from being
"arbitrage bonds" under said Section 103(c) of the Code.
Section 6.10. Payment of Taxes. The Company
covenants that it will not claim exemption from payment of
sales taxes on materials supplied for the acquisition,
construction, reconstruction, improvement, or expansion, as
the case may be, of the Project, and will not claim any
exemption of the Project from payment of ad valorem taxes
due to the issuance of the Bonds by the Issuer.
Section 6.11. Release and Indemnification. The
Company will indemnify and hold harmless the Issuer, the
Unit, the Commission, and the officers, members, and em-
ployees of each of them against all loss, costs, damages,
expenses, and liabilities of whatsoever nature (including
but not by way of limitation attorneys' fees litigation and
court costs, amounts paid in settlement, and amounts paid to
discharge judgments) directly or indirectly resulting from
or arising out of or related to (a) the issuance, offering,
sale, delivery, or payment of the Bonds, or the interest
thereon; or (b) the design, construction, installation,
operation, use, occupancy, maintenance, or ownership of the
Project (including compliance with laws, ordinances, and
rules and regulations of public authorities relating
thereto); and (c) arising at any time because of or in
connection with any written statements or representations
made or given by it, or any of its officers or employees, to
the Issuer, the Unit, the Commission, any Trustee, or any
underwriters or purchasers of any of the Bonds, with respect
to the Company, the Project, or the Bonds, including, but
not. limited to statements or representations of facts,
financial information, or corporate affairs. The Company
-26-
will also pay and discharge and will indemnify and hold
harmless the Issuer from (y) any lien or charge upon pay-
ments by the Company to the Issuer hereunder, and (z) any
taxes (including, without limitation, all ad valorem taxes
and sales taxes on the Project and the providing thereof),
assessments, impositions, and other charges in respect of
any portion of the Project. If any such claim is asserted,
or any such lien or charge upon payments, or any such taxes,
assessments, impositions, or other charges, are sought to be
imposed, the Issuer will give prompt notice to the Company,
and the Company shall have the sole right and duty to
assume, and will assume, the defense thereof, with full
power to litigate, �compromise, or settle the same in its
sole discretion.
(End of Article VI)
-27-
ARTICLE VII. EVENTS OF DEFAULT AND REMEDIES.
Section 7.1. Events of Default Defined. The fol-
lowing shall be "Events of Default" under this Agreement and
the terms "Events of Default" shall mean, whenever they are
used in this Agreement, any one or more of the following
events:
(a) Failure by the Company to pay the Loan
Payments or Liquidated Damages Payments when
due, taking into account any applicable grace
period.
(b) Failure by the Company to observe and
perform any material covenant, condition, or
agreement on its part to be observed or
performed, other than as referred to in
subsection (a) of this Section, or failure to
remedy any material misrepresentation or comply
with any warranty made in this Agreement for a
period of 30 days after receipt of written
notice, specifying such failure and requesting
that it be remedied, is given to the Company by
the Issuer or the Trustee, unless the Issuer and
the Trustee shall agree in writing to an
extension of such time prior to its expiration;
Provided, however, that if the failure stated in
the notice cannot be corrected within the
applicable period, the Issuer and the Trustee
will not unreasonably withhold their consent to
an extension of such time if corrective action
is instituted by the Company within the
applicable period and is being diligently
pursued.
(c) The filing by the Company of a volun-
tary petition for relief, the entry of an order
or decree for relief in an involuntary case, or
the entry of an order or decree for dissolution,
liquidation, or winding up of the affairs of the
Company under any applicable bankruptcy, insol-
vency, or similar law now or hereafter in
effect, and such order or decree shall remain
unstayed and in effect for a period of 60 con-
secutive days, or the Company consents to or a
competent court decrees or orders the appoint-
ment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, se-
questrator, or other similar official of the
Company, or any substantial part of its property
for the Project, or the Company shall make any
-28-
general assignment for the benefit of creditors
or shall fail generally to pay its debts as they
become due or shall take any corporate -action in
furtherance of'any of the foregoing.
(d) The occurrence of an "Event of De-
fault" as defined in Section 6.01 of the Inden-
ture.
The foregoing provisions of Subsection (b) above
.are subject to the following limitations: If by reason of
Force Majeure the Company is unable in whole or in part to
carry out its agreements herein contained, other than the
obligations on the part of the Company contained in
Article V hereof (relating to Loan Payments, Liquidated
Damages Payments, and other payments), the Company shall not
be deemed in default during the continuance of such
inability. The Company agrees, however, toremedywith all
reasonable dispatch the cause or causes preventing the
Company from carrying out its agreements;_ provided, however,
that the settlement of strikes, lockouts, and other indus-
trial disturbances shall be entirely within the discretion
of the Company, and the Company shall not be required to
make settlement of strikes, lockouts, and other industrial
disturbances by acceding to the demands of the opposing
party or parties when such course is in the judgment of the
Company unfavorable to the Company.
Section 7.2. _Remedies Upon Events of Default.
Whenever any Event of Default shall have happened and be
continuing, the Issuer may take any one or more of the
following remedial steps:
(a) By written notice to the Company the
Issuer may declare all unpaid indebtedness here-
under to be immediately due and payable, where-
upon the same shall become immediately due and
payable. The term "all unpaid indebtedness"
shall mean Loan Payments in an amount equal to
the principal of, and premium, if any, on all
Bonds then outstanding and interest accrued
thereon and to accrue thereon to the date of
receipt by the Trustee of such moneys, and other
payments due or to become due hereunder, includ-
ing without limitation, Liquidated Damages
Payments, and any unpaid fees and expenses of
the Trustee and Paying Agents, if any, for the
Bonds which are then or will become due prior to
the time that the Bonds are paid in full.
-29-
(b) The Issuer may take whatever action at
law or in equity may appear necessary or desir-
able to collect the amounts then due and there-
after to become due, or to enforce performance
and observance of any obligation, agreement, or
covenant of the Company under this Agreement.
Section 7.3. No Remedy Exclusive. No remedy
herein conferred upon or reserved to the Issuer is intended
to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Agree-
ment or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or
power accruing upon default shall impair any such right or
power or shall be construed to be a waiver thereof, but any
such right or power may be exercised from time to time and
as often as may be deemed expedient. In order to entitle
the Issuer to exercise any remedy reserved to it in this
Article, it shall not be necessary to give any notice other
than such notice as may be herein expressly required.
Section 7.4. No Additional Waiver Implied by
One Waiver. In the event any agreement contained i to his
Agreement should be breached by either party and thereafter
waived by the other party, such waiver shall be limited to
the particular breach so waived and shall not be deemed to
waive any other breach hereunder.
Section 7.5. Remedial Rights Assigned to Trustee.
Such rights and remedies as are given the Issuer hereunder
shall upon execution and delivery of the Indenture be
assigned to the Trustee, and the Trustee shall have the
right to exercise such rights and remedies in the same
manner and under the limitations and conditions that the
Trustee is entitled to exercise rights and remedies upon the
occurrence of an Event of Default pursuant to Article VI of
the Indenture.
(End of Article VII)
-30-
ARTICLE VIII. MISCELLANEOUS.
Section 8,1. Term of Agreement. This Agreement
shall remain in full force and effect from the date hereof
until such time as all of the Bonds shall have been fully
paid (or provision made for such payment pursuant to the.
Indenture). Notwithstanding anything herein to the con-
trary, however, this Agreement shall be considered null and
void ab initio six months from the date hereof, or such
later date mutually agreed upon by the Company and the
Issuer, if there has been no sale of Bonds as contemplated
herein by such date.
Section 8.2. Notices. All notices, certificates,
or other communications hereunder shall be sufficiently
given and shall be deemed given when delivered or mailed by
registered or certified mail, postage prepaid, or sent by
telegram, addressed as follows:
If to the Issuer, at Lubbock Industrial
Development Corporation
Chamber of Commerce
P. O.. Box 561
Lubbock, Texas 79408
Attention: Secretary.
If to the Company, at: Ingersoll-Rand Company
200 Chestnut Ridge Rd.
Woodcliff Lake, NJ 07675
Attention: Vice President
and Treasurer
If to the Trustee, at: Mellon Bank, N.A.
Mellon Square
Pittsburgh, Pennsylvania 15230
Attention: Corporate Trust
Division
A duplicate copy of each notice, certificate, or other com-
munication given hereunder by either the Issuer or the
Company to the other shall also be given to the Trustee.
The Issuer, the Company, and the Trustee may by notice given
hereunder designate any further or different addresses to
which subsequent notices, certificates, or other communica-
tions shall be sent.
Section 8.3. Binding Effect. This Agreement
shall inure to the benefit of and shall be binding upon the
Issuer, the Company, and their respective successors and
assigns, subject, however, to the limitations contained in
Sections 6.3 and 6.4 hereof.
-31-
Section 8.4. Severability. In the event any pro-
vision of this Agreement shall be held invalid or unenforce-
able by any court of competent jurisdiction, such holding
shall not invalidate or render unenforceable any other pro-
vision hereof.
Section 8.5. Amounts Remaining in Bond Fund or
Project Fund. It is agreed by the parties hereto that any
amounts remaining in the Bond Fund or Project Fund upon
expiration or sooner termination of the term of this Agree-
ment, as provided .in this Agreement, after payment in full
of the Bonds (or provision for payment thereof having been
made in accordance with the provisions of the Indenture) and
the reasonable and necessary fees and expenses of the
Trustee and any Paying Agents in accordance with the Inden-
ture, shall belong to and be paid to the Company by the
Trustee.
Section 8.6. Amendments, Chanes, and Modifica-
tions. Subsequent to the issuance of Bonds and prior to
their- payment in full (or provision for the payment thereof
having been made in accordance with the provisions of the
Indenture), this Agreement may not be amended except in
accordance with the procedures set forth in the Indenture
for the amendment of the Indenture; provided, however, that
this Agreement may not be amended, without the consent of
the holder of each outstanding Bond affected thereby, so as
to:
(a) alter the obligation of the Company to
pay Loan Payments, Liquidated Damages Payments,
or other payments provided herein when due;
(b) change or affect Sections 5.2, 5.3,
5.5, 6.3, 6.4, 6.6, 6.9, or 6.10 hereof;
(c) terminate or cancel this Agreement; or
(d) decrease the minimum percentage of the
principal amount of the Bonds the holders of
which must consent to any such amendment.
Section 8.7. _Execution in Counterparts. This
Agreement may be executed in several counterparts, each of
which shall be an original and all of which shall constitute
but one and the same instrument.
Section 8.8. Captions. The captions or headings
in this Agreement are for convenience only and in no way
-32-
define, limit, or describe the scope or intent of any provi-
sions or sections of this Agreement.
Section 8.9. No Pecuniary Liability of Issuer.
No provision, covenant, or agreement contained in this
Agreement or breach thereof shall constitute or give rise to
a pecuniary liability of the Issuer or a charge upon its
general credit. In making such provisions, covenants, or
agreements, the Issuer has not obligated itself, except with
respect to the Project and the application of the revenues
of this Agreement, as hereinabove provided. It is recog-
nized that. the Issuer's only source of funds with which to
carry out its commitments under this Agreement will be from
the proceeds from the sale of the Bonds; and it is expressly
agreed that the Issuer shall have no liability, obligation,
or responsibility with respect to this Agreement or the
Project except to the extent of funds available from such
Bond proceeds.
Section 8.1o. Payments Due on Holidays. If the
date for making any payment or the last date for performance
of any act or the exercise of any right, as provided in this
Agreement, shall be a Saturday, Sunday, or legal holiday or
a day on which banking institutions in the city in which the
principal office of the Trustee or any Paying Agent, as the
case may be, is located are authorized or required by law or
executive order to close, such payment may be made, act
performed, or right exercised on the next succeeding day not
a Saturday, Sunday, or legal holiday or a day on which such
banking institutions are authorized or required by law or
executive order to close with the same force and effect as
if done on the date provided in this Agreement, and if done
on such succeeding day no interest shall accrue for the
period after such date.
Section 8.11. Payment of Issuer's Expenses.
Except to the extent payment is provided in the Project Fund
the Company will pay the reasonable out-of-pocket expenses
of the Issuer incurred under this Agreement or the Indenture
not otherwise required to be paid by the Company under the
terms of this Agreement.
The Company further covenants and agrees to pay
the Issuer all charges assessed, or its pro -rata share of
all costs and expenses (not payable from the proceeds of the
Bonds) incurred, by the Issuer in connection with the
furnishing of financial information, data or reports
required by the Unit, the Commission, the Internal Revenue
Service or the Act and which charges are assessed against or
-33-
shared by all companies, firms, corporations, and persons
for whom the Issuer has financed, in whole or in part,
projects under the Act.
Section 8.12. Status of Parties' Relationship.
Nothing in this Agreement shall be construed to make either
party the partner or joint venturer of or with the other
party.
Section 8.13. Governing Law. The validity,
interpretation, and performance of this Agreement shall be
governed by the laws of the State.
Section 8.14 Certain Remedies. The terms and
provisions of this Agreement may be enforced by mandamus or
the appointment of a receiver in equity.*
IN WITNESS WHEREOF, the Issuer and the Company
have caused this Agreement to be executed in their respec-
tive corporate names and their respective corporate seals to
be hereunto affixed and attested by their duly authorized
officers, all as of the date first above written.
LUBBOCK INDUSTRIAL DEVELOPMENT
CORPORATION
By:
(SEAL) President, Board of Directors
ATTEST:
Secretary, Board
of Directors
ATTEST:
Title:
(SEAL)
INGERSOLL-RAND COMPANY
By:
Title:
-34-
EXHIBIT A
DESCRIPTION OF PROJECT FACILITIES
The Project consists of 119 acres of land and 240,000
square feet of existing manufacturing space. The
Project includes plant modification and retooling
to manufacture oilfield products, drilling equipment,
and other industrial products.
A-1
EXHIBIT B
LEGAL DESCRIPTION OF PROJECT SITE
Field notes on a 119.29 acre tract of land out of the East.part of
Section 15, Block A, Lubbock County, Texas and being more particularly described
as follows:
Beginning at a point on the South line of Section 15, Block A and being
the most Southerly corner of this tract, whence the Southeast corner of Section
Block A bears South 89°44'04" East, 1877.0 feet;
Thence North 89°44'04" West, along the South line of said Section 15, 442.4
` feet to a found railroad spike for a corner of this tract;
Thence North .0°02'46" East at 40.0 feet pass a found 3/4" iron pipe
on the North R.O.W. line of Erskine Road, continuing for a total distance of
2183.6 feet to a found 3/8" iron rod for a corner of this tract;
Thence North 88°44'SS" East, 128.76 feet to a found 3/81" iron rod for a
corner of this tract;
Thence North 0013143" West, 732.56.feet to.a found 1/2" iron rod for a
corner of this tract, from whence this corner bears 2339.72 feet South
and 3087.06 feet East for the Northwest corner of Section 15, Block A;.
Thence South 89°42'S7" West, 406.9 feet to a found 3/8" iron rod on the
East R.O.W. line of U.S. Highway 87, fora corner of this tract;
Thence North 37004113" East, 59.0 feet along the East R.O.W. line of said
Highway 87, to a found concrete monument for a corner of this tract;
Thence North 39°38'48" East, 840.74 feet along the East R.O.W. line
of said highway to a found concrete monument for a corner of this tract and aIs
being the P... of a curve to the right;
Thence Northeasterly along the arc of a curve to the right an'arc distance
of 261.05 feet to a 3/811 iron rod set for the P.T. of this curve and being a
corner of this tract said curvy: has a central angle of 69°34'00" and.a radius
of 215.0 feet and a chord distance of 245.30 feet;
Thence South 70°47'12" East, 171.0 feet along the South R.O.tV_ line of
Look 289 to a 3/8" iron rod set for a corner of this tract;
�. ke.
Thence South 53014'09" West, 99.77 feet to a found 3/411 iron pipe for
a corner of this tract;
Thence South 57002/581/ West, 99.33 feet to a found 3/4" iron pipe for
a corner of this tract;
Thence North 0056130" East, 238.44 feet to a found I" iron pipe.for
a corner of this tract;
Thence North 89053138" West, 251.58 feet to a found 4" iron pipe for a
corner of this tract;
Thence South 000314311 West, 902.04 feet to a found 3/41' iron pipe for
a corner of this tract;
Thence North 890231011' West, 55.12 feet to a found ' 3/4'1 iron pipe for
a corner of this tract;
Thence South 000813311 West at 166.13 feet passu found 3/411 iron pipe
on the North R.O.W. line of Erskine Road, continuing for a total distance
of 218.43 feet to the place of beginning.
Containing 119.29 acres.
s
bIME OF TEXAS
ii00M. OF. LUBBOCK
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Thence South 77°11'12" East at 833.86 feet along the South line of Loop
289, pass a found 3/4" iron pipe, continuing for a total distance of
1035.36 feet to a 3/8" iron rod set for a corner of this tract;
Thence South 72°09' S1" East, 394.25 feet to s found brass cap in concrete,
for the most Northeasterly corner of this tract;
Thence Southwesterly along the arc of a cur to the right, an arc distance
o� of 58.76 feet to a found 3/411 iron pipe,for the P.T. of this curve and being
a corner of this tract, said curve has a central angle of 11037134" and a radius
of 437,40 feet and a chord distance of 88.60 feet;
Thence South 47050143" West, 136.90 feet to = found 1/2" iron rod for
a corner of this tract;
Thence South 40°51'00" East, 166.85 feet to a 3/8" iron rod set for
a corner of this tract;
Thence South 04°52'32" West, 805.97 feet to a found 3/4" iron pipe for
a corner of this tract;
Thence South 89°47'35" West, 88.72 feet to a found 1/2" iron pige for a
corner of this tract;
Thence South 10°17'34" {Vest, 289.60 feet to a found 3/4" iron pipe for a'
corner of -this tract;
Thence South 09058'08" West, 172.48 feet to a found 1/2" iron pipe for a
corner of this tract;
,-Thence South 10019107" West, 872.48 feet to a found 3/8" iron rod on the
North R.O.W. line of Erskine Road for a corner of this tract; _
Thence Southwesterly along the arc of a curre to the right, an arc
distance of 85.12 feet to a found 3/4" iron pipe being a corner of this tract,
said curve has a -central angle of 15007143" and a radius of 322.37 feet and a
chord distance of 84.87 feet;
Thence -South 52036146" West, 177.08 feet along the North R.O.W. line of
said road to a found 3/4" iron pipe for a corner o- this tract;
Thence :North 21°37'49" West, 450.11 feet to a found 3/4" iron pipe for a
corner of this tract;
Thence South 68006'55" West, 252.75 feet to a found 3/4" iron pipe
for a corner of this tract;
-Thence South 83058157" West, 154.46 feet to a found 1/2" iron pipe for
a corner of this tract;
Thence South 20°06'39" East, 144.49 feet to a found 1" iron pipe for
a corner of this tract;
EXHIBIT C
[FORM OF NOTE]
$8,200,000
September 1, 1982
FOR VALUE RECEIVED, INGERSOLL-RAND COMPANY, (here-
inafter called the "Company"), does hereby promise to pay to
the order of LUBBOCK INDUSTRIAL DEVELOPMENT CORPORATION
(hereinafter called the "Issuer") at the principal corporate
trust office of Mellon Bank, N.A., Pittsburgh, Pennsylvania,
or any successor Trustee (hereinafter called the "Trustee")
acting as such under that certain Indenture of Trust dated
as of even date herewith by and between the Issuer and the
Trustee, in lawful money of the United States of America,
the principal sum of Eight Million Two Hundred Thousand
Dollars ($8,200,000), and to pay interest on the unpaid
principal amount hereof, in like money, at such office at
the rate and in the amounts specified in Section 5.2 of that
certain Loan Agreement dated as of even date herewith by and
between the Issuer and the Company (hereinafter referred to
as the "Agreement").
ALL SUMS paid hereon shall be applied first to the
satisfaction of accrued interest and the balance to the
unpaid principal.
THE PRINCIPAL of and interest on this Note are due
and payable in the installments designated as "Loan Pay-
ments" and described in Section 5.2 of the Agreement.
THIS NOTE is the Note referred to in the Agree-
ment, and is subject to all of the terms, conditions and
provisions thereof, including those respecting prepayment
and the acceleration of maturity and is further subject to
all of the terms, conditions, and provisions of the Inden-
ture, all as provided in the Agreement.
THIS NOTE is a contract made under and shall be
construed in accordance with and governed by the laws of the
State of Texas.
INGERSOLL-RAND COMPANY
By:
ATTEST: Title:
Title:
C-1
1 A F A
Pay to the order of Mellon Bank, N.A., Pittsburgh,
Pennsylvania, as trustee, without recourse.
LUBBOCK INDUSTRIAL DEVELOPMENT
CORPORATION
By:
President, Board of Directors
C-2
No Text
INDEX
Page Number
PREAMBLE
ARTICLE
I - DEFINITIONS
Section
1.01.
Definitions . . . . . . . . . . . . .
5
Section
1.02.
Construction of Terms . . . . . . . . .
10
ARTICLE
II -
AUTHORIZATION, DESCRIPTION AND DETAILS RELATIVE
TO THE SERIES 1982 BONDS
Section
2.01.
Authorization for Indenture; Indenture to
Constitute Contract. . . . . . . . .
11
Section
2.02.
Description; Authorization . . . . . . .
11
Section
2.03.
Interest, Terms, Paying Agent, and
Registrar . . . . . . . . ... . . .
12
Section
2.04.
Redemption or Prepayment of Series 1982
Bonds. . . . . . . . . . . . . . . .
14
Section
2.05.
Notice of Redemption or Prepayment
18
Section
2.06.
Prepayment or Redemption Payments. . .
19
Section
2.07.
Interest Not to Exceed Maximum Lawful
Rate. . . . . . . . . . . . . .
20
Section
2.08.
Form of Series 1982 Bonds . . . . . .
21
Section
2.09.
Execution of Bonds . . . . . . . . .
21
Section
2.10.
Authentication . . . . . •
. . . . .
21
Section
2.11.
Conditions Precedent to Delivery of the
Series 1982 Bonds . . . . . . . . . . .
22
ARTICLE
III -
GENERAL PROVISIONS
Section
3.01.
Payment of Principal, Premium,
if any, Liquidated Damages, if any,
and Interest . . . . . . . . ... . . . .
24
Section
3.02.
Performance of Covenants; Issuer . . . .
24
Section
3.03.
Instruments of Further Assurance . . . .
24
Section
3.04.
Recordation. . . . . . . . . . . . .
25
Section
3.05.
List of Bondholders. . . . . . . .25
Section
3.06.
Mutilated, Lost, Stolen, or Destroyed
Bonds. . . . . . . . . . . . . . . .
25
Section
3.07.
Destruction of Bonds . . . . . . . . . .
26
Section
3.08.
Cancellation . . . . . . . . . . . . . .
26
-i-
Section
3.09.
Non -presentment of Bonds . . . . . . .
26
Section
3.10.
Rights under Agreement . . .27
31
Section
3.11.
General Compliance with All Duties .
27
Section
3.12.
Designation of Additional Paying Agents.
27
Section
3.13.
Corporate Existence of Issuer. . ..
27
Section
3.14.
Temporary Bonds . . . . . . . . . . .
28
Section
3.15.
Additional Bonds . . . . . . . . . . . .
28
ARTICLE
IV -
REVENUES AND FUNDS
Section
4.01.
Source of Payment of Bonds . . . . . .
31
Section
4.02.
Creation of Bond Fund . . . . . ..
. 31
Section
4.03.
Payments into Bond Fund . . . .
31
Section
4.04.
Use of Moneys in Bond Fund . . . . . .
. 32
Section
4.05.
Custody of Bond Fund . . . . . . . . .
. 32
Section
4.06.
Creation of Project Fund . . . . . . .
. 32
Section
4.07.
Payments into Project Fund;
Disbursements. .
33
Section
4.08.
Completion of the Project . . . . . .
. 33
.Section
4.09.
Investment of Project Fund Moneys
and Bond Fund Moneys . . . . . . .
. 33
Section
4.10.
Transfers of Moneys Under Certain
Circumstances . . . . . . . . .•
35
Section
4.11.
Security for Funds . . . . . . . . .
36
Section
4.12.
Moneys to be Held in Trust . . . . . .
. 36
Section
4.13.
Repayment.to Company from Bond Fund
or Project Fund . . . . .37
Section
4.14.
Bonds Not to Become Arbitrage Bonds
37
ARTICLE
V - DISCHARGE
OF INDENTURE
38
ARTICLE
VI - EVENTS OF DEFAULT AND REMEDIES
Section
6.01.
Events of Default . . . . . . ..
41
Section
6.02.
Acceleration . �
. . . . . . . .
41
Section
6.03.
Other Remedies; Rights of
Bondholders . . . . . . . . . .
42
Section
6.04.
Right of Bondholders to Direct
Proceedings . . . . . . . . . .
43
Section
6.05.
Appointment of Receivers . . . . . . . .
43
Section
6.06.
Waiver . . . . . . . . . . . . . . . . .
44
Section
6.07.
Application of Moneys . . . . . . . .
44
Section
6.08.
Remedies Vested in Trustee . . . . . .
46
Section
6.09.
Rights and Remedies of Bondholders . . .
46
Section
6.10.
Termination of Proceedings . . . . . . .
47
Section
6.11.
Waivers of Events of Default . . . . . .
47
Section
6.12.
Notice of Default Under Section
6.01(d); Opportunity of Issuer and
Company to Cure Such Defaults. . . . . .
48
ARTICLE
VII -
TRUSTEE AND PAYING AGENT
. 60
Section
7.01.
Acceptance of the Trusts . . . . . . . .
50
Section
7.02.
Fees, Charges, and Expenses of
. 61
ARTICLE
IX — MISCELLANEOUS
Trustee and Paying Agents . . . . .
55
Section
7.03.
Notice to Bondholders of Default . . . .
55
Section
7.04.
Intervention by the Trustee . . . . . .
55
Section
7.05.
Successor Trustee by Merger or
. 64
Section
9.04.
otherwise.. . . . . . . . . . . . . .
55
Section
7.06.
Resignation by the Trustee . . . . . . .
56
Section
7.07.
Removal of the Trustee . . . . . . . . .
56
Section
7.08.
Appointment of Successor Trustee by
. 65
Section
9.08.
Bondholders; Temporary Trustee .. . . . .
56
Section
7.09.
Successor Trustee . . .57
Section
7..10.
Designation and Succession of Paying
Agents . . . . . . . .. .
57
Section
7.11.
Appointment of Successor Paying
Agent . . .58
Section
7.12.
Successor Trustee as Bond Registrar,
Custodian of Project Fund, and Bond Fund,
and Paying Agent . . . . . . . . . . .
58
Section
7.13
Fees and Expenses of Predecessor
Trustee . . . . . . . .
58
Section
7.14.
Trustee and Issuer Required to.Accept
Directions and Actions of Company
58
ARTICLE VIII - SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Not Requiring
SIGNATURES AND SEALS . . . . . . . . . . . . . 66
EXHIBIT A - Form of Series 1982 Bonds
Consent of Bondholders . . . . . .
. 60
Section
8.02.
Supplemental Indentures Requiring
Consent of Bondholders . . . . . . . .
. 61
ARTICLE
IX — MISCELLANEOUS
Section
9.01.
Consents of Bondholders . . . . . . .
63
Section
9.02.
Limitation of Rights . . . . . . . . .
. 64
Section
9.03.
Severability . . . . . . . . . . .
. 64
Section
9.04.
Notices . . . . . . . . . . . .
. 64
Section
9.05.
Payments Due on Holidays . . . . . . .
. 65
Section
9.06.
Execution of Counterparts . . . . .
. 65
Section
9.07.
Applicable Law . . . . . . . . . .
. 65
Section
9.08.
Captions . . . . . . . . . . . . . . .
. 65
SIGNATURES AND SEALS . . . . . . . . . . . . . 66
EXHIBIT A - Form of Series 1982 Bonds
INDENTURE OF TRUST
THIS INDENTURE OF TRUST, dated as of September 1,
1982, (this "Indenture") by and between the LUBBOCK INDUS-
TRIAL DEVELOPMENT CORPORATION (the "Issuer"), a nonstock,
nonprofit. industrial development corporation existing under
the laws of the State of Texas and MELLON BANK, N.A.,
Pittsburgh, Pennsylvania, a national banking association
duly organized and existing under the laws of the United
States of America, and authorized to accept and execute
trusts of the character herein set out (the "Trustee"),
WI TNES SETH THAT:
WHEREAS, the City of Lubbock, Texas (the "Unit")
has, pursuant to the Development Corporation Act of 1979,
Article 5190.6, Vernon's Texas Civil Statutes, as amended
(the "Act"), approved and created the Issuer as a nonstock,
nonprofit industrial development corporation;
WHEREAS, the Issuer is a constituted authority and
instrumentality (within the meaning of those terms in the
Regulations of the treasury and the rulings of the Internal
Revenue Service prescribed and promulgated pursuant to sec-
tion 103 of the Internal Revenue Code of 1954, as amended);
WHEREAS, the Issuer, on behalf of the Unit, is
empowered to finance the cost of projects to promote and
develop industrial and manufacturing enterprises to promote
and encourage employment and the public welfare by the
issuance of obligations of the Issuer, which projects will
be within or partially within the boundaries of the Unit;
WHEREAS, Ingersoll-Rand Company, a New Jersey
corporation (the "Company"), has requested the Issuer to
finance the cost of a project (the "Project") consisting of
certain land, buildings, equipment, facilities, and improve-
ments within the boundaries of the Unit;
WHEREAS, in furtherance of the purposes of the
Act, and as a part of the Issuer's plan of financing for the
Project, the Issuer proposes to issue bonds in the aggregate
principal amount of $8,200,000 which will be designated
"Lubbock Industrial Development Corporation Adjustable -Rate
Industrial Development Revenue Bonds (Ingersoll-Rand Company
Project) Series 1982" (the "Series 1982 Bonds"), the pro-
ceeds of which will be used to finance the cost of the
Project, including. the acquisition, construction, recon-
struction, improvement, and expansion, as the case may be,
thereof together with costs incident to the issuance of the
Series 1982 Bonds;
WHEREAS, the Issuer and the Company have entered
into a Loan Agreement, of even date herewith (the "Agree-
ment") providing for (i) a loan from the Issuer to the
Company of the proceeds of the Series 1982 Bonds to finance
the acquisition, construction, reconstruction, improvement,
and expansion, as the case may be, of the Project and cer-
tain incidental costs, (ii) the revision from time to time
of the Project, and (iii) the repayment of such loan by the
Company;
WHEREAS, pursuant to the provisions of the Agree-
ment, the Company has agreed to execute and deliver to the
Issuer its Note (as hereinafter defined) to evidence the
loan of the proceeds of the Series 1982 Bonds by the Issuer
to the Company and the obligation of the Company under the
Agreement to repay the same;
WHEREAS, the Issuer has determined (within certain
limitations) to provide for the issuance from time to time
in the future of certain additional bonds for the purpose of
defraying the cost -of completing, enlarging, improving or
expanding the Project or refunding any Series 1982 Bonds or
series of additional bonds theretofore issued and outstand-
ing under this Indenture; and
WHEREAS, all things necessary to make the Series
1982 .Bonds, when issued as provided in this Indenture, the
valid, binding, and legal limited obligations of the Issuer
according to the import thereof, and to constitute this
Indenture a valid assignment of the amounts pledged to the
payment of principal of, premium, if any, agreed liquidated
damages, if any, and interest on the Bonds have been done
and performed, and the creation,. execution, and delivery of
this Indenture, and execution and issuance of the Series
1982 Bonds, subject to the terms hereof, have in all re-
spects been duly authorized.
GRANTING CLAUSES
NOW, THEREFORE, the Issuer, in consideration of
the premises and the acceptance by the Trustee of the trust
hereby created and of the purchase and acceptance of the
Bonds (hereinafter defined) by the holders and owners here-
-2-
of, and of the sum of one dollar, in lawful money of the
United States of America, to it duly paid by the Trustee at
or before the execution and delivery of these presents, and
for other good and valuable consideration, .the receipt of
which is hereby acknowledged, in order to secure the payment
of the principal of, premium, if any, agreed liquidated
damages, if any, and interest on the Bonds according to
their tenor and effect and to secure the performance and
observance by the Issuer of all the covenants and obliga-
tions expressed or implied herein and in the Bonds, does
hereby grant, alien, bargain, sell, convey, transfer, as-
sign, and pledge unto the Trustee (to the extent of its
legal capacity to hold the same for the purposes hereof),
and its successors in trust and assigns forever:
GRANTING CLAUSE FIRST
All rights, title, and interest of the Issuer in
the Agreement (except the Issuer's rights under
Sections 6.11 and 8.11 thereof), including all extensions
and renewals of the term thereof, if any, thereto, and
thereunder including, but without limiting the generality of
the foregoing, the present and continuing right to make
claim for, collect, receive, and make receipt for Loan
Payments (as hereinafter defined) and Liquidated Damages
Payments (as hereinafter defined) and other sums of money
payable or receivable thereunder, whether payable as Loan
Payments thereunder or otherwise, to bring any actions and
proceedings thereunder or for the enforcement thereof, and
to do any and all other things which the Issuer or any
lender is or may become entitled to do under the Agreement,
provided that the assignment made by this clause shall not
impair or diminish any obligation of the Issuer under the
provisions of the Agreement;
GRANTING CLAUSE SECOND
All rights, title, and interest of the Issuer in
and to the Note; and
GRANTING CLAUSE THIRD
All rights, title, and interest of the Issuer in
all moneys and. securities from time to time held by the
Trustee under the terms of this Indenture.
TO HAVE AND TO HOLD all and singular the Trust
Estate (as hereinafter defined), whether now owned or here-
after acquired, unto the Trustee and its respective succes-
sors in trust and assigns forever;
-3
IN TRUST NEVERTHELESS, upon the terms and trusts
herein set forth for the equal and ratable benefit, secu-
rity, and protection of all present and future holders and
owners of the Bonds, and the bearers of all coupons, if any,
appertaining thereto, issued under and secured by this
Indenture without privilege, priority, or distinction as to
the lien or otherwise (except as herein expressly provided)
of any of the Bonds or coupons appertaining thereto over any
of the other Bonds or coupons;
PROVIDED, HOWEVER, that if the Issuer, its succes-
sor or assigns, shall well and truly pay, or cause to be
paid, the principal of the Bonds and the interest and pre-
mium, if any, due or to become due thereon, and any liqui-
dated damages due with respect thereto, at the times and in
the manner mentioned in the Bonds and the interest apper-
taining to any coupon bonds, respectively, according to the
true intent and meaning thereof, and shall cause the pay-
ments to be made into the Bond Fund as required under Arti-
cle IV hereof or shall provide, as permitted by Article V
hereof, for the payment thereof, and shall well and truly
keep, perform, and observe all of the covenants and condi-
tions 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 all paying agents all sums of money
due or to become due in accordance with the terms and pro-
visions hereof, then this Indenture and the rights hereby
granted shall cease -and determine; otherwise this Indenture
is to be and remain in full force and effect;
THIS INDENTURE FURTHER WITNESSETH, and it is
expressly declared, that all Bonds issued and secured here-
under are to be issued, authenticated, and delivered, and
all said property, rights, and interests, including, without
limitation, the amounts hereby assigned, are to be dealt
with and disposed of, under, upon, and subject to the terms,
conditions, stipulations, covenants, agreements, trusts,
uses, and purposes hereinafter expressed, and that the
Issuer has agreed and covenanted, and does hereby agree and
covenant with the Trustee and with. the respective holders
and owners, from time to time, of said Bonds and coupons
appertaining thereto, or any part thereof, as follows:
-4-
ARTICLE I. DEFINITIONS.
SECTION 1.01. Definitions. (a) The following
terms shall have the meanings assigned to them in this
Article whenever they are used in this Indenture, unless the
context clearly otherwise requires:
"Act" - The Development Corporation Act of 1979,
Article 5190.6, Vernon's Texas Civil Statutes, as amended.
"Additional Bonds" -'One or more series of addi-
tional bonds of the. Issuer, other than the Series 1982
Bonds, which may be issued pursuant to Section 3.15 hereof,
including refunding bonds.
"Agreement" - The Loan Agreement, and any amend-
ments and supplements hereto, referred to in the recitals
hereof by and between the Issuer and the Company.
"Bond Counsel" - Any nationally recognized
attorney or firm of attorneys experienced in matters
concerning the tax-exempt status of interest payable on
obligations described in .Section 103 of the Code and
acceptable to the Issuer, the Company and the Trustee.
"Bond Fund" - The fund created by Section 4.02 of
this Indenture.
"Bondholder" or "holder" or "owner of the Bonds" -
The bearer of any Bond not registered as to principal or
registered to bearer and the registered owner of any fully
registered Bond or of any Bond registered as to principal
(except to bearer).
"Bond" or "Bonds" - Any one or some or all, as the
case may be, of the Series 1982 Bonds and any Additional
Bonds of the Issuer.
"Bond Registration Books" - The registration books
of the Issuer, kept by the Trustee, as Bond Registrar, for
Bonds registered as to principal or as to principal and
interest.
"Code" - The Internal Revenue Code of 1954, as
amended.
"Commission" - The Texas Industrial Commission,
together with any successor to its duties and functions.
-5-
"Company" Ingersoll-Rand Company, a New Jersey
corporation and its successors and assigns, including any
surviving, resulting, or transferee entity as permitted in
the Agreement.
"Company Representative" - The person or persons
designated from time to time to act on behalf of the Company
by written certificate furnished to the Issuer and the
Trustee containing the specimen signature or signatures of
such person or persons and signed on behalf of the Company
by any Officer of the Company. Any Company Representative
may be an employee of the Company.
"Completion Date" - The date of completion of the
acquisition, construction, reconstruction, improvement, or
expansion, as the case may be, of the Project, as that date
shall be certified as provided in Section 3.6 of the Agree-
ment.
"Default" and "Event of Default" - Any occurrence
or event specified in Section 6.01 of this.Indenture.
"Determination of Taxability" - A final decree or
judgment of any federal court or a final action of the
Internal Revenue Service determines that interest paid or
payable on any Bond to other than a "substantial user" of
the Project or a "related person," as such terms are used in
Section 103(b)(10) of the Code, is or was includable in the
gross income of a holder thereof for federal income tax
purposes under the Code as the result of a failure by the
Company to observe or perform any covenant, agreement, or
representation in the Agreement or the inaccuracy of any
representation by the Company under the Agreement; provided,
however, that no Determination of Taxability shall be consi-
dered final unless: (a) the Bondholder involved in such
proceeding or action (i) gives the Company prompt written
notice of the commencement thereof and (ii) if the Company
agrees to pay all expenses in connection therewith and to
indemnify such Bondholder against all liabilities in con-
nection therewith, permits the Company to control the
defense thereof and (b) the Company contests such Determi-
nation of Taxability to the extent it deems sufficient or
until no further right of appeal exists, it being agreed
that the Company may at any time in writing declare that
such Determination of Taxability is final. Notwithstanding
the foregoing provisions, if a Determination of Taxability
is still the subject of contest or a right of appeal still
exists with respect thereof, it shall nonetheless be deemed
to be final on that date which is forty-five days prior to
-6-
the third anniversary date (the "Anniversary Date") of the
date the Company first received written notice of the pro-
ceeding or action as described above, and the Bonds shall be
redeemed no later than the Anniversary Date.. In any event,
no redemption shall be made more than 180 days after the
date of the Final Determination of Taxability requiring such
redemption, or later than the Anniversary Date.
"Force Majeure" - Any cause or event not reason-
ably within the control of the Company, including without
limitation the following: acts of God; strikes, lockouts,
or other industrial disturbances; acts of public enemies;
orders of any kind of the government of the United States or
of the State or any of their departments, agencies, or
officials, or civil or military authorities; insurrections;
civil disturbances; epidemics; plagues; famines; landslides;
lightning; earthquakes; fires; hurricanes; tornadoes;
storms; typhoons; cyclones; waterspouts; volcanic eruptions;
floods; washouts; droughts arrests; restraints of govern-
ment and people; explosions; breakage or accident to machi-
nery and transmission lines or pipes; or partialor entire
failure of utility services; but not including any event,
situation, or occurrence constituting frustration of com-
mercial purpose.
"Government Obligations" - Direct obligations of,
or obligations the timely payment of principal of and inte-
rest on which are fully and unconditionally guaranteed by,
the United States of America, which are non -callable and
which at the time of investment are legal investments under
the laws of the State for the moneys proposed to be invested
therein.
"Indenture" - This Indenture of Trust dated as of
September 1, 1982, between the Issuer and the Trustee,
pursuant to which the Bonds are authorized to be issued,
including any indenture supplemental hereto.
"Issuer" - Lubbock Industrial Development Corpora-
tion, a nonstock, nonprofit industrial development corpora-
tion and a constituted authority and an instrumentality
(within the meaning of those terms in the regulations of the
treasury and the rulings of the Internal Revenue Service
prescribed and promulgated pursuant to Section 103 of the
Code) created pursuant to the Act.
"Issuer Representative" -
designated from time to time to act
by written certificate furnished to
Trustee containing the specimen sign
-7-
The person or persons
on behalf of the Issuer
the Company and the
ature or signatures of
such person or persons and signed on behalf of the Issuer by
the President or the Vice President of the Issuer. The
Issuer Representative may be an employee of the Issuer.
"Liquidated Damages Payments" - Those payments
required to be paid by the Company pursuant to Section 5.5
of the Agreement.
"Loan Payments" - Those payments required to be
paid by the Company pursuant to Section 5.2 of the Agree-
ment.
"Note" - The note executed and delivered by the
Company to the Issuer evidencing the loan made on behalf of
the Issuer to the Company pursuant to the Agreement, sub-
stantially in the form of the note attached thereto as
Exhibit C.
"Outstanding" or "Bonds outstanding" or "Bonds
then outstanding" - As of the time in question, all Bonds
which have been executed and delivered by the Issuer under
this Indenture, except:
(a) Bonds theretofore cancelled or de-
livered to the Trustee for cancellation, after
purchase in the open market or because of pay-
ment at or redemption prior to maturity;
(b) Bonds for the payment or redemption of
which moneys sufficient, or Government Obliga-
tions the principal of, premium, if any, and
interest. on which when due will be sufficient,
to pay the principal of and premium, if any,
liquidated damages, if any, and interest on such
Bonds and coupons, if any, appertaining thereto,
to the date fixed for payment or redemption,
shall have been theretofore or shall be concur-
rently deposited with the Trustee (whether upon
or prior to the maturity or redemption date of
any such Bonds); provided that, if such Bonds
are to be redeemed prior to the maturity there-
of, notice of such redemption shall have been
given or arrangements satisfactory to the
Trustee shall have been made therefor, or waiver
of such notice satisfactory in form to. the
Trustee shall have been filed with the Trustee;
and
-8-
(c) Bonds in lieu of which other Bonds
have been authenticated and delivered under this
Indenture.
In determining whether the holders of the required
principal amount of Bonds outstanding have taken any action
under this Indenture, Bonds owned by the Company or any
person controlling, controlled by or under common control
with the Company shall be disregarded and deemed not to be
outstanding unless all the -Bonds are owned by the Company or
any person controlling, controlled by or under common
control with the Company.
"Paying Agent" - Any bank or trust company desig-
nated pursuant to this Indenture to serve in addition to the
Trustee as paying agent or place of payment for the Bonds,
and any successors designated pursuant to this Indenture.
"Plans and Specifications" - The plans and speci-
fications for the Project, as the same may be amended from
time to time as provided in Section 3.3 of the Agreement, on
file at the office of the Company and available at all times
for inspection by the Issuer.
"Premium" or "premium" - Any amounts in addition
to principal of and interest and liquidated damages on any
Bond required to be paid in the event of the exercise of an
option to pay the principal of any Bond prior to maturity as
permitted thereby.
"Project" - The Project Facilities and the Project
Site.
"Project Costs" To the extent authorized by
Section 103 of the Code, the Regulations under Section 103,
and the Act, all costs incurred by the Issuer or the Company
with respect to the acquisition, construction, reconstruc-
tion, improvement, and expansion, as the case may be, of the
Project, whether paid or incurred prior to or after the date
of the Agreement, including the cost of the acquisition of
all land, rights-of-way, property rights, easements, and
interests; the cost of all machinery and equipment; financ-
ing charges; interest prior to and during construction,
whether or not capitalized; necessary reserve funds; the
cost of engineering and legal services; plans, specifica-
tions, surveys, and estimates of cost and of revenue; other
expenses necessary or incident to determining the feasibi-
lity and practicability of acquiring,' constructing,
reconstructing, improving, and expanding the Project; admin-
-9-
istrative expenses; the Issuer's charges and expenses in
connection with issuance of the Bonds; and such other ex-
penses as may be necessary or incident to the acquisition,
construction, reconstruction, improvement, and expansion
thereof, the placing of the same in operation, and the
financing or refinancing of the Project, including the h
refunding of any outstanding obligations, mortgages, or
advances issued, made or given by any person for any of the
aforementioned costs; provided, however, that the Project
Costs shall include only costs directly attributable to, and
specifically identified as being with respect to, the acgui
sition, construction, reconstruction, improvement, and
expansion of the Project.
"Project Facilities" - The building, equipment,
facilities, and improvements listed in Exhibit A to the
Agreement.
"Project Fund" The fund created by Section 4.06
of this Indenture.
"Project Site" - Those certain parcels of land as
described in Exhibit B to the Agreement.
"Regulations" - The Income Tax Regulations promul-
gated or proposed pursuant to the Code.
"Security",shall have the same meaning as set
forth in Section 2(1) of the Securities Act of. 1933, as
amended.
"Series 1982 Bonds" or "Series 1982 Bond" - The
"Lubbock Industrial Development Corporation Adjustable -Rate
Industrial Development Revenue Bonds (Ingersoll-Rand Company
Project) Series 1982" in the aggregate principal amount of
$8,200,000, issued pursuant to Section 2.02 hereof.
"State" - The State of Texas.
"Trustee" The Trustee at the time serving as
such under this Indenture.
"Trust Estate" - The property conveyed to the
Trustee pursuant to the granting clauses of this Indenture.
"Unit" - The City of Lubbock, Texas.
SECTION 1.02. Construction of Terms. If appro-
priate, in this Indenture words of the singular number shall
be considered to include the plural, words of the plural
shall be considered to include the singular, and words of
the masculine, feminine, or neuter gender shall be consi-
dered to include the other genders.
-10-
ARTICLE II
AUTHORIZATION, DESCRIPTION AND DETAILS RELATIVE TO THE
SERIES 1982 BONDS.
SECTION 2.01. Authorization for Indenture; Inden-
ture to Constitute Contract. This Indenture is entered into
pursuant to the Act. In consideration of the purchase and
acceptance of the Bonds by_those who shall purchase and hold
the same from time to time, the provisions of this Indenture
shall be a part of the contract of the Issuer with the
holders of the Bonds and any coupons, and shall be deemed to
be and shall constitute a contract between the Issuer, the
Trustee, and the holders from time to time of the Bonds, and
such provisions are covenants and agreements with such
holders which the Issuer hereby determines to be necessary
and.desirable for the security and payment thereof.
SECTION 2.02. Descri tion• Authorization. There
are hereby aut orized for issuance under is Indenture
initially, Bonds in the aggregate principal amount of
$8,200,000 which shall bear the descriptive title "Lubbock
Industrial Development Corporation Adjustable -Rate Indus-
trial Development Revenue Bonds (Ingersoll-Rand Company
Project) Series 1982." The Series 1982 Bonds initially
issued hereunder shall be fully registered as to the payment
of principal and interest, shall be issued in denominations
of $5,000 or any integral multiples thereof, and shall
mature on September 1, 2012 (subject to the provisions for
prepayment or redemption at the prices, on the dates and
upon the terms and conditions hereinafter set forth).
The Series 1982 Bonds are not and shall never in
any event become general obligations of the Issuer but are
special and limited obligations payable solely and only from
the Loan Payments and Liguidated Damages Payments (except to
the extent paid out of moneys attributable to the proceeds
derived from the sale of the Series 1982 Bonds on to income
from the temporary investment thereof), which amounts,
together with any other security provided herein, are hereby
specifically assigned and pledged to such purposes in the
manner and to the extent provided herein. The Series 1982
Bonds and the interest thereon shall never constitute a
debt, indebtedness, or a pledge of the faith and credit or
taxing power of the State, or any political corporation,
subdivision, or ,agency thereof.
-11-
SECTION 2.03. Interest, Terms,. Paving Agent, and
Registrar. The Serres 1982 Bonds initially issued hereunder
shall be dated as of September 1, 1982, and shall bear
interest on the unpaid principalamount at any time Out-
standing from the date of their delivery to the initial
purchaser (which date shall be noted by the Trustee on the
Trustee's Certificate of Authentication appearing on the
Bonds) through August 31, 1985, at the rate of nine per
centum (9%) per annum. The rate of interest to be borne by
the Series 1982 Bonds for each subsequent three year period
(commencing September 1, 1985, and the September 1 of every
third year thereafter to and including September 1, 2009)
shall be 86% of the 20 -Bond Index, as published by The Bond
Buyer on July 15 of such year, or the immediately preceding
date of publication of such index (which date shall not be
earlier than the July 1 of such year). If the 20 -Bond Index
is unavailable on such date, .the interest rate for such
period shall equal 86% of Moody's AA Municipal Bond Yield
Average, as published by Moody's Investor's Services, Inc.
on the date specified above. In the event neither index is
available, the interest rate for such period shall. be equal
to the interest rate for the preceding three year period
ending August 31 of such year. In no event shall the
interest rate as established pursuant to the aforementioned
method exceed fifteen per centum (15%) per annum. The
interest rate determination dates shall be as follows:
Interest Rate
To Cover Interest
Determination Dates
Period
Dates (Inclusive)
July
15,
1985
September
1,
1985
through
August
31,
1988
July
15,
1988
September
1,
1988
through
August
31,
1991
July
15,
1991
September
1,
1991
through
August
31,
1994
July
15,
1994
September
1,
1994
through
August
31,
1997
July
15,
1997
September
1,
1997
through
August
31,
2000
July
15,
2000
September
1,
2000
through
August
31,
2003
July
15,
2003
September
1,
2003
through
August
31,
2006
July
15,
2006
September
1,
2006
through
August
31,
2009
July
15,
2009
September
1,
2009
and thereafter
The Trustee shall as soon as practical on or after July 1 of
each such year, notify all Bondholders that the interest
rate is subject to redetermination as of such July 15, as if
it were redetermined on such July 1 and the method by which
Bondholders may deliver Series 1982 Bonds to the Escrow
Agent for redemption pursuant to Section 2.04(d) hereof.
Thereafter, on or before July 20 of such year, the Trustee
shall redetermine the interest rate and, by notice mailed no
later than said July 20, notify the Bondholders of such
interest rate, the method of calculation thereof and the
last day for the delivery to the Escrow Agent of Bonds for
redemption.
-12-
All the Bonds may have endorsed thereon such
legends or text as may be necessary or appropriate to con-
form to any applicable rules and regulations of any govern-
mental corporation or any usage or requirement of law with
respect thereto.
The principal of, premium, if any, and interest on
the Bonds shall be paid in any coin or currency. of the
United States of America, which, at the respective times of
payment, is legal tender for the payment of public or pri-
vate debts.
The Trustee is hereby appointed Paying Agent and
Registrar (for registered Bonds) for the Bonds. As Regis-
trar, the Trustee shall cause to be, kept at its principal
corporate trust office books for the registration and trans-
fer of fully registered Bonds or Bonds registered as to
principal only (the "Bond Registration Books"); and such
Bond Registration Books shall be kept and such registrations
and transfers shall be made in accordance with reasonable
regulations as the Issuer or the Registrar may prescribe.
Fully registered Bonds, or Bonds registered as to
principal only, issued hereunder may be transferred only on
the Bond Registration Books upon presentation thereof by the
registered owner in person or by his duly authorized attor-
ney, by proper written instrument of transfer, in the form
and with guaranty of signatures satisfactory to the Regis-
trar, duly executed by such owner or attorney. Upon such
presentation for transfer of registration, the Registrar
shall make notation of such transfer on the Bonds in the
Assignment or Registration Ledger appearing thereon and in
the Bond Registration Books. Such transfers of registration
shall be made without charge to the owner of such Bonds, but
any taxes or other governmental charges required to be paid
solely with respect to the transfer of registration shall be
paid by the Bondholder requesting such transfer of registra-
tion, as a condition precedent to the exercise of such
privilege.
Except for Series 1982 Bonds presented by the
Escrow Agent to the Trustee, the Registrar may, but shall
not be required to, make transfers of any Bond within ten
(10) days prior to an interest payment date or prepayment
date or redemption or subsequent to the date of mailing or
publication of notice of prepayment or redemption of such
Bonds or a portion thereof, anything in such Bonds to the
contrary notwithstanding.
-13-
The principal of all coupon Bonds (not registered
as to principal) and the interest thereon evidenced by cou-
pons shall be payable at the principal corporate trust
office of the Trustee upon presentation and surrender of
such Bonds and/or interest coupons as the same shall become
due and payable. Payments of principal of and interest on
fully registered Bonds shall be made to the registered owner
by check or draft mailed by the Trustee to the registered
owner at the address appearing on the Bond Registration
Books kept by the Trustee; provided that in the alternative
such payments may be made by any other method requested in
writing by the registered owner subject to the approval of
the Trustee. The final payment of principal on fully re-
gistered Bonds shall be paid only upon presentation and
surrender of such Bonds to the Trustee for cancellation.
Any prepayment or redemption of any principal installments
of fully registered Bonds shall be made only upon presenta-
tion of such Bond to the Trustee, who shall make a notation
of such prepayment or redemption in the Prepayment Record
appearing on all fully registered Bonds.
The Trustee shall also record in the Bond Regis-
tration Books all payments of principal installments on
fully registered Bonds when made on the respective due
dates.
The person in whose name the fully registered
Bonds shall be registered on the Bond Registration Books
shall be deemed and treated as the absolute owner thereof
for all purposes, and the Issuer and Trustee shall not be
affected by any notice to the contrary; and payment of, or
on account of, the principal of, premium, if any, and in-
terest on any such fully registered Bonds shall be made only
to the registered owner thereof; but such registration may
be changed as provided herein. All such payments shall be
valid and effective to satisfy and discharge the liability
upon such Bond to the extent of the sum or sums so paid.
SECTION 2.04. Redemption or Prepayment of Series
1982 Bonds. The Series 1982 Bonds shall be subject to
prepayment of principal or redemption prior to maturity in
the manner and with the effect provided in Section 2.06
hereof as follows:
(a) On or after Harcli 1, 1986, the Se-
ries 1982 Bonds shall be subject to prepayment
of principal or redemption prior to maturity in
the event of a prepayment of the Note at the
option of the Company, in whole at any %-4-me or
-14-
in part on any . te-ac%—ay�rerr� date ( other than
any date in any calendar year during which
Bondholders may elect to have any of their
Series 1982 Bonds redeemed pursuant to Sec-
tion 2.04(d) of this Indenture), in inverse
chronological order of principal payment dates
or maturities, in amounts equal to $5,000 or any
integral multiple thereof and by lot or other
customary method determined by the Trustee
within each scheduled -principal payment date if
less than a full principal payment is to be
prepaid or redeemed, at tite5-redemption pricer*
plus accrued interest to the date fixed
for redemption* or
R emption Red tion
D es Pric
March 1, 985 to ruary 28, 1987 02%
March 1, 7 to Feb ary 28, 88 1-1/2%
M 1, 198 to Febru 28, 19 10 °
Ma 1, 1989 February 8, 1990 100- 2%
March 1, 1990 an thereafte 100%
(b) The Series 1982 Bonds are subject to
redemption at the option of the Company at the
price of 100% plus accrued interest to the date
fixed for redemption if the Company determines
that (1) unreasonable burdens or excessive
liabilities are imposed by a body exercising
governmental or judicial authority; (2) long
term operation of the Project is uneconomic; (3)
the Project is damaged or destroyed to such an
extent that it is not reasonable, in the opinion
of the Company, to repair, restore, or rebuild
the Project; or (4) title to the whole or any
part of the Project or the use or possession
thereof shall have been taken or condemned by a
competent authority or other person for any
public purpose or use to the extent that the
Company would likely be prevented from carrying
on its normal operation of the Project for a
period of six months or more.
To effect a prepayment or redemption of
Series 1982 Bonds under the provisions of the
foregoing paragraphs (a) and (b), the Company
shall give written notice to the Issuer and
Trustee of the exercise of the option to prepay
-15-
¢��w� .4• too?*
_Or� cr,r•'fl
or. '1014LIPe44
0.01A,"
or redeem the Bonds at least 30 days, but not
more than 60 days, prior to the date stated
therein that .the Bonds are to be prepaid or
redeemed and deposit with the Trustee at least
one business day prior to the date fixed for
prepayment or redemption an amount equal to the
redemption or prepayment price for the
Series 1982 Bonds to be redeemed. Upon receipt
of the written notice from the Company of the
exercise of its option to prepay or redeem all
or part of the Series 1982 Bonds, the Trustee
shall cause a notice of redemption to be given
in accordance with the provisions of
Section 2.05 hereof.
(c) The Series 1982 Bonds are also subject
to a special mandatory redemption as a whole, at
the redemption prices described below, upon the
occurrence of a Determination of Taxability.
In the event of such determination the
Series 1982 Bonds shall be redeemed as a whole
at a redemption price equal to the principal
amount of the Series 1982 Bonds then Outstanding
and the accrued interest thereon at the stated
rate to the redemption .date; plus, an amount
shall be payable to each holder or former holder
of the Series 1982 Bonds, as full, liquidated
damages (for loss of a bargain and not a
penalty) equal to an amount derived according to
the following formula:
I - I = Liquidated Damages
1 - R
where "I" equals the amount of interest paid or
accrued on the Series 1982 Bonds during the
Inclusion Period (as defined below) and "R"
equals the highest marginal federal income tax
rate to which an individual taxpayer is subject
under the Code as is in effect at the date
hereof.
"Inclusion- Period" means with respect to each
holder or former holder of a Series 1982 Bond
the period beginning on the earliest date, as
established by the Determination of Taxability
from which interest paid in respect of the
-16-
Series 1982 Bonds held or formerly held by such
holder or former holder is includible for fede-
ral income tax purposes in the gross income of
such holder or former holder, and ending upon
the earlier of the date of transfer or redemp-
tion of the Series 1982 Bonds held or formerly
held by such holder or former holder.
If the Trustee receives notice from any source
that a Determination of Taxability has occurred, the Trustee
shall forthwith consult with the Issuer and the Company and
thereafter proceed to redeem the Series 1982 Bonds at the
earliest practicable date selected by the Company and to
enforce payment under the Agreement in respect of the neces-
sary redemption price, but in no event more than 45 days
after the Trustee has received notice of the occurrence of
the Determination of Taxability.
Upon the occurrence of a Determination of Taxabi-
lity, the Company and the Issuer shall have no obligation or
liability to any holder of a Bond except to redeem.the Bonds
at the redemption price and in the manner required by this
Section and, if the Bonds are so redeemed,. no holder of a
Bond, notwithstanding any provision of law or any covenant,
agreement or representation herein or in the Agreement,
shall have any right of action or other remedy against the
Company or the Issuer by reason of the occurrence of the
Determination of Taxability.
(d) The Series 1982 Bonds shall be subject
to redemption on September 1, 1985, and on
September 1 of every third year thereafter, to
and including September 1, 2009 (each such
September 1, beginning September 1, 1985, being
an "Escrow Redemption Date") at 100% of the
principal amount thereof, plus accrued interest
to such Escrow Redemption Date or a result of a
holder of a Series 1982 Bond electing to have
the Bond or portion thereof redeemed, subject to
the following conditions:
(i) the holder of a Series 1982 Bond
shall have properly delivered the Series
1982 Bond and a Form for Transfer included
on the Bondholder Election Notice in the
form attached to the Series 1982 Bond
executed so as to permit the transfer
thereof to bearer, to Citibank, N. A., New
-17-
York, N. Y. as escrow agent (the "Escrow
Agent"), pursuant to the Escrow Agreement
(the "Escrow Agreement") between the Escrow
Agent and the Company dated as of
September 1, 1982,.at its principal
corporate trust office in the City of New
York, on or before the close of business on
the August 1 immediately preceding such
Escrow Redemption Date but not before the
opening of business at such corporate trust
office on the July 1 immediately preceding
such Escrow Redemption Date, together with
a properly completed and executed
Bondholder Election Notice, all in
accordance with the Escrow Agreement; and
(ii) the Company shall not have exer-
cised its option on or before the close of
business on the August 15 immediately pre-
ceding such Escrow Redemption Date to
purchase, pursuant to the Escrow Agreement,
all Series 1982 Bonds delivered to the
Escrow Agent by the holders thereof for
redemption, or shall not have made the
deposit of moneys and/or Government Obliga-
tion, as defined in this Series Indenture.
For the purposes of this Section 2.04(d),
Series 1982 Bonds may be redeemed in part only
in integral multiples of $5,000. Payment of
such redemption price, except for interest on
Series 1982 Bonds, which will be paid direcly by
the Trustee to the holders thereof, shall be
made to the Escrow Agent on behalf of the
holders of the Series 1982 Bonds so delivered.
If any Bond shall not be paid upon the attempted
surrender thereof at the maturity or redemption date there-
of, such Bond shall continue to bear interest until paid,
and, to the extent permitted by law, interest on any overdue
payment of principal of, premium, if any, agreed liquidated
damages, if any, or interest on such Bond shall be paid at
the rate of 15% per annum based on a 365 or 366 day year,
whichever is appropriate.
SECTION 2.05. Notice of Redemption or Prepayment.
In the event of a prepayment or redemption of any Bonds
(except any redemption under Section 2.04(d) above), the
Trustee shall cause a notice thereof in its own name or in
the name of the Issuer to be given in the following manner:
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(a) In the case of a prepayment or re-
demption of fully registered Bonds or coupon
bonds registered as to principal only, such
notice shall (i) specify (a) the serial num-
ber(s) of the Bonds to be prepaid or redeemed,
(b) the principal amount to be prepaid if less
than the unpaid principal of the Bond is to be
prepaid or redeemed,(c) the payment of the
applicable prepayment_ or redemption price (spe-
cifying such price) shall be made only upon
presentation of the Bond to be prepaid or re-
deemed at the principal corporate trust office
of the Trustee and (d) interest on the Bonds or
principal amount to be prepaid shall cease to
accrue after the specified redemption or pre-
payment date and (ii) be mailed by first class
mail, postage prepaid, to the registered owner
or owners of the Bonds at the address appearing
on the Bond Registration Books at least fif-
teen (15) days prior to the date specified for
the prepayment or redemption thereof.
(b) In the case of the redemption of
coupon Bonds payable to bearer, if any, such
notice (specifying the redemption date, the
serial numbers of the coupon Bonds to be re-
deemed, the amount to be redeemed, the.appli-
cable redemption price and interest on such
bonds so called shall cease to accrue after the
specified redemption date) shall be published
once a week for two consecutive weeks (the first
publication to be at least fifteen (15) days and
not more than thirty (30) days before the date
fixed for redemption) in a newspaper or journal
devoted to financial news published at least
weekly in the English language and of general
circulation in the City of New York, New York.
Any notice herein required may be omitted if the
holders of all the.Bonds to be prepaid or called for redemp-
tion give to the Trustee a written waiver of such notice.
SECTION 2.06. Prepayment or Redemption Payments.
If notice of prepayment or redemption has been duly given or
waived, as provided in Section 2.05, then the Bonds to be
prepaid or redeemed shall be due and payable on the prepay-
ment or redemption date specified. Provision for the pay-
ment of the prepayment or redemption price, together with
accrued interest, shall be made by the Trustee to or upon
the' order of the registered owner(s) or holder(s) of the
-19-
Bonds upon surrender of such Bonds with all unmatured cou-
pons appertaining to coupon Bonds. Moneys for the prepay-
ment or redemption .of the Bonds shall be paid from the Bond
Fund.
From and after a prepayment or redemption date
specified for the Bonds, no further interest shall accrue
upon the principal of any of the Bonds so called for pre-
payment or redemption, provided sufficient moneys for the
prepayment or redemption of the Bonds shall have been de-
posited in the Bond Fund and proper notice given or waived
as aforesaid; and such Bonds prepaid or redeemed in full
shall cease to be entitled to any benefit or security under
this Indenture (except as to any right or additional payment
that may exist or be due by reason of a Determination of
Taxability made subsequent to the prepayment or redemption
date that resulted from an Event of Taxability occurring
prior to the date of prepayment or redemption), and the
holders and registered owners thereof shall have no right in
respect of any such Bonds not surrendered for cancellation
except to receive payment of the prepayment or redemption
price thereof and interest accrued to the date fixed for
such prepayment or.redemption.
SECTION 2.07. Interest Not to Exceed Maximum Law-
ful Rate. Notwithstanding any provision of this Indenture
to the contrary, in no event shall the interest contracted
for, charged or received in connection with the Bonds (in-
cluding interest on the Bonds together with any other costs
or considerations that constitute interest under the laws of
the State which are contracted for, charged or received
pursuant to this Indenture and the Agreement) exceed the
maximum rate of interest allowed under the laws of the State
as presently in effect and to the extent allowable by such
laws as such laws may be amended from time to time to in-
crease such rate; and in the event that the maturity of the
Bonds is accelerated pursuant to Section 6.02 hereof, or
redeemed in accordance with the provisions hereof requiring
mandatory redemption, then such amounts that constitute
payments of interest on the Bonds, together with any costs
or considerations which constitute interest under the laws
of the State, may never exceed an amount which would result
in payment of interest at a rate in excess of the maximum
interest rate allowed by the laws of the State as presently
in effect and to the extent allowable by such laws as such
laws may be amended from time to time to increase such rate,
and excess interest, if any, provided for in this Indenture,
the Bonds or otherwise, shall be cancelled automatically as
of the date of such acceleration or, if theretofore paid,
shall be credited on the Bonds.
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SECTION 2.08. Form of Series 1982 Bonds. The
Series 1982 Bonds initially to be issued under this
Indenture as fully registered bonds and the various
certificates and ledgers to appear thereon shall be printed
in substantially the form attached hereto as Exhibit A, with
such variations, omissions, and insertions as are permitted
or required by this Indenture.
SECTION 2.09. Execution of Bonds. The Bonds
shall be executed oH—belialf of Issuer by, or bear the
facsimile signature of, the President of the Board of Direc-
tors of the Issuer and the Issuer's corporate seal (which
may be a facsimile) shall be affixed thereunto (or imprinted
or engraved in facsimile) and attested by the signature of
the Secretary of the Board of Directors of the Issuer (which
may be facsimile). The coupons to be attached to any coupon
Bonds shall bear the facsimile signatures of the President
and the Secretary of the Board of Directors of the Issuer.
If any of the officers who shall have signed or
sealed any of the Bonds or whose facsimile signature shall
be upon the Bonds or any coupons shall cease to be such
officer of the Issuer before the Bonds so signed and sealed
shall have been actually authenticated by the Trustee or
delivered by the Issuer, such signature shall nevertheless
be valid and sufficient for all purposes as if he had re-
mained in office until delivery, and such Bonds may be
authenticated, issued and delivered with the same force and
effect as though the person or persons who signed or sealed
such Bonds or. whose facsimile signature shall be. upon the
Bonds or any coupons had not ceased to be such officer or
officers of the Issuer; and also any such Bond may be signed
and sealed on behalf of the Issuer by those persons who, at
the actual date of the execution of such Bond, shall be the
proper officers of the Issuer, although at the nominal date
of such Bond any such person shall not have been such offic-
er of the Issuer.
Before authenticating any coupon Bonds, the Trus-
tee, except as provided in Section 3.06 hereof, shall cut
off, cancel and cremate or otherwise destroy all matured
coupons thereof; and certificates of cremation or other
destruction shall be delivered to the Issuer from time to
time.
SECTION 2.10.. Authentication. The Series 1982
Bonds shallnof be entitled to the benefit of this Indenture
and shall not be valid or obligatory for any purpose, unless
-21-
there shall be endorsed on such Bonds a Trustee's Certifi-
cate of Authentication, substantially in the form prescribed
in this Indenture, executed by the Trustee; such certificate
on any Series 1982 Bonds issued by the Issuer shall be
conclusive evidence and the only competent evidence that it
has been duly authenticated and delivered hereunder. It
shall not be necessary for the satisfaction of the require-
ment of the preceding sentence that the same officer of the
Trustee execute the Trustee's Certificate of Authentication
on all of the Series 1982 Bonds that may be issued hereunder
at any one time.
SECTION 2.11. Conditions Precedent to Delivery of
the Series 1982 Bonds. The Series 1982 Bonds shall be
executed by the Issuer and delivered to the Trustee for
authentication, together with a statement of the amount and
disposition of the proceeds of sale thereof, and thereupon
the Series 1982 Bonds shall be authenticated by the Trustee
and shall be delivered to or upon the request and authoriza-
tion of the Issuer, but only upon receipt by the Trustee of
all of the following:
(a) a duly executed counterpart original
of this Indenture;
(b) a duly executed counterpart original
of the Agreement;
(c) the Note, duly executed by the Com-
pany, payable to the Issuer and duly assigned to
the Trustee;
(d). a duly executed counterpart original
of the Escrow Agreement;
(e) a request and authorization to the
Trustee on behalf of the Issuer and signed by an
Issuer Representative to authenticate and de-
liver the Series 1982 Bonds in the aggregate
principal amount specified in Section 2.02
hereof to the purchasers therein identified;
(f) the proceeds of sale for deposit in
the Project Fund;
(g) an instrument, signed by a Company
Representative, evidencing the Company's appro-
val of the issuance, sale, and delivery of the
Series 1982 Bonds and all of the terms and
conditions thereof;
-22-
(h) the opinion of Bond Counsel that the
Series 1982 Bonds have been lawfully issued and
constitute tax exempt obligations under existing
Code provisions; and
(i) a copy of the election of the Issuer
to have the provisions of Section 143(b)(6)(D)
of the Code apply to the Series 1982 Bonds.
(End of Article II)
-23-
ARTICLE III. GENERAL PROVISIONS.
Section 3.01. Payment of Principal, Premium, if
any, Liquidated Damages, if any, and Interest. The Issuer
covenants that it will duly and punctually pay or cause to
be paid the principal of, premium, if any, liquidated
damages, if any, and interest on every Bond issued under
this Indenture at the place, on the dates, and in the manner
provided herein and in the Bonds according to the true
intent and meaning thereof, but solely and only from the
payments, revenues, and receipts specifically assigned
herein for such purposes as set forth in Section 4.01 of
this Indenture.
Section 3.02. Performance of Covenants; Issuer.
The Issuer covenants that it will faithfully perform at all
times any and all covenants, undertakings, stipulations, and
provisions required to be performed by it and contained in
this Indenture, in any and every Bond executed and delivered
hereunder, and in all of its proceedings pertaining hereto.
The Issuer covenants that it is duly authorized under the
laws of the State, including particularly and without
limitation the Act, to issue the Bonds authorized hereby and
to execute this Indenture, to assign its rights under the
Agreement, to assign the. Note, and to assign the Loan
Payments and other amounts under the Agreement hereby
assigned in the manner and to the extent herein set forth;
that all action on its part for the issuance of the Bonds
and the execution and delivery of this Indenture has been
duly and effectively taken; and that the Bonds in the hands
of the holders and owners thereof are and will be valid and
enforceable obligations of the Issuer according to the terms
thereof and hereof.
Section 3.03. Instruments of Further Assurance.
The Issuer covenants that it will do, execute, acknowledge,
and deliver or cause to be done, executed, acknowledged, and
delivered, such indentures supplemental hereto and such
further acts, instruments, and transfers as the Trustee may
reasonably require for the better and more effectual assign-
ment unto the Trustee of the Loan Payments, the Note, and
all other payments, revenues, and other amounts payable
under the Agreement, and any other income and other moneys
assigned hereby to the payment of the principal of, premium,
if any, liquidated damages, if any, and interest on the
Bonds. The Issuer further covenants that it will not create
or suffer to be created any lien, encumbrance, or charge
upon the Loan Payments, its interest in the revenues and
-24-
other amounts payable under the Agreement or the Note, or
any other income therefrom except the lien and charge se-
cured hereby.
Section 3.04. Recordation. The Issuer covenants
(i) that it will cause the Agreement, this Indenture, or any
financing statements required in connection therewith to be
recorded and filed in such manner and in such places as may
be initially required by law in order fully to establish the
lien of this Indenture, and (ii) that it will cooperate with
the Trustee to the end that all supplements to this. Inden-
ture and other instruments as may be required from time to
time to be kept, will be recorded and filed in such manner
and in such places as may from time to time be required by
law in order fully to preserve and protect the security of
the holdersandowners of the Bonds and the bearers of the
coupons, if any, and the rights of the Trustee hereunder.
The Trustee, in connection with any recordation or filing
required by this Section, may rely on an opinion of counsel
as to the manner of and necessity for such recordation or
filing.
Section 3.05. List of Bondholders. To the extent
that such information shall be made known to the Issuer
under the terms of this Section, it will cause to be kept on
file at the corporate trust office of the Trustee a list of
names and addresses of the last known holders of all Bonds
payable to bearer and believed to be held by each of such
last known holders. Any Bondholder may request that his or
her name and address be placed on said list by filing a
written request with the Trustee, which request shall
include a statement of the principal amount of Bonds held by
such holder and the numbers of such Bonds. Neither the
Issuer nor the Trustee shall be under any responsibility
with regard to the accuracy of said list. At reasonable
times and under reasonable regulations established by the
Trustee, said list may be inspected and copied by the
Company or by any holder or owner (or a designated
representative thereof) of 25% or more in principal amount
of Bonds then outstanding, such possession or ownership and
the authority of any such designated representative to be
evidenced to the satisfaction of the Trustee.
Section 3.06. Mutilated, Lost, Stolen, or De-
stroyed Bonds. In the event any Bond is mutilated, lost,
stolen, or destroyed, the Issuer may execute and the Trustee
may authenticate and deliver a ,new Bond of the same series
and like tenor in exchange and substitution for such muti-
lated Bond, or in lieu of and in substitution for such
-25-
lost, stolen, or destroyed Bond, upon the holder's fur-
nishing 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. With
respect to Mellon Bank, N.A., Pittsburgh, Pennsylvania, as
the holder of any Bonds, a written agreement of indemnity
shall be deemed satisfactory indemnity. In the event any
such Bond shall have matured, the Issuer may, instead of
issuing a duplicate Bond, pay the same without surrender
thereof. The Issuer and the Trustee may charge the holder
or owner of such Bond their reasonable fees and expenses in
this connection.
SECTION 3.07. Destruction of Bonds. Whenever any
outstanding Bons shall be delivered to the Trustee for
cancellation thereof pursuant to this Indenture, upon pay-
ment of the principal of, and the amount of interest repre-
sented thereby and Liquidated Damages, if any, or for re-
placement pursuant to Section 3.06, such Bonds shall be
cancelled and destroyed by the Trustee and counterparts of a
certificate of destruction evidencing such destruction shall
be furnished by the Trustee to the Issuer and the Company.
SECTION 3.08. Cancellation. All Bonds which have
been redeemed, togeEHer with any unmatured coupons apper-
taining thereto, shall not be reissued but shall be cancell-
ed and destroyed by the Trustee in accordance with Sec-
tion 3.07 hereof.
SECTION 3.09. Non -presentment of Bonds. In
the event any Bonds shall not be presented for payment when
the principal thereof becomes due, either at maturity, or at
the date fixed for redemption thereof, or otherwise, if
funds.or Government Obligations sufficient to pay such Bonds
shall have been made available to the Trustee or any Paying
Agent for the benefit of the holder or holders thereof, all
liability of the Issuer to the holder thereof for the pay-
ment of such Bonds shall forthwith cease, terminate, and be
completely discharged, and thereupon it shall be the duty of
the Trustee to hold such funds, without liability for in-
terest thereon, for the benefit of the holder of such Bonds,
who shall thereafter be restricted exclusively to such funds
for any claim of whatever nature on his part under this
Indenture or on, or with respect to, said Bonds. The Trus-
tee's obligation to hold such funds shall continue for a
period of five years following the date on which the princi-
pal of all Bonds of any series has become due, whether at
maturity, or at the date fixed for redemption thereof, or
otherwise, at which time the Trustee, upon receipt of in-
-26-
demnity satisfactory to it, shall surrender any remaining
funds so held to the Company whereupon any claim under this
Indenture by the holders of the Bonds of whatever nature
shall be made upon the Company.
SECTION 3.10. Rights under Agreement. The Agree-
ment, a duly executed counterpart of which has been filed
with the Trustee, sets forth certain covenants and obliga-
tions of the Issuer and the Company. Reference is hereby
made to the Agreement for a detailed statement of said
covenants and obligations. The Issuer agrees that the
Trustee in its name or, to the extent permitted by law, in
the name of the Issuer, may enforce all rights of the Issuer
and all obligations of the Company under and pursuant to the
,and
for and on behalf of the Bondholders, whether or
not the Issuer is in default hereunder.
SECTION 3.11. General Compliance with All Duties.
The Issuer shall faithfully and punctually perform all
duties with reference to the Project required by the laws of
the State, and by the terms and provisions of this
Indenture.
SECTION 3.12. Designation of Additional Paving
Agents. The Issuer may cause, with the consent of the
Company, the necessary arrangements to be made through the
Trustee and to be thereafter continued for the designation
of additional Paying Agents satisfactory to the Issuer and
the Trustee and for providing for the payment of such of the
Bonds and any coupons appertaining thereto as shall be
presented when due at the principal office of the Trustee,
or its successor in trust hereunder, or at the office of
said additional Paying'Agents. All such funds held by said
additional Paying Agents shall be held by each of them in
trust and shall constitute a part of the Trust Estate and
shall be subject to the security interest created hereby.
SECTION 3.13. Corporate Existence of Issuer. The
Issuer covenants that it will at all times maintain its
corporate existence and will duly procure any necessary
renewals and extensions thereof; will use its best efforts
to maintain, preserve, and renew all the rights, powers,
privileges, and franchises owned by it; and will comply with
all valid acts, rules, regulations, and orders of any legis-
lative, executive, judicial, or administrative body appli-
cable to the Issuer in connection with the Project and the
Bonds.
-27-
SECTION 3.14. Temporary Bonds. Pending prepara-
tion of definitive Bonds of any series, or by agreement with
the purchasers of all Bonds of any series, the Issuer may
issue and, upon its request, the Trustee shall authenticate,
in lieu of definitive Bonds, one or more temporary or type-
written Bonds in the denomination of $5,000 or any integral
multiples thereof of substantially the tenor recited above.
If temporary Bonds are issued, the Issuer will cause defini-
tive Bonds to be prepared without unreasonable delay. Upon
the request of the Issuer, the Trustee shall authenticate
definitive Bonds in exchange for and upon surrender of an
equal principal amount of temporary Bonds. Until such
exchange, the temporary Bonds shall have the same rights,
remedies, and security hereunder as definitive Bonds.
SECTION 3.15. Additional Bonds. So long as the
Agreement is in effect and no Event of Default is then
existing under the Agreement, one or more series of Addi-
tional Bonds may be delivered pursuant to this Indenture for
the purposes provided in the Agreement and/or for the pur-
pose of refunding any outstanding Bonds. Such Additional
Bonds shall be payable solely and only from the revenues and
other amounts derived pursuant to the Agreement (except to
the extent paid out of moneys attributable to the proceeds
derived from the sale of the Additional Bonds or to income
from the temporary investment thereof). The Additional
Bonds of each such series shall be authenticated by the
Trustee and, upon payment to the Trustee of the proceeds of
said sale of Additional Bonds, they shall be delivered by
the Trustee to the purchasers thereof, but only upon there
being filed with the Trustee:
(a) A copy, duly certified by the Secre-
tary of the Issuer, of the resolution adopted by
the Issuer authorizing the execution and de-
livery of an indenture supplemental to this
Indenture providing for payments by the Company
sufficient to pay the principal of, premium, if
any, liquidated damages, if any, and interest on
the Additional Bonds, any amendment to the
Agreement, the issuance of the Additional Bonds
and, if the purpose of the Additional Bonds is
refunding, the payment and redemption of the
Bonds to be refunded;
(b) If the purpose of the Additional Bonds
is refunding, certification by the Issuer that
(i) notice of redemption of the Bonds to be
refunded has been duly given or that provision
-28
has been made therefor and (ii) the proceeds of
the issue plus any other amounts stated to be
available for the purpose will be sufficient to
pay the principal or redemption price of such
Bonds at maturity or on the redemption date plus
interest accrued to such date or dates together
with all other costs and expenses related to the
refunding;
(c) Originally executed counterparts of an
indenture supplemental to this Indenture and any
amendment to the Agreement. The date or dates
of the Additional Bonds, the rate or rates of
interest on the Additional Bonds, the time or
times of payment of the interest thereon and the
principal thereof, and the redemption provisions
with respect thereto, all shall be as provided
in the supplemental indenture, and any amendment
to the Agreement shall otherwise comply with the
provisions of Section 8.6 of the Agreement;
(d) A written order to the Trustee by the
Issuer to authenticate and deliver the Addi-
tional Bonds to the purchasers therein identi-
fied, upon payment to the Trustee, but for the
account of the Issuer, of the sum specified in
such written order; such written order shall
direct the Trustee to deposit such payment in
the Bond Fund or the Project Fund as shall be
therein specified;
(e) An opinion of Bond Counsel, selected
and employed by the Issuer, that the issuance of
such Additional Bonds will not adversely affect
the exemption from federal income taxation of
the interest on any then Outstanding Bonds, or
affect the validity of any then Outstanding
Bonds, and that such Additional Bonds are the
legal and valid special obligations of the
Issuer; and
(f) A written notification of approval by
the Commission of any amendment to the Agreement
and of such Additional Bonds, to the extent such
approval may be required by the provisions of
the Act which are in effect at that time.
-29-
Each series of Additional Bonds issued pursuant to
this Section shall be equally and ratably secured under this
Indenture with the Series 1982 Bonds and all other series of
Additional Bonds, if any, issued pursuant to this Section,
without preference, priority, or distinction of any Bonds or
coupons over any other Bonds or coupons.
(End of Article III)
-30-
ARTICLE IV. REVENUE AND FUNDS.
Section 4.01. Source of Payment of Bonds. The
Bonds herein authorized and all payments by the Issuer here-
under are not and shall never become general obligations of
the Issuer, but are special and limited obligations payable
solely and only from revenues and receipts under the Agree-
ment and as authorized by the Act and provided herein.
Loan Payments and Liquidated Damages Payments made
pursuant to the Agreement by the Company are to be remitted
directly to the Trustee for the account of the Issuer and
deposited in the Bond Fund. Such payments shall be made at
such times and in such amounts so as to insure, and are
assigned to secure, the prompt payment, when due, of the
principal of, premium, if any, liquidated damages, if any,
and interest on the Bonds.
No covenant or agreement contained in the Bonds or
in this Indenture shall be deemed to be the covenant or
agreement of any officer, director, agent, or employee of
the Issuer in his or her individual capacity and neither the
directors of the.Issuer nor any official executing the Bonds
shall be liable personally on the Bonds or be subject to any
personal liability or accountability, by reason of the
issuance thereof.
Section 4.02. Creation of Bond Fund. There is
hereby created by the Issuer and ordered established with
the Trustee a trust fund to be designated "Lubbock
Industrial Development Corporation (Ingersoll-Rand Company
Project) Bond Fund," which shall be used and applied as
specified in Section 4.04 hereof.
Section 4.03. Payments into Bond Fund. There
shall be deposited into the Bond Fund any accrued interest
received at the time of the issuance and delivery of any
Bonds. In addition, there shall be deposited into the Bond
Fund, as and when received, (a) any amount in the Project
Fund directed to be paid into the Bond Fund under
Section 4.10 hereof; (b) all Loan Payments and Liquidated
Damages Payments made pursuant to the Agreement; and (c) all
other moneys received by the Trustee under and pursuant to
any of the provisions of the Agreement which are required to
be deposited into the Bond Fund, or which are accompanied by
directions that such moneys are to be paid into the Bond
Fund, including moneys for the redemption of Outstanding
Bonds.
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Section 4.04.Use of Moneys in Bond Fund. Except
as otherwise expressly provided in this Indenture, moneys in
the Bond Fund shall be used solely for the payment of the
principal of, premium, if any, liquidated damages, if any,
and interest on the Bonds, including, the purchase of out-
standing Bonds, and the payment of fees and expenses to
which the Trustee, any Paying Agent, or the Issuer is en-
titled pursuant to this Indenture or the Agreement. If the
Company shall have deposited moneys or Government Obliga-
tions in the Bond Fund in an amount sufficient, or which
together with other moneys available therefor under any
terms of the Indenture are sufficient, to redeem all or part
of the principal amount of the Bonds, the Issuer, at the
request of the Company, shall forthwith take all steps
necessary under the applicable redemption provisions to
effect the redemption of not less than the principal amount
of the Bonds requested by the Company, and for which suffi-
cient moneys or Government Obligations shall have been so
deposited or made available, on a redemption date selected
by the Company. Any moneys in the Bond Fund may be used, at
the direction of the Company, to (i) redeem or prepay Se-
ries 1982 Bonds then outstanding and subject to be redeemed
or prepaid or, (ii) purchase Series 1982 Bonds for purposes
of cancellation, so long as the Company is not in default
with respect to any payments to be made under Section 5.2 of
the Agreement and to the extent said moneys are in excess of
the amount required for payment of the Series 1982 Bonds
theretofore matured or called for redemption and interest
accrued and payable in respect of Outstanding Bonds.
Section 4.05. Custody of Bond Fund. The Bond
Fund shall be in the custody of the Trustee but shall be
held in the name of the Issuer. The Issuer hereby autho-
rizes.and directs the Trustee to withdraw sufficient funds
from the Bond Fund to pay the principal of, premium, if any,
liquidated damages, if any, and interest on the Bonds as the
same become due and payable and to make said funds available
to any Paying Agent for the purpose of paying said principal
of, premium, if any, liquidated damages, if any, and inte-
rest on the Bonds, which authorization and direction the
Trustee hereby accepts.
Section 4.06. Creation of Project Fund. There is
hereby created and established with the Trustee—a trust fund
in the name of the Issuer to be designated "Lubbock Indus-
trial Development Corporation (Ingersoll-Rand Company Pro-
ject) Project Fund," which shall be expended for the pur-
poses and in the manner specified in the Agreement and in
this Indenture.
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Section 4.07. Payments into Project Fund; Dis-
bursements. The balance of the proceeds of the issuance and
delivery of the Bonds remaining after the deductions pro-
vided by Section 4.03 hereof have been made, shall be de-
posited in the Project Fund. The Trustee is hereby autho-
rized and directed to make disbursements, and to issue its
checks or otherwise to effect transfer of funds for each
disbursement, from the Project Fund pursuant to requisitions
submitted in accordance with and as required by the pro-
visions of the Agreement.- The Trustee shall keep and main-
tain adequate records pertaining to the Project Fund and all
disbursements therefrom, and after the Project has been
completed and a certificate of payment of all costs has been
completed and filed with the Trustee as provided in sec-
tion 4.08 hereof, the Trustee shall file an accounting
thereof with the Issuer and the User.
Section 4.08. Completion of the Project. The
completion of the Project and payment of all Project Costs
shall be evidenced by the filing with the Trustee of the
certificate required by the provisions of Section 3.6 of the
Agreement. As soon as practicable, and in any event within
60 days, following the receipt of the certificate referred
to in the preceding sentence, any balance remaining in the
Project Fund (other than amounts to be retained by the
Trustee pursuant to .such certificate), including any unli-
quidated investments made with moneys theretofore deposited
in the Project Fund, shall be used and applied in accordance
with the provisions of Section 4.10 hereof.
Section 4.09. Investment of Project Fund Moneys
and Bond Fund Moneys. Any moneys held as part of the Pro-
ject Fund or the Bond Fund shall be invested or reinvested
by the Trustee, at the direction of the Company, in the
following:
(a) Government Obligations;
(b) certificates of deposit issued by, or
bankers' acceptances drawn on and accepted by,
commercial banks (including the Trustee) having
reported deposits of not less than $250,000,000;
(c) any evidence of indebtedness issued by
any of the following agencies: Government
National Mortgage Association, federal land
banks, federal home loan banks, federal inter-
mediate credit banks, banks for cooperatives,
Tennessee Valley Authority, United States Postal
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Service, Farmers Home Administration, Export -
Import Bank, Federal Financing Bank, Federal
Home Loan Mortgage Corporation, Student Loan
Marketing Association and Federal Farm Credit
Banks;
(d) any evidence of indebtedness issued by
the Federal National Mortgage Association to the
extent such indebtedness is guaranteed by the
Government National Mortgage Association;
(e) any bond, note, debenture, commercial
paper or other evidence of indebtedness of any
private corporation or association organized and
operating in the United States; provided, that
any such security is, at the time of its acqui-
sition, rated in the highest rating grade by an
agency which is nationally known in the field of
rating corporate securities: provided, however,
that any commercial paper and/or any such secu-
rity will mature within one year from the date
of its issuance;
(f) obligations issued or guaranteed by
any state or the District of Columbia;
(g) repurchase agreements with banking or
other financial' institutions fully secured by
any of the investments or securities referred to
in subsections (a) or (b) above; or
(h) any other investment or security to
the extent permitted by applicable law.
The Trustee may make any and all such
investments through its own investment department.
Any obligations acquired by the Trustee as a result
of such investment or reinvestment shall be held by
or under the control of the Trustee. The Trustee may
commingle moneys from the Project Fund with moneys
from the Bond Fund for purposes of investment, but
all moneys invested shall be deemed at all times a
part of the fund for which such investments were
made. The interest accruing thereon and any profit
realized from such investments shall be credited
pro rata to the fund from which such investments were
made, and any loss resulting from such investment
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shall be charged pro rata to such fund. The Trustee
shall sell and reduce to cash a sufficient amount of
such investments credited to the Bond Fund whenever
the cash balance in the Bond Fund is insufficient to
pay the principal of, premium, if any, liquidated
damages, if any, and interest on the Bonds when due.
Section 4.10. Transfers of Moneys Under
Certain Circumstances. The Trustee shall transfer
moneys in the Project Fund under the following cir-
cumstances and in the following amounts:
(a) Upon receipt of the certificate evi-
dencing the Completion Date, the Trustee shall
(i) retain in the Project Fund the amounts
necessary for payment of any Project Costs as
aforesaid; and (ii) transfer any remaining
amounts in the Project Fund to a separate
account of the Project Fund to be invested at a
yield not greater than the yield on the Series
1982 Bonds and used in any manner designated.in
writing by the. Company's Representative if, in
the opinion of Bond Counsel, such use will not
result in the interest on any of the Bonds
becoming includable in the gross income of the
holder thereof for federal income tax purposes
(other than a holder who is a "substantial user"
or a "related person" as defined in Sec-
tion 103(b)(10) of the Code) or impair the
validity of the Bonds under or be in violation
of State law. If such an opinion with respect
to the entire available balance of money in the.
Project. Fund has not been delivered to the
Issuer and the Trustee within 180 days after
transfer by the Trustee of such money into the
separate account of the Project Fund, then such
money, or such part thereof as to which such an
opinion is not delivered, shall be transferred
by the Trustee into a separate escrow account in
the Bond Fund to be likewise invested at a yield
not greater than the yield on the Series 1982
Bonds and used solely (i) to pay principal of
and interest on Series 1982 Bonds at the ear-
liest possible redemption date that does not
require payment of a premium or penalty, or
(ii) for any other purpose, which, in the opi-
nion of Bond Counsel, will not result in the
interest on any of the Bonds becoming includable
in the gross income of the holder thereof for
federal income tax purposes (other than a holder
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who is a substantial user or a related person as
defined in Section 103(b)(10) of the Code), or
impair the validity of any Bond under or be in
violation of State law. Any moneys retained in
the Project Fund by the Trustee at the direction
of the Company pursuant to this Section 4.10(a)
which shall thereafter become available shall be
applied in accordance with the provisions of
this Section 4.10(a).
(b) If the Trustee shall declare the prin-
.cipal of the Bonds then outstanding and the
interest accrued thereon immediately due and
payable as the result of an Event of Default
under. Section 6.01 of this Indenture, or if the
Company shall elect, or if the Issuer shall be
required, to redeem all the Bonds then out-
standing in accordance with the provisions of
this Indenture, the balance of the Project Fund
shall be immediately transferred to the Bond
Fund by the Trustee for the purpose of paying
the principal of, premium, if any, liquidated
damages, if any, and. interest on the Bonds when
due and expenses of the Trustee in connection
therewith in accordance with this Indenture;
provided, however, that if such Event of Default
and its consequences are waived by the Trustee
pursuant to this Indenture, the full amount of
money so paid into the Bond Fund and not there-
tofore used to pay the principal of, premium, if
any, liquidated damages, if any, or interest on
the Bonds or the expenses of the Trustee shall
be returned by the Trustee to the. Project Fund.
SECTION 4.11. Security for Funds. All uninvested
money in all funds established pursuant to this Indenture
(including the Bond Fund and the Project Fund), shall be
secured by the Trustee in such manner and to such extent as
may be agreed by the Company and the Trustee.
SECTION 4.12. Moneys to be field in Trust. All
moneys required to be deposited with or paid to the Trustee
for the account of the Bond Fund and the Project Fund, under
any provisions of this Indenture shall be held by the
Trustee in trust, and, except for moneys deposited with or
paid to the Trustee for the redemption of Bonds, notice of
the redemption for which has been duly given, shall, while
held by the Trustee, constitute part of the Trust Estate and
be subject to the security interest created hereby.
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SECTION 4.13. Repayment to Company from Bond Fund
or Project Fund. Any amounts remaining in the Bond Fund or
the Project Fund after payment in full of the Bonds; the
reasonable and necessary fees, charges, and expenses of the
Trustee, any Paying Agents, and the Issuer; and all other
amounts required to be paid hereunder shall be paid to the
Company upon the expiration or upon the sooner termination
of the term of the Agreement as provided in Section 8.5 of
the Agreement.
SECTION 4.14. Bonds Not to Become Arbitrage
Bonds. With respect to Section 103(c) of the Code, the
Company has made certain certifications and representations
to the Issuer, which certifications and representations are
incorporated herein and made a part hereof. The Company
also has agreed to restrict the investment of money in the
Project Fund and the Bond Fund as may necessary to pre-
vent the Bonds from becoming "arbitrage bonds" within the
meaning of said Section 103(c). The Board of Directors of
the Issuer, _acting in reliance on such certifications and
representations, hereby adopts and ratifies such certifica-
tions and representations and hereby covenants with the
purchasers and any owner of the Bonds that so long as any
principal installment of the Bonds remains unpaid, the Board
of Directors of the Issuer will not take or authorize
the taking of any action which will cause the Bonds to be
classified as "arbitrage bonds" within the meaning of said
Section 103(c) and the Regulations as the same presently
exist, or may from time to time hereafter be amended,
supplemented or revised, if such amendment, supplement, or
revision is by its terms and its stated effective date
applicable to the Bonds.
(End of Article,IV)
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ARTICLE V. DISCHARGE OF INDENTURE.
On any date (hereinafter in this Article V re-
ferred to as the "Final Payment Date") when the Issuershall
pay or cause to be paid, or there shall be otherwise paid or
provisions for payment shall be made to'or for the holders
and owners of all Bonds and any coupons appertaining
thereto, the principal, premium, if any, liquidated damages,
if any, and interest due or to become due thereon from the
sources, at the times, and in the manner stipulated therein,
and if the Issuer shall not then be in default in any of the
other covenants and promises in the Bonds and in this
Indenture to be kept, performed, and observed by it or on
its part, and if the Issuer shall pay or cause to be paid to
the Trustee and any Paying Agent all sums of money due or to
become due according to the provisions hereof, then these
presents and the estate and rights hereby granted shall
cease, determine, and be void, whereupon the Trustee shall
cancel and discharge the lien of this Indenture, and
release, assign, and deliver unto the Issuer any and all the
estate, right, title, and interest in and to any and all
rights assigned to the Trustee or otherwise subject to the
lien of this Indenture, except amounts in the Bond Fund or
the Project Fund required to be paid to the Company under
Section 3.09 hereof and except moneys or securities held by
the Trustee for the payment of the principal of, premium, if
any, and interest on the Bonds.
Anything contained in this Indenture to the con-
trary notwithstanding, this Indenture shall not cease,
determine, or be void .and shall remain in effect until it is
determined by the Trustee that (1) no petition for relief
under the Federal Bankruptcy Code is filed by or against the
Company within 91 days after the Final Payment Date or (2)
such a petition is filed within such 91 -day period but
thereafter (a) a final and not appealable order is entered
by a court of competent .jurisdiction holding that, after
taking into consideration the provisions of Section 547 of
the Federal Bankruptcy Code, the owners of the Bonds (or the
Trustee on their behalf) may retain such final payment
thereon, or (b) the Trustee receives funds sufficient to
reimburse the owners of the Bonds for any amounts of princi-
pal, premium, and interest they are forced to repay because
of the filing of such petition, or (c) all applicable stat-
utes of limitation relating to Section 547 of the Federal
Bankruptcy Code have expired without any suit or other
proceeding to recover such payment under Section 547 of the
Federal Bankruptcy Code having theretofore been filed.
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Subject to the provisions of the immediately
preceding paragraph, any Bond shall be deemed to be paid
within the meaning of this Article and for all purposes of
this Indenture when (1) payment of the principal of and the
applicable redemption premium, if any, and liquidated dam-
ages, if any, on such Bond, plus interest thereon to the due
date thereof (whether such due date is by reason of maturity
or upon redemption as provided in this Indenture, or other-
wise), either (a) shall have been made or caused to be made
in accordance with the terms thereof, or (b) shall have been
provided for by irrevocably depositing with the Trustee, in
trust, and the Trustee shall have irrevocably set aside
exclusively for such payment, (i) moneys sufficient to make
such payment, or (ii) Government Obligations maturing as to
principal and interest in such amount and at such times as
will insure the availability of sufficient moneys without
reinvestment to make such payment, or (iii) any combination
of (i) and (ii); and (2) all necessary and proper fees,
compensation, and expenses of the Trustee and any Paying
Agent pertaining to the Bonds shall have been paid or the
payment thereof provided for to their satisfaction. At such
time as a Bond shall be deemed to be paid hereunder, as
aforesaid, it shall no longer be secured by or entitled to
the benefits of this Indenture, except for .the purposes of
any such payment from such moneys or Government Obligations.
No such deposit will have the effect described in
this Article unless the Trustee shall have received an
opinion of Bond Counsel, selected by the Issuer, to the
effect that such use of such deposit will not adversely
affect any exemption from federal income taxation of the
interest on the Bonds.
Notwithstanding the foregoing, no deposit under
clause (1)(b) above shall be deemed a payment of such Bonds
as aforesaid (1) unless the Trustee shall have received an
opinion of Bond Counsel to the effect that such use of such
deposit will not adversely affect any exemption from federal
income taxation of the interest on the then Outstanding
Bonds, and (2) until the earlier of: (a) proper notice of
such redemption of such Bonds shall have been previously
given in accordance with Article II of this Indenture, or in
the event said Bonds are not by their terms subject to
redemption within the next succeeding 60 days, until the
Company shall have given the Trustee on behalf of the
Issuer, in form satisfactory to the Trustee, irrevocable
instructions to notify, as soon as practicable, the holders
-39-
or owners of the Bonds and the holders of the coupons apper-
taining to the coupon Additional Bonds, if any, in accor-
dance with the provisions hereof, that the deposit required
by clause (1)(b) above has been made with the Trustee and
that such Bonds and coupons are deemed to have been paid in
accordance with this Article and stating such maturity or
redemption date upon which moneys are to be available for
the payment of the principal or redemption price, if appli-
cable, of said Bonds; or (b) the maturity of such Bonds.
Any moneys so deposited with the Trustee as pro-
vided in this Article may at the direction of the Company
also be invested and reinvested in non -callable Government
Obligations, maturing in the amounts and times as herein-
before set forth, and all income from all Government Obli-
gations in the hands of the Trustee pursuant to this Article
which is not required for the payment of the. Bonds and
interest and premium thereon with respect to which such
moneys shall have been so deposited, shall be deposited in
the Bond Fund as and when realized and collected for use and
application as are other moneys deposited in that fund.
(End of Article V)
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ARTICLE VI. EVENTS OF DEFAULT AND REMEDIES.
Section 6.01. Events of Default. Each of the
following events is hereby defined as and declared to be and
to constitute an "Event of Default" under this Indenture:
(a) Failure to make due and punctual pay-
ment of the principal of any Outstanding Bond;
(b) Failure to make due and punctual pay-
ment of the interest, premium, if any, or liqui-
dated damages, if any, on any Outstanding Bond,
and the continuance of such failure for a period
of 10 business days following written notice to
the Issuer and the Company from the Trustee
specifying such failure and demanding that the
same be cured; provided, that no such failure
with respect to the payment of interest shall
constitute a default or an Event of Default
hereunder until the end of such 10 day period;
(c) Failure to make the payment of any
Loan Payment when and to the extent due (pro-
vided, however, that with respect to the inte-
rest and premium, if any, portion of any Loan
Payment, the Company shall be allowed a period
of 10 business days following notice by the
Issuer or the Trustee, specifying such failure
and demanding that the same be cured, during
which it may cure such default);
(d) Failure to perform or observe any
other of the covenants, agreements, or condi-
tions to be performed or observed on the part of
the Issuer in this Indenture or contained in the
Outstanding Bonds and continuance thereof for
the period after notice specified in Section
6.12 hereof; or
(e) The occurrence of an "Event of De-
fault" under Section 7.1 of the Agreement;
SECTION 6.02. Acceleration. Upon the occurrence
of an Event of Default, the Trustee may, and upon the writ-
ten request of the holders of not less than 25% in aggregate
principal amount of Bonds then outstanding shall, by notice
in writing delivered to the Issuer and the Company, declare
the principal of all Bonds then outstanding and the interest
accrued thereon and liquidated damages, if any, with respect
-41-
thereto immediately due and payable, and such principal and
interest and liquidated damages shall thereupon become and
be immediately due •and payable, anything in the Bonds, the
Agreement, the Note or this Indenture to the contrary not-
withstanding.
SECTION 6.03. Other Remedies; Rights of Bond-
holders. Upon the occurrence of an Event of Default, before
or after declaring the principal of and other amounts with
respect to the Bonds immediately due and payable, the
Trustee may proceed to pursue any available remedy by suit
at law or in equity to enforce the payment of the principal
of, premium, if any, liquidated damages, if any, and in-
terest on the Bonds then outstanding, including, without
limitation, the following:
(a) By mandamus, or other suit, action, or
proceeding at law or in equity, enforce all of
the rights of the Bondholders, andrequire the
Issuer and the Company to carry out their re-
spective obligations under this Indenture, the
Agreement, the Note, or the Act;
(b) Bring suit upon the Bonds;
(c) Bring suit upon the Note;
(d) By action, suit, or proceeding at law
or in equity require the Issuer to account as if
it were the trustee of an. express trust for the
Bondholders; and
(e) By action, suit, or proceeding at law
or in equity enjoin any acts or things which may
be unlawful or in violation of the rights of the
Bondholders.
Any judgment against the Issuer shall be enforce-
able only against the specific assigned payments, funds, and
accounts in the custody of the Trustee. There shall not be
authorized any deficiency judgment against any assets of, or
the general credit of, the Issuer.
If an Event of Default shall have occurred, and if
requested so to do by the holders of not less than 25% in
aggregate principal amount of all Bonds then outstanding and
if indemnified as provided in Section 7.01(l) hereof, the
Trustee shall be obligated to exercise one or more of the
rights and powers conferred by this Section and by Sec-
-42-
tion 6.02 hereof, as the Trustee, being advised by counsel,
shall deem most expedient in the interests of the Bond-
holders.
No remedy by the terms of this Indenture conferred
upon or reserved to the Trustee (or to the Bondholders) is
intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in addi-
tion to any other remedy_ given to the Trustee or to the
Bondholders hereunder or now or hereafter existing at law,
in equity, or by statute.
No delay or omission to exercise any right or
power accruing upon any default or Event of Default shall
impair any such right or power or shall be construed to be a
waiver of any such default or Event of Default or acquies-
cence therein; and every such right and power may be exer-
cised from time to time as often as may be deemed expedient.
No waiver of any default or Event of Default here-
under, whether by the Trustee or by the Bondholders, shall
extend to or shall affect any subsequent default or Event of
Default or shall impair any rights or remedies consequent
thereon.
SECTION 6.04. Right of Bondholders to Direct Pro-
ceedincrs. Anything in this Indenture to the contrary not-
withstanding, the holders of a majority in aggregate princi-
pal amount of Bonds then outstanding shall have the right,
at any time, by an instrument or instruments in writing
executed and delivered to the Trustee, to direct the method
and place of conducting all proceedings to be taken in
connection with the enforcement of the terms and conditions
of this Indenture, or for the appointment of a receiver or
any other proceedings hereunder; provided, that such direc-
tion shall not be otherwise than in accordance with the
provisions of law and of this Indenture.
SECTION 6.05. Appointment of Receivers. Upon the
occurrence of an Event of Default, and upon the filing of a
suit or other commencement of judicial proceedings to en-
force the rights of the Trustee and of the Bondholders under
this Indenture, the Trustee shall be entitled, as a matter
of right, to the appointment of a receiver or receivers of
the Trust Estate and of the revenues, issues, earnings,
income, products, and profits thereof, pending such proceed-
ings, with such powers as the court making such appointment
shall confer.
-43-
SECTION 6.06. Waiver. Upon the occurrence of an
Event of Default, to the extent that such rights may then
lawfully be waived,. neither the Issuer nor anyone claiming
through or under the Issuer, shall claim or seek to take
advantage of any appraisement, valuation, stay, extension,
or redemption laws now or hereafter in force, in order to
prevent or hinder the enforcement of this Indenture, and the
Issuer, for itself and all who may claim through or under
it, hereby waives, to the extent that it lawfully may do so,
the benefit of all such laws.
SECTION 6.07. Application of Moneys. All moneys
received by the Trustee pursuant -to any right given or
action taken under the provisions of this Article shall
(after payment of the costs and expenses of the proceedings
resulting in the collection of such moneys and of the fees,
expenses, liabilities, and advances incurred or made by the
Trustee) be deposited in the Bond Fund and all moneys in the
Bond Fund shall be applied as follows:
(a) Unless the principal of all the Bonds
then outstanding shall have become or shall have
been declared due and payable, all such moneys
shall be applied:
FIRST --To the payment to the persons
entitled thereto of all installments of
interest then due on the Outstanding Bonds,
in the order of the maturity of the in-
stallments of such interest and, if the
amount available shall not be sufficient to
pay in full any particular installment,
then to the payment ratably, according to
the amounts due on such installment,' to the
persons entitled thereto, without any
discrimination or privilege except as to
the respective rates of interest specified
in the Bonds; and
SECOND --To the payment to the persons
entitled thereto of the unpaid principal of
and premium, if any, on, and liquidated
damages, if any, with respect to, any of
the Bonds which shall have become due
(other than Bonds matured or called for
redemption for the payment of which moneys
are held pursuant to the provisions of this
Indenture) in the order of their due dates,
with interest on the outstanding balance of
principal of such Bonds at the rate per
-44-
annum borne by such Bonds from the respec-
tive dates upon which they become due until
paid and, if the amount available shall not
be sufficient to pay in full Bonds due on
any particular date, together with such
interest, then to the payment ratably,
according to the amount of principal due on
such date, to the persons entitled thereto
without any discrimination or privilege.
(b) If.the principal of all the Outstand-
ing Bonds shall have become due or shall have
been declared due and payable, all such moneys
shall be applied to the payment of the principal
and interest and liquidated damages, if any,
then due and unpaid upon the Outstanding Bonds,
without preference or priority of principal over
interest or liquidated damages or of interest or
liquidated damages over principal, or of any
installment of interest over any other install-
ment of interest, or of any Bond over any other
Bond, ratably, according to the amounts due
respectively for principal and interest, to the
persons entitled thereto without any discrimi-
nation or privilege.
(c) If the principal of all the Outstand-
ing Bonds shall have been declared due and
payable, and if such declaration shall there-
after have been rescinded and annulled under the
provisions of this Article then, subject to the
provisions of subsection (b) of this Section in
the event that the principal of all the Bonds
shall later become due or be declared due and
payable, the moneys shall be applied in accor-
dance with the provisions of subsection (a) of
this Section.
Whenever moneys are to be applied pursuant to the
provisions of this Section, such moneys shall be applied at
such times, and from time to time, as the Trustee shall
determine is appropriate upon due consideration of the
amount of such moneys available for application and the
likelihood of additional moneys becoming available for such
application in the future. Whenever the Trustee shall apply
such funds it shall fix the date (which shall be an interest
payment date unless it shall deem another date more suit-
able) upon which such application is to be made and upon
such date, interest on the amounts of principal to be paid
on such date shall cease to accrue. The Trustee shall give
-45-
such notice as it may deem appropriate of the deposit with
it of any such moneys and of the fixing of any such date,
and shall not be required to make payment to the holder of
any Bond until such Bond shall be presented to the Trustee
for appropriate endorsement or for cancellation if fully
paid.
SECTION 6.08. Remedies Vested in Trustee. All
rights of action (including the right to file proof of
claims) under this Indenture or under any of the Bonds may
be enforced by the Trustee without the possession of any of
the Bonds or the production thereof in any trial or pro-
ceedings related thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its name as
Trustee without the necessity of joining as plaintiff or
defendants any holders of the Bonds.
SECTION 6.09. Rights and Remedies of Bondholders.
No holder of any Bond or coupon shall have any right to
institute any suit, action, or proceeding in equity or at
law for the enforcement of this Indenture or�for the execu-
tion of any trust hereof or for the appointment of a re-
ceiver or any other remedy hereunder, unless:
(a) A default has occurred of which the
Trustee has been notified as provided in Sec-
tion 7.01(h) hereof, or of which by said subsec-
tion it is deemed to have notice;
(b) Such default shall have become an
Event of Default and the holders of not less
than 25% in aggregate principal amount of Bonds
then outstanding shall have made written request
to the Trustee and shall have offered it reason-
able opportunity either to proceed to exercise
the powers hereinbefore granted or to institute
such action, suit, or proceeding in the name or
names of such holders, and they have offered to
the Trustee indemnity as provided in Sec-
tion 7.01(1) hereof; and
(c) The Trustee shall thereafter fail or
refuse to exercise the powers hereinbefore
granted, or to institute such action, suit, or
proceeding in its own name within a reasonable
time;
and such notification, request, and offer of indemnity are
hereby declared in every case at the option of the Trustee
to be conditions precedent to the execution of the powers
-46-
and trusts of this Indenture, and to any action or cause of
action for the enforcement of this Indenture, or for the
appointment of a receiver or for any other remedy hereunder;
it being understood and intended that no one or more holders
of the Bonds shall have any right in any manner whatsoever
to affect, disturb, or prejudice the lien of this Indenture
by such holders' action or to enforce any right hereunder
except in the manner herein provided, and that all proceed-
ings at law or in equity shall be instituted, had, and main-
tained in the manner herein provided and for the equal and
ratable benefit of the holders of all Bonds then outstand-
ing. Nothing contained in this Indenture, however, shall
affect or impair the rights of any Bondholder to enforce the
payment of the principal of, premium, if any, liquidated
damages, if any and interest on any Bond at and after the
maturity thereof, or the obligation of the Issuer to pay the
principal of, premium, if any, and interest on and liqui-
dated damages, if any, with respect to each of the Bonds
issued hereunder to the respective holders thereof at the
time, place, from the source, and in the manner in the Bonds
expressed. Nothing contained herein shall be construed as
permitting or affording any Bondholder a right or cause of
action against the Trustee or in respect of an issue of
Bonds where a default has been waived under Section 6.11 or
cured under Section 6.12 of this Indenture.
SECTION 6.10. Termination of Proceedings. In
case the Trustee shall have proceeded to enforce any right
under this Indenture by the appointment of a receiver or
otherwise, and such proceedings shall have been discontinued
or abandoned for any reason, or shall have been determined
adversely to the Trustee, then and in every such case the
Issuer, the Trustee, and the Bondholders shall be restored
to their former positions and rights hereunder, and all
rights, remedies, and powers of the Trustee shall continue
as if no such proceedings had been taken.
SECTION 6.11. Waivers of Events of Default. The
Trustee shall waive any default or Event of Default here-
under and its consequences upon the written request of the
holders of at least a majority in principal amount of all
Bonds then outstanding.
The provisions of the preceding paragraph of this
Section, however, are subject to the condition that if,
after the principal of all Bonds then outstanding shall have
been declared to be due and payable as a result of an Event
of Default hereunder and before any judgment or decree for
the appointment of a receiver or for the payment of the
moneys due shall have been obtained or entered, the Company
-47-
shall cause to be deposited with the Trustee a sum suffi-
cient to pay all matured installments of interest upon all
Bonds and the principal of and premium, if any, on, and
liquidated damages, if any, with respect to any and all
Bonds which shall have become due otherwise than by reason
of such declaration (with interest upon such principal and
premium, if any, and liquidated damages, if any, and such
overdue installment of interest), and such amounts as shall
be sufficient to cover all expenses of the Trustee in con-
nection with such Event of Default and all defaults under
this Indenture, other than nonpayment of principal of Bonds
which shall have become due by said declaration, shall have
been remedied, then and in every such case, such Event of
Default may be waived and such declaration and its conse
.quences rescinded and annulled by the Trustee by written
notice to the Issuer and the Company, which waiver, res-
cission, and annulment shall be binding upon the holders of
all Bonds then outstanding; provided that if such declara-
tion was requested by the holders of not less than 510% in
principal amount of the Bonds, such waiver, rescission, and
annulment must be consented to in writing by the holders of
not less than a majority in principal amount of the Bonds
then outstanding, .which consent shall be binding upon the
Trustee and upon the holders of all Bonds then outstanding;
but no such waiver, rescission, and annulment shall extend
to or affect any subsequent default or impair any right or
remedy consequent thereon.
SECTION 6.12. Notice of Default Under Sec-
tion 6.01(d); Opportunity of Issuer and Company to Cure
Such Defaults. Anything herein to the contrary notwith-
standing, no default under Section 6.01(d) hereof shall
constitute an Event of Default until actual notice of such
default by registered or certified mail shall be given to
the Issuer and the Company by the Trustee or by the holders
of not less than 257, in aggregate principal amount of all
Bonds then outstanding and the Issuer and the Company shall
have had 60 days after receipt of such notice to correct
said default or to cause said default to be corrected, and
shall not have corrected said default or caused said default
to be corrected within the applicable period; provided,
however, if said default be such that it cannot be corrected
within the applicable period, it shall not constitute an
Event of Default if corrective action is instituted by the
Issuer or the Company within the applicable period and is
diligently pursued until the default is corrected.
With regard to any default concerning which notice
is given to the Issuer and the Company under the provisions
of this Section, the Issuer, to the full extent permitted by
-48-
law, hereby grants to the Company full authority to perform
and observe for the account of the Issuer any covenant or
obligation alleged in said notice not to have been performed
or observed in the name and stead of the Issuer with full
power to do any and all things and acts to the same extent
that the Issuer could do and perform any such things and
acts and with power of substitution, and the Trustee hereby
consents to such grant of authority.
(End of Article VI)
-49-
ARTICLE VII. TRUSTEE AND PAYING AGENT.
SECTION 7.01. Acceptance of the Trusts. The
Trustee hereby accepts the trusts imposed upon it by this
Indenture, and agrees to perform said trusts, but only upon
and subject to the following express terms and conditions:
(a) The Trustee, prior to the occurrence
of an Event of Default and after the curing of
all Events of 'Default which may have occurred,
undertakes to perform such duties and only such
duties as are specifically set forth in this
Indenture. In case an Event of Default has
occurred (which has not been cured or waived)
the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and
use the same degree of care and skill in their
exercise, as a prudent man would exercise or use
under the circumstances in the conduct of his
own affairs.
(b) The Trustee may execute any of the
trusts or powers hereof and perform any of its
duties by or through r attorneys, agents,
receivers, or employees, but shall be answerable
for the conduct of the same in accordance with
the standard specified above, and shall be
entitled to advice of counsel concerning all
matters of trust hereof and the duties here-
under, and in all cases may pay such reasonable
compensation to all such attorneys, agents,
receivers, and employees as may reasonably be
employed in connection with the trust hereof.
The Trustee may act, or elect to take no action,
upon the opinion or advice of any attorneys
approved by the Trustee in the exercise of
reasonable care. The Trustee shall not be
responsible for any loss or damage resulting
from any action or non -action exercised in good
faith reliance upon such opinion or advice.
(c) The Trustee shall not be responsible
for any recital herein, or in the Bonds (except
in respect to any certificate of the Trustee
endorsed on the Bonds); the recording or
re-recording, or filing or refiling of this
Indenture, or any other instrument required by
this Indenture to secure the Bonds; insuring the
Project or collecting any insurance moneys; the
-50-
validity of the execution by the Issuer of this
Indenture or of any supplements hereto or
instruments of further assurance; or the suffi-
ciency of the security. for the Bonds issued
hereunder or intended to be secured hereby, or
otherwise as to the maintenance of the security
hereof.
(d) The Trustee shall not be accountable
for the use of any Bonds authenticated or deliv-
ered hereunder. The Trustee may in good faith
buy, sell, own, and hold any of the Bonds or
coupons and may join in any action which any
Bondholders may be entitled to take with like
effect as if the Trustee were not a party to the
Indenture. The Trustee may also engage in or be
interested in any financial or other transaction
with the Is or the Company, provided that if
the Trustee determines that any such relation is
in conflict with its duties under this
Indenture, it shall eliminate the conflict or
resign as Trustee. To the extent permitted.by
law, the Trustee may also receive tenders and
purchase in good faith Bonds from itself,
including any department, affiliate, or subsidi-
ary, with like effect as if it were not the
Trustee.
(e) The Trustee shall be protected in act-
ing upon any notice, request, consent, certifi-
cate, order, affidavit, letter, telegram, or
other paper or document believed to be genuine
and correct and believed to have been signed or
sent by the proper person or persons. Any
action taken by the Trustee pursuant to this
Indenture upon the request or authority or
consent of any person who at the time of making
such request or giving such authority or consent
is the owner of any Bond, shall be conclusive
and binding upon all future owners of the same
Bond and upon bonds issued in exchange therefor
or in place thereof. In making disbursements
provided by Section 3.4 of the Agreement, the
Trustee shall be entitled to rely solely upon
the requisition provided for therein, and shall
not be required to independently verify any such
requisition.
-51-
(f) As to the existence or nonexistence of
any fact or as to the sufficiency or validity of
any instrument, paper, or proceeding, the
Trustee shall be entitled to rely upon a certi-
ficate signed by an Issuer Representative or.
Company Representative as sufficient evidence of
the facts therein contained; and prior to the
occurrence of a default of which the Trustee has
been notified as provided in subsection (h) of
this Section, or of which by said subsection it
is deemed to have notice, shall also be at
liberty to accept a similar certificate to the
effect that any particular dealing, transaction,
or action is necessary or expedient, but may at
its discretion secure such further evidence
deemed necessary or advisable, but shall in no
case be bound to secure the same. The Trustee
may accept a certificate of the President, Vice
President, or Secretary of the Issuer under its
seal to the effect that a resolution and order
in the form therein set forth has been adopted
by the Issuer as conclusive evidence that such
resolution has been duly adopted, and is in full
force and effect.
(g) The right of the Trustee to perform
any discretionary acts enumerated in this Inden-
ture shall not *be construed as a duty and it
shall not be answerable for other than its gross
negligence or willful misconduct in the perfor-
mance of such acts.
(h) The Trustee shall not be required to
take notice or be deemed to have notice of any
default hereunder except failure by the Issuer
to cause to be made any of the payments to the
Trustee required to be made by Article II hereof
or the failure of the Issuer or the Company to
file with the Trustee any document required by
this Indenture or the Agreement to be so filed
subsequent to the issuance of the Bonds, unless
the Trustee shall be specifically notified in
writing of such default by the Issuer or by the
holders of at least 25% in aggregate principal
amount of Bonds then outstanding; and all no-
tices or other instruments required by this
Indenture to be delivered to the Trustee shall
be delivered at the corporate trust office of
the Trustee and, in the absence of such notice
-52-
so delivered, the Trustee may conclusively
assume there is no default except as aforesaid.
If moneys sufficient to pay maturing principal
and interest on the Bonds are not timely re-
ceived by the Trustee, the Trustee covenants to
give notice of such fact to the Company and the
Issuer.
(i) At any and_ all reasonable times the
Trustee, and its duly authorized agents, attor-
neys, experts, engineers, accountants, and
representatives, shall have the right to inspect
fully all books, papers, and records of the
Issuer pertaining to the Project and the Bonds,
and to take such memoranda therefrom and in
regard thereto as may be desired.
(j) The Trustee shall not be required to
give any bond or surety in respect of the execu-
tion of the said trusts and powers.
(k) Notwithstanding anything contained
elsewhere in this Indenture, the Trustee shall
have the right, but shall not be required, to
demand, in respect of the authentication of any
Bonds, the withdrawal of any cash, the release
of any property, or the taking of any action
whatsoever within the purview of this Indenture,
any showings, certificates, opinions, apprais-
als, or other information, or corporate action
or evidence thereof, in addition to that requir-
ed by the terms hereof as a condition of such
action by the Trustee, as deemed desirable for
the purpose of establishing the right of the
Issuer to the authentication of any Bonds, the
withdrawal of any cash, or .the taking of any
other action by the Trustee.
(1) Before taking any action referred to
in Sections 6.02, 6.03, 6.04, or 6.09 hereof the
Trustee may require that satisfactory indemnity
be furnished for the reimbursement of all ex-
penses which it may incur and to protect it
against all liability, except liability which is
adjudicated to have resulted from its gross
negligence or willful misconduct by reason of
any action so taken.
-53-
(m) All moneys received by the Trustee or
any Paying Agent shall, until used, applied, or
invested as herein provided, be held in trust
for the purposes for which they were received
but need not be segregated from other funds
except to the extent required by law. Neither
the Trustee nor any Paying Agent shall be under
any liability for interest on any moneys receiv-
ed hereunder except such as may be agreed to by
them.
(n) The responsibilities of the Trustee
elsewhere set forth herein shall be limited as
follows:
(i) the Trustee shall not be liable
with respect to any action taken or omitted
to be taken by it in good faith in ac-
cordance with a direction of the owners of
Bonds pursuant to any provision of this
Indenture or the Agreement relating to any
remedy available to the Trustee, or exer-
cising any trust or power conferred upon
the Trustee, under this Indenture or the
Agreement; and
(ii) no provision of this Indenture or
the Agreement shall.require the Trustee (1)
to expend or risk its own funds or other-
wise incur any financial liability in the
performance of any of its duties hereunder,
or in the exercise of any of its rights or
powers, nor (2) to take any action, whether
or not directed to take such action by the
owners of Bonds, pursuant to this Indenture
or the Agreement, which in the judgment of
the Trustee would conflict with any rule or
law, or with the terms of this Indenture or
the Agreement or would be unjustly prejudi-
cial to the owners of Bonds not taking part
in such direction. when acting pursuant to
the direction of any owners of Bonds pur-
suant to this Indenture or the Agreement,
the Trustee may take other action deemed
proper by the Trustee which is not incon-
sistent with such direction; provided,
however, that the terms of this subpara-
graph shall not impose any additional
duties or responsibilities upon the Trustee
-54-
and shall not be construed to limit the
effect of subparagraph (i) immediately
above.
SECTION 7.02. Fees, Charges, and Expenses of
Trustee and Paying -Agents. The Trustee and any Paying Agent
shall be entitled to payment and reimbursement for reason-
able fees for their services rendered hereunder and all
counsel fees and other fees, charges, and expenses reason-
ably and necessarily made or incurred by the Trustee and any
Paying Agent or counsel to the Trustee or any Paying Agent
in connection with such services. Upon an Event of Default,
the Trustee and any Paying Agent shall have a first lien
upon the Trust Estate with right of payment for the fore-
going fees, charges, and expenses incurred by them respec-
tively prior to payment on account of principal of, premium,
if any, liquidated damages, if any, and interest on any
Bonds.
SECTION 7.03. Notice to Bondholders of Default.
If a default occurs of which the Trustee is required by
Section 7.01(h) hereof to take notice or if notice of de-
fault is given as provided in Section 7.01(h), then the
Trustee shall promptly give written notice thereof by regis-
tered or certified mail to each registered owner of Bonds
then outstanding and to each holder of Bonds then outstand-
ing shown by the list of Bondholders required by the terms
of Section 3.05 hereof to be kept at the office of the
Trustee. The Trustee shall promptly give written notice by
registered or certified mail of any such notice of default
sent to any owner or holder of Bonds, as provided hereunder,
to the Commission. In addition (unless all Bonds at such
time are registered as to principal (except to bearer) or
fully registered), the Trustee shall give notice thereof by
publication in the manner specified in Section 2.05(b)
hereof.
SECTION 7.04. Intervention by the Trustee. In
any judicial proceeding to which the Issuer or the Company
is a party and which in the opinion of the Trustee and its
counsel has a substantial bearing on the interests of owners
of the Outstanding Bonds, the Trustee may intervene on
behalf of the Bondholders and shall do so if requested in
writing by the owners of at least 257, of the aggregate
principal amount of Bonds then outstanding.
SECTION 7.05. Successor Trustee by Merger or
Otherwise. Any corporation or association into which the
Trustee may be converted or merged, with which it may be
consolidated, or to which it may sell or transfer its trust
-55-
business and assets as a whole or substantially as a whole,
or any corporation or association resulting from any such
conversion, sale, merger, consolidation, or transfer to
which it is a party, ipso facto, shall be and become the
successor Trustee hereunder and vested with all of the title
to the Trust Estate and all the trusts, powers, discretions,
immunities, privileges, responsibilities, obligations, and
all other matters as was its predecessor, without the execu-
tion or filing of any instrument or any further act, deed,
or conveyance on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
SECTION 7.06. Resignation by the Trustee. The
Trustee may at any time resign from the trusts hereby
created by giving 30 days' written notice to the Issuer and
the Company, and by registered or certified mail to each
registered owner of the Bonds then outstanding. Such notice
to the Issuer and to the Company may be served personally or
sent by registered mail. Such resignation shall take effect
at the end of such 30 days, or upon the earlier appointment
of a successor Trustee by the Bondholders or by the Issuer,
which appointment shall be satisfactory to the Company.
SECTION 7.07. Removal of the Trustee. The Trus-
tee may be removed at any time by an instrument or substan-
tially concurrent instruments in writing delivered to the
Trustee, the Issuer, and the Company and signed by the
owners of a majority* in aggregate principal amount of Bonds
then outstanding.
SECTION 7.08. Appointment of Successor Trustee by
Bondholders; Temporary Trustee. In case the Trustee here-
under shall resign, be removed, be dissolved, be in course
of dissolution or liquidation, or otherwise become incapable
of acting hereunder, or in case the Trustee shall be taken
under the control of any public officer or officers or of a
receiver appointed by a court, a successor may be appointed
by the owners of a majority in aggregate principal amount of
Bonds then outstanding, by an instrument or substantially
concurrent instruments in writing executed by such owners,
or by their duly authorized attorneys -in -fact; provided,
however, that the Issuer, by an instrument executed and
signed by its President and attested by its Secretary under
its seal, may appoint a temporary Trustee satisfactory to
the Company to fill such vacancy until a successor Trustee
shall be provided; and any such temporary Trustee so
appointed by the Issuer shall immediately and without
further act be superseded by a Trustee so appointed by such
Bondholders. Every such Trustee appointed pursuant to the
provisions of this Section shall be a trust company or bank
organized and doing business in the United States in good
-56-
standing having a reported capital and surplus of not less
than $50,000,000, if there is such an institution willing,
qualified, and able to accept the trust upon reasonable or
customary terms.
SECTION 7.09. Successor Trustee. Every successor
appointed hereunder shall execute, acknowledge, and deliver
to its predecessor and to the Issuer an instrument in writ-
ing accepting such appointment hereunder, and thereupon such
successor, without any further act, deed, or conveyance,
shall become fully vested with all the estates, properties,
rights, powers, trusts, duties, and obligations of its pre-
decessor; but such predecessor shall, nevertheless, on the
written request of the Issuer, or of its successor Trustee,
execute and deliver an instrument transferring to such suc-
cessor Trustee all the estates, properties, rights, powers,
and trusts of such predecessor hereunder; and every prede-
cessor Trustee shall deliver all securities and moneys held
by it as the Trustee hereunder to its successor Trustee.
Should any instrument in writing from the Issuer be required
by any successor Trustee for more fully and certainly vest-
ing in such successor the estates, rights, powers, and
duties hereby vested or intended to be vested in the pre-
decessor, any and all such instruments in writing shall, on
request, be executed, acknowledged, and delivered by the
Issuer. The resignation of any Trustee and the instrument
or instruments removing any Trustee and appointing a suc-
cessor hereunder, together with all other instruments pro-
vided for in this Article, shall be filed and/or recorded by
the successor. Trustee in each recording office where this
Indenture shall have been filed and/or recorded.
SECTION 7.10. Designation and Succession of Pay-
ing Agents. The Trustee and any other banks or trust com-
panies, if any, hereinafter designated as Paying Agent or
Paying Agents in any supplemental indenture providing for
the issuance of Additional Bonds as provided in Section 3.15
hereof, shall be the Paying Agent or Paying Agents for the
applicable series of Bonds.
Any bank or trust company with or into which any
Paying Agent may be merged or consolidated, or to which the
assets and business of such Paying Agent may be sold, shall
be deemed the successor of such Paying Agent for the pur-
poses of this Indenture. If the position of Paying Agent
shall become vacant for any reason, the Issuer shall, within
30 days thereafter, appoint such bank or trust company as
shall be specified by the Company and located in the same
city as such Paying Agent to fill such vacancy; provided,
-57-
however, that if the Issuer shall fail to appoint a succes-
sor Paying Agent within said period, the Trustee shall make
such appointment.
The Paying Agents shall enjoy the same protective
provisions in respect of the performance of their duties
hereunder as are specified in Section 7.01 hereof with
respect to the Trustee insofar as such provisions may be
applicable.
SECTION 7.11. Appointment of Successor Paving
Agent. If the Paying Agent herein designated fails or
refuses to act as such, the Trustee shall designate a suc-
cessor Paying Agent with the consent of the Company.
SECTION 7.12. Successor Trustee as Bond Regis-
trar, Custodian of Project Fund and Bond Fund, and Payin
Agent. In the event of a change in the office of the Trus-
tee, the Trustee which has resigned or been removed shall
cease to be Bond Registrar and custodian of the Project Fund
and the Bond Fund, and Paying Agent for principal of,
premium, if any, liquidated damages, if any, and interest on
the Bonds, and the successor Trustee shall become such Bond
Registrar, custodian, and Paying Agent.
SECTION 7.13. _Fees and Expenses of Predecessor
Trustee. In the event of a change in the office of the
Trustee, the outgoing (predecessor) Trustee shall be en-
titled to receive and collect all fees and expenses accrued
or incurred up to the date any successor Trustee shall take
office.
SECTION 7.14. Trustee and Issuer Required to
Accept Directions and Actions of Company. Whenever after a
reasonable request by the Company the Issuer shall fail, re-
fuse, or neglect to give any direction to the Trustee or to
require the Trustee to take any action which the Issuer is
required to have the Trustee take pursuant to the provisions
of the Agreement or this Indenture, the Company may give any
such direction to the Trustee or require the Trustee to take
any such action, and the Trustee is hereby irrevocably
empowered and directed to accept such direction from the
Company as sufficient for all purposes of the Indenture.
The Company shall have the right to cause the Trustee to
comply with any of the Trustee's obligations under the
Indenture to the same extent that the Issuer is empowered to
do so.
-58-
Certain actions or failures to act by the Issuer
under the Indenture may create or result in an Event of
Default under the Indenture; therefore, the Company may, to
the extent permitted by law, perform any and all acts or
take such action as may be necessary for and on behalf of
the Issuer to prevent or correct said Event of Default, and
the Trustee shall take or accept such performance by the
Company as performance by the Issuer in such event.
(End of Article VII)
-59-
ARTICLE VIII. SUPPLEMENTAL INDENTURES.
SECTION 8.01. Supplemental Indentures Not Requir-
ing Consent of Bondholders. The Issuer and the Trustee may,
without the consent of, or notice to, any of the
Bondholders, enter into an indenture or indentures sup-
plemental to this Indenture as shall not be inconsistent
with the terms and provisions hereof for any one or more of
the following purposes:
(a) To cure any ambiguity or formal defect
or omissions in this Indenture;
(b) To grant to or confer upon the Trustee
for the benefit of the Bondholders any addi-
tional rights, remedies, powers, or authorities
that may lawfully be granted to or conferred
upon the Bondholders or the Trustees;
(c) To subject to this Indenture addi-
tional revenues, properties, or collateral;
(d) To modify, amend, or supplement this
Indenture, or any indenture supplemental hereto,
in such manner as to permit the qualification
hereof and thereof under the Trust Indenture Act
of 1939 or any similar federal statute hereafter
in effect or to permit the qualification of the
Bonds for sale under the securities laws of any
of the states of the United States, and, if they
so determine, to add to this Indenture or any
indenture supplemental hereto such other terms,
conditions, and provisions as may be permitted
by the Trust Indenture Act of 1939 or similar
federal statute;
(e) To add to the covenants and agreements
of the Issuer contained in this Indenture other
covenants and agreements thereafter to be ob-
served for the protection of the Bondholders, or
to surrender or limit any right, power, or
authority herein reserved to or conferred upon
the Issuer; and
(f) To issue Additional Bonds in accor-
dance with the provisions of Section 3.15
hereof.
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SECTION 8.02. Supplemental Indentures Requiring
Consent of Bondholders. Exclusive of supplemental inden-
tures covered by Section 8.01 hereof and subject to the
terms and provisions contained in this Section, and not
otherwise, the holders of not less than 66 2/3% in aggregate
principal amount of the Bonds then outstanding shall have
the right, from time to time, anything contained in this
Indenture to the contrary notwithstanding, to consent to and
approve the execution by the Issuer and the Trustee of such
other indenture or indentures supplemental hereto (includ-
ing, without limitation, any supplemental indenture .per-
taining to the issuance of Additional Bonds) as shall be
deemed necessary and desirable by the Trustee for the pur-
poses of modifying, altering, amending, adding to, or re-
scinding, in any particular, any of the terms or provisions
contained in this Indenture or in any supplemental inden-
ture; provided, however, that nothing contained in this
Section or Section .8.01 shall permit, or be construed as
permitting, without the consent and approval of the holders
of all the Bonds then outstanding, .(a) an extension of the
maturity of the principal of or the interest on, or the
premium or liquidated damages, if any, with respect to, any
Bond issued hereunder, or a reduction in the principal
amount of any Bond or the rate of interest or redemption
premium thereon or liquidated damages with respect thereto;
(b) 'a privilege or priority of any Bond or Bonds over any
other Bond or Bonds; (c) a reduction in the aggregate prin-
cipal amount of the Bonds required for consent to such
supplemental indenture; (d) the deprivation of the holder of
any Bond then outstanding of the lien created by this Inden-
ture; or (e) an alteration of the Company's obligation to
pay, when due, Loan Payments. If at any time the Issuer
shall request the Trustee to enter into any such supple-
mental indenture for any of the purposes of .this Section,
the Trustee shall, upon being satisfactorily indemnified
with respect to expenses, cause notice of the proposed
execution of such supplemental indenture to be published as
shall be requested by the Issuer, and in any event by publi-
cation in the manner provided in Section 2.05(b) hereof.
Such notice shall briefly set forth the nature of the pro-
posed supplemental indenture and shall state that copies
thereof are on file at the principal office of the Trustee
for inspection by all Bondholders. If, within 60 days, or
such longer period as shall be prescribed by the Issuer,
following the final publication of such notice, the holders
of the requisite percentage in aggregate principal amount of
the Bonds outstanding at the time of the execution of any
such supplemental indenture shall have consented to and
approved the execution thereof as herein provided, no holder
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of any Bond shall have any right: (1) to object to any of
the terms and provisions contained herein, or the operation
thereof; (2) to question in any manner the priority of the
execution thereof; or (3) to enjoin or restrain the Trustee
or the Issuer from executing the same or from taking any
action pursuant to the provisions thereof. Upon the
execution of any such supplemental indentureas in this
Section permitted and provided, this Indenture shall be and
be deemed to be modified and amended in accordance
therewith.
Anything herein to the contrary notwithstanding, a
supplemental indenture under this Article shall not become
effective unless and until the Company shall have consented
in writing to the execution and delivery of such supple-
mental indenture.
(End of Article VIII)
-62-
ARTICLE IX. MISCELLANEOUS.
SECTION 9.01. Consents of Bondholders. Any
consent, request, direction, approval, objection, or other
instrument required by this Indenture to be executed by the
Bondholders may be in any number of concurrent writings of
similar tenor and may be executed by such Bondholders in
person or by agent appointed in writing. Proof of the
execution of any such consent, request, direction, approval,
objection, or other instrument or of the writing appointing
any such agent and of the ownership of Bonds, if made in the
following manner, shall be sufficient for any of the
purposes of this Indenture, and shall be conclusive in favor
of the Trustee with regard to any action taken by it under
such request or other instrument, namely:
(a) The fact and date of the execution by
any person of any such writing may be proved by
the certificate of any officer in any jurisdic-
tion who by law has. power to take acknowledg-
ments within such jurisdiction that the person
executing such writing acknowledged before him
the execution thereof, or by an affidavit of any
witness to such execution.
(b) The fact of the holding by any person
of Bonds transferable by delivery and the
amounts and numbers of such Bonds, and the date
of the holding of the same, may be proved by a
certificate executed by any trust company, bank,
or banker, wherever situated, stating that at
the date thereof the party named therein did
exhibit to an officer of such trust company or
bank or to such banker, as the property of such
party, the Bonds therein mentioned if such
certificate shall be deemed by the Trustee to be
satisfactory. The Trustee may, in its discre-
tion, require evidence that such Bonds have been
deposited with a trust company, bank, or banker
before taking any action based on such
ownership. In lieu of the foregoing the Trustee
may accept such other proofs as the Trustee
shall deem appropriate.
For all purposes of this Indenture and of the pro-
ceedings for the enforcement hereof, such person shall be
deemed to continue to be the holder of such Bond until the
Trustee shall have received notice in writing to the
contrary.
-63-
SECTION 9.02. Limitation of Rights. With the
exception of rights herein expressly conferred, nothing
expressed or mentioned in or to be implied from this Inden-
ture or the Bonds is intended or shall be construed to give
to any person other than the parties hereto and the holders
of the Bonds any legal or equitable right, remedy, or claim
under or in respect of this Indenture or any covenants,
conditions, or provisions herein contained, this Indenture
and all of the covenants, conditions, and provisions hereof
being intended to be and being for the sole and exclusive
benefit of the parties hereto and the holders of the Bonds
from time to time as herein provided.
SECTION 9.03. Severability. If any provision of
this Indenture shall -be heir or deemed to be or shall, in
fact, be illegal, inoperative, or unenforceable, the same
shall not affect any other provision or provisions herein
contained or render the same invalid, inoperative, or unen-
forceable to any extent.
SECTION 9.04. Notices. All notices, certifi-
cates, or other communicat ns hereunder shall be suffi-
ciently given and shall be deemed given when delivered or on
the second day following the day of which the same has been
mailed. by registered or certified mail, postage prepaid, or
on the day sent by telegram, addressed as follows:
If to the Issuer, at: LUBBOCK INDUSTRIAL DEVELOPMENT
CORPORATION
Chamber of Commerce
P. O. Box 561
Lubbock, Texas 79408
Attention: President
If to the Company, at: INGERSOLL-RAND COMPANY
200 Chestnut Ridge Rd.
Woodcliff Lake, New Jersey 07675
ATTENTION: Vice President and
Treasurer
If to the Trustee, at: MELLON BANK, N.A.
Mellon Square
Pittsburgh, Pennsylvania 15230
Attention: Corporate Trust
Division
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A duplicate copy of each notice required to be given here-
under by either the Issuer or the Trustee shall also be
given to the Company, and a duplicate copy of each
notice required to be given hereunder by the Trustee to
either the Issuer or the Company shall also be given to the
other. The Issuer, the Company, and the Trustee may, by
notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates, or
other communications shall be sent.
Section 9.05. Payments Due on Holidays. If the
date for making any payment or the last date for performance
of any act or the exercising of any right, as provided in
this Indenture shall be a Saturday, Sunday, or legal holiday
or a day on which banking institutions in the city in which
the principal office of the Trustee or any Paying Agent, as
the case may be, is located are authorized or required by
law or executive order to close, such payment may be made or
act performed or right exercised on the next succeeding day
which is not a Saturday, Sunday, or legal holiday or day on
which such banking institutions are authorized or required
by law to close with the same force and effect as if done on
the nominal date provided in this Indenture, and if done on
such succeeding day no interest shall accrue for the period
after such nominal date.
Section 9.06. Execution of Counterparts. This
Indenture may be executed in several counterparts, each of
which shall be an original and all of which shall constitute
but one and the same instrument.
Section 9.07. Applicable Law. This Indenture
shall be governed by and construed in accordance with the
laws of the State.
Section 9.08. Captions. The captions or headings
in this Indenture are for convenience only and innoway
-65-
define, limit, or describe the scope or intent of any pro-
visions, Articles, or Sections of this Indenture.
IN WITNESS WHEREOF, the LUBBOCK INDUSTRIAL
DEVELOPMENT CORPORATION has caused these presents to be
signed in its name and on its behalf by its President and
its official seal to be hereunto affixed and attested by its
Secretary, and to evidence its acceptance of the trust
hereby created MELLON BANK, N.A., Pittsburgh, Pennsylvania,
as trustee, has caused these presents to be signed and
sealed in its name and behalf by its duly authorized
officers, all as of the day and year first above written.
LUBBOCK INDUSTRIAL DEVELOPMENT
(SEAL) CORPORATION
ATTEST:
By:
Secretary, Board of President, Board of Directors
Directors
MELLON BANK, N.A.
(SEAL)
ATTEST:
Trust Officer
By:
Assistant Vice President
-66-
EXHIBIT A
(Form Of Fully Registered Series 1982 Bonds)
No. R- - $
UNITED STATES OF AMERICA
STATE OF TEXAS
COUNTY OF LUBBOCK
LUBBOCK INDUSTRIAL DEVELOPMENT CORPORATION
ADJUSTABLE-RATE INDUSTRIAL DEVELOPMENT REVENUE BOND
(INGERSOLL-RAND COMPANY PROJECT)
SERIES 1982
LUBBOCK INDUSTRIAL DEVELOPMENT CORPORATION (the
"Issuer"), a nonprofit corporation of the State of Texas
(the "State"), organized and existing as a duly constituted
authority to act on behalf of the City of Lubbock, Texas
(the "Unit"), pursuant to the Development Corporation Act of
1979, Article 5190.6, Vernon's Texas Civil Statutes (the
"Act"), for value received, hereby promises to pay (but only
from the revenues and sources hereinafter described) to the
order of J. or
registered assigns, the aggregate principal sum of
DOLLARS ($ ) on,
unless called for earlier redemption, the first day of
September, 2012, together with interest on the unpaid
principal amount hereof from the date of delivery of this
bond to the initial purchaser (which date appears in the
Trustee's Certificate of Authentication endorsed on this
Bond) through August 31, 1985, at the rate of nine per
centum (9%) per annum. Thereafter this Bond shall bear
interest for each subsequent three year period (commencing
September 1, 1985, and the September 1 of every third year
thereafter to and including September 1, 2009) equal to 86%
of the 20 -Bond Index, as published by The Bond Buyer on
July 15 of each such year, or the immediately preceding date
of publication of such index (which date shall not be
earlier than the July 1 of such year). If the 20 -Bond Index
is unavailable on such date, the interest rate for such
period shall equal 86% of Moody's AA Municipal Bond Yield
Average, as published by Moody's Investors Services, Inc. on
the date specified above. In the event neither index is
available, the interest rate for such period shall be the
interest rate on this Bond established for the preceding
three year period ending August 31 of such year. In no
event shall the interest rate as established pursuant tothe
aforementioned method exceed fifteen per centum (15%) per
annum. The Trustee shall as soon as practical on or after
July 1 of each such year notify all Bondholders that the
interest rate is subject to redetermination as of such
July 15, as if it were redetermined on such July 1 and the
method by which Bondholders may deliver Series 1982 Bonds to
the Escrow Agent, as hereinafter defined, for redemption.
Thereafter, on or before July 20 of such year, the Trustee
shall redetermine the interest rate and, by notice mailed no
later than said July 20, notify Bondholders of such interest
rate, the method of calculation thereof and the last day for
delivery to the Escrow Agent of this Bond for redemption
pursuant to the redemption provision described hereinafter.
Interest on the Series 1982 Bonds shall be payable semi-
annually on March 1 and September l of each year, commencing
March 1, 1983.
THE PRINCIPAL of and interest on this Bond shall
be payable in any coin or currency of the United States of
America, which, at the respective times of payment, is legal
tender for the payment of public or private debts and with-
out exchange or collection charges. Payment of principal
and interest, shall be made to the registered owner by check
or draft mailed by Mellon Bank, N.A., Pittsburgh, Pennsyl-
vania (the "Trustee", "Paying Agent" and "Registrar" for
this Bond) or its successor under the Indenture (hereinafter
defined) to the registered owner at its address appearing on
the Bond Registration Books kept by the Trustee; provided
that in the alternative such payment may be made by any
other method requested in writing by the registered owner,
subject to the approval of the Trustee. The final payment
of principal on this Bond shall be paid only upon surrender
of this Bond to the Trustee for cancellation. Any prepay-
ment or redemption of any principal installments of this
Bond shall be made only upon presentation of this Bond to
the Trustee, who shall make a notation of such prepayment or
redemption on the Prepayment Record endorsed hereon.
THIS BOND and the issue of which it is one (the
"Series 1982 Bonds"), is dated as of September 1, 1982. The
Series 1982 Bonds have been duly authorized to be issued by
the Issuer in the aggregate principal amount of $8,200,000
A-2
for the purpose of financing the costs of acquiring, con-
structing, and equipping an industrial or manufacturing
facility (the "Project") for Ingersoll-Rand Company, a New
Jersey corporation (the "Company") to promote and encourage
employment and the public welfare within the State and the
Unit, under and pursuant to authority conferred by the Act,
a resolution duly adopted by the Board of Directors of the
Issuer, and an Indenture of Trust, dated as of September 1,
1982, by and between the -Issuer and the Trustee (the "In-
denture").
THE SERIES 1982 Bonds are secured, to the extent
provided in the Indenture, solely by the pledge and assign-
ment thereunder of the revenues arising from payments,
designated as "Loan Payments", to be made by the Company
under its note (the "Note") executed and delivered pursuant
to the Loan Agreement, dated as of September 1, 1982,
between the Company and the Issuer (the "Agreement") and
other revenues. of the Issuer derived from or in connection
with the financing of.the Project and held or set aside in
trust under the Indenture. The Indenture provides that the
Issuer may issue additional parity bonds ("Additional
Bonds") from time to time under certain terms and conditions
contained in the Indenture (which "Additional Bonds" and
Series 1982 Bonds are herein collectively referred to as the
"Bonds"), and if issued, such Additional Bonds will rank
pari passu with the Series 1982 Bonds and be equally and
ratably secured by and entitled to the protection of the
Indenture.
Pursuant to the Indenture, the Series 1982 Bonds
are subject to redemption on September 1, 1985, and on
September 1 of every third year thereafter, to and including
September 1, 2009 (each such September 1, beginning
September 1, 1985, being an "Escrow Redemption Date"), at
100% of the principal amount thereof plus accrued interest
to such Escrow Redemption Date as a result of a holder of a
Series 1982 Bond electing to have the Bond or portion
thereof redeemed, subject to the following conditions:
(a) The holder of the Series 1982 Bond
shall have properly delivered the Series 1982
Bond and a Form for Transfer included on the
Bondholder Election Notice in the form attached
to the Series 1982 Bond executed so as to permit
the transfer thereof to bearer, to Citibank,
N. A., New York, N. Y. as escrow agent (the
"Escrow Agent"), pursuant to the Escrow Agree-
ment (the "Escrow Agreement") the Escrow Agent
and the Company dated as of September 1, 1982,
at its principal corporate trust office in the
A-3
City of New York, on or before the close of
business on the August 1 immediately preceding
such Escrow Redemption Date but not before the
opening of business at such corporate trust
office on the July 1 immediately preceding such
Escrow Redemption Date, together with a properly
completed and executed Bondholder Election
Notice, all in accordance with the Escrow
Agreement; and
(b) The Company shall not have exercised
its option on or before the close of business on
the August 15 immediately preceding such Escrow
Redemption Date to purchase, pursuant to the
Escrow Agreement, all Series 1982 Bonds
delivered to the Escrow Agent by the holders
thereof for redemption, or shall not have made
the deposit of money and/or Government Obliga-
tion, as defined in the Indenture.
For the purposes of the above redemption provisions,
the Series 1982 Bonds may be redeemed in part only in
integral multiples of $5,000. Payment of such redemption
price, except for intent on Series 1982 Bonds, which will be
paid directly by the Trustee to the holders thereof, shall
be made to the Escrow Agent on behalf of the holders of the
Series 1982 Bonds so delivered.
The Series 1982 Bonds are also subject to prepay-
ment or redemption.as follows:
(a) On or after Me"hr 1, 1986, the Se-
ries 1982 Bonds may be prepaid as to principal
or redeemed prior to maturity in the event of a
prepayment of the Note at the option of the
Company, in whole a y t m� or in part on any
date (other than any date in
any calendar year during which Bondholders may
elect to have any of their Series 1982 Bonds
redeemed pursuant to the Indenture) in inverse
chronological order of principal payment dates
or maturities, in amounts equal to $5,000 or any
integral multiple thereof and chosen by lot or
other customary method determined by the Trustee
within each scheduled principal payment date or
maturity date if less than a full principal- c..
payment is to be prepaid or redeemed, at
redemption price set
a^Et b ' --- plus accrued
interest to thedate fixed for redemption or
prepayment*
Q '�I►� � 14o°ie
r_4,Nb,Ja+-kNnQre.Q
A-4
Re mption Re tion
Da as Pri
March 1, 1986 to ebruary 28 1987 02%
Ms,rc 1, 87 to ruary 28, 988 10 1/2%
Ma 1, 19 to Feb ary 28, 89 101%
March 1989 to Febru y 28, 19 00-1/
March 1990 and therea er 10.
i,
(b) At any time, the Series 1982 Bonds are
subject to redemption at the option of the
Company at the price of 100% of the principal
amount thereof plus accrued interest to the date
fixed for redemption if the Company determines
that (1) unreasonable burdens or excessive
liabilities are imposed by a body exercising
governmental or judicial authority; (2) long
.term operation of the Project is uneconomic; (3)
the Project is damaged or destroyed to such an
extent that it is not reasonable, in the opinion
of the Company, to repair, restore or rebuild
the Project; or (4) title to the whole or any
part of the Project or the use or possession
thereof shall have been taken or condemned by a
competent authority or other person for any
public purpose or use to the extent that the
Company would likely be prevented from carrying
on its normal operation of the Project for a
period of six months or more.
(c) At any time, the Series 1982 Bonds are sub-
ject to special mandatory redemption as a whole, at the
redemption price described below, upon the occurrence
of a "Determination of Taxability," as defined in the
Indenture.
In the event of such Determination, the Series
1982 Bonds shall be redeemed as a whole at a price equal to
100% of the principal amount then outstanding and the
accrued interest at the stated rate to the redemption date;
plus, an additional amount shall be payable, as full and
liquidated damages, calculated and determined in the manner
prescribed in Section 2.04 of the Indenture which provisions
relating to full and liquidated damages are incorporated
herein by reference and made a part hereof as if the same
were restated in full. The redemption date shall be the
earliest practicable date selected by the Trustee, after
consultation with the Company, but in no event later than 45
days following the Trustee's notification of a Determination
of Taxability.
A-5
THIS BOND IS A LIMITED OBLIGATION OF THE ISSUER
AND IS PAYABLE BY THE ISSUER SOLELY OUT OF THE REVENUES
ARISING FROM THE PLEDGE OF THE NOTE OF THE COMPANY PURSUANT
TO THE AGREEMENT AND OTHER FUNDS PLEDGED UNDER THE INDEN-
TURE. NEITHER THE STATE, THE UNIT, NOR ANY POLITICAL COR-
PORATION, SUBDIVISION OR AGENCY OF THE STATE SHALL BE OBLI-
GATED TO PAY THE BOND OR THE INTEREST THEREON AND NEITHER
THE FAITH - AND CREDIT NOR THE TAXING POWER OF THE STATE, THE
UNIT, OR ANY OTHER POLITICAL CORPORATION, SUBDIVISION OR
AGENCY THEREOF IS PLEDGED TO THE PAYMENT OF THE PRINCIPAL OF
OR THE INTEREST ON THIS BOND. 'The principal of, premium, if
any, and interest on this Bond are payable solely by the
Issuer from the funds pledged for the payment thereof in
accordance with the resolution authorizing the issuance of
the same and the Indenture. Pursuant to the provisions of
the Agreement and the Note, payments sufficient for the
prompt payment, when due, of the principal of, premium, if
any, and interest on the Bonds are to be paid to the Trustee
for the account of the Issuer and deposited in a' special
account created by the Issuer and designated "Bond Fund" and
have.been duly pledged and assigned for that purpose.
Reference is hereby made to the Indenture and the
Agreement, copies of which are on file with the Trustee, for
the provisions, among others, with respect to the nature and
extent of the rights, duties, obligations, and responsibili-
ties of the Company, the Issuer, and the Trustee, the terms
relating to the issuance of the Series 1982 Bonds, and the
security for the payment thereof and the terms and condi-
tions for amending, modifying, and supplementing the Inden-
ture and the Agreement; all of which provisions are in-
corporated herein by reference and to which the owner
hereof, by the acceptance of this Bond, assents.
THE OWNER of this Bond shall have no right to
enforce the provisions of the Indenture, or to institute any
action to enforce the covenants therein, or to take any
action with respect to any default under the Indenture, or
to institute, appear in, or defend any suit or other pro-
ceeding with respect thereto, except as provided in the
Indenture. The Indenture prescribes the manner in which it
may be discharged, including a provision that the Bonds
shall be deemed to be paid if certain obligations, as de-
fined therein, maturing as to principal and interest in such
amounts and at such times as will provide sufficient funds
to pay the principal of, premium, if any, and interest on
the Bonds and all fees and expenses of the Trustee and all
other liabilities of the Company under the Agreement shall
A-6
have been deposited with the Trustee, after which the Bonds
shall be no longer secured by or entitled to the benefits of
the Indenture, except for the purposes of exchange of Bonds
and of any such payment from such obligations.
THIS BOND may be assigned and shall be transferred
only on the Bond Registration Books kept by the Trustee, as
Registrar, upon the terms and conditions set forth in the
Indenture and the Assignment provisions •endorsed hereon.
Such transfers shall be without expense to the owner hereof,
but any taxes or other governmental charges required to be
paid with respect to the transfer of registration shall be
paid by the owner requesting such transfer as a condition
.precedent to the exercise of such privilege. Unless this
Bond is presented to the Trustee by the Escrow Agent
pursuant to an election. for redemption by the Bondholder,
the Trustee may, but shall not be required to, make
transfers of this Bond within ten (10) days prior to an
interest payment date or prepayment or redemption date or
subsequent to the date of mailing of notice of prepayment or
redemption or any principal installments of this Bond,
anything in this Bond to the contrary notwithstanding. The
registered owner of this'Bond may be deemed and treated by
the Issuer, the Trustee, and the Company as the absolute
owner thereof for all purposes, including payment and
discharge of liability upon such Bond to the extent of such
payment, and the Issuer, the Trustee, and the Company shall
not be affected by any notice to the contrary.
THE INDENTURE provides that all payments in the
nature of interest contained in the Agreement or this Bond
shall not exceed, and shall be subject to reduction to the
amount allowed under the usury laws of the State as now or
hereafter construed by the courts having jurisdiction, and
it is agreed by the holder or owner of this Bond that in no
event shall usury be contracted for, paid, or collected.
ALL ACTS, conditions, and things required by the
Constitution and statutes of the State and the Indenture to
exist, to have happened and to have.been performed precedent
to and in the issuance of this Bond, do exist, have happened
and have been performed; the issuance of this Bond and the
issue of which it forms a part, together with all other
obligations of the Issuer, does not exceed or violate any
constitutional or statutory limitation; and the revenues
arising from the Note pledged to the payment of the princi-
pal of, premium, if any, and interest on this Bond and the
issue of which it forms a part, as the same become due, will
be sufficient in amount for that purpose.
A-7
NO COVENANT or agreement contained in this Bond or
the Indenture shall be deemed to be a covenant or agreement
of any officer, agent or employee of the Issuer in his
individual capacity, and neither the Board of Directors of
the Issuer nor any official executing this Bond shall be
liable personally on this Bond or be subject to any personal
liability or accountability by reason of the issuance of
this Bond.
THIS BOND shall not be entitled to any benefit
under the Indenture or be valid or become obligatory for any
purpose, until this Bond shall have been authenticated by
execution by the Trustee, or its successor as Trustee, of
the Certificate of Authentication inscribed hereon.
IN WITNESS WHEREOF, this Bond has been signed with
the manual or facsimile signatures of the President and
Secretary of the Board of Directors of the Issuer, and the
official seal of the Issuer has been duly impressed, or
placed in facsimile, on this Bond.
LUBBOCK INDUSTRIAL DEVELOPMENT
AUTHORITY
By:
President; Board of Directors
ATTEST:
Secretary, Board of Directors
[ISSUER'S SEAL]
A-8
(FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION)
(Fully Registered Bonds)
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
.This Bond is one of the Series 1982 Bonds de-
scribed in the within mentioned Indenture of Trust and was
delivered to the initial purchaser on
MELLON BANK, N.A.
By:
Authorized Officer
(FORM OF ASSIGNMENT)
(To be endorsed on fully registered Bonds only)
FOR VALUE. RECEIVED, the registered owner of this
Bond last listed below sells, assigns and transfers the
within Bond to the Assignee last listed below, and hereby
authorizes the transfer of this Bond on the Bond Registra-
tion Books of the Trustee. Such Assignment shall not be
effective until such Assignee presents this Bond to the
Trustee for verification of such Assignment and gives the
Trustee its address to which payments shall be made and the
Trustee makes notation of such Assignment below.
Date of Registered Signature of
Assignment Owner Assignee Registrar
A-9
(FORM OF PREPAYMENT RECORD)
(To be endorsed on fully registered Bonds only)
Principal Remaining Name & Title of Signature of
Date of Prepayment Principal Authorized Officer Authorized
Payment or Redemption Balance Making Entry Official
A-10